Andrew McKeown: Removal of a judge in the Irish constitutional order
Andrew McKeown BL, law lecturer and practising barrister at The Bar of Ireland, considers the procedure for the removal of a judge under the Irish Constitution.
As the controversy surrounding Mr Justice Séamus Woulfe continues, Seán Ó Fearghaíl TD, the Ceann Comhairle, has directed TDs to refrain from making any comments about the issue, as this could give rise to a perception of bias.
Alan Kelly TD, leader of the Labour Party, said that the legislature will have to act if an impasse continues, with his Labour colleague Brendan Howlin TD calling on anyone who has commented on the issue to recuse themselves. Martin Kenny TD of Sinn Féin said that it was “not a desirable, or frankly tenable situation” for his remaining on the court. He later said that he had not been expressing his own opinion but that of the members of the Supreme Court. Social Democrats co-leader Catherine Murphy TD noted that she is cautious of engaging the removal process in the legislature.
In her report published in October, Ms Justice Susan Denham concluded that the judge’s resignation would be “unjust and disproportionate”. However, in recent correspondence, Chief Justice Frank Clarke said the “cumulative effect” of the controversy had caused “significant and irreparable damage to the judiciary”. He said that public trust had been affected, and his personal view was that the judge should resign to maintain public confidence in the administration of justice. The judge said that he would not resign.
The Government asked Paul Gallagher SC, the Attorney General, to advise on the controversy. He gave them a detailed presentation of the issues at Cabinet.
Removal of a judge under the Irish Constitution
Article 35.4 of Bunreacht na hÉireann states that a judge of the Supreme Court or the High Court shall not be removed from office except for “stated misbehaviour” or incapacity and only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal (this rule applies, statutorily, to Circuit Court and District Court judges per the Courts of Justice Act 1924 s.39, and the Courts of Justice (District Court) Act 1946 s.20).
The Article itself does not refer to the process by which the Houses of the Oireachtas may pass such resolutions. This differs from the more detailed process specified for impeachment of the President. Article 12 provides that the President can be removed only by the Houses of the Oireachtas on grounds of “stated misbehaviour”. Either House may impeach the President, but only by a resolution approved by a majority of at least two thirds of its total number of members, and a House may not consider a proposal for presidential impeachment unless requested to do so by at least 30 of its number. Where one House impeaches the President, the remaining House investigates the charge. The investigating House can remove the President if it decides, by at least a two-thirds majority of its members, both that the President is guilty of the charge and that the charge is sufficiently serious as to warrant the President’s removal.
This differs from the procedure for the impeachment that features in the Constitution of the United States, where the US House of Representatives is granted the sole power of impeachment (Article I, Section 1, Clause 5), with the US Senate assigned sole responsibility to try impeachments (Article I, Section 3, Clause 6).
While much of the current commentary refers to the impeachment of a judge, that is not in fact the procedure utilised in Ireland. The differentiation between the Article 12 “impeachment” of the President and the procedure for “removal” of judges, and the Comptroller and Auditor General, suggest that the drafters were fully aware of the distinction.
While Article 35.4 of our Constitution does not provide for a procedure to be followed, this is covered in the Standing Orders of both Houses (Dáil SO 67, Seanad S054) which state that where a motion is moved in a House of the Oireachtas calling for a judge’s removal, the House may either reject the motion, or may on motion appoint a Select Committee to take evidence in respect of the aforesaid Article 35.4.1° motion, “provided that the Select Committee shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same”. The motion appointing the Select Committee provides its terms of reference, defines the powers devolved upon it, and fix the number of its members.
The Standing Orders provide that the Select Committee “shall at all times have due regard to the Constitutional principles of basic fairness of procedures and the requirements of natural and Constitutional justice”. An appropriate record is to be taken of the proceedings, which is to be heard in private, unless otherwise directed by the Committee following a request by the judge who is the subject of the Article 35.4.1° motion.
A Select Committee of either House may, with the concurrence of both Houses, be joined with a similar Select Committee of the other House, provided that the Chairman of the Select Committee is a TD. Following the completion of its proceedings, the Select Committee must furnish its report to the Dáil, together with transcripts and audiovisual material. The Dáil may subsequently order that the report be published and laid before the Dáil.
