Ahern fumes as referendum on judicial accountability is lost

For weeks there have been complaints that too many issues were being put before the people for decision on June 7th

For weeks there have been complaints that too many issues were being put before the people for decision on June 7th. Following the collapse yesterday of one dealing with judicial accountability, the field is less crowded.

Listed as the 22nd Amendment to the Constitution, the fallen referendum would have created a body to investigate judges for misconduct and set down rules to govern the impeachment of any found guilty.

However, the Opposition was adamant. The legislation was "ill-thought-out, restrictive and deeply flawed", said Labour TD Mr Brendan Howlin early on. His view was to remain unchanged.

Informing the Dail that a referendum was being withdrawn for the first time, the Taoiseach, Mr Ahern, found it difficult to contain his anger.

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"You should have seen him at 10 a.m.," said one aide.

Originally, the Minister for Justice, Mr O'Donoghue, had proposed that a two-thirds majority of the Oireachtas should be required for all stages of an impeachment hearing against a judge.

A judge can now be removed by a simple majority of the Oireachtas, but it has never happened. However, the Government had warned that it might use this power during the Philip Sheedy affair.

At that time the Supreme Court judge Mr Hugh O'Flaherty and the High Court judge Mr Cyril Kelly were resisting calls to stand down following their involvement in Sheedy's early-release application.

Faced with the threat delivered in a terse letter from Mr O'Donoghue during the height of the controversy, both men quit. Both the politicians and the judiciary had stared at the abyss.

Attempting to raise the size of the Dail majority even higher has left the Minister open to charges that he is trying to make it even more difficult to fire judges. "It will erect constitutional barriers to impeachment," said Mr Alan Shatter of Fine Gael.

Nonsense, said Mr O'Donoghue. Leaving judges open to removal by a simple majority vote would mean that they could fall victim to partisan politics. The higher threshold would mean that all sides in the Oireachtas would have to be in sympathy.

The logic escaped Labour. No Dail has ever behaved improperly towards the judiciary. "The Minister is seeking to guard against a course of action that would be both unlawful and invalid," said Mr Brendan Howlin.

"Let us suppose that the Dail really voted by 100 votes to 50 to remove a judge from office. Does anyone really believe that for the want of 11 votes needed to secure the two-thirds of the total the judge could return to the bench as if nothing had happened?"

In 1996 the Constitution Review Group headed by Dr T.K. Whitaker argued that there was no way of disciplining a senior judge other than by firing him or her.

The so-called "nuclear option" is hardly appropriate in all cases. "There is a need to be able to look at an individual's case and decide if some other minor penalty might be appropriate," said one expert.

While the Constitutional Re view Group favoured a judicial conduct committee, it did not favour letting in outsiders to judge judges. The strict separation of powers in the Constitution had to be preserved.

Mr O'Donoghue did not quite agree. The body should include all serving judges, but it should also include a couple of lay people. The very idea left some inhabitants of the Four Courts fuming.

The relationship between the judicial disciplinary body and the Oireachtas was also unclear to Opposition TDs. Could the Oireachtas impeach a judge if the body had not investigated or if it had refused to investigate?

And they complained that the body could only investigate judges for actions committed after they were on the bench. What happened if they were guilty of tax evasion during their time as barristers? asked Fine Gael.

Faced with the logjam, the Minister and the Government Chief Whip, Mr Seamus Brennan, sought a way out. First they offered more time for debate. Then they offered concessions.

The signature of 20 members of the Oireachtas, rather than 30, would be sufficient to table a motion of impeachment before the Dail or Seanad, Mr O'Donoghue told the Dail.

Accepting that his original draft was "unduly restrictive", the Minister said a simple majority would be enough to prefer an impeachment charge, or to either suspend or lift a suspension against a member of the judiciary.

However, he would not back down on the main point. Judges should be left open to actual removal from office only on a two-thirds majority. "Security of tenure is a necessary corollary of the independence of the judiciary," he declared.

None of the concessions, such as they were, made any difference. Yesterday morning Mr Ahern conceded the inevitable.

"There is no agreement in the House, and I will not allow a constitutional arm of the State to be used as a political football in any referendum," he said.

Not all in Fianna Fail, however, are unhappy that the referendum is heading into oblivion. For some, the issue is boringly legal. "Who are people talking about: Leeds United or judges? Anyway, we don't have that many poor judges," said one.

For others in Fianna Fail, however, the word "judge" means just one judge: Mr O'Flaherty. And they have already heard too much about him, particularly after the European Investment Bank debacle.

While the referendum wording remains officially alive, it is effectively a dead letter for the rest of this Dail. Some day, however, the issue of judicial accountability will have to be grasped.