25.09.2014
From Nightmare and Dreams to Realities: Citizens, Judges and Democracy in the New Europe - by The Honourable Mr Justice John Mac Menamin
“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 touch people. It must engage people: that is the way we keep trust”
THE HONOURABLE MR JUSTICE JOHN MAC MENAMIN DELIVERS GARRET FITZGERALD MEMORIAL LECTURE AT MAYNOOTH UNIVERSITY
The Honourable Mr Justice John Mac Menamin today 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, Justice 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 touch people. It must engage people: that is the way we keep trust.”
Providing a fascinating insight into EU and judiciary developments through the decades, 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, euphemistically, "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 judiciaries, it identifies the sovereign democratic nature of the State, and also guarantees judicial independence. What is striking, however, is the extent to which, as reflected in the decisions of the Supreme Court, to which I belong, clear delineations have been drawn between what lies with the political realm and what lies in Law.”
Looking to the future, Justice Mac Menamin said: “One can envisage that the interpretation and application of the Treaties and the Charter will be a matter of real 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 do not 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 the appropriate separation of powers and competences be achieved in a way that peoples of Europe can intuitively understand and trust?
“There is an assumption that the rights, duties and principles will be adjudicated and determined in accordance with the treaties. But we are now dealing with a new environment where a context for such a process is, I think, very much more difficult…..One can envisage a time when pressure will come on judges in the future, perhaps ten or fifteen years away, to make determinations of a nature which courts are not always well placed to make. When this happens, questions may arise as to the power and, the legitimacy of courts to make such decisions in the absence of clearly established mandate.”
Justice Mac Menamin 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.
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