The Gazette 1994

GAZETTE

V I E W P 0 I N T

Se l ec t i ng t he Judges

The recent controversy surrounding

the appointment of a new President of

the High Court to succeed Mr. Justice

Liam Hamilton

underlines the urgency

of finding an acceptable method of

selecting candidates for appointment

to judicial office in this country.

We believe that it is now time to

establish a Judicial Appointments

Commission which would be given

the role of identifying suitable

candidates for appointment at all

levels of the judiciary and making

recommendations on such

appointments to the Government. The

formal act of appointing judges should

remain in the hands of the executive

but the task of identifying candidates

for appointment should be removed

from the executive. We would suggest

that, inherent in any such new

arrangement, would be the principle

that the Government (and all

successive Governments) would

undertake to abide by the

recommendations of the Commission

and appoint judges on that basis. In

; that way, the need for constitutional

change would be avoided and the

process of selection would be

completely depoliticised. It could then

become a convention of our

constitutional and administrative

| system that the Government would act

only upon the advice of the

Commission. There would be no

departures allowable under any

circumstances.

There seems now to be a consensus

emerging that the present system of

appointment of judges leaves a lot to

be desired. The recent debacle has

undoubtedly brought the whole

process into disrepute, has politicised

the second highest judicial office in

the State and has embroiled two very

eminent persons in an unseemly

political wrangle. That that should

have happened is no fault of the

individuals concerned. While it may

be understandable that political parties

in a coalition Government would have

disagreements from time to time about

appointments of this nature, there is

no excuse for the fact that this dispute

was brought into the public domain. It

should have been resolved quickly and

in private.

The membership of a Judicial

Appointments Commission would

obviously be a matter for careful

consideration. Already, suggestions

about this have been made publicly by

the Chairman of the Bar Council and

the former leader of the Progressive

Democrats, Mr.

Desmond O'Malley,

TD. We would think that it ought not

to be difficult to find agreement on its

composition. One thing is certain,

both branches of the legal profession -

the Bar Council and the Law Society -

should be represented. The

Government would do well to look at

the procedures set out in the

Prosecution of Offences Act, 1974,

which established a committee for

selecting suitable candidates for

appointment as Director of Public

Prosecutions. A broadly similar

approach is what is needed.

In our view, an absolute precondition

to the establishment of a Judicial

Appointments Commission is the

introduction of legislation which

would make solicitors eligible for all

judicial appointments.

In our view, an absolute precondition

to the establishment of a Judicial

Appointments Commission is the

introduction of legislation which

would make solicitors eligible for all

judicial appointments. Such a

development is long overdue and we

would earnestly hope that this matter

will be addressed in the forthcoming

Courts and Court Officers Bill which

we understand is now at an advanced

stage of preparation. The Law

Society's views on this are very clear.

The Society made a detailed

submission to the Minister for Justice

in September 1992 putting forward the

case for removing the ban on the

appointment of solicitors in the Circuit

Court and higher courts. The argument

that only those who had engaged in

advocacy in the superior courts

should be appointed as judges in

those courts has, we would submit,

been discredited by the appointment of

solicitors in other jurisdictions who

have proved to be excellent judges.

In our view, this argument is self-

serving - put forward mainly by those

who have a vested interest in the

status quo.

We would urge the Government to act

quickly on these matters. The way

forward is, we believe, entirely clear

and there is no need for further

equivocation. Amending legislation

removing the ban on the appointment

of solicitors in the superior courts

should be a first step. That should be

followed by the establishment of a

Judicial Appointments Commission

on an administrative basis (without

legislation) but with clear terms of

reference. The establishment of such a

Commission would, we suggest, be

accompanied by a statement from the

Government giving a commitment to

act on the recommendations of the

Commission. All political parties

should be asked to endorse that

approach and to give a firm

commitment to continue the policy if

elected to Government in the future. A

new convention to our Constitution

would thus be brought into existence .

Under the new system, the merit of

the candidates themselves, rather than

any alleged political affiliations,

would be the sole determinant for

appointment. If this were done, a

cornerstone of our democratic system,

the separation of powers, would be

seen to be more clearly at work

and respect for the political

impartiality of our judges would be

greatly enhanced.

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