The Gazette 1994

GAZETTE

V I E W P 0 I N T > i

Se l ec t i ng t he Judges

The recent controversy surrounding the appointment of a new President of the High Court to succeed Mr. Justice Liam Hamilton underlines the urgency of finding an acceptable method of selecting candidates for appointment to judicial office in this country. We believe that it is now time to establish a Judicial Appointments Commission which would be given the role of identifying suitable candidates for appointment at all levels of the judiciary and making recommendations on such appointments to the Government. The formal act of appointing judges should remain in the hands of the executive but the task of identifying candidates for appointment should be removed from the executive. We would suggest that, inherent in any such new arrangement, would be the principle that the Government (and all successive Governments) would undertake to abide by the recommendations of the Commission and appoint judges on that basis. In ; that way, the need for constitutional change would be avoided and the i process of selection would be completely depoliticised. It could then become a convention of our constitutional and administrative | system that the Government would act only upon the advice of the Commission. There would be no departures allowable under any circumstances. There seems now to be a consensus emerging that the present system of appointment of judges leaves a lot to be desired. The recent debacle has undoubtedly brought the whole process into disrepute, has politicised the second highest judicial office in the State and has embroiled two very eminent persons in an unseemly political wrangle. That that should have happened is no fault of the individuals concerned. While it may be understandable that political parties

in a coalition Government would have disagreements from time to time about appointments of this nature, there is no excuse for the fact that this dispute was brought into the public domain. It should have been resolved quickly and in private. The membership of a Judicial Appointments Commission would obviously be a matter for careful consideration. Already, suggestions about this have been made publicly by the Chairman of the Bar Council and the former leader of the Progressive Democrats, Mr. Desmond O'Malley, TD. We would think that it ought not to be difficult to find agreement on its composition. One thing is certain, both branches of the legal profession - the Bar Council and the Law Society - should be represented. The Government would do well to look at the procedures set out in the Prosecution of Offences Act, 1974, which established a committee for selecting suitable candidates for appointment as Director of Public Prosecutions. A broadly similar approach is what is needed. In our view, an absolute precondition to the establishment of a Judicial Appointments Commission is the introduction of legislation which would make solicitors eligible for all judicial appointments. In our view, an absolute precondition to the establishment of a Judicial Appointments Commission is the introduction of legislation which would make solicitors eligible for all judicial appointments. Such a development is long overdue and we would earnestly hope that this matter will be addressed in the forthcoming Courts and Court Officers Bill which we understand is now at an advanced stage of preparation. The Law Society's views on this are very clear. The Society made a detailed

submission to the Minister for Justice in September 1992 putting forward the case for removing the ban on the appointment of solicitors in the Circuit Court and higher courts. The argument that only those who had engaged in advocacy in the superior courts should be appointed as judges in those courts has, we would submit, been discredited by the appointment of solicitors in other jurisdictions who have proved to be excellent judges. In our view, this argument is self- serving - put forward mainly by those who have a vested interest in the status quo. We would urge the Government to act quickly on these matters. The way forward is, we believe, entirely clear and there is no need for further equivocation. Amending legislation removing the ban on the appointment of solicitors in the superior courts should be a first step. That should be followed by the establishment of a Judicial Appointments Commission on an administrative basis (without legislation) but with clear terms of reference. The establishment of such a Commission would, we suggest, be accompanied by a statement from the Government giving a commitment to act on the recommendations of the Commission. All political parties should be asked to endorse that approach and to give a firm commitment to continue the policy if elected to Government in the future. A new convention to our Constitution would thus be brought into existence . Under the new system, the merit of the candidates themselves, rather than any alleged political affiliations, would be the sole determinant for appointment. If this were done, a cornerstone of our democratic system, the separation of powers, would be seen to be more clearly at work and respect for the political impartiality of our judges would be greatly enhanced. ! •

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