Judicial Appointments

[livingstone]

The judiciary here and in the states is fundementally different. Here the judiciary is the one area that is removed from public scrutiny in all but the most execptional cases. The reason is simple, is is the same reason that we don't elect judges as they do in some courts in the US - it is because law and legal interpretation and not popular feeling must be the driving factors in a decision.

As for the board selecting one candidate - first off I'm not sure why all of this faith in the 'board' given that several of its members are selected by the minister for justice and that it is as likely to be made up of former hacks as the pool from which judges are selected.

In terms of fairness, it is certainly unfair that party membership rather than meritocracy should get someone a job, and as far as I remember close to 70% of the judiciary were formerly members of fianna fail.

But in terms of its effects on the justice system I dont think its a problem. The reason you have such controversy in the US is because of the gap between left and right and a very activist, even political, supreme court. You dont have the same political effects of the Irish supreme court. So whether someone is a FGer or FFer isn't likely to have much impact on what a judge decides, say, in an abortion case. Partially because there're greater concensus here but also because our judges are more used to putting party allegiances behind them on being appointed - so the issue becomes one of law and the interpretation thereof rather than of towing the party line.

[michael1965]

In terms of fairness, it is certainly unfair that party membership rather than meritocracy should get someone a job, and as far as I remember close to 70% of the judiciary were formerly members of fianna fail.

But in terms of its effects on the justice system I dont think its a problem. The reason you have such controversy in the US is because of the gap between left and right and a very activist, even political, supreme court. You dont have the same political effects of the Irish supreme court. So whether someone is a FGer or FFer isn't likely to have much impact on what a judge decides, say, in an abortion case. Partially because there're greater concensus here but also because our judges are more used to putting party allegiances behind them on being appointed - so the issue becomes one of law and the interpretation thereof rather than of towing the party line.

I wouldn't agree with the above. The difference between left and right in the US is hardly greater than here. IMO the biggest difference is that the US constitution is hard to change, and that gives the Supreme Court there immense power. I also believe their system is somewhat more transparent than ours. It's very easy to find out which president appointed which judge (in the US), but not at all easy here. Also, the public confirmation hearings tends to bring into the open the judicial philosophies. This may gives an impression of non-bias here, but the fact is that judges here have their own philosophies too, but it's only the legal community who get to know them.

Also, it is unfair to accuse US judges of being party political. First, it's all too easy to confuse political bias with just a certain kind of legal philosophy. I mean Republican appointed judges are more likely to take a literal approach to interpretation rather than Democrats who tend to be more activist. I don't see anything wrong with republican presidents appointing the former type, and democrats the latter.

Second, it sometimes turns out that judges don't behave as expected. As I understand it, republicans are not at all happy about how some of their own appointees to the US supreme court have turned out.

[michael1965]

Why shouldn't the two professions be seperate?

French lawyers (avocats) and judges (magistrats) come from the same educational background. After the Baccalaureat or our equivalent Leaving Cert, one can choose university to study law. Two to four years later one takes a competitive examination. Based on the scores of the examination one can choose to enter the Ecole Nationale de la Magistrature or the school for judges. Here the individual is trained as a professional judge.

Judges are judges from the very beginning of their law career. They are chosen from the top of their law classes by special examinations. They are trained for three years to be judges and tend to follow a particular career track starting in the juvenile court until they find the right spot for themselves. Judges may be sitting magistrates or standing magistrates. A sitting magistrate is what in the United States we typically see as a judge on the bench. A standing magistrate is a prosecutor, working for the government in the criminal jurisdiction. Therefore, the prosecutors are educated in the magistrature school and can change back and forth from standing to sitting.

In a criminal case, there is a principle of contradiction. The French observe the adversarial principle and each party is entitled to representation by an advocat. But there is also the principle of inquisition. The adversarial principle and principle of inquisition occur at the same time. On trial, the attorney does not question the accused. Instead the sitting judge will do the questioning, theoretically in an impartial manner. In such a case the sitting judge has studied the facts of the case as prepared by the parties and prosecutor and questions the witness or accused based on that knowledge. The advocts represent their clients by pleading-literally-before the court for their client, based on the law and the facts.

There was a very interesting article a few weeks ago in the Irish Times, that was very relevant to this discussion, but I couldn't locate the dang thread at the time.