Having received the report, the Dáil may by Order make provision for the debate on the Article 35.4.1° motion, which is to include “due notice of the taking of the debate”, along with “due observance by each member of the Constitutional principles of fair procedures”, and “the right of the Judge and his or her legal representatives to be heard prior to any vote on the said Article 35.4.1° motion” and “such special rules of procedure as may be deemed appropriate”.
In the United States, the proceedings in the US Senate follow as a trial, with the Senate having the right to call witnesses and each side having the right to cross-examine (Rules and Procedures of Practice in the Senate When Sitting on Impeachment Trials). Certain House Members, entitled ‘managers’ during the course of the trial, present the prosecution case, and the impeached judge has the right to present a defence, with the assistance of counsel.
Perhaps the adoption of special rules of procedure, providing who may ‘prosecute’ the case against the judge, so that both sides may be heard, may have to be adopted if the matter comes before the Oireachtas.
What is ‘stated misbehaviour’?
To date, no Irish judge has ever been removed and the phrase in Article 35.4.1 referring to “stated misbehaviour or incapacity” has never been judicially interpreted. In 1941, a motion of removal was initiated against Judge Edward J. McElligott on grounds of incapacity, but the judge retired, and the motion withdrawn. In 1999, Mr Justice Hugh O’Flaherty and Mr Justice Cyril Kelly resigned during the Sheedy affair after motions of removal were considered against them. In 2004, a removal motion was initiated in the Dáil by Michael McDowell SC, Minister for Justice, against Judge Brian Curtin, but he resigned before the motion was brought to a vote.
Assistance may be garnered by considering the history of judicial tenure, and the related term of “good behaviour” which features at common law, and in American constitutional law. Before 1701, most English judges held their seats at the monarch’s pleasure. In 1701, Parliament passed the Act of Settlement, which provided that all judges would sit “Quam diu se bene Gesserint”, during good behaviour, and that an address of both Houses of Parliament alone could remove them. The pre-1701 case of Harcourt v Fox (89 Eng. Rep. 720 (KB 1693)) considered the meaning of “good behaviour”. Harcourt, a clerk of the peace, argued that his position was for life. The Attorney-General for England and Wales agreed, stating that the judicial office was during life, “unless he forfeits it by misdemeanour”. Sir John Holt, the Lord Chief Justice of King’s Bench, found that the tenure could only be terminated by misbehaviour, and the way in which the court alternated between “misbehaviour” and “misdemeanour” suggests that they were at the time considered synonymous terms.
In the 1787 Pennsylvania Ratification Convention, Chief Justice Thomas McKean explained that “the judges may continue for life, if they shall so long behave themselves well”. Article II, Section 4 of the US Constitution defines which officials are subject to impeachment (including federal judges) and what kinds of misconduct constitute impeachable behaviour, namely “Treason, Bribery, or other high Crimes and Misdemeanours”. While Article III, which deals with judges generally, does not mention impeachment directly, Section 1 states that federal judges “hold their Offices during good behaviour”. This has raised the question as to whether that section provides for another standard, separate to that of high crimes and misdemeanours, for the removal of judges. Judges are the only offices under the US Constitution said to hold their offices during good behaviour.
J.G. Swift McNeil KC, Professor of Constitutional Jurisprudence at the Honorable Society of King’s Inns from 1882–88, wrote in Studies on the Constitution of the Irish Free State (1925) that English judges “hold office during good behaviour, but upon address of both Houses of Parliament to the Crown it might be lawful to remove them. In one case only, that of Sir Jonah Barrington, a judge of the High Court of Admiralty in Ireland, has a judge been dismissed by the Crown, acting on the address of both Houses of Parliament.”
Read in that light, “stated misbehaviour” was included to ensure that judges could not be removed for the substance of their judgments, which do by their nature sometimes clash with the wishes of the other two organs of State. It is for the legislature to state, publicly and clearly, what the alleged misbehaviour is. “Stated misbehaviour” is a clearly much lower standard than the American standard for impeachment.
