Last week, the Minister for Justice published a Bill to amend the constitution to establish a new Court of Appeal.
The Bill was praised for tackling the four-year delay in appeals coming on for a hearing in the Supreme Court.
The Bill also seeks to re-negotiate the constitutional relationship between the executive and judicial branches of government.
Any such re-negotiation requires the approval of the people by a referendum, such as the recent referenda approving the reduction in judicial pay and rejecting the proposal that the legislature should have the power to undertake inquiries.
It is important to assess the impact of the proposal to establish a Court of Appeal on the constitutional separation of powers. The theoretical basis of the separation of powers is that abuse of power is less likely where power to govern is divided between a number of bodies, with checks and balances.
Our constitution allocates different powers to the courts, executive and legislature.
This constitutional theory must yield to the reality that government controls the legislature and the legislative agenda through the political party system.
Thus, the courts remain the only safeguard against the abusive exercise of executive and legislative power.
This amendment has considerable political consequences for the separation of powers. It may be a constitutional and political game changer if one subscribes to the belief that the Supreme Court will mutate into a Constitutional court with the establishment of a Court of Appeal.
A Constitutional court can declare legislation unconstitutional and restrict executive power. Any student of Irish constitutional law should know that our Supreme Court already possesses the powers of a Constitutional court.
However, our Supreme Court has no control over the appeals it must hear, unlike other Constitutional courts. The Supreme Court considers appeals on everything from minor procedural matters to serious constitutional questions. The amendment can transform the Supreme Court because it affords this court the opportunity to fully explore and exercise the powers of a Constitutional court.
Two general conclusions
Political science and legal scholars have examined Constitutional courts similar to the Irish Supreme Court. These scholars arrived at two general conclusions about Constitutional courts.
First, a court is less likely to exercise its powers as a Constitutional court when it has no control over the number and types of appeal. Such a court seeks to vindicate the right to an appeal hearing of every person or body that has lodged an appeal.
Second, a court’s workload impacts on how frequently it exercises its Constitutional court powers and the manner in which it exercises these powers.
These general findings may explain why this Supreme Court is considered to be less “judicially active” than its predecessors in striking down legislation for being unconstitutional, restricting executive power and identifying new implied constitutional rights.
It is difficult to apply these general conclusions to every Constitutional court because these courts inhabit different legal and political environments. There are other variables that may explain why a court is less judicially active, for example, a Supreme Court strikes down legislation less frequently because governments and attorneys general avoid constitutional pitfalls identified in previous Supreme Court decisions.
Is it possible to predict the reaction of the Supreme Court if this amendment is passed? Research has shown some Constitutional courts exercise a fresh mandate and powers with verve whilst other courts are lethargic.
I think we will not experience a hyperactive Supreme Court either in the interim or long term. The current members of the Supreme Court will remain on the court and they have already demonstrated reluctance to exercise their powers as a Constitutional court.
It would take a significant shift in judicial attitude to exercise these powers with new impetus.
These judges will retire and be replaced by new judges, which brings the political nature of the judicial selection process in Ireland into sharp focus. Governments appoint barristers to the High and Supreme Courts where these barristers have connections to the party or parties in government.
The government could appoint those that are opposed to or indifferent to exercising the powers of a Constitutional court.
Many commentators query how a government can be so certain that a judicial appointee will behave in a particular way once appointed to the bench.
We do know that barristers are rarely appointed directly to the Supreme Court bench. 16 of the last 18 appointments to the Supreme Court involved the promotions of High Court judges.
A government can review the performance of a High Court judge to determine the extent to which this judge is a maverick or adheres to existing legal doctrine.
Mr Justice Peter Kelly has stated publicly he will not be promoted to the Supreme Court because the mandatory order he made against the executive in the late nineteen nineties crossed a constitutional Rubicon.
Finally, the Supreme Court developed a number of principles that restrict its Constitutional court powers.
Expressly abandon
The Supreme Court would have to expressly abandon or fundamentally alter these principles if the Supreme Court was to become more active in the exercise of its constitutional court powers. It is improbable the Supreme Court would adopt such an approach. This amendment will alter the constitutional relationship between the executive and courts in theory but will make little difference in practice.
The Comparative Judicial Studies Section of the International Political Studies Association is hosting a conference in Dublin Castle from July 22rd-24th.
The conference theme is "The Changing Nature of Judicial Power in Supranational, Federal, and Domestic Systems" with speakers from Europe, North America, South America, Middle East and Australia.
Dr Adam McAuley, Lecturer in Law, School of Law and Government, DCU