The Gazette 1993

GAZETTE

SEPTEMBER 1993

N E W S Judge reflects on "Distinctive Qualities of Irish Constitution w

On the occasion of his retirement as a judge of the Supreme Court on 30 July last, the Hon Mr Justice Anthony Hederman, reflected on the role of the judiciary in modern society, the distinctive qualities of the Irish Constitution and paid warm tribute to his judicial colleagues and staff in the Courts. Acknowledging the kind remarks of the Chief Justice, the Attorney General and Michael O'Mahony, Senior Vice- President of the Incorporated Law Society, Mr Justice Hederman said: "My thoughts to-day are a curious mixture of pride and humility, and I am proud to have had the opportunity to participate in the judicial process as a member of this court. No greater honour could be bestowed on any practising layer. I am, however, humbled by the awesome responsibilities which attach to judicial office. "To be a judge requires full independence in the exercise of one's office. Independence not merely from external pressure by the Executive or by the Oireachtas or even by organs of public opinion but also from the pressures that may come from within; examples such as bias, arrogance or timorousness. Human frailty does not evaporate when one is appointed to high judicial office. In discharging the judicial function, the judge has not merely the privilege of judicial i independence but also has to do his or her best to rise above the limits of personality and character which can sap that freedom and tarnish the delivery of justice. This is no mean task and one that I am conscious that I may not always have attained. To-day, however, my sentiment is one of pride in having served on this court." The judge warmly praised the work of the current Registrar and former Registrars of the Supreme Court and the Court of Criminal Appeal, the secretarial and library staff. He acknowledged the members of the

Garda Siochana who he said provided a "discrete and fully effective presence in Court when needed," and the press corps which report proceedings faithf- ully which was not always an easy task. He thanked his "alter ego" Mr Tommie Barnes "a truly loyal person and a committed and accomplished helper." He continued: "as I leave the court to- day I have, of course, to reflect on the role of the judiciary in modern society. It is sometimes suggested that to be a judge is to be remote from the real world and cut off from the complexities and subtleties of personal relationships. No doubt this can be so in some relatively rare incidents but I believe it to be very much the exception in Ireland because of the manner of judicial appointments. Normally a person appointed to the bench has had many years experience in the courts already as an advocate. In fact one has to have practised for at least twelve years before one is eligible to be considered for judicial office in the Superior Courts. If one is then to be a successful advocate, able to engage in effective examination and cross- examination of witnesses and with the power to address a judge or a jury convincingly, it is essential to to immerse oneself in the totality of the facts of the case. To empathise with one's client and also with the other parties and the witnesses in the case, even those dramatically opposed to one's client. It is out of this capacity to understand the truth and integrity of other people's experiences that a genuine worldly wisdom can develop. An advocate who is removed from reality, who stands aloof from the dynamics of the relationships of a case with which he or she has to deal with will be a poor advocate and one who is not likely to be a fully effective judge. "It has been a very happy duty to discharge my obligations as a judge under Bunreacht na hEireann. Our Constitution is based on the philosophical proposition that certain

| rights inhere in human beings by virtue of their humanity. The Irish Constitu- tion is rooted in an understanding of the human person as necessarily involving human rights which are not and cannot be the gift of the State either to bestow or to withdraw. Since insight into the nature of human rights infuses every i constitutional principle, as judges we are obliged to respect and protect human rights even when it may be unpopular for one so to do. Our task is to ensure ! that the human rights of all beings are "From my frequent discourses with young lawyers, those who have been j recently called to the Bar or who indeed are still studying at the University, I | sense a growing appreciation of the i distinctive qualities of our Constitution as an instrument for protecting fundamental human rights." Mr Justice Hederman said that: "The I torrent of court decisions with a i constitutional dimension have inspired I a considerable body of stalwart analysis both at home and abroad. Far from been a backwater of ex-colonial 1 provincialism, Irish constitutional law is now the object of very great interest and respect at a universal level. ; "There are, of course, still the voices of provincialism to be heard from time to ' time. There is still the suggestion in | some quarters that because our protection of fundamental rights is not always echoed in other jurisdictions, | we must have got it wrong. This lack of confidence in the ability of Irish judges j and in the depth of philosophical insight underlining the fundamental j rights provision of our Constitution is in my view very misplaced. As I leave the bench to-day I know that my colleagues will continue to strive to I give full effect to the truly human principles which ground our Constitu- j tion and which guarantee that every I protected and that no invidious discrimination will be permitted. I

member of our community will be given true justice," he concluded.

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