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GAZETTE
OCTOBER 1989
as to the safeguard of the person
covered t he unborn life too.
Naturally people who want to make
sure of it want it written in and not
left dependent on the opinion of
judges.
Did it alarm you that on a major
political quastion tha Suprama
Court was baing brought to the
forefront?
»
It didn't alarm me at all in the sense
that, first of all, I didn't think there
was any possibility in the forsee-
able future of it happening. But
secondly, it d i dn 't alarm me
because the Supreme, Court has
exercised a very powerful influence
on the framing of certain types of
legislative interpretation. So I think
that the fears expressed were not
so much a distrust of the court but,
more, a recognition of the power of
the Supreme Court. In the case
where we said the restriction on
the importation of contraceptives
for a married couple was uncon-
stitutional, as being an invasion of
their marital privacy, that was seen
by everybody, including the politi-
cians, as having got the politicians
off the hook. They could go ahead
and legislate and say they had to do
it because the Supreme Court said
so. But if it had been left to them
to volunteer to do it, then some of
them would have been under great
pressure from their constituents.
When, after serving with O
Dalaigh for eleven years, he
went to the European Court of
Justice, would you say he
expected you to be Chief
Justice?
I think so but we never discussed
it. I don't know whether he ex-
pected it, he may have hoped it, but
being a realist he might have
realised that the expectation would
be less than the hope.
Now, many years later. Chief
Justices have come and gone
and you are still not Chief
Justice. Do you see that as a
political criticism of your work?
Oh, well, I don't know. It's very
hard to see it as anything in
particular. It's not a matter that
imp i nges very mu ch on my
thought. In many ways being
President of a court is slightly more
inhibiting than being an ordinary
member and so it doesn't affect me
personally. The judges are in no
sense regarded as working for the
Chief Justice, they are colleagues
of virtually equal standing.
That time that you spent with
0 Dalaigh; were they heady days
for you?
Well, one wasn't conscious of it at
the time but, looking back on it,
reading some of the judgements I
wrote myself twen ty years ago, I
feel I must have had a great deal of
energy in those days. I was of
course much younger than I am
now. I wasn't conscious of it. I felt
this was something I could do, I
wanted to do it and I did it. I always
believed, of course, that a judge's
function is to decide, not to dodge
the issue. Therefore I never found
it difficult to decide anything. I had
also to make sure that my decision
could be sustained wi th reasoning.
1 must confess that to that extent
life wasn't difficult for me, because
I had no trouble in arriving at
decisions. One was conscious that
this was new ground, yes, but it
didn't intoxicate one. Perhaps one
felt a certain gratitude that one was
there at that time to participate in
this.
What was O Dalaigh lika?
O Dalaigh was a man of absolute
integrity and, in many ways, a very
self-effacing, very modest man. But
he was extremely rigid in points of
principle and he would never, never,
never even consider, for a moment,
that some point should be softened
so as not to displease somebody.
Even when he was Attorney-
General, which effectively is almost
being a member of the government,
the members of the government
were quite afraid of him in the
sense that none of them would
even dare to make a suggestion to
him about anything. He wasn't in
the slightest bit aggressive, quite
the opposite. He was a man of deep
humility, but there was a certain
aura about him which put people
off any prospect of making any-
thing like an improper suggestion to
him. And this was conveyed on the
bench to everybody and they never,
never suggested that his decisions
were influenced by anything except
the highest principle.
Perhaps some people in the peak
of the administration might have
thought he was unduly rigid but
then of course rigidity is a virtue in
law; although perhaps not so much
in politics, where flexibility may be
necessary. But the great difference
of course is that judges are making
decisions on the basis that they are
for all time, whereas policy con-
siderations wh i ch influence a
government can change from day
to day. Therefore a decision which
may be perfectly justifiable today
may, wi th equal justification, be
changed tomorrow for purely policy
reasons. But the courts can't
operate like that. In the words of a
famous American jurist, the Con-
stitution means what the Supreme
Court says it means; it is as simple
as t ha t, and t he judges are
conscious of t hat in making
decisions.
O Dalaigh was an excellent
exponent of that view. He was also
a great upholder of the view that
every person should be heard. He
was a man of utmost politeness. It
had been the habit of judges to
refer to prisoners by their surname,
without calling them Mr. He always
made a point of referring, even to
the most disreputable character in
court, as Mr. or Miss, as the case
might be, and never did anything to
offend their human dignity. I am
afraid this should have been done
by all judges but even to this day is
not. He was an infinitely polite man;
very, very patient, but quite rigid in
principle. I never saw him lose his
temper. I never saw him cut any-
body off. He was very patient. He
followed the old adage that every
man is entitled to his day in court.
It's bean said that you ware tha
force behind O Dalaigh in many
ways. How did you work
together?
We didn't work in tandem in that
sense. Judges here in the Supreme
Court don't really have much in the
way of conferences, there might be
a brief discussion sometimes. But
he and I had much the same out-
look on things, if you like, and I had
perhaps the time and the ability to
do a great deal of research and
build up the thing. Even if I did
perhaps formulate a lot of the stuff
it would have been worthless un-
less he agreed wi th it. So to that
extent we didn't work in tandem
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