Duty of State to make ‘reasonable efforts’ to assign a bilingual Judge
14 October 2019
The Irish language is spoken daily by less than 2% of the population of Ireland 1, yet it remains constitutionally recognised as the first language of the State, with English recognised as a second language. Despite the constitutional primacy afforded to the Irish language, practical challenges may arise when a litigant seeks to exercise their rights to litigate a dispute through Irish.
In the recent case, Ó Cadhla .v. The Minister for Justice and Equality  IEHC 503 Ms. Justice NÍ Raifeartaigh held that the State has a duty, when requested to do so, to make “at least some effort to assign a bilingual judge” to hear a case. The State argued that the entitlement of a party to conduct their case or defence through Irish did not extend to an entitlement for the appointment of a bilingual judge.
This judgment is contradictory. While the Court conceded the Plaintiff’s application, the Court did not place an absolute obligation on the Government to provide bilingual judges when requested to do so in other cases, rather it directed that the State should make reasonable efforts to assign such judges.
Facts of Case
In 2017, Mr. Ó Cadhla was charged with criminal damage for allegedly blacking out street signage in County Cork which referred to Queen Victoria. Before the District Court, the accused argued that, as he was a native of the Gaeltacht and he conducted his business through Irish, he was entitled -where possible- to conduct his defence through Irish and have a bilingual judge i.e. a judge that understood English and Irish to be assigned to hear his case.
In the District Court, Judge Kelleher said that the accused was entitled to conduct his defence and cross -examine witnesses through Irish; however he was not entitled to a bilingual judge to be assigned to his case.
Mr. Ó Cadhla instituted judicial review proceedings seeking a declaration that there was a constitutional duty on the State pursuant to section 8 of the Official Languages Act 2003 (“2003 Act”) and Article 8 of the Constitution to nominate a judge with Irish for the purposes of his hearing in the District Court. Article 8 of the Constitution provides “The Irish language as the national language is the first official language”. Before the High Court, the State argued that the 2003 Act or the Constitution did not impose a constitutional duty upon the State to assign bilingual judges to hear such matters.
The High Court considered the decision of the Supreme Court in Ó Maicín .v. Éire  4 IR 477 where the Court found that the accused had no right to a bilingual jury. In Ó Maicín the majority decision for the Supreme Court said that it was necessary to balance any right which an accused had against appointing a representative jury to hear the case. The Court went on to say that Article 8 requires something more than translation and that having an Irish-speaking decision maker in a criminal case should not be easily displaced [?]. The High Court also referred to the decision Ó Monacháin v. An Taoiseach  ILRM 660 where it was held that there was no right to compel a District Court Judge to hear an entire case in Irish, if there were parties (witnesses etc.) who did not understand the conduct of the trial through Irish and to do so would be contrary to natural justice.
Considering section 8 of the 2003 Act and Article 8 of the Constitution, the Court said that the 2003 Act does not confer any legislative rights on a party as regards the assignment of a bilingual judge to hear a case. The Court also said that while legislation must be interpreted in accordance with the Constitution, the opposite is not true, it is not appropriate to interpret the Constitution by reference to the 2003 Act.
Ms. Justice Ní Raifeartaigh said that the State’s constitutional obligations under Article 8 were not satisfied by appointing an interpreter as it was apparent that the Supreme Court in Ó Maicín expected Article 8 as requiring something more than an interpreter. Granting the order of certiorari (an order quashing the decision of the District Court not to appoint a bilingual judge) sought by Mr Ó Cadhla, Ms. Justice Ní Raifeartaigh commented that to refuse an application for a bilingual District Court judge simply because the applicant spoke English was contrary to the whole spirit of Article 8 and the law surrounding this Article.
While the Court stopped short of imposing a positive obligation on the State to provide bilingual judges to be assigned to hear cases when requested by a party to the litigation, the tenor of the Court was such that if a party sought a bilingual judge in the future, such a party would have a good precedent to rely upon in this judgment.
For further information on this topic please contact: James Meighan, Dispute Resolution Associate or another member of the Dispute Resolution team at Eugene F Collins
1 2016 Census