.. to the trail of offences. In Director of Public Prosecutions v O Suilleabhain Carroll J cited Attorney General (McDonnell) v Higgins in support of the proposal that a judge is not entitled to prefer charges. At the other hand of this legal process, the protective effect of Article 6 on the executive power to decide on the duration of imprisonment or detention has also been considered by the courts on a number of occasions. In the case Director of Public Prosecution v Tiernan it was for the executive to decide to serve, and, accordingly, the courts could not take that period into account in imposing sentence in a rape case.
A recent series of cases has focused attention on the constitutionality of the power given to the executive, pursuant to 2(2) of the Trial of Lunatics Act 1883, to settle on the duration of detention of an accused person who had been found guilty but insane. Doubts about the constitutionality of this agreement arose because of the verdict in The State (O) v O’Brien in which a majority of the Supreme Court ruled that the power to decide the duration of imprisonment of a young person convicted of murder-originally conferred on the Crown pursuant to s 103 of the Children’s Act 1908- was a judicial power which now vested in the courts rather than in the Executive. The search for the dividing line between judicial and executive functions has been pursued in relation to matters other than those ancillaries to the trial of offences. In a series of cases dealing with the process of revising the Constitution, the courts have ruled that they have no jurisdiction to grant injunctions preventing the executive from holding a referendum without having previously fully explained its effect or from spending public money and campaigning exclusively in favour of a proposed constitutional amendment. However, if the procedures embraced by the government for alter the Constitution were not those predetermined in the Constitution itself, no doubt the courts could arbitrate.
The conduct of foreign affairs is another area that is primarily assigned to the executive and not a matter for the courts. According to Fitzgerald J, Article 6 “established beyond question the separation of the executive, legislative and judicial powers of Government .. Consequently .. the courts have no power, either express or implied, to supervise or interfere with the exercise by the Government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.” Article 28.2 exercises by or on the authority of the Government the executive power; the Government however is subject to the Dail, being dependent on its support and so on part of the legislature. Both the Government in the strict constitutional sense, and all of its members, and every part of the administration over which government powers in the wider sense are diffused, are subject to the intervention of the courts, except for the Government itself, the whole executive machinery can be dismantled or re-arranged or deprived of functions by enactment of the legislature.
The separation of powers, as has been said, is imperfect- even on the face of the Constitution- and if such a principle exists, it must be understood to be modified, and in its practice not similar with the rigid consistency with which in some other jurisdiction a “separation of powers” is maintained. The most conspicuous example of one arm of government exercising a supervisory control over another is present in the jurisdiction of the High and Supreme Courts to invalidate legislation on constitutional criteria; this function is not known in France, for example, the home of the “separation of powers” doctrine, as to permit the ordinary courts to strike down acts of the legislature would appear to be an violation on the field of the latter. The judicial power, though entrenched more carefully than the others, and in more detail, must administer a law, which, except for the parts derived from the Constitution, can be changed by legislature-even if such change is deliberately planned to nullify the effect of a particular judgement of a court. The organisations of court business, and the task of judges, are matters, which, as a matter of fact at this moment, the courts themselves control: but the legislature could transfer much of this to itself or to an executive authority if it wished. On the other hand, some courts exercise some traditional functions- e.g.
in the licensing of premises for the sale of alcohol or for the amusement- which are more naturally classified as executive than judicial. Judicial Independence/Vis–vis the state: Judicial Independence from the state is established in article 35.3, which states: no judge shall be eligible to be a member of the Oireachtas or to hold any other office or position of emolment. When a superior judge is appointed he is effectively appointed for life. A judge’s salary cannot be reduced which is guaranteed and they can only be removed from office for misbehavior. Judges must act ‘without fear or favour affection or ill-will’.
There has also been an implicit convention pre-dating the 1937 constitution and indeed the establishment of the state in 1922, that judges do not generally become involved in any matter of public controversy. An example of this is the Sheedy case. Philip Sheedy was charged on three offences, which resulted in the death of Anne Ryan, after being sentenced to a four-year prison sentence. In this case Mr. Justice O”Flaherty became involved, which resulted in this sentence being suspended. An intervention by the Director of Public prosecutions resulted in an order of certiorari quashing the order for the sentence to be suspended.
Although Mr. Justice O”Flaherty became involved in the spirit of “humanitarian interest” it was found unnecessary and damaging to the administration of justice. He had the case re-listed after a judge of equal jurisdiction made a final order. His personal involvement resulted in the prison sentence imposed on Mr. Sheedy being suspended.
The other judge involved Mr. Cyril Kelly was critised for his handling of the case. In the end Mr. Justice O”Flaherty had to resign from his position. The state must also remain independent from the Judiciary.