It was about a terrible miscarriage of justice where 13 people were wrongly convicted of child-abuse/paedophilia in northern France. There is another summary of it here. But it seems the French are calling into serious question their system where (sometimes young and inexperienced) judges acting alone can destroy the lives of innocent people. The judge in this case was aged 29 at the time, and committed extremely serious mistakes/errors. It wasn't long after the Dutroux case in Belgium, and it seems the judge got caught up in the general hysteria surrounding paedophilia at the time.

Anyone who says our system favours the guilty (or anyone who worries that judges are not more "with it", should take a look at this case)

[barrym]

There was a very interesting article a few weeks ago in the Irish Times, that was very relevant to this discussion, but I couldn't locate the dang thread at the time.

It was about a terrible miscarriage of justice where 13 people were wrongly convicted of child-abuse/paedophilia in northern France. There is another summary of it here. But it seems the French are calling into serious question their system where (sometimes young and inexperienced) judges acting alone can destroy the lives of innocent people. The judge in this case was aged 29 at the time, and committed extremely serious mistakes/errors. It wasn't long after the Dutroux case in Belgium, and it seems the judge got caught up in the general hysteria surrounding paedophilia at the time.

Anyone who says our system favours the guilty (or anyone who worries that judges are not more "with it", should take a look at this case)

The French case was the one I referred to earlier in the thread. I happened to see the (live tv) apperance of the juge d'instruction before a parliamentary committee, he was about 30! and had been in sole charge of the case. The committee hasn't reported yet, but as you said many French people are questioning their system. It seems that their system (like ours?) is overloaded and many things get by. OTOH one of the families concerned did have a huge collection of pornographic material in their house, and several young kids.... so, it may be that the juge was too enthusiastic (and inexperienced). The case was turned over by a higher court - which I suppose is what they are there for.

Apropos the original subject of the thread - I find it amazing that the Supreme Court decision is hailed as such a breakthrough - we can actually fire a judge!! After almost 80 years of our own justice system is this really the first time we've ever had to consider this?? Amazing

Bye, Barry

[michael1965]

There was a very interesting article a few weeks ago in the Irish Times, that was very relevant to this discussion, but I couldn't locate the dang thread at the time.

It was about a terrible miscarriage of justice where 13 people were wrongly convicted of child-abuse/paedophilia in northern France. There is another summary of it here. But it seems the French are calling into serious question their system where (sometimes young and inexperienced) judges acting alone can destroy the lives of innocent people. The judge in this case was aged 29 at the time, and committed extremely serious mistakes/errors. It wasn't long after the Dutroux case in Belgium, and it seems the judge got caught up in the general hysteria surrounding paedophilia at the time.

Anyone who says our system favours the guilty (or anyone who worries that judges are not more "with it", should take a look at this case)

The French case was the one I referred to earlier in the thread. I happened to see the (live tv) apperance of the juge d'instruction before a parliamentary committee, he was about 30! and had been in sole charge of the case. The committee hasn't reported yet, but as you said many French people are questioning their system. It seems that their system (like ours?) is overloaded and many things get by. OTOH one of the families concerned did have a huge collection of pornographic material in their house, and several young kids.... so, it may be that the juge was too enthusiastic (and inexperienced). The case was turned over by a higher court - which I suppose is what they are there for.

Bye, Barry

I didn't realise you were talking about this case. You're right that the case was thrown out on appeal, and also that there were two couples at the centre of it who were guilty. But, the problem was how it turned into a witch-hunt, implicating (and destroying the lives of) others who were completely innocent. Some of these people were in prison for nearly three years, lost their jobs, and their children were put into care. One committed suicide in jail. I really don't think it could have happened here. The presumption of innocence is much stronger in our system. One interesting comment I read was that the French will change their system, but they regard the Anglo-Saxon system as too costly for the state.

[barrym]

One interesting comment I read was that the French will change their system, but they regard the Anglo-Saxon system as too costly for the state.

Ahem!! I wonder how far into the the cheek the tongue was.... The French establishment would have a big problem with anything "Anglo-S" Cost?? the present system costs a fortune, all the juges d'instruction are civil servants and cost a lot more than the police, part of who's job they do....

No, the French system is not perfect and gives rise to the horrors such as the Dutroux case, but another aspect of that case was that all the supposed guilty people were relatively poor, the topic was 'degoutant' - unsavoury and most importantly the built in checks didn't work, the magistrature didn't cross check the (young) juge d's work.

I would agree with you that in our adversarial system that particular problem probably wouldn't happen but OTOH our system isn't perfect - recall the 'OFlaherty/Kelly et al 'fix-up' to the get the architect out of jail!!

Bye, Barry