In O’Byrne v Minister for Finance  IR 1, Mr Justice Cecil Lavery said that the Irish Constitution was “not derived from British precedents”, but on the contrary was “newly-built and involved the replacement of existing institutions and the repudiation of the idea that these new institutions were similar to or to be regarded as successors to the British institutions”. Referring to The Federalist Papers by Alexander Hamilton, he said that the founders of the Irish State and Framers of the Constitution were “inspired by the same ideas which actuated the founders of the United States of America which are enshrined in the Declaration of Independence and in the Constitution of the United States”. The judge said that judges appointed under the Constitution were not “successors of the judges of the British régime nor are the courts established by the Constitution successors of the British courts in Ireland. The courts and judges represent a new departure constituted under different ideas.”
However, Donal O’Donnell SC, as he then was, stated in the Judicial Studies Institute Journal 2004 (2), 37 at 64, that an area where the Constitution is “surprisingly and unexpectedly weak” is the procedural protection of judicial independence: “Although that guarantee is stated explicitly in Article 35.2, Article 34.4 provides for the removal of a Judge by the resolution of both Houses of the Oireachtas. Effectively, a simple majority will suffice. Something that contrasts, somewhat inexplicably, with the provisions of Article 12.10 which require a two third majority in the case of the President. The requirement of independence of the judiciary is a requirement in the first place, of independence from politics and, in particular, the executive arm of the Government. However, in our Constitution, the Executive necessarily controls a majority in the Houses of the Legislature, and accordingly, a proviso that a Judge can be removed on a majority determination of the Houses of the Legislature is, in effect, a provision which permits a removal of a Judge by the Executive”.
In the United States, the impeachment of judges is very uncommon, and removal rare. Since 1803, only 15 federal judges have been impeached, and only eight of those were followed by convictions in the Senate. Congress has impeached and removed federal judges for perjury and tax evasion, behaviour not necessarily considered impeachable for the executive (President Bill Clinton was impeached, but not convicted, for perjury to a grand jury, and in proceedings to impeach President Richard Nixon, one of the articles of impeachment rejected by the House Judiciary Committee concerned tax evasion). Impeachment of judges in the State legislatures is also rare.
Walter Nixon was a federal judge convicted of perjury, sentenced to five years in prison for lying in testimony before a federal grand jury about his attempt to influence the prosecution of a business associate’s son. Though imprisoned, he refused to give up his judgeship. He was impeached, and removed in the US Senate. In Nixon v United States, 506 U.S. 224 (1993), the US Supreme Court found that the Senate’s “sole power” to try impeachments is not justiciable.
The Irish Constitution specifically assigns the power to pass resolutions as provided for in Article 35.4.1° to the Houses of the Oireachtas and to no other body. It is an exclusive power. Mr Justice Ronan Keane held in Kavanagh v Government of Ireland  1 IR 321 that where the Constitution has unequivocally assigned to either the executive or the legislature a power to be exercised exclusively by them, judicial restraint of an unusual order is called for before the courts intervene. While all three branches of government derive their powers from the people, the Government and the Oireachtas are accountable, directly and indirectly, to the people in the electoral process. In Curtin v Dáil Éireann  2 IR 556, it was held that the procedures utilised by the Oireachtas in that case were in no way improper: “On the contrary, the power is included in the Constitution for the purpose of ensuring the fitness and integrity of the judiciary.”
The removal of a judge is therefore a legislative act, to be carried out judiciously.
It would be for the members of the Houses of the Oireachtas to decide whether they are satisfied that a “stated misbehaviour” has occurred. The fact that the Chief Justice, President of the Court of Appeal, President of the High Court, and ordinary justices of the Supreme Court unanimously feel that he has caused irreparable damage to the judiciary will no doubt be considered by the legislature, and so too will Ms Justice Denham’s report that his resignation would be disproportionate.
If the resolutions are passed
If the resolutions are passed by both Houses of the Oireachtas, the Taoiseach is required to notify the President, and provide him a copy of the resolutions, certified by the Ceann Comhairle and the Cathaoirleach: “Upon receipt of such notification and of copies of such resolutions, the President shall forthwith, by an order under his hand and Seal, remove from office the judge to whom they relate.”
The Oireachtas must tread carefully on such a delicate issue, as the separation of powers is in the balance. The Twenty-second Amendment of the Constitution, if it had not lapsed at Bill stage in 2002, would have amended the procedure for the removal of judges. It would have provided for the impeachment of judges, in a manner similar to the presidential impeachment, rather than their removal by resolution. It is a constitutional amendment that the Government may wish to consider again.