As one passes Smithfield on the Luas, ponder for a moment on the Courts situated to the left and right-hand sides. Many of us hope never to see the inside of a Court, content merely to see male barristers flaunt around in their wigs and skirts like male burlesques on their way to a drag show.
And yet, we do not often ponder the power laid within the hands of the judiciary. Much like the Civil Service, our Court structure is a hold-over from the British institutions of State, imported into the Free State by inertia and gombeens.

The Courts have long fought institutional reform of their structure, indeed the greatest and most lasting change that Irish republicanism managed to effect on the Courts was to transpose the so-called Dáil courts into the system as the “district-courts” system. The first Chief Justice, an avowed Republican, simply could not achieve what he so desired in reform, indeed he could not even scrap the English system of wearing wigs and dresses, a laughable parody of tradition.

Judicial power in Ireland is wielded, in total, by 162 judges. Roughly equivalent to the Dáil in numbers, but lesser than the Oireachtas as a whole when one accounts for Seanadóirí. At the lowest (and most numerous of) levels, sentencing is determined solely by the sitting Judge, who can impose custodial sentences of up to 2 years in length. There are 65 judges in the District Courts.

It is only truly interesting when one reaches the “superior courts” – the High Court, the Court of Appeals and the Supreme Court. Accounting for only 57 judges (with 3 vacancies to be filled), these Courts are the functional backbone of the Irish public service. They determine issues of law, they hear appeals against referendum results, and in the Supreme Court, they ultimately decide what is constitutional and what is not. The Supreme Court is what we should focus most upon, although one cannot overstate the importance of having an amenable judiciary at all levels.

The Supreme Court consists of 8 judges (with 2 vacancies and 2 ex officio members in the form of the Presidents of the Court of Appeal and the High Court). In effect, twelve judges determine what is and is not constitutional in this country.

The Supreme Court, a tepid impersonation of the American Supreme Court, acts as the stopper against political dissent to Dalkey Anglocentrism. Pensionable at 70, the limit placed upon the Supreme Court is simply that the Chief Justice can serve no longer than a 7-year term. Once that term is served, they can remain on the bench until the age of 70.

Lest you think I am being facetious when I refer to the Court as a bastion of Anglocentrism, one needs only to look to its jurisprudential history. The Court ignored the original Articles 2 and 3 of the Constitution and ruled they did not enforce a legal obligation upon the State to pursue policies of re-unification (despite that being the clear intent).

The Court has also used jurisprudence to fight tooth and nail for the interests of a vocal and preferred minority – the self-described Progressives. The Courts gave power to the State, not simply to permit abortion, but to bring those in the State’s care abroad for the purposes of procuring an abortion (regardless of the desire of that ward). The Courts similarly invented unwritten rights within the Constitution, nowhere said, but implied by their contorted deliberations – the right to marital privacy, bodily integrity, to earn a living…

The judiciary’s activist interpretation of rights and cases is coupled with their de facto lack of responsibility to anyone, particularly in decisions they deliver that can only be overturned by referendum. The unpredictable nature and logistical hurdles be damned. Their logical incoherence is predicated upon doing what they so feel – in Arbour Hill the Courts inadvertently released sex offenders en masse by declaring that charges under a law relating to statutory rape (and someone’s ignorance of the true age of the other party) were repugnant to the Constitution (and thus, were never valid).

While the logic would be that those convicted would have to be released, the Court then said that the convictions were legitimate at the time they were held – completely inconsistent with the idea of legislation being repugnant.

The insulation of the judges from reproach extends greatly – regardless of morality. Brian Curtin, a judge of the Circuit Court, was previously arrested on charges of possessing images of child pornography but the trial collapsed because the trial Judge agreed that the laptop on which the evidence was found, had been gathered illegally. After his acquittal, Curtin remained an active judge despite requests from the Government. He held out long enough to ensure his pension, retiring before a cumbersome motion could be passed by the Oireachtas to formally remove him. Had the motion gone ahead, it is likely that he would even have remained in place and caused a constitutional crisis. Such a motion has only ever been initiated twice in the history of the State – and on both accounts it failed to be executed – the former withdrawn, and the latter simply lapsing.

While we must contend national elections and enter government to affect any kind of change, we cannot afford to develop tunnel vision. The machinations of the judiciary may prove a significant obstacle if they so wish it.


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