The Honourable Mr Justice John Mac Menamin yesterday (Sept 25th) delivered the Garret FitzGerald Memorial Lecture at Maynooth University on the topic, ‘From Nightmares and Dreams to Reality: Citizens, Judges and Democracy in the New Europe’.
Speaking to attendees, Judge Mac Menamin said: “There is a realisation, both nationally and at a European level that the institutions of Europe must re-engage with the peoples. The Law must reach people in a way they can understand. It must engage people: that is the way we keep trust.”
The full speech is available here:
Communications - Justice MacMenamin speech 25 Sept 2014 - Maynooth University
Providing an insight into EU and judiciary developments through the decades, Mr. Justice Mac Menamin said: “In the years since its inception, the Court of Justice, judge-made law on economic and customs issues, gradually migrated and metamorphosed into a created jurisprudence that consciously forwarded European political integration. This process, I think, gained widespread acceptance, owing, first, to a relationship of trust created between the European Court and national courts, and second, because of the perceived neutral status of the law and legal decision-making as being a disinterested determination of the rights and wrongs of an issue, be it of private law or public law. Granted there were tensions between politicians and judges and between the supranational court and national courts. These tensions exist to the present day. However, by careful navigation, and what has been termed, "the force of logic", the Court of Justice has managed to maintain its legal legitimacy.”
Speaking about citizenship: “The vast majority of Member States nationals enjoy rights, not simply on the basis of their nationality, but on the basis of their status as Union citizens…The Court of Justice moved to a situation where Union citizens were entitled to the same treatment, irrespective of their nationality, regardless of where they resided, insofar as the subject matter of their activity was within the scope of the Treaties, and insofar as it applied to the person and to the circumstances.”
Reflecting on constitutional issues: “A Constitution is both a political and legal document. It is a statement of national validation, definition and identity…Throughout the Constitution, insofar as it deals with the judiciary, it identifies the sovereign democratic nature of the State, and also guarantees judicial independence. What is striking, however, is the extent to which as part of our common law tradition, clear delineations have been drawn between what lies with the political realm and what lies in Law.”
Looking to the future, Justice MacMenamin said: “One can envisage that some areas in the interpretation and application of the Treaties and the Charter will be a matter of complexity. Both the Court of Justice and national courts will continue to seek to span the reach between national and supranational interests. Complexity is the enemy of understanding and understanding is fundamental so that the demos, that is the people, are able sufficiently to engage with the institutions which govern them. This is, I think, all the more important when national interests and national viewpoints have become major determinants in EU decision-making, and where there is a perception, that political and economic decisions and responsibilities do not always march hand-in-hand. Garret FitzGerald had a passion to explain, to simplify, which made people trust him. So how will democracy evolve in the European Union? How, specifically, will one part of that democracy, that is the appropriate separation of powers and competences be achieved in a way that peoples of Europe can intuitively understand and trust?
“Rights, duties and principles will be adjudicated and determined in accordance with the treaties. But we are now dealing with a new environment where the context for such a process is, I think, very much more difficult…..One can envisage a time when developments will be such as to ask judges in the future, perhaps ten or fifteen years away, to make determinations with profound socio economic consequences which courts at present are not always well placed to make. If this happens, questions may arise as to the power and, perhaps the legitimacy of courts to make such decisions in the absence of clearly established mandate.”
Responding to Justice Mac Menamin’s lecture, Baroness Nuala O'Loan said: “Mr Justice Mac Menamin has again raised very important questions about relationships and processes of law which will impact on governments for decades to come. The potential is enormous. The challenges are significant. And at the root of it all is that complex relationship between legislators and the judiciary, where legislators pass laws through a process of accommodation of differing viewpoints, often leaving the most difficult questions, which may well have been debated as the legislation went through whatever parliamentary process was involved, to be determined by judges who have to deal with the set of facts and the law as it is presented to them and must make difficult decisions where there are gaps between the dictates of the law and the need for justice.
“As he said, both the Court of Justice and national courts will continue to seek to span the reach between national and supranational interests. The challenge for the judiciary is to maintain the current high level of trust, but as he concluded, the price for that is eternal vigilance and self-scrutiny. And the institutions of Europe must reengage with the peoples of Europe. I think we are much indebted to Mr Justice Mac Menamin for his scholarly and erudite articulation of these complex issues.”
Baroness Nuala O'Loan’s full response is available here: Baroness O'Loan response to Justice Mac Menamin Sept 2014 - Maynooth University
Mr. Justice MacMenamin was introduced by Professor Philip Nolan, President of Maynooth University. Justice Mac Menamin is a judge of the Supreme Court of Ireland. He was called to the Bar in 1975 and became a Senior Counsel in 1991. He was Chairman of the Bar Council from 1997 to 1999. He had a mixed practice, with an emphasis on commerce, insurance and defamation. Justice Mac Menamin was appointed a Judge of the High Court in 2004 and was appointed to the Supreme Court in February 2012.
Caption: Pictured are the Honourable Mr Justice John Mac Menamin, Baroness Nuala O'Loan and the President of Maynooth University, Professor Philip Nolan.