by Frank Schnittger
Sat Jul 1st, 2017 at 08:23:12 PM EST
Both the Irish Independent and the Irish Times (scroll down the page) have published my letter criticising the hypocrisy of Judges criticising elected politicians for commenting on the suitability of Judges on the grounds of the separation of powers between the legislative and judicial branches of government, and then in almost the same breath seeking to influence the legislature in its deliberations:
Sir, - Chief Justice Susan Denham saw fit to rebuke Fianna Fáil leader Micheál Martin over his Dáil comments about former attorney general Máire Whelan and reminded us of the separation of powers between the branches of government and the necessity to maintain some distance between them.
Just days later, Mr Justice Peter Kelly is reported ("Leading judge says Government moves to reform judicial appointments `ill advised'", June 24th) as criticising Shane Ross's proposals for reforming the judicial appointments process as "ill conceived" and "ill advised", and the way in which they were being rushed through the Dáil when (in his view) other matters before the courts warranted a higher priority from legislators.
Could it be that our esteemed learned friends are trying to have it both ways, telling legislators how and when to do their jobs whilst being extremely sensitive about any comments directed towards them by our parliamentarians?
Whatever the merits of Shane Ross's proposals, surely it is right and proper that the process of appointing judges should be debated and decided by our democratically elected representatives at a time of their choosing, and not by those who are the primary beneficiaries of the process? - Yours, etc,
Another letter writer then took up the cudgels to explain why the Judges' intervention was ill advised in the extreme:
Sir, - Whatever the constitutional propriety of senior serving judges attempting to influence the passage of a proposed Bill through the Oireachtas, the Association of Judges of Ireland's press release of June 26th is a matter of pronounced disquiet. Frank Schnittger's letter (June 26th) rightly points to the hypocrisy of senior judiciary standing on their judicial prerogatives to scold publicly politicians for their comments in the Whelan controversy, and, in the next breath, interfering in the legislative process.
Moreover, the separation of powers is a settled constitutional principle, repeatedly affirmed in case law, and the intervention of the Association of Judges of Ireland is a clear breach of this principle by a body that should know better.
Were the proposed Bill enacted and subsequently challenged in the courts, it is not clear how members of the association could sit impartially on the case after their representative body has publicly exposed their bias against the law.
How many judges will be available to hear such a challenge after those tainted by this ill-judged public intervention have been obliged to recuse themselves? - Yours, etc,
J VIVIAN COOKE,
My letter in the Irish Times was published just below a letter from Minister Shane Ross himself, making it appear that I was writing in support of the Minister's proposals, even though my letter referred only to the matter of judges advocating the separation of powers only when it suited them. However, in fact I believe Shane Ross's proposed legislation only scratches the surface of the problem, and that much more fundamental reform is needed, as I made clear in a subsequent letter (not yet published):
Our learned judges appear to be horrified at the notion that "lay people" should be involved in the process of interviewing and selecting our judges and moreover seem emboldened to make their case most forcibly to our elected representatives.
This is despite the fact that Chief Justice, Susan Denham, has only recently reprimanded our elected leaders for commenting on the suitability of an appointee, reminding our elected leaders of the separation of powers in our Constitution, and of the need to keep some distance between our branches of government.
One would be forgiven for thinking that all was well with our system of justice, and that only a fool would consider tinkering with it. This is not the experience of many who look to the Courts to dispense justice in Ireland.
For a start, our system of civil justice is one of the most expensive in the world, to the point where only rich individuals and large corporations can fully vindicate their rights under the constitution. What's worse, is that the system incentivises our solicitors and barristers to make the process of justice as convoluted and drawn out as possible, as a means of maximising their earnings.
I used to work for one such large corporation, and even there the policy was never to contest even the most frivolous and vexatious of claims, because the costs of doing so outweighed what little benefit could be gained even when succeeding in contesting the claim. In this way our legal system has greatly damaged our economy and ability to attract new businesses to Ireland. Businesses simply chose to invest elsewhere rather than endure such systemic, and legally enabled, fraud.
