The Hon. Mr. Chief Justice Balakrishnan, Chief Justice of India, will deliver a Guest Lecture at the School of Law, TCD:

Judicial Activism Under the Indian Constitution

It will be held on Wednesday, 14 October 2009, at 6:00 pm in the JM Synge Theatre, Room 2039, Arts Building, Trinity College Dublin (map).

If you would like to attend, please contact the Law School, by email, by mail to School of Law, House 39, Trinity College, Dublin 2; by phone to (01) 896 2367 or by fax to (01) 677 0449.

It promises to be an interesting evening. The label “judicial activism” is often used loosely, sometimes to describe the judicial process, sometimes to castigate judges as failing to confine themselves to reasonable interpretations of laws, and instead substitute their own political opinions for the applicable law. I particularly reocmmend the posts on Balkinization. The issue, a long-time staple of constituitonal jurisprudence, came to the fore again during the confirmation hearings for US Supreme Court justice Sonia Sotomayor. But the debate is not confined to the US: rather, it arises where-ever there are Courts – so judges in Canada, Australia, the European Court of Justice, and Ireland are all routinely praised and criticised accordingly. The perspective from another court and another country will be fascinating indeed.

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No, not the Irish Supreme Court, but the new UK Supreme Court. There’s quite a lot of coverage in the UK media and blawgopshere today about the new Court at the apex of UK’s judicial system, which opens for business today, on time and on budget, in a refurbished former criminal court, after a difficult gestation. David Pannick argues in the Times today that, however unhappy its origins, the opening of a new Supreme Court is an important commitment to the rule of law. Much of the media interest turns on the fact that the Court will be televised. For example, one of the pieces in the Times is headlined that TV coverage means justice really will be seen to be done:

The reform has taken a number of steps over 20 years: a Bar Council report chaired by Jonathan Caplan, QC, in 1989, the filming of parts of the Shipman inquiry and the Hutton inquiry and the 2004 pilot project in the Court of Appeal all moved the issue of cameras in court forward. … The footage will be filmed and recorded by the court and made available by a feed to broadcasters, … [and] can be used only for news, current affairs and educational and legal training programmes.

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Using the Press Ombudsman and Press Council mechanisms will allow media complaints to be settled without lawyers, as expensive legal processes will be invoked much less frequently following the enactment of the Defamation Act, 2009 according to the Press Ombudsman, Prof John Horgan. On the one hand, he would say that wouldn’t he? On the other, I hope that he’s right; it’s much too early to tell, of course, but that is the intention behind the establishment and recognition of his office.

However, not only is bringing a complaint to his office cheaper and quicker, it’s probably also safer than going to court. According to the Irish Times breaking news service, a judge was accidentally shot in court; but the facts were rather more prosaic, and the later print version of the article explained that pellets from a toy gun struck the judge at a family law hearing.

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I’ve written about this report twice already. The first occasion was when a committee chaired by Ms Justice Susan Denham of the Supreme Court was established to consider the necessity for a new Irish Court of Appeal (this was in part a response to an article on the point which Judge Denham had written the previous year in the [2006] 1 Judicial Institute Studies Journal 1 (pdf)). The second occasion when the Government received the committee’s report. In the most recent installment of this slow-moving story, the report was published last week – only three months after it was submitted to government – and to generally favourable reviews in the media (see Belfast Telegraph | Irish Independent here and here | Irish Times | RTÉ). Read the rest of this entry »

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The saga of the Defamation Bill, 2006 is not over yet. Article 26 of Bunreacht na hÉireann (the Irish Constitution) allows the President, after consultation with Council of State, to refer a Bill to the Supreme Court for a determination of its constitutionality. President McAleese has chosen to convene the Council of State to advise her on the qustion of whether to refer not only the (controversial) Criminal Justice (Amendment) Bill, 2009 (an unsurprising move) but also the (equally controversial) blasphemy elements of the Defamation Bill, 2006 (which has come as a great surprise). (See Belfast Telegraph | BreakingNews.ie | Bock the Robber | ICCL | Irish Emigrant | Irish Independent | RTÉ news | Irish Times | PA | Slugger O’Toole. Update (18 July 2009): see also Irish Examiner | Irish Times here and here | Irish Independent | MediaWatchWatch).

