19 July 2000
Dear Sir,
We refer to the above matter which is scheduled for hearing on the 19th inst. We have given very thorough consideration to the question of furnishing to the Inquiry a Statement of Judge O Buachalla.
Article 35 (2) of Bunreacht na hEireann provides:
"All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law."
A feature of this judicial independence is that while judges' judicial functions are subject to appeal in the case of mistake or error (where such appeal lies) and subject to judicial review where there is a proven want of jurisdiction, the judges appointed under the Constitution cannot be asked to account for their judicial functions save where there is prima facie evidence of misbehaviour.
We believe that Section 21 of the Courts of Justice (District Court) Act 1946 and the procedures adopted by an inquiry duly appointed thereunder must be construed and regulated against the background of the requirement for judicial independence in Article 35 (2). This means that the inquiry may have to determine, at an appropriate time, whether or in what manner, certain questions may be put to a Judge in the course of such an Inquiry.
Judge O Buachalla wishes to assist the inquiry in every way possible and would make a complete and detailed statement to this end were it not that he believes (and has been advised) that it would not, at this time, be admissible for him to make such a statement in the light of his duty to maintain judicial independence pursuant to Article 35 (2) of the Constitution.
Judge O Buachalla believes (and has been advised) that the requirement of judicial independence obliges a Judge, at the outset, not to do more than confirm whether the matters which are the subject of inquiry occurred in the exercise by him or her of his/her judicial functions.
Thereafter, the requirement of judicial independence requires a Judge to await the progress of the inquiry and only to make or offer to make a statement should it be the case that facts have been found by the inquiry which prima facie show gross misconduct, fraud or corruption in the exercise of his/her judicial duties.
Such finding would throw a duty on such a Judge to vindicate his/her judicial integrity by giving or adducing evidence tending to rebut such a prima facie finding of wrongdoing. Of course, Judge O Buachalla will submit to any suggestion, direction or Order of the Inquiry, notwithstanding his position, as stated above.
We now enclose a statement of Judge O Buachalla wherein he confirms that on 29th September 1997, he made an Order directing the deletion of the name of Tom Nevin, deceased, from the licence in question. Although we contend that this Order was unnecessary and that the licence should have been renewed by the Customs and Excise authorities after the production of the death certificate and without the necessity of such Order, Judge O Buachalla confirms that he made this Order whilst exercising his judicial functions and we enclose his statement in this regard.
Yours sincerely,
Daniel Spring & Company