Opinion: Supreme Court’s interpretation of Judicial Appointments Bill matters greatly

This case matters because judges exercise significant powers. As well as resolving disputes between ordinary people, they also protect citizens’ constitutional rights from state infringement.

It is therefore important that judges are – and are seen to be – independent of the government and the Oireachtas.

Under the Constitution, the President appoints judges on the advice of the government. Since 1995, the Judicial Appointments Advisory Board has advertised judicial vacancies and recommended seven candidates for each position. But the government is not confined to choosing from this list.

This system has led to several concerns. The number of candidates and open list leaves scope for politics to play a problematic role in judicial appointments. In other countries, governments have chosen judges who would dismantle constitutional safeguards.

Nothing like this has ever happened in Ireland, but even the occasional appearance of political favouritism in choosing judges may undermine the public standing of the judiciary.

There have also been long-running debates over the relative roles of merit and diversity in judicial appointments, as well as the balance between judges, lawyers and non-lawyers on the body that recommends candidates to the government.

Under the Bill, a new Judicial Appointments Advisory Commission will be chaired by the Chief Justice alongside three judges, four non-lawyers and the Attorney General.

The Commission must base its recommendations on merit, but it should also broadly take account of the desirability of diversity in the judiciary. The most controversial aspect of the bill, however, is the new restrictions it imposes on the government’s discretion to choose judges.

The commission will consider applications for a judicial position before recommending no more than three candidates to the government. The bill requires that the Government “shall only consider … those persons who have been recommended by the commission”.

The mere interference with the government’s freedom of choice does not make the bill unconstitutional. It has always been accepted, for instance, that the Oireachtas can require the government only to choose qualified lawyers.

The Supreme Court has also repeatedly held that the Oireachtas is entitled to control the government’s executive power. This approach recognises the reality that a government, once elected, typically controls a majority in the Oireachtas.

Whatever else it may be, the Judicial Appointments Commission Bill is not a power grab by the Oireachtas. Rather, the current Government has persuaded the Oireachtas to impose legal constraints on how it and future governments make judicial appointments.

While a future government would likely have sufficient support in the Oireachtas to repeal the legislation and remove those constraints, the Supreme Court’s decision is likely to turn on whether the bill goes too far in controlling the government’s power.

The government’s inability to choose a candidate not on the commission’s list protects the reputation and perceived neutrality of the judiciary. Independent affirmation of appropriateness assures that judicial offices are not being distributed as political spoils.

The apparent obligation to choose a candidate from the commission’s list, however, raises greater concerns. The government might be compelled to choose a judge it considered unfit for office, undermining the democratic basis for judicial power in the state.

But the bill does not clearly require the government to choose one of the commission’s recommended candidates. On one interpretation, the government could consider the recommended candidates but decline to advise the President to appoint any of them. The position would then remain vacant and the Justice Minister would request the commission to re-advertise. While such drafting ambiguity is regrettable in the central provision of a sensitive statute, it may provide the Supreme Court with the wriggle room to find the bill constitutional.

Where the court can interpret legislation in a way that is either constitutional or unconstitutional, it is obliged to adopt the constitutional interpretation in order to uphold the validity of the legislation. The court could interpret the bill to say (a) the government cannot choose a candidate not recommended by the commission, but (b) the government can refuse to choose any of the recommended candidates.

If the Supreme Court interprets the bill in this way, it will be easier to characterise the restriction on the government’s power to choose judges as a constitutionally permissible control.

The case provides a valuable opportunity to resolve any doubts about the constitutionality of the bill before it is enacted and judges are appointed. If the Supreme Court upholds the bill, the President must sign it into law. If the Supreme Court holds any provision unconstitutional, the whole bill falls.

It would then be up to the Oireachtas to decide whether and when to return to the question of judicial appointments.​

This article was first published in The Irish Independent. See the original article here.