Absolute Privalege & The Constitution

gk5000

How does absolute privalege reconsile with personal rights in the constitution?

Does it not render a judge more than equal to other citizens? - Article 40.1

And say a judge did defame you in a court - the laws don't protect or vindicate the rights and good name of the citizen - Article 40.3

IsaacWunder

First, it’s worth pointing out that absolute privilege is mentioned in the constitution in the context of the oireachtas (Art. 15.12). As such, the constitution does countenance the existence of absolute privilege.

As for judges, under the Defamation Act 2009 it’s not just judges who have absolute privilege. It’s “a judge, or other person, performing a judicial function”. Furthermore, given the two commas, the other person part is parenthetical, meaning even for a judge, absolute privilege is restricted to moments where they’re performing a judicial function.

The supreme court (Mr Justice Charleton) looked at this in the context of judicial functions in Tracey v Judge Anderson [2020]. The court held that “entirely extraneous and irrelevant comments to the proceedings do not carry absolute privilege”. In summary, the court held that judicial proceedings confer absolute privilege for statements made in court, but only so long as they are relevant to any fact in issue, or instead impact on the credibility of a witness. The court noted that this privilege is designed to allow litigants to present their cases freely without fear of legal repercussions. However, this does not grant individuals the liberty to make irrelevant or harmful statements.

In summary, absolute privilege for a judge or any other person is only in the context of discussing relevant matters whilst a judicial function is being performed. A judge as such doesn’t have the right to defame someone whilst not on the bench.