Wednesday, 19 December 2018
Judicial Appointments Commission Bill 2017: Committee Stage (Resumed)
To some extent, the amendments in the name of Senator Bacik and her colleagues and my amendments are, if not diametric opposites, quite different in some respects. The effect of section 39, as it currently stands, is that a person, including a person who is, for the time being, a serving judge or relevant officeholder, who wishes to be considered for appointment to judicial office is obliged to make an application to the commission in that behalf, specifying the judicial office concerned and that application shall be in writing or in such other format as may be specified in the selection procedures. Section 39(2) provides that an application under subsection (1) shall not be made otherwise than pursuant to an invitation made by the commission under section 38(b) that relates to the judicial office concerned. In the round, this section is effectively stating that nobody can apply to the commission other than in the context of an advertisement for consideration.
Section 38(b) states that the commission shall, as the occasion requires, invite through means of advertisement the making of applications for persons to be considered for selection, that is, for their selection to be the subject of a recommendation for appointment to judicial office. The net effect of the provision in section 38(b), combined with section 39(2), will be that the only way somebody can bring themselves to the attention of the commission is in response to an advertisement. Section 39(1) states that a person who is, for the time being, a serving judge or a relevant officeholder who wishes to be considered shall make an application in that behalf. That application effectively changes the current practice, which is that a judge of the superior courts who wants to be considered for a position simply notifies the Secretary to the Government of his or her willingness to be appointed and his or her desire to be considered by the Government in that respect.
It seems we are dealing with a provision that is meant to obliterate any channel of communication between members of the Judiciary and the Government, other than a response to the commission's advertisement. This is a provision the gist of which is that the only communication a judge can make to the Government of his or her willingness to be considered for appointment as a judge in the High Court, Court of Appeal or Supreme Court is by means of the section 38 advertisement procedure. As I have said before, I have a very strong objection to that, based on the fact that every single member of the High Court is eligible to serve, at the request of the President of the Court of Appeal or the Chief Justice, as a member of the Court of Appeal or the Supreme Court, respectively, and such people are already deemed worthy to be able to serve in those courts when requested. When appointing somebody to the High Court, a decision is also made that the person in question is not merely a person who will function on a day-to-day basis as a member of the High Court but may, from time to time, be asked to serve on the Court of Appeal and the Supreme Court. Therefore, the question of their suitability for membership of the Court of Appeal or the Supreme Court is something which has to be considered at the time of their appointment to the High Court. If they are appointed to the High Court, it is implicit in that appointment that the person is somebody who can, from time to time, serve on the Court of Appeal and the Supreme Court when requested to do so.
In that context requiring members of the High Court, the Court of Appeal or the Supreme Court to apply to the commission for consideration for any other appointment within those courts is deeply obnoxious. It puts them in the position of having to effectively re-prove their suitability for the Court of Appeal or the Supreme Court to the satisfaction of the judicial appointments commission. It is not preferential treatment for existing superior court judges to say that they should not have to apply to the judicial appointments commission. They have already proved, by definition, their suitability to act on either of the courts above the High Court by the mere fact that they have been appointed to the High Court in the first place.Asking them to go back to square one and prove again their suitability for another job in the same set of courts is deeply obnoxious. Let us remember it is not unprecedented for an ordinary member of the Supreme Court to be appointed as President of the High Court. It has happened. Mr. Justice Kearns, the last holder of that job, was serving as an ordinary member of the Supreme Court prior to his appointment as President of the High Court. Without personalising it, I make the point one can be an ordinary member of the Supreme Court and ask to be made President of the Court of Appeal or President of the High Court. There is nothing unusual about it. What might appear to some people to be a downward step is not a downward step because the President of the High Court is an ex officiomember of the Supreme Court and so is the President of the Court of Appeal. It is a movement sideways to carry out a different function within the Judiciary. The Bill is based on a number of misapprehensions which mean people who attain membership of the High Court would have to prove again to the satisfaction of the judicial appointments commission that they should go further upwards or even sideways or downwards. They would have to prove to the satisfaction of the commission that they should do so. I am very much against such a proposal.
The purpose of amendment No. 85a, which is in my name, is to amend section 39 to make it clear that section 39(1) does not apply to existing members of the High Court, the Court of Appeal or the Supreme Court and to excuse them from the necessity of applying via the judicial appointments commission for appointment to any other position in those courts.
Section 39, as it stands, in conjunction with section 44, as it stands, effectively says that somehow the judicial appointments commission is in a better position to form judgments on who should be, for instance, the President of the High Court than the Government itself is. The Minister, as we discussed on the last occasion, has already made it clear he wants to have a special procedure for the three presidencies - the Chief Justice, the President of the Court of Appeal and the President of the High Court. I made the point on the last occasion that it is not quite clear and no rationale has been offered as to why the Government would not be capable of making that decision unaided by the judicial appointments commission and why the recommendation of the judicial appointments commission is sine qua nonin respect of every other judicial appointment but the Minister has decided to table an amendment on Report Stage to make its intervention unnecessary in the case of those three presidencies. It raises the question as to why it would be competent to decide on the ordinary memberships of those courts but not competent or suitable to be the advisory body in respect of the presidencies of those courts. We did not hear on the last occasion from the Minister because we were dealing with amendment No. 83a but we are now dealing with this issue. We did not hear a rationale for why, if its advice as to who should be an ordinary member of the Supreme Court is sine qua nonfor appointment to that position, its advice is not merely not required but not permitted in the case of the presidencies of any of those courts. I ask the Minister to indicate to me and the House what it is about the three presidencies that makes the commission's participation in the decision unsuitable and why it is he finds section 44 unacceptable in its present form but nonetheless thinks the commission should be involved in ordinary appointments to the Supreme Court. I cannot follow that logic and I would like to hear some explanation for why it is competent and suitable for one purpose but is to be excluded for another purpose.