Mark Tighe, Sunday Independent
July 31, 2022

Frank Clarke, who was formerly the most senior judge in the country, has resigned from the Dubai International Financial Centre (DIFC) courts after Labour leader Ivana Bacik said it was not appropriate for him to hold the job while he is president of Ireland’s Law Reform Commission (LRC).

Former Chief Justice Mr Clarke and Peter Kelly, the former President of the High Court, were sworn in as DIFC judges at a remote ceremony on Wednesday presided over by Sheikh Mohammed bin Rashid Al Maktoum, Dubai’s deputy leader. Al Maktoum is also the president of the DIFC, which holds commercial hearings in English based on common law.

Yesterday Ms Bacik, who is also a barrister, told the Sunday Independent she was “flabbergasted” by the two former Irish judges taking on the roles given the UAE’s and Al Maktoum’s well-documented abuses of human rights.

She said Mr Clarke’s role in Dubai was “incompatible” with his recent appointment as president of the LRC, which comes with a €59,000 salary.

Contacted by the Sunday Independent over Ms Bacik’s criticism, Mr Clarke said he had resigned the new position.

“Ireland and many Irish companies do significant business in and with Dubai, and in that context it is important that there be an independent and trusted dispute resolution system available to those enterprises,” he said.

“However, I am concerned that the current controversy could impact on the important work of the Law Reform Commission, to which I am committed. In those circumstances, I can confirm that I have today submitted my resignation as a judge of the DIFC courts to the Chief Justice of that court.”

UK courts have ruled that Al Maktoum hacked the phones of his wife and her divorce lawyers and found he displayed “coercive and controlling behaviour” over his wife. The court previously found the sheikh orchestrated the abduction and detention of two of his daughters.

Ms Bacik said she watched a documentary in which Princess Latifa, one of Al Maktoum’s kidnapped daughters, was “speaking and it was chilling”.

The Labour leader said Mary Robinson “has been very clear she was wrong” to travel to Dubai to visit Latifa in 2018. “It’s an extraordinarily oppressive regime, there’s no doubt about that,” Ms Bacik said.

“That’s the only way I can put it. As a feminist, as a lawyer, I’m just flabbergasted, frankly. I don’t think it’s appropriate for somebody as president of the LRC to be to be sitting on a court about which there is so much controversy and concern and which is clearly a mechanism of the regime.”

Ms Bacik said the use of international judges, not just from Ireland, was akin to “sportswashing”.

“There are well-documented ongoing strategies being used by Dubai and other regimes to legitimise oppressive laws and systems by using things like sportspeople and high-profile political figures in order to legitimise and give them some sort of veneer of respectability and compliance with international human rights norms that are clearly lacking,” Ms Bacik said. 

“I’ve always been critical of Saudi and UAE as these are regimes in which women and LGBTQ+ people cannot live freely. Human rights are routinely not just ignored but they’re abused on an ongoing, well-documented basis. There are abuses of immigrant workers, too.

“They are outside of norms of international human rights in so many ways.”

When informed yesterday that Ms Bacik had said it was not appropriate for him to hold the Dubai judgeship along with his LRC role, Mr Clarke told the Sunday Independent he had resigned from the UAE court.

“When first approached about becoming president of the LRC I informed government of the likelihood that I would be appointed to the DIFC Courts,” he said.

“I understood it to be the case this did not give rise to any difficulty. Prior to my appointment as president of the LRC I had also publicly mentioned the possibility of my appointment to the DIFC Courts in a Business Post podcast.”

Mr Clarke and Mr Kelly were also criticised by Bill Shipsey, a retired senior counsel and human rights campaigner, in an op-ed published in The Irish Times on Friday evening.

Yesterday, this newspaper was unable to contact Mr Kelly, who is also an adjunct professor of law in Maynooth University.

A spokesman for Justice Minister Helen McEntee said her department was not informed in advance of the Dubai appointments and said it was a “private matter”. The Department of the Taoiseach, which was responsible for nominating Mr Clarke to the LRC role, told the Sunday Independent on Friday it had not been informed of the Dubai appointments in advance.

Mr Clarke subsequently clarified that it was the attorney general, Paul Gallagher, whom he had informed about his Dubai appointment, as he was the person who had approached him over the LRC position on behalf of the Government.

Many lawyers were reluctant to comment on the judges taking up the Dubai roles. Joseph O’Sullivan, chair of the Bar Human Rights Committee, said: “I don’t wish to make any comment on this issue at the moment.”