EDMUND HONOHAN, MASTER OF THE HIGH COURT, WITH MARIAN FINNUCANE (Transcript of interview)
M: I thought I was hearing things the other morning when I was listening to Morning Ireland and I thought I heard your brother talking about the judiciary
H: Well we do have very similar voices, not this morning though because I have list my singing voice, so sorry about that I’m not singing any songs
M: right ok well we’ll have to put up with that. Your brother of course being the central bank
H: that’s right, yes
M: You and he grew up in Glasnevin; your father was in the civil service as well
H: he was, right, he was a long time civil servant in Finance, a colleague of TJ Whitaker he was secretary to the Minister for Finance Minister McEntee at the time, then he moved into social welfare and he was secretary there for ...o I don’t know... thirteen to fifteen years before he retired in the seventies
M: Yea...he was the one who came up with the notion of free travel
H: O he was yes...well there was no money in those days and it seemed if anything could be done on a budget would help people out would be an eye-catcher and he suggested it to his minister at the time who was Boland and he approached Charlie Haughey who was Minister for Finance at the time and it took off from there
M: well that’s a rather nice legacy isn’t it?
H: yes a very nice legacy and one we are proud to promote
M: yea and the ESRI
H: yes, founder member of ESRI it was then known as the ERI economic and research institute
M: you reckon that in the Dept of finance there isn’t enough knowledge about law and in the Dept of Justice there isn’t enough knowledge about finance
H: Yes, that’s true I am absolutely of that view and that has caused a problem. There are no formal relationships between these departments except at informal inter-departmental level and it seems the dept. of Justice would be inclined to say well we better not press the point if somebody in Finance tells us that’s not a runner, and likewise in Finance, if somebody in Justice tells them that would be unconstitutional, they’ll say well I suppose they know best. It need actually a multidisciplinary approach to most issues in life now and unfortunately the approach is to bring to all to the lowest common denominator instead of the highest common multiple.
M: What is your role?
H: Well, I’m ahh ...I suppose you might call me a virtual judge in computer parlance. Its a subcontracting by the high court judges, there are 38 of them, they subcontract to me through the rules of court the various, if you like, relatively trivial applications concerning the preparation of cases, ensuring that the paperwork is in order and ensuring that slightly judicial and quasi judicial aspects can be ironed out in a courtroom scenario. And so I sit, I have a big court in there, usually about 100 to 120 people in there at the beginning of the day, and we go down through the list and usually council..barristers junior barristers, usually fairly junior barristers will argue the toss on various important issues from their client’s perspective and a decision has to be made and progress has to be made in most cases, so a very efficient way of dealing with...
M: When you say a decision does that mean then that it does not go on to the other court? Is this to reduce the level of work going into the High Court?
H: It is, yes. We call them an interlocutory decision, a decision the effect of which expires when the trial actually starts, so that in fact aah for example you’d be familiar with discovery of documents, a decision like that would not be reventilated reopened at the hearing of the case. The decision of the discovery will be dealt with well before the case is listed for a hearing. I suppose you could call it case management. It’s an attempt to ensure that both parties know completely what the case is and that each side is ready to roll with the case when it’s given a date for the hearing before a high court judge.
M: Right, now... You’re quoted as being a great admirer of Mr Justice Kelly.
H: I am
M: Why did you speak out against him?
H: O... a... You’re trying to be mischievous now Marian! Laughs.
It had the desired effect. A wit in the library said to me the other day after it, he said the separation of power is like the difference between North Korea and South Korea, there’s a line in between the two countries and the demilitarized zone – that’s the Attorney Generals’ Office. Now when a judge makes a throw away remark about a gap in that wall between the two countries, it’s never thrown away, it can’t be thrown away, that is a judge who’s making a remark which echoes around the world. Unfortunately we have a situation where most people would hesitate before commenting on that; his fellow judges would say-perhaps privately- mmm gosh that’s a bit over the top, that’s a bit...; and the politicians would say well we better cool this, we’re not going to inter into this kind of a controversy; and the journalist would say we’ll just print it, it’s a good news story. But, I felt that the throw away remark had to be caught because you know it’s the North Korea /South Korea thing, one has to protect the line from both sides: - now the judiciary may feel that because they are not being invited to tea in the demilitarized zone that the other side is invading, but in fact it could be the other way round as well, that the other side feels that the judiciary needs to be kept below the line.
M: Remind people of what Mr Justice Kelly said
H: His view was that recent decisions concerning proposed new judges, the creation of new judges, the new civil court of appeal, new arrangements about judicial pensions for incoming judges, and also if you like the previous couple of years in dealing with the pay situation looked prima facie to use a legal phrase, they looked like a chipping away of the terms and conditions of the judges employment...
M: Well they were, but that was right across the board...
H: Well that’s now just in relation to their terms and conditions at the time. But the difficulty is that actually judges when they take up a job, although they may feel they are completely protected, their pay is paid out of the Central Fund and various other things like that, the Constitution actually isn’t as cast iron as it would appear. I actually brought in the John M Kelly, Professor John M Kelly’s book to you here this morning to you Marian and I thought I’d point out to you that one of the amusing things he says about it is, in relation to the article he says is the judges might think on a casual reading that they are impregnable, but actually he says-quote they are unprotected against a sudden arbitrary reduction in retiring age...laughs
M: When was that published?