We look to our judges to ensure that Court time and client expenses are not abused in this way, but too few judges seem inclined to curb the earning power of their former colleagues and learned friends at the bar.
The primary purpose of our system of criminal justice is to protect our citizens from criminal actions, and yet when one looks at our crime statistics, one could be forgiven for thinking that it is not very good at that job, or perhaps that it is in fact serving another purpose altogether. Again all the financial incentives are there to protect criminals from the consequences of their actions, and by comparison almost no resources are expended on repairing the harm to victims of crime in a timely manner.
None of the above is intended to impugn the integrity of our judges as the primary custodians of our legal system, and indeed many of them work extremely hard and have served the nation with honour and distinction.
It is, however, necessary to point out that the financial incentives are all wrong, and that the primary beneficiaries of both crime and civil disputes are all to often members of the legal industry itself. No wonder crime is so endemic in our society and the rich prosper while the rights of those who cannot afford expensive legal proceedings are trampled on with impunity.
Added to this one must observe that the members of the legal industry are all too often drawn from just one rather well healed class in our society, and even from quite a restricted number of families within that class. It all leads to a rather cosy, inbred, consensus as to what is good for the "laity", and, dare one say it, to a degree of arrogance and conceit. Access to the profession is largely controlled by private bodies, and progress within it all too often all about "contacts" with the right sort of people within it.
Shane Ross's proposed reforms are modest indeed, and barely touch on the above issues - such is the political lobbying power of what is supposed to be a separate branch of Government. But anything which introduces an element of lay participation in the appointment of Judges is to be welcomed, even if it only opens up the profession to a small window of what life is like for lay people and the victims of crime and injustice under the gavel of legal rule in Ireland.
I doubt my much longer second letter will be published, but I wrote it anyway just to get some things off my chest. The legal profession in Ireland is indeed almost a closed shop for privileged middle class families with the necessary connections, especially for barristers and Judges, and their perceptions of what is normal and acceptable can be quite obscene. Barristers charge in excess of 2,000 per day, and cases are routinely postponed again and again with "refresher fees" charged every time. Everyone in the legal profession gets paid, plus expenses, every time, whilst the victims of crime and witnesses get virtually nothing.
My work for Restorative Justice Services brings me into contact with many front-line workers in the field, and the reality on the ground can often be quite harrowing. Victims of crime aren't formally represented in Court - the State prosecutes where it deems to have enough evidence - and the perpetrators generally get free legal aid - at enormous expense to the taxpayer.
But victims are often not even informed of the outcome of trials, and their perpetrators are generally paroled or released without the victim being informed. Although the Judge may take a "Victim impact statement" into account when sentencing, no attempt is generally made to repair the harm suffered by the victim - either by the perpetrator or by the state.
The legal profession in general, and Judges in particular, are often sublimely indifferent to the suffering of victims, and the inconvenience and risks for witnesses, as they simply aren't players in a legal game which is effectively designed to maximise legal earnings, rather than societal benefit.
The sense of self-importance and conceit prevalent in the Judiciary is perhaps best illustrated by their opposition to paying taxes on their income on the same basis as everyone else. In 2011 the Irish Government and people even has to initiate and pass the 29th. amendment to the Constitution to overcome judicial claims that a tax introduced for everyone in the wake of the 2008 crash should not apply to them as it might interfere with their independence. In reality, it interfered only with their conceit that they should somehow be above the law applying to everyone else.
In the meantime the Irish judicial system is clogged up with cases taken to force less well off parties to concede because they cannot afford the legal fees involved, and because it is in the interest of lawyers to overcomplicate and drag out those cases as much as possible in order to maximise their earnings. Cases can drag on for years by which time it is often much too late to mitigate the harm done by a crime or a dispute.
Car insurance premiums sky-rocket because the cost of legal fees often exceeds the compensation paid to the injured party in a car crash, to the point that many younger drivers cannot afford to get insurance at all and consequently break the law and drive without insurance. Simple legal transactions can take an age and cost a small fortune. In essence, the legal profession have hijacked the law to their own benefit. It is time that "the laity" claimed it back to work for the benefit of the people as a whole, and in particular for the benefit of the victims of crime and injustice.