Judges, Conflict, and the Past
| DOI | http://doi.org/10.1111/j.1467-6478.2015.00724.x |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
JOURNAL OF LAW AND SOCIETY
VOLUME 42, NUMBER 4, DECEMBER 2015
ISSN: 0263-323X, pp. 528±55
Judges, Conflict, and the Past
Kieran McEvoy* and Alex Schwartz*
Drawing upon interviews with senior judicial figures in Northern
Ireland, South Africa and elsewhere, this article considers the role of
the judiciary in a political conflict. Using the socio-legal literature on
judicial performance and audience as well as transitional justice
scholarship, the article argues that judges in Northern Ireland `per-
formed' to a number of `imagined' aud iences including Parliament,
`the public', and their judicial peers ± all of which shaped their view
of the judicial role. In light of ongoing efforts to deal with the past in
the jurisdiction, and the experiences of other transitional societies, the
article argues that the judiciary can and should engage in a mature,
reflexive and, where appropriate, self-critical examination of the good
and bad of their own institutional history during the conflict. It also
argues that such a review of judicial performance requires an external
audience in order to encourage the judiciary to see truth beyond the
limits of legalism.
INTRODUCTION
Neither I nor my brethren, much as I admire them all, are the heroes of this
story. I am confident that our judicial brethren in England and Wales and in
Scotland would cope equally well with our unusual problem if called upon.
My object is simply to follow how the Courts have reacted to an extraordinary
528
*School of Law, Queens University Belfast, 27±30 University Square,
Belfast BT7 1NN, Northern Ireland
k.mcevoy@qub.ac.uk a.schwartz@qub.ac.uk
We would like to thank all of the judges and lawyers who agreed to be interviewed for
this research, Gordon Anthony, John Jackson, Hannah Quirk, Anne-Marie McAlinden,
Brice Dickson, and the anonymous reviewers for their comments and assistance on
previous drafts, as well as Rachel Rebouche and Louise Mallinder for their research
assistance on the original project. We are also grateful to the Atlantic Philanthropies
(Grant Reference, Judges, Human Rights and Political Change) and the ESRC (Grant
Reference ES/J009849/1 Lawyers, Conflict and Transition) which funded the research.
This article is dedicated to the memory of Stephen Livingstone. Any mistakes are of
course our own.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
situation. For nearly eighteen years the Queens Peace itself has had to meet in
a part of her Kingdom a vigorous and continuous challenge, and the Queen's
Justice had to be administered during that time without fear or favour.
1
. . . the judiciary faced a tough decision: should it become involved in an
intensely topical, political process [the South African Truth and Reconciliation
Commission, `the TRC']. After agonised debate and much controversy, the
leaders of the judiciary decided not to appear. Their essential reason was fear
that their independence would be compromised if they had to account for their
actions . .. we think the judiciary's decision to stay out of the TRC was wrong.
Judges should have attended the hearings voluntarily, and submitted to
questioning. Their participation would have legitimated both the TRC and the
judiciary itself. It would have countered the perception that judges viewed
themselves as somehow separate from and above the politics of the rest of the
country.
2
In recent decades, the role of judges in periods of authoritarianism, conflict,
and political transition has attracted much scholarly interest.
3
The waxing
and waning of judicial autonomy, the complex contours of judicial acquie-
scence in human rights abuses, as well as sometimes courageous defences of
the rule of law, are well discussed in the literature on judges in authoritarian,
post-authoritarian or transitional regimes.
4
Hard questions have also been
asked about the judiciary in established democracies in their response to
post-9\11 counter-terrorist strategies.
5
Although there are myriad differences
between these different contexts, common and often overlapping themes
emerge from this literature that resonate strongly with the Northern Ireland
experience.
For much of the conflict, judges in Northern Ireland sat in juryless
`Diplock Courts' established under emergency laws. Northern Ireland had a
system of emergency laws since its establishment as a state in 1921 which
included the power to intern terrorist suspects without trial, a system which
529
1 Lord Lowry, former Lord Chief Justice Northern Ireland, `Civil Proceedings in a
Beleaguered Society' (1986) 2 Denning Law J. 109, at 109.
2 Former South African Chief Justice P. Langa and Constitution Court Judge E.
Cameron, `The Constitutional Court and the Court of Appeal After 1994' (2008)
Advocate April 28.
3 See, for example, T. Ginsburg and T. Moustafa (eds.), Rule by Law: The Politics of
Courts in Authoritarian Regimes (2008); G. Helmke and J. Rios-Figueroa (eds.),
Courts in Latin America (2011); D. Kapiszewski, G. Silverstein, and R.A. Kagan
(eds.), Consequential Courts: Judicial Roles in Global Perspective (2013).
4 See, for example, G. Helmke, Courts under Constraints: Judges, Generals, and
Presidents in Argentina (2005); L. Hilbink, Judges beyond Politics in Democracy
and Dictatorship: Lessons from Chile (2007); D. Dyzenhaus, Judging the Judges,
Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (1998); R.
Ellett, Pathways to Judicial Power in Transitional States: Perspectives from African
Courts (2013).
5 See, for example, H.L. Pohman, Terrorism and the Constitution: The Post 9\11
Cases (2008); F. De Londras, Detention in the `War on Terror': Can Human Rights
Fight Back? (2011) 214±80.
ß2015 The Author. Journal of Law and Society ß2015 Cardiff University Law School
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