Mr Justice Cyril Kelly is expected to inform the Government today of his response to the damning conclusions reached by the Chief Justice about his actions in the Philip Sheedy case. Expectations have heightened that he will follow his senior colleague, Mr Justice Hugh O'Flaherty, by resigning before the Cabinet meets to consider the first steps in the impeachment process tomorrow.
There were strong signals last night that the removal of the two senior judges may not end the casualties in the Sheedy affair. At least one official is expected to be subjected to disciplinary procedures. The Minister for Justice, Mr O'Donoghue, will be making recommendations to the Government on the matter tomorrow.
The prospect of a constitutional confrontation between the judiciary and the Oireachtas seems to be in the process of being averted following the decision by Mr Justice O'Flaherty, the senior judge in the Supreme Court, to resign on Saturday afternoon. Also on Saturday, inquiries were made to the Department of Justice about Mr Justice Kelly's pension entitlements in the event of resignation.
The Government is examining the possibility of acknowledging Mr Justice Kelly's special position in the event of his resignation. The brevity of his career of less than nine years on the Circuit and High Court benches will debar him from receiving any lump-sum payment. He will also lose his right to practise at the Bar. Any change in the normal pension arrangements for judges would require special legislation.
Government sources indicated last night they had no knowledge of Mr Justice Kelly's reasons for delaying a decision on his position. He is being advised by Mr Eoin McGonigal, the senior counsel representing Mr Charles Haughey and Mr Ray Burke, and Mr Felix McEnroy SC, a member of the legal team at the Flood tribunal.
Having threatened to fight any attempt to impeach him, Mr Justice O'Flaherty ended a distinguished judicial career by resigning on Saturday. "The highest duty of a judge is impartiality, as well as the appearance of impartiality, and as my last duty and so that confidence can be restored in the administration of justice, I have decided to offer my resignation as judge of the Supreme Court," he stated.
In the midst of the continuing controversy, the Philip Sheedy case will come before Judge Joseph Matthews in the Circuit Court today seeking leave to appeal the severity of his sentence.
The Minister for Justice, Mr O'Donoghue, will bring a series of measures to the Government tomorrow to restore confidence in the courts system. He is proposing that the doctrine of primus inter pares, first among equals, among judges should be changed. This would, in his view, enable the Chief Justice and the presidents of the High and Circuit Courts to discipline their colleagues. The constitutionality of this proposal will have to be examined.
Mr O'Donoghue will also ask the Courts Practice and Procedures Committee to set out procedures for the listing of Circuit Court criminal cases. He is proposing greater clarity in the assignment of cases to judges and the establishment of a parole board.
