Supreme Court grants UNHCR leave to appear as amicus curiae on certified point of law regarding refugee status.

THE SUPREME COURT

Keane C.J.

McGuinness J.

Fennelly J.

61/03

BETWEEN

I. APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

ON THE APPLICATION OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

JUDGMENT of the Court delivered the 14th day of July, 2003, by Keane C.J.

This is an application on behalf of the United Nations High Commissioner for Refugees (hereafter “the UNHCR”) for leave to appear as

an amicus curiae in this appeal. There was no opposition to the application by either the applicant or the respondent in the appeal.

Having considered the written and oral submissions made on behalf of the UNHCR, the court decided to accede to the application on

terms that the applicant would abide its own costs of its appearance. Since this was the first application of its kind made to this

court, the court was of the view that it should reduce its reasons for acceding to the application to writing and give them at a later

date.

In the proceedings the applicant sought, inter alia, the following reliefs:

(1) an order of certiorari quashing the decision of the respondent to refuse the applicant a declaration of refugee status;

(2) declarations that Sections 16 and 17(1) of the Refugee Act 1996 (as amended) are repugnant to the Constitution of

Ireland;

(3) an order, if necessary, extending the time for applying for leave for judicial review.

By order dated the 5th November 2002, the High Court refused the application for judicial review but certified that its decision

involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken

to this court. The point so certified is

“Is the refugee appeal tribunal acting intra vires if it takes into account the possibility of the applicant relocating within his own

country when determining whether or not the applicant is a refugee within the meaning of S.2 of the Refugee Act 1996 (as

amended)?”

The present application was grounded on an affidavit of Papia Poutz Phiri, the representative of the UNHCR in Ireland, in which it was

deposed that the UNHCR is the universal supervisory body for the protection of refugees under the 1951 United Nations Convention

Relating to the Status of Refugees, generally referred to as the Geneva Convention. The deponent pointed out that Article 35 of the

Convention provides for an obligation on the part of states to cooperate with the UNHCR in the exercise of its functions, including, in

particular, by facilitating its duty of supervising the application of the provisions of the 1951 Convention. The deponent further

averred that, in the development of its supervisory responsibilities, the UNHCR had identified the particular mechanism of amicus

curiae interventions before the highest appellate courts of a country as an appropriate and effective means of better ensuring the

correct interpretation and application of the conventions’ provisions. It gave examples of the UNHCR having intervened before the

Supreme Court of the United States and the Supreme Court of Canada in order to assist those courts with the interpretation of the

1951 Convention.

It was acknowledged in the written and oral submissions filed on behalf of the UNHCR that, with one recent exception, there are no

statutory provisions or rules of court providing for the appointment of an amicus curiae: it was submitted that the jurisdiction to allow

such an appearance derived from the inherent jurisdiction of the court. The exception is contained in S.8 of the Human Rights

Commission Act 2000 which enables the Human Rights Commission to apply to the High Court and this court, and the courts to allow

the Commission to appear in appropriate cases as amicus curiae. The section provides inter alia that

“The functions of the Commission shall be –

(h) to apply to the High Court or the Supreme Court, for liberty to appear before the High Court or the Supreme Court, as the

case may be, as amicus curiae, in proceedings before that court that involve or are concerned with the human rights of any

person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is

hereby empowered to grant in its absolute discretion).”

Third party intervention is provided for in the relevant Rules of the Superior Courts dealing with intervention in matrimonial causes,

admiralty actions in rem, probate and actions for the recovery of land. However, the intervention of parties under those provisions in

protection of their own interests is to be distinguished from the appearance of an amicus curiae. The latter was traditionally

disinterested in nature and intended exclusively to assist the court in its determination of a particular point of law.

Thus, it was certainly not unknown for a member of the bar in this jurisdiction, who was not actually engaged in a case but who

happened to be in court, to intervene and draw the attention of the court to a decision which might otherwise have been overlooked.

