Chief Justice Donal O’Donnell put forward the names of former chief justice Frank Clarke and former president of the High Court Peter Kelly for possible appointment to a major Dubai-based international financial court, it is understood.
The Chief Justice was approached by the Dubai International Financial Centre Courts (DIFCC) to suggest names following an Ireland for Law webinar, after which he put forward a number of names, including Judge Clarke and Judge Kelly, sources told The Irish Times
The DIFCC courts are independent commercial courts operating an English-language, common-law jurisdiction in the Dubai International Financial Centre in the United Arab Emirates.
The appointment of the retired Irish judges has strongly divided opinion among judges and lawyers here, with critics focusing on concerns including about Dubai’s human rights record and the perception of the judiciary.
However, supporters stressed the independence of the DIFCC from the Dubai administration and said the appointments would enhance Ireland’s international legal reputation. Other DIFCC judges include retired judges from England, Wales, Scotland, New Zealand and Australia, they noted.
A number raised the State’s compulsory retirement age of 70 for judges, suggesting that both men would have stayed on the bench here were it not for that. “Ireland’s loss is Dubai’s gain,” one judge said.
Others said both judges were private citizens who were free to take up positions: “If a teacher retires on a State pension and gets a job teaching in Dubai, nobody blinks an eyelid,” one said. “Why should retired judges be seen as any different?”
Paid by hour
It is understood the positions are part-time and the judges will be paid on an hourly basis. Judge Clarke is also chair of the Law Reform Commission here, involving a commitment of two days weekly and a €59,000 salary, and chair of the Civil Legal Aid review committee.
The swearing-in of the two judges, along with two retired senior judges from the New Zealand and Australia courts, before Dubai’s ruler, Sheikh Mohammed bin Rashid Al Maktoum, caused particular unease for some.
His daughter, Princess Latifa Al Maktoum tried to flee in 2018, sending secret video messages to friends saying she was being held hostage and had been drugged by commandos as she fled Dubai by boat, who then flew her back to detention.
Former president of Ireland and UN high commissioner for human rights Mary Robinson later said she had made a “big mistake” in 2018 when describing Princess Latifa as a “troubled young woman”. A photograph of the two went viral.
Mrs Robinson, who had been invited to meet Princess Latifa by invitation of Dubai’s royal family, later said she was “horribly tricked” by the princess’s family. Princess Latifa needed political support and should be freed, she later said.
Dubai and the UAE have previously said Princess Latifa is safe in the care of family. The Princess Latifa issue and the criticism of the UAE’s human rights record was raised by several lawyers when asked about the appointments.
“You only have to look at reports by organisations like Human Rights Watch and Amnesty to see [Dubai’s] appalling human rights record. I am concerned about having Irish judges sworn in before the head of that regime,” one barrister said
However, a commercial solicitor took a very different view, saying that many Irish legal firms have Dubai clients: “I’m not sure how relevant the human rights side of things is,” she said.
The appointments – the first of Irish judges to the DIFCC – are “good for Ireland, she went on. “They put Ireland on the map in a really effective way – we’re up there with the other big jurisdictions.”
Good ambassadors
Both judges have excellent reputations and will be very good ambassadors for Ireland, the solicitor said, a view widely shared across all shades of Four Courts opinion.
A serving judge was of a similar view. “I don’t see a huge problem, Dubai is relatively westernised and open compared to other countries in the region. Both judges are retired and are back to being private citizens and lawyers.”
The appointments underline the need to let judges serve here until they are 75, he added. Neither Judge Clarke nor Judge Kelly had wanted to retire and both were a “huge loss” to the bench.
The DIFCC’s website quickly attracted attention because it carries photos of all 15 male judges, including of Judges Clarke and Kelly, but no photo of the sole female judge, Justice Maha Al Mheiri, a citizen of the UAE.
“That only underlines my concerns about the UAE’s attitude to women and human rights generally,” one barrister said. It is understood that a number of women were approached to take up places on the DIFCC court, but declined.
Saying he had “no problem” with the appointments, one barrister pointed out that several other retired judges, including another former High Court president, Joseph Finnegan, had carried out mediation and arbitration work or chaired tribunals for the State.
Expressing disappointment, however, one retired judge said: “I’m sad for all judges and the reputation the profession has held up to now. I’m concerned the judicial office will be seen as just a commercial gig that people can walk in and out of at will.”
Acknowledging that no legal impediment existed, the retired judge said he and others held the view that, on taking judicial office, a judge left the commercial world behind and was provided for generously by the State while on the bench and on retirement.