An example of how the court remain independent, is the Byrne versus Ireland case in the Supreme Court which removed the states immunity from being sued. This paved the way for many more similar cases to be tried. The state can now be sued like any other body or company. Recent examples of this include the Army deafness claims. In this case one successful case paved the way for others, and the Government ended up paying large sums of money to the claimants. As a result they set up their own tribunal where they limited the amount of compensation that could be paid in each individual case.
Article 35.5 of the Constitution provides: the remuneration of a Judge should not be reduced during his countaince in office. This is important, as so members of the Judiciary do not feel “obliged” to the Government as continued remuneration depended on them. In the past the Judiciary might have felt that they should make decisions that would not offend those in authority. That however has changed and can be seen in cases such as the Hepatitis C scandal and Army deafness claims. There was also a case in October of this year where Mr.
Justice Peter Kelly threatened to hold three Government Ministers in contempt of court if they did not provide a suitable place of detention for a seriously disturbed seventeen year old girl according to the standards set down by him. This led to a conflict between the Government and the High Court. Cases like these show that judges no longer feel ‘obliged’ to the government. Article 35.2 states: All Judges shall be independent in the exercise of their judicial function and subject only to the Constitution and the law. In the “O’Brien V Minister of Finance” the widow of Mr.
Justice John O’Brien claimed that subjecting a Judge’s conflict with Article 35.5 must be read with article 35.2. However the court held that to require a Judge to pay income tax like all other citizens could not be described as an attack on Judicial Independence. JUDICIAL INDEPENDENCE: IN COURT In a case a Judge may be required to be excused from the adjudicating on a matter where they have expressed a view on an issue in question. A Fundamental principal of natural justice or fair procedure is expressed by the phrase nemo judex in-causa soa, that a person may not be a judge in their own cause or in a matter in which they have an interest, whether financial or otherwise. All sides to ensure a fair procedure must have an opportunity to prepare their case and be treated in an even-handed manner. Thus in the Dublin Weel Woman Centre Versus Ireland, the Supreme Court held that the High Court Judge Carroll, ought not adjudicate in a case concerning access to information on abortion n as she had previously as Chairwoman of the second omission on the status of women, written a letter to the Taoiseach expressing the support of the commission for right to access to abortion counseling and information services speaking for the Supreme Court, Denham J pointed out that there had been no suggestion that this letter would have resulted in any actual bias on the part of Carroll J in adjudicating the points of law at issue in the case; rather a Judge should offer to rescue himself or herself where there was even an appearance of bias.
This test of appearance of bias rather then actual bias is consistent with the constitutional declaration in article 34.5.1 “to execute the judicial office without fear or favour, affection or ill-will”. This decision in Dublin Well-woman indicates the high standards of impartiality thus required. Judicial Independence in court also means that the Judge cannot be influenced by the state. This is seen where the court might force the Constitution to be amended. The Judge must be allowed to go against the state if he/she feels the state is wrong. In the Attorney General Versus X, the high court granted the Attorney General an injunction prohibiting the fourteen-year-old girl from leaving the state to have an abortion. It appeared that in the constitution, abortion was allowed in limited circumstances, to which the Supreme Court agreed, because the right to life of the mother was at risk.
In response to the X case three proposed amendments to article 40.3.3 were put to a referendum in late l992. Two of these were passed, but after eight years no legislation on abortion was brought in. Mr. Justice Niall McCarthy lambasted the Government when he described this failure as “no longer unfortunate, it is inexcusable”. This i a prime example of how Judges are independent from the state in court. Until recently it was unthinkable for a judge to give a comment about a case in which he had been involved.
The view is that Judges made decisions but any implications were not matters for them as the Judiciary should stand aloof. In l992 public comments of O’Hanlon J on proposed changes in Irish law on abortion, resulted in his resigning from the position as President of the Law Reform Commission. Although it did not lead to removal of him as a judge it shows what can happen if they become embroiled publicly in cases on which they hold strong views. CONCLUSION: The Court system is very detailed and precise in that it doesn’t seem to have any loopholes. However it should have been set up by the Constitution instead of leaving it until the Courts Act in 1961.
There is also a clear guideline on how Judges should be appointed which sets a very high standard of qualifications for the appointment of a Judge. However it is clear that the vacant positions are only available to a select few. There are some faults in our system such as the Minister having the power to introduce Legislation after they have been passed. This can be seen in the Attorney General versus X case mentioned previously. I believe the separation of powers is also imperfect, as all departments are interdependent. However I believe this can be a good thing that the powers i.e. legislature, executive and the judicial, are not separated as we the people, benefit from it with Justice.