Critical Analysis - Section 51 of the Judicial Appointment Commission Bill, 2022

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With The Courts and Court Officers Act, 1995, the Judicial Appointments Advisory Board was established. Its purpose is to avoid vacancies in the judicial system by recommending seven candidates for each position to the Government, not compelled to choose from the said names to then advise the President. The latter would eventually appoint the judges, according to the principles of Article 35 of the Constitution. Section 51 of the Judicial Appointments Commission Bill, 2022, as passed by both Houses of the Oireachtas on 5 October 2022, contains provisions which would make it mandatory for the Government to advise the President according to a list of now three names that would be the only names available for appointment. Pursuant to Article 26 of the Constitution the President of Ireland referred the Judicial Appointments Commission Bill, 2022 to the Supreme Court for a decision on the question of whether the Bill in itself or any provision or provisions thereof was or were repugnant to the Constitution or to any said provision or provisions. In pronouncing its decision on the matter so referred, it was held by the Supreme Court, 1, that the troublesome draftmanship of section 51 makes it so it can be interpreted as repugnant to the Constitution, 2, that Section 51 jeopardises the Balancing of Powers and poses problems as regards to Criteria Limits, 3, that, accordingly, section 51 of the Judicial Appointments Commission Bill, 2022 is repugnant to the Constitution.

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