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GAZETTE
SEPTEMBER 1989
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.
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