There have been 15 such references to date. If the Court holds that a Bill is unconstitutional, the President must decline to sign it; whilst if the Court decides a Bill is constitutional, the President must sign it into law, and the resulting Act is immune from constitutional challenge in the future. As my colleague Oran Doyle has pointed out, this means that

… unlike in ordinary constitutional litigation, a decision made under the Article 26 reference procedure without consideration of a particular issue cannot be reopened when that issue is brought to light by another aggrieved litigant. … The tenor of the court’s reasoning in several references suggests that the court is more likely to hold legislation unconstitutional when the effect of its decision is absolute immunity for legislation considered only in the abstract.

Admittedly, the reference procedure is imperfect (see, eg, Niamh Howlin “Shortcomings and anomalies: Aspects of Article 26″ (2005) Irish Student Law Review 26 (pdf)), but if it means that the odds are in favour of striking down the blapshemy provisions of the Defamation Bill, then bring it on!

The last sentence of Article 40.6.1(i) of the Constitution provides that the publication or utterance of blasphemous material shall be an offence. In Corway v Independent Newspapers [1999] 4 IR 484 (SC), the Supreme Court declined to give any effect to the constitutional clause in the absence of a statutory provision, but that decision will be of little help in any Article 26 reference. Rather more recently, in R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007) (discussed on this blog at the time), a Divisional Court of the English High Court held that it was the prevention of imminent public disorder probably which ensured the compatibility of the English common law offence of blasphemous libel with Article 10 of the European Convention of Human Rights:

[17] … The Article 10(2) basis for the crime of blasphemous libel is best found, as it seems to us, in the risk of disorder amongst, and damage to, the community generally.

The key question will be whether the influence of the Convention will mean that the Court will take a similar approach to the Constitution. Let us assume that it will. Section 36 of the Bill provides that

(2) … a person publishes or utters blasphemous matter if—
(a) he or she publishes or utters matter that is grossly abusive 10 or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

Subsection (3) is a welcome saver, but the main question will be whether subsection (2) is constitutional. There is a large gulf between the outrage envisage by the subsection and the risk of public disorder envisaged by Green. If that case is right, then this provision must be questionable under the Convention; and if a similar approach is taken under the Constitution, then this provision must also be of dubious constitutionality. I will therefore await with great interest both the President’s decision and any subsequent decision of the Supreme Court. Of course, even if she decides not to refer either Bill, a constitutional challenge is likely the first time any of the controversial provisions are invoked. Either way, therefore, the blasphemy provisions of the Defamation Bill will get their day in court.

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As the slow march towards a new Supreme Court for the UK nears its destination, the Times has a piece about its newly refurbished premises:

The United Kingdom’s new Supreme Court will open its doors for business on October 1, with the first inbuilt facilities in Britain for broadcasting in court. … Broadcasting and internet arrangements are still to be devised but the three courts (two for the Supreme Court, one for the judicial committee of the Privy Council) can be filmed, a first in England and Wales.

As the BBC story on the completion of the refurbishment emphasises, the “decision to televise events from inside the court’s three chambers is a first for England and Wales”. And the Guardian quotes Jenny Rowe, the Court’s Chief Executive as saying that they are “in advanced discussions with broadcasters about the material they will want to use … If broadcasters wish to show it we will make it available”.

I think that it is a splendid idea. As the Canadian blawgs Slaw and the Court point out, since February 2009, the Supreme Court of Canada has provided live streaming of oral arguments and judges’ questions in authorized cases. The whole experiment is working well, and doing the same in the UK is an excellent development. When will the Irish Supreme Court follow suit? Will it ever catch on here? It can only help to promote public confidence in the administration of justice at the highest level. After all, not only would justice be done, it would be seen to be done.

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Albie Sachs is a remarkable man. His official bio begins

On turning six, during World War II, Albie Sachs received a card from his father expressing the wish that he would grow up to be a soldier in the fight for liberation.

He began that fight as a seventeen year old law student; as a lawyer, the bulk of his work involved defending people charged under apartheid’s racist and repressive security laws – many of them faced the death penalty. As a result he was harassed by the security police, detained in solitary confinement for two prolonged spells of detention, tortured by sleep deprivation, forced into exile in 1966, and in 1988 blown up by a car bomb which cost him his right arm and the sight of an eye. In exile, he worked as an academic in the UK and Mozambique, campaigned for human rights and an end to apartheid, and thought deeply and wrote widely about the role of law as a protector of human dignity in the modern world. He wrote many of the ANC’s constitutional documents, helped to negotiate South Africa’s transition to constitutional democracy and to draft its post-apartheid Constitution, and was one of the founding judges of the Constitutional Court in 1994. The Court’s first hearing, in S v Makwanyane (CCT3/94) [1995] ZACC 3 (6 June 1995) (also here), concerned the constitutionality of the death penalty, which it unanimously found to be unconstitutional. As his term on the Court nears its conclusion, he has written a beautiful memoir The Strange Alchemy of Life and Law (OUP, 2009); from the publisher’s website:

The book provides unique access to an insider’s perspective on modern South Africa, and a rare glimpse into the working of a judicial mind. By juxtaposing life experiences and extracts from judgments, Sachs enables the reader to see the complex and surprising ways in which legal culture transforms subjective experience into objectively reasoned decisions. With rare candour he tells of the difficulties he has when preparing a judgment, of how every judgment is a lie. Rejecting purely formal notions of the judicial role he shows how both reason and passion (concern for protecting human dignity) are required for law to work in the service of justice.

Two of his judgments will help to give the measure of the man as a judge. First, in Minister of Home Affairs v Fourie (CCT 60/04) [2005] ZACC 19 (1 December 2005) (also here) he held that the definition of marriage as between a man and a woman was inconsistent with the Constitution since it excluded same-sex couples, and the failure to provide them the means to enjoy the same status, entitlements and responsibilities accorded to heterosexual couples through marriage constituted an unjustifiable violation of their rights. And in S v M (CCT 53/06) [2007] ZACC 18 (26 September 2007) (also here) he reversed a prison sentence on a woman primarily because it would infringe the human rights of her three children. He tells the story of the former case in this extraordinary University of Chicago talk; he tells the story of the latter case in this fascinating Guardian interview; and there are wonderful pieces (part interview, part review of Alchemy, part meditation) about him in The Scotsman, The Independent (SA), and The Independent (UK). The Guardian interview says that, at the time he was writing the judgment in S v M (with added links):

Sachs did not know of any country that took the rights of offenders’ children into account, but he subsequently discovered that similar ideas were being framed in Scotland in a report by the then children’s commissioner, Kathleen Marshall.

The report, Not Seen, Not Heard, Not Guilty, argues that the rights of offenders’ children to family life under the UN Convention on the Rights of the Child are systematically ignored by the court system. The report found that almost two-thirds of prisoners in the Cornton Vale women’s prison in Stirling had children under 18, but there was no provision to take their rights into account during sentencing.

“This was astonishing,” Sachs told the audience. “In a totally different legal system, in a totally different society, a conclusion was being reached that is almost identical. It showed that the time has come for new ways of thinking.”

That is as true of Ireland as it is of Scotland as it is of South Africa. The Irish Council for Civil Liberties (ICCL) has recently published an important paper on Protecting Children and Respecting the Rule of Law (pdf) written by Roisin Webb. It demonstrates one of the ways in which we can all benefit from the wisdom, justice and humanity of Albie Sachs.

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I have already written on this blog about reforms to judicial dress in England and Wales (the image on the right is a well-known example of the previous judicial court dress). Now comes news that Ireland may follow suit. From today’s Irish Independent (with added links):

Fashion guru revamps judges’ robes

Fashion guru Louise Kennedy has been commissioned by the Chief Justice to create an unprecedented new range of designer robes for the country’s judges. Samples of the robes were unveiled last week by John Murray, the Chief Justice, during a judicial training day in Adare, Co Limerick. … it is feared that the cost of the inaugural judicial makeover could lead to the project, the brainchild of Judge Murray, being put on hold until the public finances improve. …

The last effort to change judicial attire occurred in the mid- 1920s when Hugh Kennedy — the first Chief Justice of the Irish Free State — sought to break from away from the English tradition by introducing an exclusive Irish range of robes. According to Judge Kennedy’s papers, there is correspondence on the planned design of judicial robes between Kennedy, William Butler Yeats and printmaker Charles Shannon. But the project did not attract political approval. …

I’m sure that the time has come for Irish judges to simplify their judicial dress, but I’m not sure I would go as far as the reforms across the Irish sea. I would phase out wigs, wing collars and bands, and the black coat and vest, leaving a streamlined requirement simply of a black Irish poplin gown over an appropriate dark suit. Moreover, I would have no objection to the idea of revising the design of the gown, though I will have to withhold judgment until (either) Kennedy’s designs are published. Moreover, if it happens on the bench, will the bar follow suit?

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