Role Of Superior Court Judges INTRODUCTION: Law is one part of a set of processes, social, political, economic and cultural, which shape and direct the development of society. Like all other mechanisms the law seeks to govern human behaviour. The Irish law system belongs to common law systems established in England by the Norman’s. This type of law responded to actual rather than anticipated problems. In contrast the law in the civil system is contained in comprehensive codes which are enacted by legislators and which attempt to provide for every legal contingency.
Case law or ‘la jurisprudence’ has lesser significance and lacks the quality of enjoying in the force of law. Sources of law include Common law, Legislation, Constitution, E.C law, Custom, Canon and international. The courts currently in operation are the District, Circuit, High, Special Criminal, Court of Criminal appeal and the Supreme Court. In the Constitution Articles 34 to37[which are headed ‘The Courts’] provide a broad outline regarding the structure of the court system and in terms of legal validity whatever structures exist must conform to the basic framework established by the Constitution. Article 34.1states that ‘justice shall be administered in courts established by law by Judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as prescribed by the law, shall be administered in public’. This signifies that the Irish Constitution has adopted the principle that the administration of justice must be assigned to a separate arm of government, in accordance with the doctrine of the separation of powers which was central to the American and French revolutions of the eighteenth century.
The significant feature of Articles 34 to 36 of the Constitution is that they refer specifically to the High Court and Supreme Court. By mentioning these it has shown that these courts have special status. These courts are the highest courts in the land with the Supreme Court being the court of final appeal. Up until 1961 the courts in operation were ‘transitory’ courts under Article 58 of the Constitution. After the state[Killian] versus Minister for Finance[1954 IR207]the courts[establishment and Constitution]act 1961 was passed to regularize the position and ‘establish’ the court system envisaged by Article 34.1.
This system remains in existence today and is where Judges operate under. Political Aspects. Under the Constitution the judicial function is the third organ of government and consists of the interpretation of the Constitution and the law and its application by rule or discretion to disputes which arise between the State and the individual, and between individual and another individual. Justice is to be administered in courts, established by statute law, by judges appointed in the manner prescribed in the Constitution (Article. 34) The President appoints judges of the ordinary courts. A judge cannot be a member of the Oireachtas, or hold any other position of emolument (Article.
35) and on appointment makes a constitutional declaration to ‘duly and faithfully and to the best of his knowledge and power execute the office without fear or favour, affection or ill-will towards any man, and that he will uphold the Constitution and the laws.’ Should this declaration not be made within ten days of entering office, a judge is considered to have vacated that office (Article. 34). The appointment of a judge on the advice of the Government is not one of presidential discretion, but is a function which, in conformity with Article 13.9, is to be performed ‘only on the advice of the Government’. The appointment of a judge, as Finlay P. said in The State (Walshe) V. Murphy is an act ‘requiring the President’s intervention for its effectiveness in law, (but) in fact (it is) the decision and act of the Executive’. This means that any attempt to change the system of appointment by ordinary legislation – by, e.g., requiring the consent of both Houses of the Oireachtas – would probably be unconstitutional in as much as it trenched on a constitutional right of the Executive.
In The State (Killian) V. Minister for Justice, the Supreme Court accepted that the judges whose appointment was envisaged by this section were judges of the courts contemplated by Article. 34, i.e., courts which in 1937 were yet to be established. When these were eventually set up in 1961, by the Courts (Established and Constitution) Act of that year, the courts established by the Courts of Justice Act, 1924, and continued in their jurisdictions by the transitory provisions of Article 58., were extinguished. The judges of the old courts, however, were maintained in the equivalent ‘new’ judicial offices, by virtue of the special ‘new’ judicial offices, by virtue of the special provisions of sub-sections 5, 17 and 29 of the Courts (Supplement Provisions) Act 1961. As these were technically fresh appointments, fresh declarations under Article 34.5 had to be made.
Legal Aspects. Under the ‘Courts and Court Officers Act, 1995’, it states that a body of people, who identify and inform the government of the suitability of the people who are to be appointed to a judicial office. This body is known as the Judicial Appointments Advisory Board. The board consists of: The Chief Justice, who is chairperson of the board The President of the High Court The President of the Circuit Court The Attorney General A practicing barrister, who is nominated by the Chairperson of the Board and of the Council of the Bar of Ireland A Practicing solicitor, who is nominated by the President of the Law Society of Ireland Also no more than 3 people appointed by the Minister who are engaged in, or have knowledge or experience of commerce, finance, administration or have experience as consumers of the services provided by the courts that the Minister considers appropriate A person appointed to be a member of the Board who are a barrister or a solicitor and who are appointed by the Minister, are only allowed to be a member of the Board for not more than 3 years but they are eligible for re-appointment to the Board. The Board can act notwithstanding a vacancy an its membership.
