The Independence of the Judiciary Is an Important Value in Irish Constitutional Law

“The independence of the judiciary is an important value in Irish constitutional law”.

Article 35.2 states “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”.The above Article and Article 6 encapsulate the separation of powers in the Irish Constitution, from the perspective of the judiciary. The judiciary guard their exclusive powers jealously. In Buckley v. A-G [1950] I.R. 67 (otherwise known as the Sinn Féin Funds case), the plaintiff, President of Sinn Féin, sued to recover £2,000 of funding vested in pre-split Sinn Féin. While the action was pending, the Oireachtas passed the Sinn Féin Funds Act 1947, which stated that the action was to be dismissed without costs on application by the Attorney General and the funds in question vested in a State board. The former Supreme Court held that this would, in effect, leave the action in dispute to be decided by the legislature and was accordingly unconstitutional.The action has to be actually before the courts for such an interference to be unlawful: in State (Divito) v. Arklow UDC [1986] I.L.R.M. 123, the applicant had merely published statutory notice of his intent to apply for a gaming certificate, having not yet initiated the legal process, and the respondent’s alteration of procedure to exclude him was therefore constitutional.In Agoudimos v. Greece (2003) 36 EHRR 1131, the ECtHR held that Article 6.1 of the ECHR prohibited such judicial interference with pending legal actions save where “compelling grounds of the general interest” could be shown.In Maher v. A-G [1973] I.R. 140, statute providing that a certificate stating that a defendant’s blood contained excess alcohol would be “conclusive evidence” of that fact was held unconstitutional, by depriving the District Judge at trial of the power of ascertaining what constituted evidence, and what evidence was conclusive.In State (O’Rourke) v. Kelly [1983] I.R. 38, a statute compelling a judge to issue a search warrant when satisfied that a demand had been duly made was upheld as constitutional by the Supreme Court, as the relevant subsection fell for consideration only after the judge had considered the relevant evidence to his satisfaction.However, in State (McEldowney) v. Kelleher [1983] 1 I.R. 289, the Supreme Court struck down a provision requiring a court to accept as truthful the testimony of a Garda officer regarding the collection of funds for unlawful purposes. In Sloan v. SCC [1993] 3 I.R. 528, statute stating that a Government suppression order shall be conclusive evidence of the unlawfulness of an organisation so suppressed was upheld as constitutional. The judicial dispute would not be about the unlawfulness of such an organisation, but about whether an accused person was a member of the organisation or not.In Fitzgerald v. DPP (Unreported, Supreme Court, 25th July 2003), the Court upheld the procedure whereby a judge was required to state a case on application by the DPP, regardless of his own view of the merits of the issue. It was held that this was not an interference with judicial discretion or an unconstitutional transgression into the judicial domain.McDonald v. Bord na gCon [1965] I.R. 217 formulated a five-point test for determining whether a power was judicial in nature: whether there was a dispute as to a legal right or violation; whether a question of rights or penalties fell to be determined; whether the power involved the final determination of legal rights, liabilities or penalties; whether the tribunal or the State could compel enforcement of its decision; and whether the tribunal had the power to make an order historically characteristic of courts in Ireland. This test was relied upon in Goodman v. Hamilton (No. 1) [1992] 2 I.R. 542, where the Supreme Court pointed out that Irish courts had never had the power to simply issue reports on factual findings it had made, unlike the Beef Tribunal.Further, only courts have the power to impose criminal sanctions. In Melling v. Ó Mathghamhna [1962] I.R. 1, the principal characteristic of a “crime” was held to be that it carries a punitive sanction. Therefore, it is unconstitutional for the Oireachtas to try, convict or sentence persons for contempt (Re Haughey [1971] I.R. 217), or for the Revenue Commissioners to exact a penalty (Deaton v. A-G [1963] I.R. 170), or for Peace Commissioners to decide questions of remand (O’Mahoney v. Melia [1989] I.R. 335) - however, as issuance of search warrants relate to criminal investigation and is an executive power, this is within the power of a P.C. (Byrne v. Grey [1988] I.R. 31).In People (DPP) v. Finn [2001] 2 I.L.R.M. 211, the Supreme Court strongly expressed its distaste for partly suspended sentences, as these involve the judiciary directing the executive not to exercise its exclusive power of commutation under Article 13.6 and may therefore breach the separation of powers.Therefore, we see that the judiciary has, throughout the years, stressed its independence, a value which has been upheld in recent times by the ECHR, even to the extent of forbidding itself from interfering in the executive power of commutation. Due to the influence of this doctrine, and the central nature of the separation of powers in the Constitution, judicial independence is an important value in Irish constitutional law. | |