July 2018 – IRISH COURTS WATCH

Democracy is a mechanism through which free people engage to provide order and protection of the individual’s human and prescribed rights. The lynchpin of success is adherence to the established law. The final arbiter of those rights under the law resides in the courts. The Supreme Court of Ireland has repeatedly declared “fair procedure” a sacrosanct constitutional right. It has also declared that even a final decision rendered by that body must be subject to examination if it is demonstrated that a decision of that court fails the citizen’s constitutional right of “fair procedure”.

The Supreme Court has unequivocally stated that the burden of proof against a court’s decision is the responsibility of one challenging the decision(s). To that requirement court documents are the most reliable means of identifying the nature and substance of a challenge. While a single case may demonstrate non-adherence with the sacrosanct requirement of fair procedure the argument is enhanced through presentation of multiple cases. This permits the establishment of a fact pattern.

In the matter of The Honourable Mr. Justice Frank Clarke, CJ., Supreme Court.

In the matter of The Honourable Mr. Justice Donal O’Donal, Supreme Court.

In the matter of The Honourable Mr. Justice Liam McKechmnie, Supreme Court.

In the matter of The Honourable Mr. Justice Sean Ryan, The Court of Appeal, Court of Appeal President, ex officio Supreme Court.

In the matter of The Honourable Mr. Justice Gerard Hogan, The Court of Appeal.

In the matter of Mr. Justice Paul Gilligan, High Court, Chancery, retired 2018.

In the matter of Mr. Justice Donald Binchy High Court.

In the matter of Mr. Justice Tony O’Connor High Court.

The nature and substance in each matter listed above will be presented through court documents in a series of upcoming blog posts on Irish Courts Watch.

In January 2018 in an extremely unprecedented development, four sitting judges of the Supreme Court of India, the second most senior judge Justice J Chelameswar along with Justice RanJan Gogoi, M B Lokur and Kurian Joseph held a press conference.

Addressing the media Justice Chelameswar stated that they were compelled to address the nation through the media since, their repeated requests on a particular matter, were not heeded by the Chief Justice of India.

Justice Chelameswar said he was addressing an extraordinary event in the history of the nation and the Judiciary as an institution, one that put democracy at stake. He went on to say, “It is with great anguish and concern that we thought it proper to highlight certain judicial orders passed by this Court that adversely affected the functioning of justice delivery system and independence of High Courts besides impacting the administrative functioning of the CJI’s office.”

India is the largest Common Law jurisdiction in the world. Its system of law is predicated on and adopted from that of England. Ireland, England’s closest neighbor, and former colony has also made it the basis of its judicial system. The corollary is that for democracy to exist judicial conduct must conform to the law, not the whim of any individual.

India is not alone among the democratic nations to be threatened by judicial malfunction. According to the American Bar Association, the U.S. Supreme Court overturns the U.S. Ninth Circuit Court of Appeals 80% of the time. A 20% record is a clear and present danger to the constitutional rule of law.

Selective assignment of cases and misprision are documented recurring threats to justice in Ireland. It has and continues to erode public trust in the underlying constitutional guarantee of equal treatment of every citizen under law. The practice of selective assignment of cases and acts of misprision are documented to occur in the Superior and lower courts. The judiciary commonly ignores overt barrister and solicitor malpractice and negligence. Instances of flagrant bias favouring one party over another are manifest.

The European anti-corruption body, Group States Against Corruption (GRECO), has found Ireland to be “globally unsatisfactory”, particularly in areas of judicial appointment and independence. In response to GRECO findings and what The Honourable Mrs. Justice Denham, CJ stated was of “real concern” and a “significant institutional vacuum”, the legislature passed the “Judicial Council Bill 2017” establishing the mechanism for dealing with complaints against sitting judges.

In contrast with many other countries, including England, Wales and Canada, as well as in regulated professions in Ireland, under the new law the public will not know when a judge has been rebuked. Such findings will be held in secret, the entire process will be held in private. The law also provides a fine of up to 5000 euro or a jail term of up to 12 months for the disclosure or publication any document or evidence used in such an inquiry. The law in the above-mentioned common-law counties clearly permits the name and outcome regarding a judge in such proceedings to be made public

The passage of this sham legislative act is a detestable blow to transparency of the court system debases public trust in the courts. It has elevated judges to a protected status contrary to no one is above the law. Dr Laura Cahillane, lecturer in law at the University of Limerick, has said, “Reprimanded judges should be named in the interests of public accountability. The judiciary was one of the few institutions left in Ireland for which there was effectively no accountability”.

Month: July 2018

Tyranny of the Judiciary – Part I (a)

Tyranny of the Judiciary – Part I