Role Of Superior Court Judges Essays - Common Law, Legal History

Role Of Superior Court Judges INTRODUCTION: Law is one part of a set of processes, social, political, economic and cultural, which shape and direct the development of society. Like all other mechanisms the law seeks to govern human behaviour. The Irish law system belongs to common law systems established in England by the Normans. This type of law responded to actual rather than anticipated problems. In contrast the law in the civil system is contained in comprehensive codes which are enacted by legislators and which attempt to provide for every legal contingency. Case law or la jurisprudence has lesser significance and lacks the quality of enjoying in the force of law. Sources of law include Common law, Legislation, Constitution, E.C law, Custom, Canon and international. The courts currently in operation are the District, Circuit, High, Special Criminal, Court of Criminal appeal and the Supreme Court. In the Constitution Articles 34 to37[which are headed The Courts] provide a broad outline regarding the structure of the court system and in terms of legal validity whatever structures exist must conform to the basic framework established by the Constitution. Article 34.1states that justice shall be administered in courts established by law by Judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as prescribed by the law, shall be administered in public. This signifies that the Irish Constitution has adopted the principle that the administration of justice must be assigned to a separate arm of government, in accordance with the doctrine of the separation of powers which was central to the American an d French revolutions of the eighteenth century. The significant feature of Articles 34 to 36 of the Constitution is that they refer specifically to the High Court and Supreme Court. By mentioning these it has shown that these courts have special status. These courts are the highest courts in the land with the Supreme Court being the court of final appeal. Up until 1961 the courts in operation were transitory courts under Article 58 of the Constitution. After the state[Killian] versus Minister for Finance[1954 IR207]the courts[establishment and Constitution]act 1961 was passed to regularize the position and establish the court system envisaged by Article 34.1. This system remains in existence today and is where Judges operate under. Political Aspects. Under the Constitution the judicial function is the third organ of government and consists of the interpretation of the Constitution and the law and its application by rule or discretion to disputes which arise between the State and the individual, and between individual and another individual. Justice is to be administered in courts, established by statute law, by judges appointed in the manner prescribed in the Constitution (Article. 34) The President appoints judges of the ordinary courts. A judge cannot be a member of the Oireachtas, or hold any other position of emolument (Article. 35) and on appointment makes a constitutional declaration to duly and faithfully and to the best of his knowledge and power execute the office without fear or favour, affection or ill-will towards any man, and that he will uphold the Constitution and the laws. Should this declaration not be made within ten days of entering office, a judge is considered to have vacated that office (Article. 34). The appointment of a judge on the advice of the Government is not one of presidential discretion, but is a function which, in conformity with Article 13.9, is to be performed only on the advice of the Government. The appointment of a judge, as Finlay P. said in The State (Walshe) V. Murphy is an act requiring the Presidents intervention for its effectiveness in law, (but) in fact (it is) the decision and act of the Executive. This means that any attempt to change the system of appointment by ordinary legislation by, e.g., requiring the consent of both Houses of the Oireachtas would probably be unconstitutional in as much as it trenched on a constitutional right of the Executive. In The State (Killian) V. Minister for Justice, the Supreme Court accepted that the judges whose appointment was envisaged by this section were judges of the courts contemplated by Article. 34, i.e., courts which in 1937 were yet to be established. When these were eventually