H: Well this is the standard text on constitution law
M: Right
H: That’s the case, the judges must suck it up in effect and that’s where the dividing line is. Now they may say we’re entitled to be consulted, well they are entitled certainly to make their views known in the demilitarized zone, but they are not entitled to go on the public airwaves and announce that there is a critical breach in the constitutional balance between the powers. I must say I come not from the judicial side but from the executive and legislative side; the democratic right is that as employers of the judges for the state through their politicians to set the terms and conditions – I don’t see any way around this.
M: Well they clearly took the view –certainly Catherine McGuiness took the view, Mr Justice Kearns took the view- that you had no right to be saying what you were saying, and they said that you aren’t a judge and you didn’t have a right to comment on what the judges would think...
H: O I did have a right to comment, everybody has a right to comment
M: Well I think they felt that maybe you were speaking on behalf of
H: I don’t know where they got that idea from. I’m Master of the High Court and I do have a particularly exclusive position and I’m in the rather uniquely comfortable position in the sense that I’m not a practising barrister, I don’t appear before the judges and therefore I don’t have to worry about the consequences of making a comment; nor am I a judge and therefore I don’t have to if you like stand up for my colleagues and the others on the bench; but I am in a position to make authoritative views known about the constitution, views which would not be known unless somebody, if you like, opens that can of worms. And I’m happy to say it served the purpose because we are having, you know ,respected journalists such as Conor Brady, David Wynne-Morgan, Stephen Collins and so forth who came out subsequent to that and really you know said lay it on the line the judges cannot be going around exaggerating a position of this sort.
M: You used the term “entitlement,” that it came from a sense of entitlement.
H: Yes, I know all about that (laughs) cos I have a bit of that myself too (laughs). It’s a problem with being on the bench. Now I don’t have a bench as such- I have my nice comfortable chair but I do have rooms called a courtroom- but when you sit there and everybody’s looking at you, you do begin to think that they all think that really they have to watch their p’s and q’s and you know that when you come in to court they have to stand up and bow- I’ve told them not to bow in my court incidentally – and that you begin to feel that you’ve got a fairly copper fastened position in life, in society; and then you think that all these judges are independent and you forget about the actual terms of the constitution; that’s what I wanted to bring the debate back to- We need to take out the article in the constitution and look at it again and say oh actually it’s not as categorical as one might think. And the sense of entitlement if you like arises out of the fact that people will not comment on suggestions that judges are not as protected as they might think they are.
M: As you say as they might think they are, but maybe as they should be
H: Yes, judges should be protected, but, and their independence, yes, and as Prof Kelly says quite clearly their independence is from the moment they take up a case their judicial function is independent of and free from any kind of pressure. They take an Oath of Office to judge without fear or favour and that’s the citizens’ guarantee – they say oh we’ll give you an element of protection under the constitution provided you swear an oath saying you are not going to be going cap in hand to one or other of the parties; but the independence concerns the exercise of the function, it doesn’t concern where its carried out, what the rules of court will be, the hours of work, the pension rights and things of that sort- these are purely contractual matters between the judges of the day and the government of the day and they are subject to change.
M: But isn’t there a fundamental question to be asked if somebody has power over you in terms of money and conditions and income and pension and so on and so forth if they don’t like what you are doing they could make life difficult for you and then you wouldn’t have that separation and independence. If, for example a judgement was given that the government seriously didn’t like, which occasionally happens, you have to be sure as a consequence of that that you are not going to lose your job, say for example.
H: Yes I’ve just read it out from the book: - it says they are in jeopardy of having changes made to legislation on their terms and conditions. Their guarantee is the fact that they’ve taken the judicial oath, they have to suck it up; they have to take whatever is thrown at them. They’ve taken an oath and Judge Kelly of all people is the man who knows exactly what an oath of office means and an oath in general. An you know I’m fairly hard on people who swear things that are not true, and we really must get back to that as an ideal that there is in fact a comfort for the public on the strength of which they’re able to give R-E-S-P-E-C-T to the judges; that’s to say the judges have sworn an oath to do it without fear or favour even if the roof of the court is about to fall...that’s their function, they may be strung up at the end of it if a government of the day doesn’t like what they say – it’s not likely to happen here but it could happen in Greece, Syria or in Egypt
M: And does happen all over the world all the time so it’s a very treasured demilitarized zone as you call it
H: Yes
M: And did any of the judges talk to you about it
H: You mean before or after
M: After
H: Well I’ve said hello to a few of them; we’re on reasonably good terms. Actually I was surprised at the questions thrown at me on RTE: I came in you know with chapter and verse to back up my argument and I was given three minutes...it wasn’t very satisfactory...it was regarded as possibly as something of a solo run but the judges in general you know would be concerned that an impression that might be created that everybody thought that the government was out to get them and that for that reason, the citizen bringing an action against the government might feel he wasn’t going to get a fair hearing; that’s what the judges were concerned about. But the reality is that people must understand that the judges have their role to play in society and the constitutional division is quite clear. And it’s not under threat.
M: In terms of your own work –I’ll come back to judges again- oh did it feel like a belt of a gavel?
H: No, not at all; you know barristers when they’re in practise, they’re constantly commenting on judges and saying well that judge got that wrong we better appeal that to the Supreme court and so on; It’s actually part of the daily routine we say what judgement was that –oh yes, but wasn’t that overturned by So and So and so on, so it’s almost part of the job to know what judges are giving good judgements and what judgements need to be looked at more closely to see where the flaws are.