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GAZETTE
SEPTEMBER 1983
tensive to authorise the courts to take any action
necessary for the due administration of justice, includ-
ing the power to try summarily those accused of interfer-
ing in any manner with the administration of justice.
Article 35.2 stipulating that judges shall be independ-
ent in the exercise of their functions was also relevant to
a consideration of the issues raised in the case. This de-
claration of judicial independence represented more
than a pious platitude. It was a solemn recognition by the
People in enacting the Constitution that the Judiciary as
the custodians of the rights of the citizen would be free
from all other organs of State in discharging judicial
functions. The constitutional charter would be a mere
form of words, devoid of substance and meaning, if
when court proceedings were obstructed, witnesses
suborned or threatened by criminal conduct, judges
endeavouring to administer justice in the proceedings
attacked or threatened had to seek assistance from
another authority. The Chief Justice continued:
"Such conditions, if they obtained, would constitute
the very antithesis of independence and would in fact
amount to judicial dependence of a most demeaning
kind".
This undoubtedly amounts to a powerful piece of
judicial rhetoric. Indeed it smacks somewhat of the
statement of Kennedy C. J. in
Lynham
v
Butler
wherein 54
he said that the judicial power of the state is deposited
with us and the other constitutional courts will be the
subject of our special watchfulness even to the point of
jealousy. With respect, it might plausibly be contended,
that in the judgment of O'Higgins C. J. judicial jealousy
for the preservation of powers traditionally associated
with the courts has reached the furthest limit. Certainly
the judgment portrays a marked lack of confidence in
the willingness of co-ordinate brances of government to
enforce the judicial will. In
Buckley
v
A.G
.
55
the
Supreme Court spoke of the respect which one great
organ of state owes to another. This respect is very much
at variance with the erection of a rule that is intended to
be of universal application and which has as its supposed
justification the possibility that the administrative and
executive arms of the state would abdicate their con-
stitutional duties. The Chief Justice was evidently of the
opinion that a summary jurisdiction in cases of contempt
was necessary to ensure the effective administration of
justice. Stark necessity is an impressive and often
compelling thing, but, unfortunately it has all too often
been affirmed loosely and without reason, in the law, as
elsewhere to justify that which is in truth unjustifiable.
Experience and sagacity are shown in the following
statement by a proponent of the abolition of summary
trial of criminal contempt.
"Not one of the oppressive prerogatives of which the
Crown has been successively stripped in England, but
was in its days, defended on the plea of necessity. Not
one of the attempts to destroy them, but was deemed a
hazardous innovation".
56
The majority judgment of Henchy J. in
The State
(
D. P . P
. ) v
Walsh and Connelly,
took a diffenent line
than that of the Chief Justice in attempting to harmonise
the essence of the apparently conflicting constitutional
provisions in a unified scheme that preserved the sub-
stance of each of the relevant guarantees. The earlier Irish
authorities were examined and analysed by the learned
judge but in none of them could he find a sure or
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213