Impartiality in Judicial Appointments: an Absent Concept?

AuthorMichael J S Moran
PositionSenior Sophister LLB Candidate, Trinity College Dublin
Pages5-20
IMPARTIALITY
IN
JUDICIAL
APPOINTMENTS:
AN
ABSENT
CONCEPT?
MICHAEL
J
S
MORAN*
Introduction
Over
the
past
number
of
years,
there
has
been much
public
debate
surrounding
the
difficulty
of
removing
a
judge
from
office
outside
the
impeachment provisions contained
within
the
Irish
Constitution.' Initially
prompted
by
the
Sheedy
affair,
this debate
resurfaced
more
recently
in
relation to
the
long-running
Curtin
case.
2
Yet
if
one
is
to
scrutinise the way
in
which
we
remove
judges
who
fail to
reach acceptable
standards,
it
is
imperative
that
one
also
casts
scrutiny
on
the
way
in
which
we
appoint
our
judges
to
begin
with.
This
article
proposes
to
assess
current
judicial
appointment
procedures
in
Ireland,
specifically
in
relation
to
the
Superior
Courts. It is
*
Senior
Sophister
LLB
Candidate,
Trinity
College
Dublin.
The
Author
is
grateful
to
Abby
Semple and
Fergus
O'Domhnaill
for
their
editorial
comments,
and
to Sinead
Skelly
and
Enda
Haran
for
proof
reading
an
earlier
draft
of
this article.
The
Author
wishes
to
dedicate
this
article
in
memory
of
his
grand
uncle,
Joseph
Sylvester
Moran.
1 Article
35.4.10
provides
that
a
judge
of
the
Supreme
Court
or
the High
Court shall
not
be
removed
from
office
except
for
stated
misbehaviour or
incapacity,
and
then
only
upon
resolutions
passed
by
Dail
Eireann
and Seanad Eireann
calling
for
his
removal.
Several
unresolved issues
arise
under
this
clause
such
as
what amounts
to
'misbehaviour'
and
whether
joint
resolutions for
the
removal
of
a
judge
are
reviewable
by,
or
can be
set
aside
by,
the
Courts.
See
generally,
Michael Forde,
Constitutional
Law
(2nd
ed,
First
Law,
2004),
at
162.
2
The
Sheedy
affair caused
the
resignation
of
two
judges
in
1999
in
circumstances
where
it
seemed
that
they
had not
acted
with
complete
impartiality.
Following
an
inquiry
into
the
matter,
Chief
Justice
Liam
Hamilton
concluded that
the
interention
of
O'Flaherty
J
of
the
Supreme
Court
in
suggesting
the
relisting
of
the
case
of
Philip
Sheedy,
who
had
been
convicted
of
drunken
and
dangerous driving
causing
death,
was
inappropriate
and
unwise.
Under
threat
of
impeachment,
O'Flaherty
J
resigned.
The
affair
also
resulted
in
the
resignation
of
Kelly
J
of
the
High
Court
and
almost
caused
the
collapse
of
the then
coalition government.
See
generally,
The
Irish
Times,
17
April
1999.
The Curtin
case
involved
the
collapse
of
the
trial
of
Circuit Court
Judge Brian Curtin
in
2004. Judge
Curtin
was
controversially
acquitted
of
the
charge
of
possessing
child pornography
when
it
emerged that
the
warrant
used to
search
his
house
and seize
his
computer
was
out
of
date.
The
case
raised many
questions
about
how
judicial
misconduct
should
be
handled.
Despite
the
setting up
of
a
special
Oireachtas
committee
to
consider
his
conduct,
Judge
Curtin
eventually resigned from
the
bench
in
2006.
See
generally,
The
Irish
Times,
14
November
2006.
©
2007
Michael
J
S
Moran
and Dublin University
Law
Society
Trinity College Law
Review
hoped
to
consider
the
key
factors affecting
judicial
power
in
this
area,
to
set
out
current
inadequacies
in
the
law
and
to
suggest
a
number
of
proposals for
reform.
The
Importance
of
Appropriate
Selection
of
Superior
Court
Judges
Before embarking
on
the
substantive
aspects
of
the article,
it
is
prudent
to
establish
why
the
most appropriate
method
of
judicial
selection
should
be
in
place.
The answer
to
this
question,
in
essence,
is
that
judges
of
the
Superior Courts, particularly the Supreme
Court,
play
a
central
role
in
our
democracy
and
therefore
must be
appropriately
expert,
completely
impartial
and
transparently appointed
on
the
basis
of
their
merit.
As
final
interpreters
of
our
Constitution,
judges
routinely
decide
on
issues
of
fundamental
significance,
including
the
allotment
of
rights,
responsibilities
and
entitlements.
3
In
fact,
the
relevance
of
the crucial
role
played
by
the
judiciary
has
never been
more
obvious; recent decisions
have
required
judges
of
the
Superior Courts
to
consider
matters
as
diverse
as
when
legal
protection should
be
afforded
to
human
life,4
whether
an
adopted
child
should
be
returned
to
its
natural parents
on
their
subsequent
withdrawal
of
consent
to
that
adoption,
5
and
whether
the definition
of
marriage
should
encapsulate couples
of
the
same
sex.
6
In
many
respects,
it could
be argued that
the
failure
of
the legislature
to
make
difficult
policy
decisions,
for
political reasons,
on
matters
such
as
abortion, in
vitro
fertilisation,
adoption
and marriage,
has
resulted
in the
Courts being forced
into
playing
such
a
central
role
in
the
everyday
life
of
the
Irish
citizen.
Indeed,
for
the
most
part,
it
might
be
said
that
the
movement
of
the
judiciary
to this
central
position
has
been for
the good.
7
However,
the
consequential
strengthening
of
judicial
activism
requires
us
3
According
to
McCarthy:
[judges]
decide
the fate
of
hundreds
of
people everyday, companies
are bankrupted
and
citizens
incarcerated
by
their decisions.
The
judiciary
is
a
small
clique
of
depersonalised individuals,
on
whose
shoulders
rest
a
huge
responsibility.
David McCarthy,
"Constitutional
-
Separation
of
Powers
-
President
and
Judiciary"
[2004]
COLR
13.
4
MR
v
TR
&
Ors
(The
Frozen
Embryos
Case).
5
N
&
Another
v
Health
Service Executive
&
Ors
(The Baby
Ann Case).
6
Zappone
and
Gilligan
v
Revenue
Commissioners,
14
December
2006
(HC).
This
decision
is
currently
under
appeal
to the
Supreme
Court.
7
See
generally,
David
Gwynn Morgan,
"Benchmark,
Judicial
Activism Irish-style"
LSGaz
October
2003,
at
14.
[Vol.
10

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