A good rule of thumb for judging the health of a democracy might be that the more obscure the judges are, the better the system is working. If most citizens would be hard-pressed to name a High or Supreme Court judge, the chances are that elected officials and the State bureaucracy are doing a good job. If, on the other hand, judges are making headlines, it's probably a sign of trouble.
If the courts have to make dramatic interventions in the workings of the State, it's usually because politicians have been avoiding a divisive issue or because the machinery of government is breaking down. When a High Court judge has to warn three senior Ministers that they are risking proceedings for contempt of court, as Mr Justice Peter Kelly did this week, something has gone badly wrong.
The notion that Government Ministers could, in theory at least, be sent to jail for their failure to establish a civilised system of care for troubled youngsters certainly raises the stakes in the conflict between the judiciary and the executive. But it is, in fact, merely an extreme expression of what has become a routine fact of life.
In the last fortnight, we have also seen the courts make decisive interventions in public policy issues as diverse as the provision of a taxi service and the education of autistic children. And, with strong hints that the Government intends to deal with the abortion question by means of yet another constitutional amendment, we have an implicit acceptance that this issue, too, will effectively be left to the courts.
Meanwhile, the most important political stages in the country continue to be the tribunals of inquiry, headed by current or former judges. Though they are not courts of law, they are dominated by lawyers and broadly follow judicial rules. Here, too, the line between politicians and judges is being blurred. To watch senior ministers and even Taoisigh being put through their paces under the eye of a High Court judge is to see visible evidence of a shift in power and prestige from the executive to the judiciary.
Admiration for Mr Justice Kelly's justified insistence on forcing Ministers to face their responsibilities, therefore, does not altogether silence the insistent question of whether this shift is altogether a good thing.
Judges, after all, are not elected. Their appointment is subject to no real scrutiny by the Dail. There is also no attempt, at least not in public, to discover their broad views and principles before their appointment.
To an overwhelming extent, they are drawn from a privileged minority of Irish society. The more actively they engage, not just with the general principles of justice but with the actual delivery of government services, the more problematic these issues become.
At one level, there's nothing especially new or uniquely Irish about this week's developments. In democracies with written constitutions, the courts are always likely to be the arena in which certain key social conflicts are decided.
In the early 1950s, when institutionalised discrimination against blacks in the United States was an issue which most mainstream politicians preferred to avoid, it was left to the Supreme Court, in the famous Brown V The Board of Education case, to put the issue on the political agenda. In the US, as in Ireland, the abortion laws have been effectively framed, not by the legislature but by the courts. Arguably, indeed, the biggest question that will be decided in next month's US presidential election is who gets to appoint the judges who will tip the balance between liberals and conservatives in the Supreme Court.
The emergence of an activist, reforming constitutional court in the US was mirrored in Ireland in the 1960s, with the Supreme Court of Cearbhall O Dalaigh and Brian Walsh adopting a far more radical stance than its relatively conservative predecessors.
By finding that the court could elaborate rights which were implied rather than spelled out in the Constitution and could interpret the Constitution in the light of changing social attitudes, the judiciary effectively turned itself into a third arm of government. It also became, in general, much less deferential towards the Oireachtas and the government, showing itself willing to strike down legislation and to overturn both government and civil service decisions.
Oddly enough, governments were often far less unhappy with this state of affairs than they might pretend to be. On issues like contraception, gay rights (decided by the European Court), and the traumatic X case which followed from the 1983 abortion referendum, governments preferred to point to the courts and say "they made us do it". It was simply easier than taking political responsibility for a principled but perhaps controversial decision.
THERE could be no clearer demonstration of this shirking of responsibility than the refusal to deal with abortion. In the X case in 1992, Mr Justice Niall McCarthy lambasted the executive for failing to bring in legislation on abortion after the referendum, which he described as "no longer just unfortunate; it is inexcusable".
Yet, eight years on, there is still no legislation. In this context, it is clear that what has happened is not so much that the courts have seized power as that they have been left with it. Instead of being just a fail-safe corrective to occasional misuses of State power, the courts are being forced to fill the power vacuum left by the cowardice, incompetence or inactivity of the other arms of government.
In a properly functioning parliamentary democracy, a government which could not provide basic services for troubled or disabled young people would be held to account in the Dail, not the courts.
A Supreme Court ruling like that in the X-case would result in legislation that clarifies the law. The solution to a straight-forward practical problem like the shortage of taxis in Dublin would not be held up for many months while the courts deliberate. Horrendous break-downs in public services like those at the Blood Transfusion Service Board in the 1980s would not happen because there would be proper oversight by independent and accountable boards.
If they go on dumping all of these things in the laps of judges, politicians should not be too surprised to find themselves in the dock.
fotoole@irish-times.ie
