Appointing judges - Flawed system must be reformed

 Chief Justice Ms Susan Denham

High on the list of qualities people expect of judges are fairness and balance in measuring out justice, a large dose of common sense in the verdicts they hand down, and a level playing field in their appointment.

But even the Chief Justice Ms Susan Denham openly admits the success of the administration of justice in Ireland has been achieved in spite of, rather than because of, the present appointments system. Ironically, judges themselves want that system changed.

It is a poor reflection on this country that in the 21st century every judge is still selected by ministers sitting around the Cabinet table. Undeniably, in many cases candidates are appointed to the bench on the basis of what political party they happen to support.

It has long been the tradition that judges were hand-picked by whatever government was in power at the time. There is now a crying need for root and branch changes in the way they are appointed. Yet, generally speaking, in spite of having such a skewed system, Ireland has many judges of the highest calibre.

Demands for radical change of how the system currently operates have come from the Judicial Appointments Review Committee, chaired by the Chief Justice and also from the Law Society. Its director, Ken Murphy, argues that radical reform of the way judges are appointed could easily be achieved without legislation.

What happens at present when a vacancy occurs is that a list of potential names, possibly as many as 50, is supplied to Government and the Cabinet picks thesuccessful applicant. That is no longer acceptable. Echoing the popular view of this procedure, the society concedes it leaves appointments open to charges of political favouritism. Instead of the present flawed system, the society proposes that only three names should go before the Cabinet. While that would still leave it open to accusations of political links, the resulting appointments would at least be predicated more on merit than cronyism.

Another common perception of the judiciary is that the common sense element, an absolutely essential attribute of a judge’s CV, is missing in the mindset of some judges. This is particularly serious when it comes to the vital matter of sentencing. Inappropriate sentencing has triggered justifiable complaints that Ireland operates a two-tier model of justice. Reform of sentencing policy is long overdue.

Judicial appointments are generally perceived as political perks. Judges ought to be respected. Yet, they are somehow tainted in the popular mind because they are seen as the recipients of plum jobs conferred on certain candidates depending on which side of the political spectrum they, or their families, were known to favour. The risk is that greater weight could attach to a would-be judge’s political leanings rather than his or her legal qualifications, experience or ability.

The present system is seriously flawed because of the way judges are appointed. This can be construed as perpetuating a jobs-for-the-boys syndrome at the highest level. Ideally, Government should be completely removed from the business of appointing judges. The Coalition has an opportunity to strengthen the democratic process by setting up an independent board for judicial appointments. The Chief Justice, the Law Society and the Irish people want change — this Government should seize the initiative and change what is clearly a gravely defective system.


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