In United States Tobacco Company –v- Minister for Consumer Affairs and Others (83 ALR 79), the Federal Court of Australia cited

the following definition of an amicus curiae from Jowitt’s Dictionary of English Law:

“A friend of the court, that is to say a person, whether a member of the bar not engaged in the case or any other bystander,

who calls the attention of the court to some decision, whether reported or unreported, or some point of law which would

appear to have been overlooked.”

It also appears that at one stage courts were prepared to receive information from the amicus on questions of fact, e.g. as to

whether a party to the proceedings was still alive. But participation of any sort by an amicus curiae in a case to which he was not a

party was invariably a matter of grace rather than of right.

The role of the amicus curiae, however, in those jurisdictions where its nature has been the subject of reasonably extensive judicial

discussion, notably the United States, has changed considerably with time. While it is still the case that an amicus curiae is allowed

to appear because the court would be thereby assisted in coming to a correct resolution of an issue in dispute by being informed of all

the relevant cases, statutes and other materials relevant to its determination, the amicus is no longer expected to be wholly

disinterested in the outcome of the litigation. Thus, law officers have been appointed by courts in other jurisdictions amici curiae,

even though the attitude of the State may be that the issue should, in the public interest, be resolved in a particular manner. There

has, indeed, been one rare - it may be unique - instance of this occurring in Ireland; in Brady –v- Cavan Co. Council [1999] 4 IR 99,

the Attorney General was granted leave by this court to appear in a case to which he was originally not a party relating to the liability

of local authorities for the maintenance of roads in their area. In his written and oral submissions to the court in that case, the

Attorney General’s arguments were in support of the proposition that any liability of the County Council to repair the roads in their

area could not be the subject of an order of mandamus and made it clear that he had sought liberty to appear in the case because

of the implications for the Exchequer of another view of the law prevailing.

In other jurisdictions, however, public bodies and agencies other than the law officers have been allowed to appear as amici curiae;

so too have non-governmental bodies. In such cases, the right to appear as an amicus has been granted because the court was

satisfied that written and/or oral submissions on their behalf would be of assistance to the court, even though it was not in doubt

that the body in question would be seeking to persuade the court that it should adopt a particular view of the law.

The United States courts have permitted the most spectacular expansion of the traditional role of the amicus curiae. There were a

number of factors contributing to this, one of them being the sheer volume of American law, embracing as it does the decisions of a

huge number of Federal courts and courts of the fifty states. That jurisdiction was also confronted with difficult problems arising from

the federal structure of government and the differences between the statutes of the various states of the union. America has also

seen the growth of a vast array of private non-profit organisations intended to promote the interests of particular groups in society,

such as ethnic groups, consumer bodies, civil liberties organisations and many others. In the result, while there has been considerable

fluctuation of judicial opinion over the decades as to the extent to which the proliferation of amicus curiae briefs should be restrained

by the courts, it continues to be a conspicuous feature of the American legal scene, particularly at the level of the Supreme Court. In

the case of the latter court, however, it should be noted that, while the court has in general been sympathetically disposed to the

filing of amicus curiae briefs, the more confined role allotted to oral advocacy in that court, in contrast to the traditions of courts in

these islands, meant that it was only in a limited range of cases where such briefs were filed that oral submissions on behalf of

amicus curiae were entertained.

The decisions of the Australian courts are of considerable interest in this area. The attitude of the courts in that jurisdiction was the

subject of the following observations by Kirby J. in the High Court of Australia in Levy –v- Victoria [1997] 189 CLR 579:-

“In the United States of America and Canada, the practice of hearing submissions from interveners and amici curiae is well

established. Such practice is particularly common where matters of general public interest are being heard in the higher

appellate courts. In recent years, some Australian courts have also favoured a more liberal approach to permitting intervenors

and amici. So far, that course has not recommended itself to this court.

There is no need for undue concern about adopting a broader approach. The court itself retains full control over its

procedures. It will always protect and respect the primacy of the parties. Costs and other inhibitions and risks will, almost

always, discourage officious busybodies. Those who persist can usually be recognised and easily rebuffed. The submissions of

interveners and amici curiae will typically be conveyed, for the most part, in writing. But sometimes oral argument by them

will be useful to the court. Such interests may occasionally have perspectives which help the court see a problem in a context

larger than that which the parties are willing, or able, to offer. That wider context is particularly appropriate to an ultimate

national appellate court. It is especially relevant to a constitutional case.”

