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As questions abound, a rabbit-like Supreme Court is caught in the nation's headlights
Shane Coleman Political Correspondent



THEY are middle aged; very posh, wear wigs to work and, after the cabinet, they might just be the most influential group of people in the country. But unlike the media blitzed (and blitzing) 15-strong government, the 10 men and women that are currently members of the Supreme Court rarely come under the gaze of the general public.

But when they do, the issue tends to be politically significant. In the early 1990s, it was the 'X' case and over the last two weeks, it has been the court's controversial . . . and, some would contend, conflicting . . . judgements on Section 1 (1) of the Criminal Law (amendment) act of 1935.

There was a collective sign of relief when the Supreme Court ruled nine days ago that its earlier finding, that the section relating to statutory rape was unconstitutional, did not mean that the notorious Mr A should be released from prison. But the ruling raised both eyebrows and questions about possible political motivations in the Supreme Court.

That is new territory for the land's highest court. We are used to the US Supreme Court being open to charges of political influence. When the George Bush/Al Gore presidential contest ended up in the courts, the verdicts in the different Supreme Courts seemed to be determined by the breakdown of Republican and Democrat appointed judges.

But we have always been led to believe that the same doesn't hold here; that the judges are hermetically sealed from influence. Their job is to answer the questions they are asked, we have been told, not to play the role of Solomon.

The nation's relief at their decision of last Friday week should not have been a factor in their decision.

Nobody is suggesting that the Irish Supreme Court has overnight become anything like its US counterpart. But, rightly or wrongly, the difficult question is being asked in legal and political circles as to whether its ruling on Mr A was politically convenient. Undeniably, the ruling got the government off the hook.

Without the judgements, which won't be available for some weeks, it is difficult to say how legitimate are the grounds for thinking politics was a factor or if, indeed there were strong legal reasons for the decision. "I am looking forward to seeing the judgements, " is the pointed comment from most lawyers and politicians.

Conflict Although they are reluctant to go further, it is clear what puzzles most onlookers is how the court managed "to square the circle" by deciding on one hand that a statute that they deemed to be invalid can still be used to keep a number of people in prison. As one legal source put it last week, Mary Laffoy, the hugely impressive High Court judge, didn't lightly let Mr A out of prison but clearly felt the previous week's Supreme Court judgement left her with no choice. Yet all five judges hearing the Supreme Court appeal found otherwise.

Some potential precedent is being cited by legal experts, most notably the Murphy judgement of 1980. The Supreme Court found then that the tax laws discriminated against married couples, but significantly it ruled out the prospect of hundreds of thousands of other married couples from claiming back money from the state because it would lead to an appalling vista of hundreds of millions of euro of money that had already been spent on roads, hospitals, schools etc, having to be repaid.

But others are sceptical about the weight of this precedent in the case of Mr A. They say that while it would be dreadful if Mr A and six or seven others had been released from prison, in strict legal terms it would be difficult to present this as a constitutional crisis akin to the Murphy case. The bottom line, they argue, is that people are in prison pursuant to a section that no longer exists.

However, there is also an argument that the debate should be much wider than that. This involves challenging the notion of pure, detached law on the basis that it is, and should be, shaped by the politics of its time. Judges, as was commented last week, do not live on the moon and it seems undeniable that members of the Supreme Court have carefully tuned political antennae. Of the court's two most high profile members, one . . . chief justice John Murray . . . is a former attorney general and the other . . .

Adrian Hardiman . . . once stood for election for Fianna Fail and has been closely identified with the PDs. "Of course they are tuned in politically. There is nothing wrong with that. We don't want judges living in detached ivory towers, " one legal source said.

So do they listen to Liveline? Given that the programme's time of broadcast coincides with their lunch break, it is tempting to believe that they do. No one doubts they were aware of the public reaction to the prospect of men convicted of statutory rape walking free.

"The judges couldn't have been blind to the reality. Some purists say they should be deaf and blind to that, but they must live in the real world, " the source said, adding that the Supreme Court also had a responsibility to ensure that law was not brought into disrepute or regarded as "an ass".

Quality The one thing the purists and the pragmatists agree on is the quality of the current Supreme Court. It won't be regarded in the same way as the groundbreaking Cearbhall O Dalaigh/Brian Walsh court that revolutionised the interpretation of the constitution in relation to the Irish legal system. The current court has been much more conservative in recognising rights not specifically listed in the constitution, but it will be remembered for its intellectual robustness and vitality.

Unquestionably, legal sources say, Hardiman, with his capacity for clear and concise language, is the intellectual powerhouse of the court. He and the liberal-leaning Susan Denham are seen as the frontrunners to succeed Murray. A strong civil libertarian, Hardiman has an anti-establishment bent taking a strong line on personal rights, for example, gardai not retaining evidence. But, in contrast to the former president, he takes a strong view on separation of powers, believing the judiciary shouldn't stray into the job of the houses of the Oireachtas.

This stance has drawn criticism from more left-leaning lawyers such as the hugely respected Trinity College professor, William Binchy. He wants the court to "engage more energetically in interrogating the assumptions of the powerful so as to vindicate the constitutional rights of those lacking a strong political leverage".

Despite reports of tensions between the two men, Chief Justice Murray is believed to hold a similar view to Hardiman on separation of powers. Murray, who was twice AG to Charlie Haughey, is regarded as very bright and experienced and has a reputation for delivering interesting judgements in his own distinct style. The recent rule change that ended the practice of addressing judges as 'my Lord' is put down to Murray's egalitarian/republican instincts.

Tension Legal sources play down the significance of reports of tension in the Supreme Court, which they say have often existed in the past, adding that diversity of views strengthens the court.

"It's a good thing if there is a split. There should be vigorous debate along intellectual and ideological lines. If there isn't room for strong, opinionated people in the Supreme Court, where is there?" one source said.

And with a number of vacancies due to arise in the court . . . the highly regarded Brian McCracken and Catherine McGuinness are due to retire . . . there will soon be room for more "strong opinionated people".

Despite Fianna Fail's dominance of government since 1987, most of the contenders from what is a very high calibre High Court would have closer links to Fine Gael, leading to speculation that attorney general Rory Brady might get the nod. That of course may depend on what comes out of the inquiry into the communications failure at the AG's office. That inquiry and the Supreme Court judgements on the Mr A case are being awaited with no little anticipation in both Leinster House and the Four Courts.




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