ADDRESS BY PRESIDENT McALEESE AT THE 6TH BIENNIAL CONFERENCE OF THE INTERNATIONAL ASSOCIATION
ADDRESS BY PRESIDENT McALEESE AT THE 6TH BIENNIAL CONFERENCE OF THE INTERNATIONAL ASSOCIATION OF WOMEN JUDGES
Dia dhíobh a cháirde. Tá áthas orm bheith anseo libh inniu.
Madame President, Delegates,
It was with great pleasure that I accepted the invitation to be patron of the Conference and to give the opening address from Mrs. Justice Mella Carroll, your President and Chair of the Organising Committee for this, your Sixth Biennial Conference.
I warmly welcome each one of you to our capital city and to those who are here for the first time I offer our traditional greeting, Céad Míle Fáilte, a Hundred Thousand Welcomes. The conference has important work to do and I wish you well in that work but I hope too that, you will find time to enjoy the great hospitality Dublin city has to offer and to get to know its character and its people.
You gather to consider issues surrounding judicial creativity in a city perhaps historically more famous for the creativity of its juries than of its judges, but this city is proud to play host to the International Association of Women Judges to salute the work you do and to congratulate you on your many achievements since the Association was formed in 1989. Just as the fortunes of this city and indeed this country have been transformed in recent years in part at least by the unlocking of the talents of women into many areas of civic life previously barred to them, so too the world of the law has been profoundly changed by the large number of women now entering the legal profession and the sheer excellence of those who have made the formidable breakthrough into judicial office. Mella Carroll blazed the lonliest of trails, creating a new way of imagining judges and creating wider opportunities for the generations which followed her.
And sad to say there are still far too few women in public service and in particular judicial service here in Ireland. It is a story that is changing but the improvements appear slow to those who are impatient to see our country using fully its widest talent base. Our recent election saw a tiny increase in the number of women elected to parliament but they still form only one eighth of our parliamentarians despite being half the electorate. The percentages are a bit better in the Supreme Court where two of our 8 judges are women but turn to the High Court and a mere two women appear among the twenty-six judges. In the Circuit Court it is six out of
twenty-eight and nine out of fifty in the District Court. In the outgoing government three out of its fifteen members are women while four out of the seventeen Ministers of State are women - so by any reckoning we have a lot of ground to make up and a lot to look forward to. That is why associations such as yours are so crucial as witnesses to the contribution being made by women at the highest level, as exemplars of the excellence we are capable of and as role models for those who are as determined as you are that the talents and ambitions of women will not be wasted by artificial straight-jacketing but will go where they will.
Here in Ireland increased participation of women in politics and decision-making is being encouraged through initiatives funded under the Equality for Women measure in our National Development Plan. Like me you will be glad to hear that one of the projects is specifically aimed at developing a set of recommendations to advance the position of women in the law. We are fortunate that Ireland has one of the most modern equality codes in Europe. The Employment Equality Act, 1998, outlaws discrimination in relation to employment on nine grounds, gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the Traveller Community. The value system underpinning that legislation is one which we hope will be deeply and increasingly internalised by each new generation, allowing us to move far beyond the injustice of age-old prejudices, to a culture of full inclusion, of lived and experienced equality for everyone. In recent years our understanding of the notion of equality and the extent of our rights and responsibilities have been greatly assisted by judicial decisions which have helped us to imagine ourselves and our world differently. It is clear that judges have indeed helped to develop the law but they have always been at pains to point out there is a critical line between invention and interpretation and our legal system ties them unequivocally to the latter role. As Chief Justice O’Higgins put it in Norris -v- The Attorney General 1984 IR 36 - law reform
“……..is not, and can never be a function of this Court. Judges may and do share with other citizens, a concern and interest in desirable changes and reform in our laws, but under the Constitution, they have no function in achieving such by judicial decision……..” The strictness of that assertion is reminiscent of Lord Devlin’s remarks in 1 on the theme of “The Judge as Lawmaker”
“There was a time when it was thought almost indecent to suggest that Judges make law - they only declare it”.
Judicial creativity, the theme of your Conference, has a context of both limits and possibilities which your deliberations will help explore and reveal more fully. And of course the many jurisdictions represented here will have their own local contexts to shape and inform the debate, making this conference all the richer as a learning experience. In our own Irish context, next to football, politics and religion, few subjects generate as much heat.
