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”.