The Gazette 1983

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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