The Attorney General has told the Supreme Court that proposed new legislation governing the appointment of judges goes to the heart of the issue of judicial independence.
The court is hearing arguments about the constitutionality of the Judicial Appointments Commission Bill following a referral to the court by President Michael D Higgins last month.
Yesterday, those opposed to the bill said the legislation interferes with the Government's power to appoint judges and the independence of the judiciary.
However, today Attorney General Rossa Fanning SC said those opposed to the bill were suggesting "if it ain’t broke don’t fix it". However, he said a constitution, "like ships had to be built for foul weather as well as fair weather".
He said the current system of seeking "by and large" to appoint the best people to the bench was no reason to be complacent.
He said one only needs to look "across the water to see the importance of judicial independence, particularly in times of political turbulence".
Mr Fanning said judicial independence goes to the heart of the policy rationale of the bill which was entirely bound up in the substantive question of constitutionality.
The bill was designed to enhance judicial independence by reducing political influence on judicial appointments after a robust screening process.
They will be assessed on merit which the opponents of the bill "take surprising objection to" but was imperative for any job, he said.
"What selection process is not driven by merit?" he asked.
He said it was counterintuitive that the opponents of the bill were arguing that it would unlawfully transfer power from the Government.
He said Governments were more commonly criticised for doing what they do not have the legal power to do but in this case it was relinquishing a power.
He said there was no usurpation of power as the politicians themselves see the problem in politicians having too much discretion in appointing judges.
He said the legislation has the support of the Oireachtas and the opponents of the legislation now find themselves "unwittingly as apologists for a criticised method of judicial appointments which is inherently vulnerable to political motivation".
He said the legislation serves the separation of powers and judicial independence and has another benefit in enhancing the separation of powers in a different way because it was "a legal check against the theoretical power of a government acting in bad faith in the appointment of judges".
He said three important presumptions operate in his favour including the starting position of the legislation benefitting from a presumption of constitutionality, that the Oireachtas is entitled to legislate and that it was entitled to legislate in such a way as to vary or abridge what heretofore may have been an unlegislated executive power.
In a modern regulatory state there were a plethora of state bodies regulators and agencies that act autonomously from central government, he said adding that most were created in relatively recent times by statute and the function they perform is "in conceptual terms a carve out of central executive power".
While there was a potential diminution of political accountability any such body established by statute is amenable to judicial review, he said.
There was currently very little accountability of government on judicial appointments and not much that can be said once a judge is appointed.
He said it was not routinely raised in Dáil questions. He accepted that it was open to the constitution to create a zone of executive discretion not capable of being legislated over.
The only question in this case was whether the power to advise the president on the appointment of judges falls within that category.
Mr Fanning also told the court that in the past 20 years, of the 215 judicial appointments, only three had not been recommended by the Judicial Appointments Board (JAB).
He said "all this high constitutional rehtoric about a radical diminution of power" needs to seen in the context that the JAB restricts executive power in a structurally similar way.
The Government already operates on a restricted basis of the recommendations of the JAB, he added, asking why is the JAB constitutional and the Judicial Appointments Commission (JAC) not.
It was not the "big hill of beans" it was being made out to be and the bill's opponents were hypothesing a conflict between the Government and the commission that has never occurred in the 20 years between Government and JAB".
"There is no reason to believe in the real world that the government will do anything other than accept the recommendation of the JAC," he added.
Yesterday Senior Counsel, Eoin McCullough, who has been selected to argue against the constitutionality of the bill told the court that the legislation interferes with the Government’s power to appoint judges and the independence of the judiciary.
The arguments in the case centre on part of section 51 of the Bill which says the Government shall "only" consider a person for appointment as a judge from three names recommended by the JAC.
Mr McCullough told the court this section meant the Government must make a nomination and must select one of the three names put forward by the commission. He said it meant the commission was taking to itself the power of nominating the candidates that may be appointed – a power that should rest with the Government.
He said there was an absolute preclusion on the Government departing from the Commission recommendations and this effectively reduced the role of the Government to a rubber stamp.
He said political accountability was absent if the Oireachtas was entitled to delegate this power to a third party.
The court has 60 days to make its decision meaning a ruling will be due by the middle of next month. If it finds any of the sections are unconstitutional, then the entire bill will fall. If it finds the bill is constitutional, then it cannot be challenged any further.
It is 18 years since a bill was last referred to the Supreme Court under the provision set out in Article 26 of the Constitution and the first time President Higgins has referred any bill.
It is the 16th time since 1940 that a bill has been referred.
The hearing finished shortly before 5pm and Ms Justice Elizabeth Dunne thanked all the parties for their oral and written submissions over the course of the two day hearing.
She said the court would reserve judgment and deliver it in due course.
