Fitzgerald Inquiry: The Judiciary and Commissions of Inquiry

Section: 10.6.4

The judiciary is increasingly unwilling, and properly reluctant, to conduct inquiries. Although a Commission of Inquiry performs functions of a quasi-judicial nature, calling for the evaluation of material and the formation of opinions on matters for which judicial skills and experience are suitable, judicial principles, practices and procedures are not always fully applicable to inquiries, and the involvement of judges inadministrative functions (other than those related to the exercise of judicial power) has serious disadvantages.

• The separation of judicial power from legislative and executive power is fundamental to the system of checks and balances designed to achieve a stable democracy. The distinction should not be blurred by those who perform judicial functions also engaging in superficially similar quasi-judicial functions on behalf of the Executive Government.
• The essential independence and impartiality of the judiciary, or at least the almost equally important public acceptance of those judicial qualities, particularly in a social environment in which much litigation, and almost all criminal litigation, involves disputes between individual citizens and the State, should not be compromised by judicial officers mixing judicial functions with functions on behalf of the Executive, especially where the issues may attract political or other controversy. 
• The primary responsibility of the judicial system is the provision of speedy and efficient justice according to law, and its capacity to perform that function is diminished by any requirement that it perform other tasks on behalf of the Executive.