The Gazette 1989

SEPTEMBER 1989

GAZETTE

You have mentioned that being a former politician can provide a broader understanding of the way in which society works. Do you find that, in the area of review of administrative decisions, there is an unspoken agreement between government and the judiciary that there is a point beyond which the judiciary can't go? The answer to that is relatively straightforward: the judiciary has laid down, and interpreted the Constitution as laying down, a very clear-cut separation of powers between it and the government and between it and the legislature. It has been jealous in protecting its area. The most obvious way in which that happens is that pieces of legislation, for example, which are even partly capable of being interpreted as giving to some administrative officer, such as a civil servant or a Minister of State, the power to make what should be a judicial determination, are immediately struck down as being inconsistent with the Constitution. As a quid pro quo to that, I think it would be fair to say that the courts have been careful to set the limits to their own jurisdiction and, in particular, have repeatedly stated that the choice of economic objectives, the choice of social objectives, is peculiarly a matter for government as controlled by the legislature. While the Court will impede or inhibit a government which appears to be invading the rights of an individual for no good reason, it will not impede or inhibit a government; on the basis that it - the Court - would prefer a different course or would be aiming at a different objective. If the government has an objective, then the Court will not intervene on the basis that the objective is wrong, provided the Court is satisfied that what is being done is necessary for achieving the stated objective. / would have thought that, if the court was confronted with a social objective it didn't agree with, all sorts of technical legal mechanisms could be brought to bear? I would hope we haven't ever done that and I certainly would be very strongly opposed to doing it. I don't think it has happened, literally. I think we have carefully maintained the separation of our powers, and we have not sought to invade the field of government. There are occasions when it is impossible to divine the social policy of a government. What then is the social policy role of the court? A very great number of rights, rights of property in particular but also other rights - freedom of association, freedom of speech and so on - all the constitutional rights of that description, are granted subject to the exigencies of the common good, public order and morality, various phrases of that kind. Where, therefore, there is a restriction or an invasion of one or other of these rights by a piece of legislation, the first inquiry which the Court must make is whether the legislation has an object that is plausibly related to the common good, the public good, public order or public morality. If there is, then it may be, provided the invasion is not excessive for that objective, that it is consistent with the Constitution. But if there is none, and if those contending for the constitutional validity of the measure cannot put up an objective plausibly related to the common good, then it may be that the invasion falls simply by reason of it being an invasion without justification.

The Hon. Mr. Justice Thomes A. Finlay, Chief Justice.

The American Supreme Court has the Brandeis brief, where social facts are brought before the Court. Do you have any simitar mechanisms in Ireland? We have none that we originate ourselves. Every case we try is a case on appeal. All other cases of a constitutional nature are appeals from the High Court and in the High Court there will be evidence led on social matters, economic matters, on social objectives, on the consequences of the statute or legislation, that type of thing. We will accept the finding of a High Court judge on that evidence, provided it is supported by the evidence. We won't make our own finding, won't hear our own evidence. Would you be happy with dissenting opinions if you were allowed to have them? I think not, although there are varying views about this. I know that some of my colleagues feel, and respectfully feel due to our allegiance to the Constitution, that it was an error not to provide this in the Constitution and that we would be better with dissenting judgments. I rather think not, because I think there is a lot to be said for coming as near to certainty and finality as you can get in constitutional issues. I think on balance the single decision is a good one. Do you believe judges are isolated? They must be isolated because, in a small community such as this, a very considerable amount of ordinary social activity is unwise. They become identified with people and points of view, and litigants may not think they are getting a fair trial. If you say: 'Are they being isolated from life as it goes on?' I don't think so. We haven't got a very pompous or severe form of isolation. I drive myself, I travel where I want, and engage in any sporting activity I want. I meet people, not as a judge but as an individual. Also, don't forget that watching cases going on before you every day in court is the closest you will get to humanity. So I don't think you become isolated in the full sense of the word at all. •

243