For generations Irish courts applied the English Common Law the very life blood of which was a certain element of judicial creativity. As law students we became familiar with the phenomenon of judge-made law, the seminal judgments which changed legal history and the controversies that raged about the boundaries that separated the courts from the legislature, judges from Parliament. If that debate was complex in the heyday of English Common Law, how much more difficult is it today when we have a written Constitution, when we are subject to the laws of the European Union, and party to a plethora of detailed, binding international treaties and conventions. Our lawyers and judges no longer think along one single track but along a number of parallel and overlapping tracks, each of which ultimately has to be reconciled in some way or another but each of which presents real difficulties around reconciliation. A case in point is our move to incorporate the European Convention on Human Rights into our domestic law by means of legislation. We gave a commitment to do so in the Good Friday Agreement on Northern Ireland. Ireland was one of the first countries to sign and ratify the Convention and we have an excellent record of compliance with the Convention’s principles but we are, nevertheless, one of the last States of the Council of Europe to incorporate the Convention into our law. There are cogent reasons for this of course, not least of which is the strength of the Fundamental Rights provisions that already exist in our Constitution and the power of the Judiciary to strike down legislation which is incompatible with the Constitution. While no-one would seriously question the wisdom of incorporating the Convention, nevertheless it is imperative that its introduction strengthens rather than weakens existing provisions and we have of course the reasonably recent memory of the effect in Northern Ireland of introducing the convention’s provisions on the admission of confession statements. The effect was to radically dilute the existing common law protections offered to defendants in criminal trials, since the Convention’s protections were nothing more than minimal.
The context then is full of difficulties and complexities and there is ample scope for judicial creativity to help fit all the irregular pieces of this jigsaw puzzle together. Yes, Article 15.2.1 of the Constitution says “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas” [Parliament] but that has not prevented the courts from finding and articulating unenumerated rights in the Constitution and from developing a jurisprudence around those and other rights which has helped us to cultivate more richly the landscape of human and civil rights among other things. One of the most important applications of judicial creativity is in probing that which is obscure and helping reveal a way through it which is fully compatible with the law and inside the boundaries of judicial reach.
All in all the pending incorporation of the Convention on Human Rights into our law, coupled with the work of the recently established Human Rights Commission, which is widely recognised at home and abroad as having one of the widest mandates applicable to such a national institution in the world, is illustrative of the exciting developments and prospects in Ireland at the beginning of this millennium. Add to the mix, the Good Friday Agreement, the gargantuan European legislation and case law and our written Constitution, most of us would agree that the problem of judicial creativity we face is more to do with stamina than scope. Inevitably, these pressures translate into considerable demands upon our judges, demands for upskilling, for changes in practice and procedure, and for speedy adaptability to the rapidly changing legal environment.
And the pace of change is exponential. Already in the area of civil and commercial law, steady progress is being made to ensure that judgments given in one EU Member State can be recognised and enforced with greater ease than heretofore in other Member States. Simplifying the procedural formalities and limiting the grounds upon which recognition or enforcement can be denied will make the task of our judges easier in some respects but here too new regimes provoke new disciplines and new insistent, calls on judicial imagination.
Against this background it strikes me that it is especially vital that judges from different traditions come together to share their experiences in more informal settings. Seminars and conferences such as this, have a very important role to play in engendering the kind of discourse among judges from different legal traditions which ensures that all the available wisdom and experience is shared, reviewed and evaluated anew, that new ideas are given a considered airing before a credible audience, that networks are born through which jurisdictions share what they know and get access to what they need to know. What you share here with others enriches them. What you learn here enriches you. And at the human level I hope you find here, in and through each other, the source of a new energy and a powerful recommitment to your vocation as judges. The connections made, the insights shared and gleaned are a critical investment in the civic strength of each of our countries and in reinforcing the fabric of our common humanity, our membership of a common human family, concerned about each other, wanting the best for each other.
May I again commend the work of your Association and wish you every success with this, your 6th Conference. May it create a store of happy memories and a reservoir of new wisdom to enhance and refine the work of our judges, to assist them in their work and give them encouragement for the road ahead.
Thank you.