---

Rule of law attacks in EU could ‘taint’ Irish judges

Chief Justice Frank Clarke has said that it is entirely appropriate for judges to express solidarity with judicial colleagues in other countries who are in disagreement with governmental policy directions. 

While those on the bench are expected to exercise significant restraint in commenting on public affairs, the chief justice said that it had always been accepted that there was an exception on issues that involved the judiciary directly.

Issues

Judges are entitled to engage, in a restrained and reasonable way, on issues that affect them directly, the chief justice said, speaking online at the 2021 Bar of Ireland conference (17 June).

He referred to the 2020 participation by Supreme Court Judge John MacMenamin in a protest march by the Polish judiciary against court reforms.

Criticism was expressed that this participation was interfering in policy choices made by a foreign government.

The chief justice said that the matter required careful analysis of serious question involving the rule of law.

He added that the policy changes in Poland meant that an entire cohort of senior judges were going to be cleared out, and retired prematurely, which provided the capability of introducing new judges in significant numbers.

Revisit

Another policy change in Poland will make it easier to revisit judicial decisions made in the past, as well as radical changes to the disciplinary structure for judges.

“I would strongly argue that the sort of matters that were giving rise to concern in respect of Poland had gone well beyond policy matters,” he said.

“They were legitimately considered by many judges throughout Europe as a significant attack on the independence of the judiciary.”

That this was an attack on the rule of law had been borne out by subsequent decisions of the Court of Justice, he said.

There was a philosophical argument for solidarity between judiciaries, he continued, and judges were entitled to have a say in situations where they considered that there was a serious attack on the judiciary in another country.

There was a unified approach by the judiciary, generally, across Europe, he added, to support states where the rule of law was being called into question.

“We legitimately took significant comfort from the fact that we were not alone,” he commented.

Logical

And there is a more practical reason why the independence of the judiciary in other EU countries is the business of Irish judges, he added.

“We are called upon constantly nowadays to respect or enforce judgments of the courts of other member states, and that's a necessary part of a logical and functioning legal system within the European Union.”

If there is legitimate reason to be concerned about whether a judge, whose order is being enforced, is truly an independent judge, that undermines the system, the chief justice warned.

Irish judges could become tainted by this process, he added, reiterating that the independence of the judiciary in other EU countries was their “legitimate business”.

Burden

“It’s a very big burden to place on a national court to form a judgment about the specifics of a case in another country, but that’s the job we have to do,” he said.

“It is the legitimate business of all judges to be concerned about the rule of law in other countries.”

The chief justice added that, in Ireland, the Conduct Committee of the Judicial Council had completed its work on ethics guidelines for judges, which would go to the board shortly.