The Gazette 1989

GAZETTE

OCTOBER 1989

Judging the world Interview with Brian Walsh Justice, Supreme Court; Judge, European Court of Human Rights.

You were very young, forty-two. Why did you accept the appoint- ment? I had been a very active practitioner but I was also very interested in law. I thought I would like to be in the position of being able to decide the legal issues without having to fight for one particular side of it. So it put me in a position where I could make a more objective contribution towards the development of law, particularly constitutional law, which was a particular interest of mine. What happened in the partner- ship between you and the Chief Justice? No t h i ng t hat was designed happened. It was just that each of us had this particular outlook and, as we constituted two-fifths of the court and the others were not un- sympathetic to our point of view, it was a question of making the running. And in most cases the other judges, or most of them, would agree. It was really a case of what I might call a newer and younger generation of judges coming in. To that extent the judges were probably more forward-looking in the field of constitutional de- velopment, in giving life to a Constitution which, in the early days perhaps, had been regarded as an o r nament rather t han something of actual practical utility. From 1961 onwards the Consti- tution became very much part of life and its impact could be felt among the ordinary people, who suddenly became conscious of the fact that they had a Constitution, that it could be implemented and that, in fact, many parts of it were

self-executing and did not require any supporting legislation. The consciousness of this suddenly burst upon the public and it just happened to be that, in the years commencing around about 1960- 61, the court, for a variety of reasons, became very active. The most important reason was that it got the cases. The court is not self- starting and depends on cases. So it was a happy coincidence of the right cases coming along at a time when the court was most receptive to new ideas. The court may not be self- starting, but in cases which may have little relevance to the Constitution you can still develop the constitutional law by focusing on what may be peripheral issues and then bringing them to the centre. Do you agree? Yes, that can be done. To use modern parlance, one can put \

The following is the text of an interview with the Hon. IS/lr. Justice Brian Walsh, Judge, European Court of Human Rights, which was published in a book entitled Judging the World: Law and Politics in the World's leading Courts by Gary Sturgess and Philip Chubb, published by Butterworths in 1988. It is reprinted with kind permission of the publishers. Interviewer What was the basis of your being selected to serve on the When the Prime Minister offered me the appointment he said he would just like to mention one thing - he would never again refer to it - but he said he would like the Supreme Court to become more like the United States Supreme Court. So I pointed out to him there were certain differences. But that was his general idea. I understand, from what I learned subsequently, that he said much the same thing to the new Chief Justice, who was appointed the same day. That was the late Cearbhall O Dalaigh. Obviously it was t he Prime Minister's wish that the court should be more active in its interpretative role. It was put very briefly but quite clearly. I am not saying that necessarily influenced me in any particular way, because I think the horse was chosen for the course. He probably felt he was taking to somebody who had much the same views. I certainly was very much influenced by the American experience. I had studied it to a very considerable extent and kept myself familiar with it all through my career. Irish court? Brian Walsh

Brian Walsh.

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