I move amendment No. 28:
In subsection (1), page 4, lines 2 and 3, to delete "An Chúirt Dúiche" and the brackets enclosing the next three words.
Some of these amendments are much the same as those that have been discussed but there are a few extra. Nos. 29 and 32 are different and I should like to speak on them also. Particularly, I want to stress Nos. 29 and 32. Amendment No. 29 proposes to delete subsection (2) and substitute the following:
The District Court shall be constituted of such number of judges as may from time to time be fixed by Act of the Oireachtas.
In amendment No. 32 I want to delete the word "Justice" and put in the word "Judge". There is a constitutional point arising as between this and the other Bill. Apparently, there is a desire here to appoint judges, to have a court constituted of judges but to call them justices. The word "Justice" of course is completely unknown to the Constitution. The protection that is given to the judiciary in the Article that is supposed to protect them is all the time framed in terms of judges.
The protection in regard to their not being removable from office, except for stated misbehaviour, applies only to judges of the Supreme Court and the High Court but, by law, that same protection has been given both to judges of the circuit court and to justices of the district court. But what is the position under the Constitution? Article 34 says that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution. It then goes on to say that certain matters are to be administered in public and states the requisites for the proper handling of justicial matters in courts established by the Constitution by justices appointed in the manner provided in the Constitution.
At a later stage one comes to Article 34 which refers to a person appointed as a judge who, under this Constitution, shall make and subscribe a particular declaration which is set out in clause 5 of Article 34. The Article says that the declaration "shall be made and subscribed by the Chief Justice in the presence of the President and by each of the other judges of the Supreme Court, the judges of the High Court and the judges of every other Court in the presence of the Chief Justice or the senior available judge of the Supreme Court in open court." I have not the slightest doubt that the people who are now called district justices all made that declaration in the presence of the Chief Justice or the senior judge of the Supreme Court. That declaration is obligatory on every judge. If he declines or neglects to make such declaration he is deemed to have vacated his office.
Article 35 says that the judges of the Supreme Court, the High Court and all other courts established in pursuance of Article 34 shall be appointed by the President. "All judges,"— that covers the people we are talking about—"shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Then there is the prohibition that no judge shall be a member of either House of the Oireachtas, or hold any other office or position of emolument. Eventually, when you come to Article 37, there is a provision that limits the functions and powers of a judicial nature which may be exercised by people who are not judges before tribunals which are not courts. There is one great reservation in that and that is in regard to criminal matters. That means that, whatever loosening up there may be of the judicial functions in respect of the terms of Article 37, there is reserved from it everything that has to do with criminal matters.
The work of the district courts has I would say, largely to do with criminal matters and their jurisdiction is mainly in respect of offences. They may try cases summarily to a conclusion, or they may have a preliminary hearing to decide whether a person should be sent forward for trial or not. In any event, criminal matters must be dealt with by people who are judges appointed, or in courts established, under the Constitution. In Section 5 I think there is an attempt to distinguish between how a court is constituted and what the members of the court are to be called. We have here that there is to be established An Chúirt Dúiche and that it is to be constituted of the following judges: the President of the District Court, and such number of other judges styled in a particular way.
When I turn to the Courts (Supplemental Provisions) Bill I see that Part IV deals with the district court. Section 28 says that the number of justices in the district court shall be not more than a certain number. That is not merely a matter of nomenclature. They are justices there and not judges. It is worse still if one looks at Section 29. It says that "each of the persons who are justices of the existing District Court"—one can not interfere with the people who, rightly or wrongly, have been called that—"immediately before the operative date shall be qualified for appointment as a justice...." There is no such appointment. The appointment must be as a judge, but here it says that where a person is qualified to be a justice "and, if and so long as there is one or more than one of those persons who is willing to accept office and has not been appointed, no other person shall be qualified for appointment as a justice of the District Court."
Paragraph (b) of the section says that paragraph (a) of the subsection applies only in relation to the qualification for appointment of the first justices of the district court. One then comes on to subsection (2) which says that "A person who is for the time being a practising barrister or a solicitor of not less than ten years standing shall be qualified for appointment as a justice of the District Court."
The whole run of the Courts (Supplemental Provisions) Bill is to have these people appointed as justices and not appointed as judges. I do not think that is constitutional. I suggest it is not. The Constitution is entirely in terms of judges. It may be said that having appointed them as judges we can call them anything we like, as we are calling one of them "Uachtarán na Cúirte Dúiche" but that is a matter of evasion. On the matter of appointment there is no doubt. They must be appointed as judges. If that point is accepted, and I do not see how it can fail to be accepted, I think it is absurd to be demeaning this particular court group by calling them out of their proper title. They are judges under the Constitution. They have the fortification of the judges and they must make the same declaration as the judges. In every way there is a similarity between judges and justices.
From the point of view of the importance of their work in the country, I think they deserve the title of judge equally with judges of the other courts. I raise this matter because it is the foundation matter and when we are establishing the court and saying that the court is to be composed of the following judges we should give them the title of judges. It is noticeable that the words used in the Irish version are the same for High Court, Circuit Court and Supreme Court, and it is only the English version that makes the difference. I raise this on Section 5 and I think we should carry this forward to their title. Having established a court as a court of justices, to be manned by justices, it will require very serious amendments of the Articles dealing with this particular court.