The Gazette 1989

GAZETTE

SEPTEMBER 1989

Interview with Thomas Finlay Chief Justice, Supreme Court

The following is the text of an interview with the Hon. Mr. Justice Thomas Finlay, Chief Justice, which was published in a book entitled "Judging The World: Law and Politics in the World's leading Courts" by Gary Sturgess and Philip Chubb, published by Butterworths in 1988. It is reprinted with kind permission of the publishers. to the bench are controlled by the executive and a lot of Irish appointments seem to have been of people who have formerly been politicians, or connected with political parties. Is that good or bad? Thomes Finlay Speaking in ideal terms, it is a bad thing. In a perfect society one should be able to devise a better method of appointing the judiciary. I would have thought, however, that in my experience - as with many apparently unjustifiable theoretical procedures - it has worked extremely well. I can't remember any example of a person appointed to a judicial post of any importance in my time (and I came to the Bar in the mid '40s) whose previous political loyalty had the slightest effect on his judgments or in any way affected his capacity, as it were, to stand up for the individual against the existing government. At the end of the day somebody must be accountable for the standard and type of judiciary that is appointed. There is a significant amount to be said for making politicians accountable for it. They are the ones to whom the people in general can turn if bad judicial appointments are being made. If appointments are made by some body of people who are relatively anonymous then there is no one to turn to and to blame. Is the political life of judges before they come to the judiciary helpful in offering a breadth of experience? I think it is rather a help. I myself was an active politician for a number of years; I was a member of Dáil Éireann for three years. I was appointed to the High Court Bench by the party I had opposed and I have subsequently been appointed to other posts, to the Presidency of the High Court and to the Chief Justiceship, by the party with which I had been associated. I think my experience in politics gave me a general, broad approach to matters and, like any other experience, probably helps you as a judge. To what extent would you say that judges are political? It depends on the sense in which you are using the term political. I think that a person's politics consists of a whole bundle of thoughts and philosophies apart from adherence to a party. He may be a person who is naturally conservative; he may be a person with a very considerable regard for the rights of the individual, a regard that is greater and deeper than his regard for Interviewer Appointments

law and order. There are all sorts of balances of political approach in any person who is interested in politics. In so far as that is so, that there can be politics with a small 'p', I think that, necessarily, every judge must have a bundle of these ideas and philosophies. They are bound to have some effect, though they should never be allowed to dominate his judgments. But I don't think this makes him political in the bad sense. It doesn't make him a part of a political party, nor does it mean that because he is conservative on one point he is going to be conservative on another. I don't accept, certainly as far as the Irish judiciary is concerned, and particularly the Court of which I am the President, that there is a clear-cut cleavage between a right and left wing of the Court. The magazine commentators love this, but I don't believe it is true. It's much easier to write about the Court if you proceed on that basis, but in fact I think the performance of the judges shows that they approach individual cases in a different and individual way. Where do you place the Supreme Court as an institution of government? We have a constitutional theory called the separation of powers. The separation of powers consists essentially of the executive - the government of the day and all its officers, the legislature - the two houses and the President, and then the judiciary - the third separate power. I would have thought that in regard to the ordinary conditions of life, though not so much the economic of course, the judiciary, and in particular, the Supreme Court as the court of ultimate appeal, is contributing as much to the nuances of life in Ireland today as either of the two other separated powers of the Constitution. How much do you think the Supreme Court has affected Irish society? I suppose it has had two impacts, one of which was negative, h At periods in our history we have had a very disturbed country. There have been times when the enforcement of law and order became the sole objective, certainly a very dominant objective, of successive governments. At that time the Supreme Court, I would have thought, had a massively important negative role - protecting people against an excessive encroachment on their personal rights. In more recent times, while that is still a very important aspect of the work of the Court, I suppose you could say that there is a positive aspect too, involving less dramatic rights of the individual. The right of privacy is one, also certain economic rights arising from the ownership of property. We have constitutional guarantees against the failure of the State to protect property rights. These have become the subject matter of decisions by the Supreme Court in more recent times and, I would hope, they have made a major contribution to the fairness of society.

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