The Gazette 1989

GAZETTE

OCTOBER 1989

inhibiting than being an ordinary member and so it doesn't affect me personally. The judges are in no sense regarded as working for the Chief Justice, they are colleagues of virtually equal standing. That time that you spent with 0 Dalaigh; were they heady days for you? Well, one wasn't conscious of it at the time but, looking back on it, reading some of the judgements I wrote myself twen ty years ago, I feel I must have had a great deal of energy in those days. I was of course much younger than I am now. I wasn't conscious of it. I felt this was something I could do, I wanted to do it and I did it. I always believed, of course, that a judge's function is to decide, not to dodge the issue. Therefore I never found it difficult to decide anything. I had also to make sure that my decision could be sustained wi th reasoning. 1 must confess that to that extent life wasn't difficult for me, because I had no trouble in arriving at decisions. One was conscious that this was new ground, yes, but it didn't intoxicate one. Perhaps one felt a certain gratitude that one was there at that time to participate in this. What was O Dalaigh lika? O Dalaigh was a man of absolute integrity and, in many ways, a very self-effacing, very modest man. But he was extremely rigid in points of principle and he would never, never, never even consider, for a moment, that some point should be softened so as not to displease somebody. Even when he was Attorney- General, which effectively is almost being a member of the government, the members of the government were quite afraid of him in the sense that none of them would even dare to make a suggestion to him about anything. He wasn't in the slightest bit aggressive, quite the opposite. He was a man of deep humility, but there was a certain aura about him which put people off any prospect of making any- thing like an improper suggestion to him. And this was conveyed on the bench to everybody and they never, never suggested that his decisions were influenced by anything except the highest principle.

as to the safeguard of the person covered t he unborn life too. Naturally people who want to make sure of it want it written in and not left dependent on the opinion of judges. Did it alarm you that on a major political quastion tha Suprama Court was baing brought to the forefront? » It didn't alarm me at all in the sense that, first of all, I didn't think there was any possibility in the forsee- able future of it happening. But secondly, it d i dn 't alarm me because the Supreme, Court has exercised a very powerful influence on the framing of certain types of legislative interpretation. So I think that the fears expressed were not so much a distrust of the court but, more, a recognition of the power of the Supreme Court. In the case where we said the restriction on the importation of contraceptives for a married couple was uncon- stitutional, as being an invasion of their marital privacy, that was seen by everybody, including the politi- cians, as having got the politicians off the hook. They could go ahead and legislate and say they had to do it because the Supreme Court said so. But if it had been left to them to volunteer to do it, then some of them would have been under great pressure from their constituents. When, after serving with O Dalaigh for eleven years, he went to the European Court of Justice, would you say he expected you to be Chief Justice? I think so but we never discussed it. I don't know whether he ex- pected it, he may have hoped it, but being a realist he might have realised that the expectation would be less than the hope. Now, many years later. Chief Justices have come and gone and you are still not Chief Justice. Do you see that as a political criticism of your work? Oh, well, I don't know. It's very hard to see it as anything in particular. It's not a matter that imp i nges very mu ch on my thought. In many ways being President of a court is slightly more

Perhaps some people in the peak of the administration might have thought he was unduly rigid but then of course rigidity is a virtue in law; although perhaps not so much in politics, where flexibility may be necessary. But the great difference of course is that judges are making decisions on the basis that they are for all time, whereas policy con- siderations wh i ch influence a government can change from day to day. Therefore a decision which may be perfectly justifiable today may, wi th equal justification, be changed tomorrow for purely policy reasons. But the courts can't operate like that. In the words of a famous American jurist, the Con- stitution means what the Supreme Court says it means; it is as simple as t ha t, and t he judges are conscious of t hat in making decisions. O Dalaigh was an excellent exponent of that view. He was also a great upholder of the view that every person should be heard. He was a man of utmost politeness. It had been the habit of judges to refer to prisoners by their surname, without calling them Mr. He always made a point of referring, even to the most disreputable character in court, as Mr. or Miss, as the case might be, and never did anything to offend their human dignity. I am afraid this should have been done by all judges but even to this day is not. He was an infinitely polite man; very, very patient, but quite rigid in principle. I never saw him lose his temper. I never saw him cut any- body off. He was very patient. He followed the old adage that every man is entitled to his day in court. It's bean said that you ware tha force behind O Dalaigh in many ways. How did you work together? We didn't work in tandem in that sense. Judges here in the Supreme Court don't really have much in the way of conferences, there might be a brief discussion sometimes. But he and I had much the same out- look on things, if you like, and I had perhaps the time and the ability to do a great deal of research and build up the thing. Even if I did perhaps formulate a lot of the stuff it would have been worthless un- less he agreed wi th it. So to that extent we didn't work in tandem

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