The Gazette 1993

GAZETTE

SEPTEMBER 1993

N E W S

Judge reflects on "Distinctive Qualities

of Irish Constitution

On the occasion of his retirement as

a judge of the Supreme Court on 30

July last, the Hon Mr Justice

Anthony Hederman, reflected on the

role of the judiciary in modern

society, the distinctive qualities of

the Irish Constitution and paid warm

tribute to his judicial colleagues and

staff in the Courts.

Acknowledging the kind remarks of the

Chief Justice, the Attorney General and

Michael O'Mahony, Senior Vice-

President of the Incorporated Law

Society, Mr Justice Hederman said:

"My thoughts to-day are a curious

mixture of pride and humility, and I am

proud to have had the opportunity to

participate in the judicial process as a

member of this court. No greater honour

could be bestowed on any practising

layer. I am, however, humbled by the

awesome responsibilities which attach

to judicial office.

"To be a judge requires full

independence in the exercise of one's

office. Independence not merely from

external pressure by the Executive or

by the Oireachtas or even by organs of

public opinion but also from the

pressures that may come from within;

examples such as bias, arrogance or

timorousness. Human frailty does not

evaporate when one is appointed to

high judicial office. In discharging the

judicial function, the judge has not

merely the privilege of judicial

i independence but also has to do his or

her best to rise above the limits of

personality and character which can sap

that freedom and tarnish the delivery

of justice. This is no mean task and one

that I am conscious that I may not

always have attained. To-day, however,

my sentiment is one of pride in having

served on this court."

The judge warmly praised the work of

the current Registrar and former

Registrars of the Supreme Court and

the Court of Criminal Appeal, the

secretarial and library staff. He

acknowledged the members of the

Garda Siochana who he said provided a

"discrete and fully effective presence in

Court when needed," and the press

corps which report proceedings faithf-

ully which was not always an easy task.

He thanked his "alter ego"

Mr Tommie

Barnes

"a truly loyal person and a

committed and accomplished helper."

He continued: "as I leave the court to-

day I have, of course, to reflect on the

role of the judiciary in modern society.

It is sometimes suggested that to be a

judge is to be remote from the real

world and cut off from the complexities

and subtleties of personal relationships.

No doubt this can be so in some

relatively rare incidents but I believe it

to be very much the exception in

Ireland because of the manner of

judicial appointments. Normally a

person appointed to the bench has had

many years experience in the courts

already as an advocate. In fact one has

to have practised for at least twelve

years before one is eligible to be

considered for judicial office in the

Superior Courts. If one is then to be a

successful advocate, able to engage in

effective examination and cross-

examination of witnesses and with the

power to address a judge or a jury

convincingly, it is essential to to

immerse oneself in the totality of the

facts of the case. To empathise with

one's client and also with the other

parties and the witnesses in the case,

even those dramatically opposed to

one's client. It is out of this capacity to

understand the truth and integrity of

other people's experiences that a

genuine worldly wisdom can develop.

An advocate who is removed from

reality, who stands aloof from the

dynamics of the relationships of a case

with which he or she has to deal with

will be a poor advocate and one who is

not likely to be a fully effective judge.

"It has been a very happy duty to

discharge my obligations as a judge

under Bunreacht na hEireann. Our

Constitution is based on the

philosophical proposition that certain

| rights inhere in human beings by virtue

of their humanity. The Irish Constitu-

tion is rooted in an understanding of the

human person as necessarily involving

human rights which are not and cannot

be the gift of the State either to bestow

or to withdraw. Since insight into the

nature of human rights infuses every

i constitutional principle, as judges we are

obliged to respect and protect human

rights even when it may be unpopular

for one so to do. Our task is to ensure

! that the human rights of all beings are

I protected and that no invidious

discrimination will be permitted.

"From my frequent discourses with

young lawyers, those who have been

recently called to the Bar or who indeed

are still studying at the University, I

| sense a growing appreciation of the

i distinctive qualities of our Constitution

as an instrument for protecting

fundamental human rights."

Mr Justice Hederman said that: "The

I torrent of court decisions with a

constitutional dimension have inspired

I a considerable body of stalwart analysis

both at home and abroad. Far from been

a backwater of ex-colonial

provincialism, Irish constitutional law

is now the object of very great interest

and respect at a universal level.

; "There are, of course, still the voices of

provincialism to be heard from time to

' time. There is still the suggestion in

| some quarters that because our

protection of fundamental rights is not

always echoed in other jurisdictions,

| we must have got it wrong. This lack of

confidence in the ability of Irish judges

j and in the depth of philosophical

insight underlining the fundamental

rights provision of our Constitution is

in my view very misplaced. As I leave

the bench to-day I know that my

colleagues will continue to strive to

I give full effect to the truly human

principles which ground our Constitu-

tion and which guarantee that every

member of our community will be

given true justice," he concluded.

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