All at sea
Why were former Chief Justice Frank Clarke and former High Court President Peter Kelly cajoled into resigning their judicial positions in the United Arab Emirates, when the ultimate beneficiaries would have been UAE litigants, asks Seth Barrett Tillman.
On 27 July 2022, two Irishmen won a grand prize. Had they won gold medals at the Olympics, or the Fields Medal in maths from the International Mathematical Union, or an Oscar from the Academy of Motion Picture Arts and Sciences, their countrymen would have cheered.
However, these two Irishmen had the misfortune of winning an even greater prize – one rarely offered. These two retired Irish judges – former Chief Justice Frank Clarke and former President of the High Court Peter Kelly – were appointed as judges to a foreign court, a specialised commercial court in the United Arab Emirates (UAE), which applies common law as opposed to Sharia law. This is the equivalent of the Nobel Prize in law.
Instead of wild applause, many of their countrymen booed. After pressure and criticism was publicly voiced from many quarters, the judges resigned from their foreign judicial posts. As a result, an opportunity that should have been seized and promoted was lost and squandered. If the stakes were not so serious, one might laugh.
So why did they boo? What’s wrong with one of your citizens being appointed to a UAE or other foreign court? Two reasons were put forward. First, accepting a UAE judicial post ‘legitimises’ a brutal regime – one with a terrible human-rights record. I fully credit that characterisation.
The UAE is a brutal regime: it lacks a democratically elected legislature, and it does have a terrible human-rights record. But that is precisely why these appointments should have been celebrated.
Judicial independence
Very few regimes round people up and shoot them on the spot. Today, even the most brutal regimes, absent an active war, go through legal formalities, including trials and appeals. If the system is unjust, it is because the laws are unjust or because the judges depart from basic principles of fair play and neutrality.
Here, the UAE’s government was trying to do just the opposite: the law to be applied was not local law, but common law and, so, presumptively fair; and the judges would not be people with local attachments, but foreigners unconnected to local prejudice, custom, clan, and religion. Such foreign judges were institutionally well positioned to be fair to people of any condition, colour, or creed.
To put it another way, the touchstone of whether Clarke and Kelly should have kept their foreign posts was not whether the regime was a good one; rather, it was whether they would have enjoyed judicial independence when deciding cases, causes, and claims.
If they would have had the opportunity to decide cases absent political interference, then their being on that court would have only enhanced human rights in the UAE. And is not that the goal? In those circumstances, it is true that the UAE might have enjoyed a bit of an improvement to its international reputation – but, in those circumstances, that result would have been quite deserved.
The upshot of the resignation of the Irish and other foreign judges would be to leave those trapped in UAE judicial fora with only local judges applying local law. Is that a good result? Quite obviously, it is not.
To put it slightly differently, if Ireland were selling weapons or instruments to a regime that could use them to torture or monitor its citizens, then a human rights-based argument against trade would make some sense.
But as long as Ireland permits UAE citizens and students to vacation here and study here, and as long as Ireland continues to export its butter, lamb, and technology to the UAE, then there is every good reason to export judicial legal services as well. Treating legal services differently from agricultural and technological exports is pure elitism and pure virtue signalling – it has nothing to do with improving the lot of those actually living (and litigating) in the UAE.
Monetising judicial office?
The second objection was that Clarke and Kelly were monetising judicial office. That’s just wrong. They are not in office – they are retired. What they do or would have done in a UAE court would have no consequential effect on litigation in Ireland, where they had held judicial office.
What they were monetising was their knowledge and experience accrued while members of the bench and bar. That’s a good thing, not a bad thing.
Does anyone doubt that it is a good thing that retired judges become faculty members in universities and law departments, give public lectures, and write books and articles? Has anyone ever suggested that they must do those things for free?
The reason we are at sea in this particular situation is because it is so rare for a judge to receive a foreign judicial post – but the principle to be applied is the same one. If there is nothing wrong with a retired judge being paid for lectures and books, then there is nothing wrong with paying a retired judge to remain active in the traditional judicial function.
I think this imbroglio did undermine the reputation of the Irish judiciary, but that is only because the judges gave in to bullying. They should have held firm. It would have been a better result, a far better result, for themselves personally, for Ireland, and for the litigants in the courts of the UAE.
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