HOW is it that we do not dare comment on what judges do and say? They are not gods; yet they so often seem to belong to a caste beyond reproach or discussion. Not merely is the word of judges, quite literally, law, but those who utter that word can sometimes also be empowered to uphold that law, and imprison because of it, without recourse to jury or to other lawyers.
In essence, our constitutional right to fair trial by an impartial judge can be suspended by the judiciary, and nobody dares say anything about it for fear of that same judiciary. It is not merely ludicrous, but is also a violation of our human rights.
One actually has to be in the newspaper industry to know what terror these opening words have already induced in the editor of this page. He has no doubt already reached, with a trembling hand, to telephone our Irish Times solicitor, who will, with an ashen face and a sinking heart, hear news that the madman on the leader page is now intending to write about judges. Because to do this is to risk the Star Chamber; to refer to their judgments or their summaries is to invite suspension of the normal processes of the law, and in their place invoke special proceedings in which the offended party, namely the judge, becomes not merely the plaintiff, but the jury and the judge and the sentencer, too.
Contempt Proceedings
This variation of the rule of common law is done, we are told, to prevent the court being held up to contempt. But that is theory. The actual practice means that to name a judge and to find his ruling strange, or even unacceptable, is to invite contempt proceedings before that judge. Not many people are happy to go down that road - which is perhaps why you read of few criticisms of the conduct of the courts.
Yet our duty must be to criticise the courts, especially in a society in which the rule of law has never, since independence been so disregarded. No institution is above reproach, examination or doubt, not least the main engine which powers the implementation of the rule of law. And the truth, in my opinion, is that the courts of Ireland are held in widespread contempt, not merely by the vast and growing criminal community, but also by the law abiding community, which - rightly, or wrongly - does not perceive that those courts actually defend its best interests. They might indeed be wholly wrong in this perception; but, since this perception cannot be aired in public and therefore cannot be challenged, it remains a common belief.
And the failure to believe in the rule of law removes one of the vital adhesives to a society. Faith in the law, in its fair implementation and in the exacting consequences of violating it, is one of the hallmarks of a functioning society. It is what mediates between offender and offended and enables the rest of us to continue with our daily duties. The workings of the courts of a land are not just a matter of judges pride or judges prudence - neither of which can anyway make me trust my neighbour, never mind love him.
Honest Toil
It was not a matter of love or trust the other day in Court 27, to which Judge James Carroll called the foreman in charge of renovations in the Four Courts after an electric concrete cutter was used outside the court window. The judge warned the foreman that he would commit to prison any workman causing a disturbance within sight or sound of his court between 10.30 a.m. and 4 p.m.
Am I alone in finding such a threat, using such absolutist power against men who are only doing their job, quite astonishing? We all find pneumatic drills irritating; few of us dreamt until this week that anybody could summarily imprison their users without charge or trial. The judge did not confine his plenipotentiary remit to the window of Court 27; no, it extended as fir as the eye can see and the ear can hear which could well have meant that a large area of Dublin fell silent as workmen obediently ceased to toil.
Nobody likes to be misrepresented, but it happens, inadvertently or otherwise, either through stupidity or incomprehension, and no doubt sometimes through simple dishonesty. Not many of us have the power to deal with misreppresentation in the way that, Judge Paul Carney threatened to on Tuesday, after sentencing a Waterford man to three years for rape. He told the court that his sentence could be lawfully criticised trenchantly, but it could not be misrepresented. If it was misrepresented, he would deal with the misrepresentation using the full rigour of the laws governing contempt of court.
Well, I have absolutely no intention of making any comment upon his sentence, not because I wouldn't want to, but simply because I wouldn't dare to. For is it really right and proper that if I do comment on that sentence, and the judge feels that I have misrepresented him - for whatever reason, through honest stupidity or dishonest mendacity - that same judge has the power to throw me into jail, without trial, or jury or the normal processes of law?
Is this not raising a legal barrier to free and fair discussion about the activities of a court on matters which are of interest to us all? And who is going to venture any opinion on any ruling ever if a simple error of judgment in the expression of that opinion could result in a spell in the jug?
Total Power
No doubt our two judges cited here genuinely felt that they were upholding the dignity of the court, using their proper powers, and no doubt the judges were not wrong. Those powers exist in law, and the judges were merely invoking that law. What is wrong is that - they have been given such total power, which they can by law exercise without mitigation, pending the intervention of an other court.
It is an intrinsic violation of natural justice that any man or woman should be judge of his or her own case; in such circumstances, instead of the courts being a social device for the enforcement of law, they are inevitably transformed into instruments of personal authority with the prison system there to enforce that authority.
That, surely, is not the business of our courts or our jails: but, as in all matters of law reform, we can await reduction in the lawful powers of the courts ..... En attendant Godot.