Those remarks were made in the course of a dissenting judgment, where the learned judge was giving his reasons as to why he

considered that a body called the Media, Entertainment and Arts Alliance should have been permitted to appear as an amicus curiae

where questions of freedom of expression arose.

The circumstances in which leave should be granted was considered by the same court in Attorney General (CTH) –v- Breckler & Ors.

[1999] 163 ALR 576. That was a case concerning the constitutionality of a provision of a statute concerned with the operation of

superannuation funds and a body called “The Association of Superannuation Funds of Australia Limited” sought leave to make

submissions as an amicus curiae. Kirby J again dissented from the opinion of the majority in that case that such leave should not be

granted. In both cases, Kirby J attached significance to the fact that the High Court, as the final court of appeal for Australia,

recognised that its function “involved more than the declaration of indisputable, preordained law.”

In the United Kingdom, there have been a number of cases in recent years in which amici curiae have been given leave to present

submissions. In the context of the present proceedings, it is of interest to note that such leave was granted to the UNHCR in two

cases, R –v- Immigration Appeal Tribunal & Anor, ex parte Sah (UNHCR intervening) [1999] 2 All ER 545 and Sepet and Urdem Bulbul

–v- Secretary of State for the Home Department (UNHCR intervening) [2001] EWCA civ 681. In the first of those cases, Lord Steyn

pointed out that

“Counsel for the UNHCR… placed before the house all the relevant background materials and produced a valuable written

review supplemented by helpful oral argument”.

Finally, the court notes that in Re Northern Ireland Human Rights Commission [2002] UKHL 25, a majority in the House of Lords

allowed an appeal from a decision of the majority of the Northern Ireland Court of Appeal to the effect that the Northern Ireland

Human Rights Commission established by S.68 of the Northern Ireland Act 1998 for the purpose of giving effect to the Belfast

Agreement was not entitled to intervene in the inquest being conducted by a coroner into the deaths of victims of the Omagh

bombing on 15th August 1998. In contrast to the corresponding legislation in this jurisdiction to which reference has already been

made, the Northern Ireland Act made no provision for such an intervention, but it was held that the capacity of the body in question

to make such submissions to the coroner’s court was incidental to its general power to promote the understanding of human rights

law and practice.

While there are no statutory provisions or rules of court providing for the appointment of an amicus curiae, save in the case of the

Human Rights Commission, the court is satisfied that it does have an inherent jurisdiction to appoint an amicus curiae where it

appears that this might be of assistance in determining an issue before the court. It is an unavoidable disadvantage of the adversarial

system of litigation in common law jurisdictions that the courts are, almost invariably, confined in their consideration of the case to

the submissions and other materials, such as relevant authorities, which the parties elect to place before the court. Since the

resources of the court itself in this context are necessarily limited, there may be cases in which it would be advantageous to have

the written and oral submissions of a party with a bona fide interest in the issue before the court which cannot be characterised as a

meddlesome busy body. As the experience in other common law jurisdictions demonstrates, such an intervention is particularly

appropriate at the national appellate level in cases with a public law dimension.

It is, at the same time, a jurisdiction which should be sparingly exercised. Clearly, the assistance to be given to an appellate court will

be confined to legal arguments and supporting materials. It is not necessary to consider the circumstances in which it would be

appropriate for the High Court to appoint an amicus curiae. It is sufficient to say that, as was pointed out in United States Tobacco

Company –v- Minister for Consumer Affairs and Others, the position of an amicus curiae is quite different from that of an intervener.

It was said in that case that an amicus curiae, unlike an intervener, has no right of appeal and is not normally entitled to adduce any

evidence.

In the present case, an issue of public law arises and the judgment of the court may affect parties other than those now before the

court. The court was satisfied that the UNHCR might be in a position to assist the court by making written and oral submissions on

the question of law certified by the High Court and, accordingly, appointed it to act as amicus curiae and, for that purpose, to make

oral and written submissions.