A person who wishes to be considered for appointment to judicial office shall so inform the Board in writing and shall provide the Board with such information as it may require to enable it to consider the suitability of that person for the judicial office, including information in relation to education, professional qualifications, experience and character. The Board shall where a judicial office stands vacant, or a vacancy in a judicial office arise, submit to the Minister the name of each person who wishes to be considered for appointment and shall recommend to the Minister at least seven people for the appointment to that judicial office. In advising the President in relation to the appointment of a person to a judicial office, the government shall firstly consider for appointment those people whose names have been recommended to the Minister. A notice of an appointment to judicial office shall be published in the ‘Iris Oifiguil’ and the notice shall include a statement that the name of the person was recommended by the Board to the Minister. ‘Law and Politics’ Shaping the Future While law and Politics are not supposed to mix, political allengiegence and beliefs of Judges play a significant role in their appointment. The system of judicial appointment was described as “a Judicial appointment does not ‘just happen’.
It is in a very real sense the finest and the most desirable appointment that the Government can make. It is a status appointment. In the past, and maybe even today Judges sought to win favour of the Government by in ‘State cases’ or by getting to know members of Government personally. While there was certainly a political element to judicial appointment for many years, it must be stated tough that they must have met the qualification standards and they were required to remain independent in their decisions. The system had come in for some criticism and since 1995 new arrangements have been in place which established a more transparent process for judicial appointments.
This was established under the Courts and Court Officers Act 1995. An example of how this changed the system of appointments is seen in Section 16 of the Act. This provides that Judges must agree to undertake to any course of training or education required. It is clear that the system of appointments is getting better. It is probably true to say that members of the Judiciary remain largely from the middle classes. However as society becomes more developed and liberalised, future and present generations through the ever increasing role of the Media will not tolerate a closed system of appointments by the Government The “Separation of Powers” Within the Irish Law system both the 1922 and 1937 Constitutions details the powers of government as of three distinct types, LEGISLATIVE, EXECUTIVE and JUDICIAL, but neither of the Constitutions actually prescribes a “separation of power”.
As O Dalaigh stated, that “the Constitution of Ireland is found on the doctrine of a tripartite division of the powers of government”, where limitations are put in place of the power of the Legislature and the Executive. Lavery J said of the old article 2 in O’Byrne v Minister for Finance, “the separation of powers” was “imperfect” so far as the decision-making and law-making powers were concerned and “definite” only in the respect of the legal power, though Walsh J said in Murphy v Dublin Corporation that the division of powers “does not give paramount in all circumstances to any one of the organs exercising the powers of government over the other”; and the Supreme Court recognized in Abbey Films Ltd. V Attorney General that “the framers of the Constitution did not adopt a rigid separation between legislative, executive and judicial powers”. Johnston J also agreed that the separation of power in Ireland was “imperfect” and even went a step further by stating that in “no system of which I have any knowledge has it been found to be possible to confine the legislative, the executive and the judicial power each in what I may call its own water-tight compartment; and, if such a thing were to be attempted, the result, I fear, would be so much the worse for the compartment.” The courts have searched to identify the limits of judicial power with a view to avoid judicial breach on the legislative functions of the government. Very predictably, the legislate process itself has been recognized as being beyond the capacity of judicial review, other than in accordance with article 26- Wireless Dealers’ Association v fair Trade Commission.
The bench cannot interfere in the process of alter the Constitution. The courts, however, have discovered that some of the legislation is open to interpretation and thus rules were put in place so as to stop the courts from adding or deleting from express statutory provisions so as to achieve objectives which appear pleasing to the courts or which are notably different from those formerly intended by the legislature. The Aristotelian distinction between commutative and Distributive justice, at least mark out the dividing line between the judicial and legislative spheres of operation, i.e. between the relationships which arise in dealings between individuals and the relationship which arises between the individual and those in authority in a political community when goods held in common for the benefit of the entire community fall to be distributed and allocated. Apart from the power of the superior courts to reconsider acts of the Oireachtas on constitutional principle; the courts may also- review subordinate legislation on criteria of vires both substantive and procedural. In addition, law-making functions are in practice often exercised by organs-such as Ministers- whose activity is mainly executive, in making regulations and orders of general application, though of course under the authority of the Oireachtas: and again, though no specific notice is taken of the fact in the Constitution, the commencement of legislation is for practical purposes exclusively in the hands of the executive.
Some cases have affirmed certain borders between executive and judicial functions in relation …