The commendable decisions by former chief justice Frank Clarke and former president of the High Court Peter Kelly (and now also the third of the four former Judges sworn in before the ruler of Dubai in late July, retired New Zealand Judge Sir William Young) to resign from the Dubai International Financial Centre Courts to which they had been appointed allows us to consider what lessons can and should be learned for the future to protect the reputation and standing of our Judiciary.
The editorial position adopted by this newspaper (July 30th) on what has been rightly called ‘judge washing’ (or more jocosely ‘LIV Law’) by the Emirati regime was a brave one and has opened the discussion about the proper course for retired judges in many other jurisdictions since the story first broke at the end of last month. But, to my knowledge, there has been no report, public comment or debate about the resignations in Dubai, perhaps unsurprisingly given the absence of a free press.
I think it is fair to say that it is unlikely any other retired Irish judge would now apply for or, if nominated, accept an appointment to the Dubai court
Clearly, something about the sight of our esteemed former judges being sworn in before a ruler of a country known for its contempt and disregard for human rights and the rule of law as understood and applying in Ireland shocked the conscience of a great number of people.
I think it is fair to say that it is unlikely any other retired Irish judge would now apply for or, if nominated, accept an appointment to the Dubai courts. Far from enhancing Ireland’s legal reputation participation, association with and validation of a regime such as Dubai’s by joining part of its court system would greatly undermine and damages Ireland’s reputation as a global proponent if not leader in advocating respect for universal human rights and the rule of law. And it does nothing for promoting Ireland as a venue for resolving international disputes.
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It is, of course, true that judges who have retired from the bench are no longer subject to the same obligations of judicial conduct that are placed upon them as sitting judges. But the issues surrounding this controversy raise the question as to whether future appointees to the bench in Ireland should be subject to some code of conduct obligations that continue beyond their retirement even if the legal enforceability or sanctions open for a breach of that code post-retirement would or could raise legal and contractual difficulties.
The two most fundamental qualities expected and required of our judges (apart from the obvious legal qualification and experience) are independence and impartiality. Litigants need to know and to have confidence that the person who is hearing what for them may be a matter of the gravest, life-altering importance will be determined dispassionately by a person who is truly independent and impartial.
We expect that our judges will adhere to and uphold the values of our democratic State and human rights-infused laws and Constitution
One of the foreseeable risks with judges taking lucrative judicial or quasi-judicial appointments from another state post-retirement is the perception which might arise that their actions while on the bench (or even their motivation for taking the bench) could be informed by the possibility of significant financial advantage from another judicial appointment in a different jurisdiction post-retirement.
Perception
I don’t believe for a moment that either of our two eminent and distinguished former judges had this remotely in mind before, during or after their time on the bench, but as with the legal question of “bias” it has as much (if not more) to do with perception as with reality. (In this case we don’t know how lucrative the positions were since the Dubai International Financial Centre Courts, while touting and promising transparency, do not disclose what their judges are paid.)
Secondly, we expect that our judges will adhere to and uphold the values of our democratic State and human rights-infused laws and Constitution. It is one thing to agree to arbitrate or mediate an international dispute between private parties post-retirement – preferably in Ireland – but quite another thing to lend legitimacy to a human rights-abusing regime such as the UAE (or China via the Hong Kong Court of Appeal) by becoming a judge there.
In my opinion, rules of professional conduct should require retired judges to avoid any activities liable to compromise the dignity of the office or the maintenance of public confidence in the judicial system.
Bill Shipsey is a retired barrister.