The Oireachtas committee investigating Judge Brian Curtin will be seeking evidence of "misbehaviour", writes Tom Cooney.
The Dáil and the Seanad have constitutional power to remove a judge of the Supreme Court or the High Court from office for "stated misbehaviour or incapacity".
This power is a heavy piece of legal artillery. Its point is neither to oversee judicial misconduct nor to impose criminal punishment, but to remove a judge who is unfit for office. So it must never be used lightly to doom a judge to dishonour or incapacity.
The Constitution does not define "stated misbehaviour or incapacity". "Misbehaviour" involves culpably violating one's obligations. Incapacity refers to impaired functioning that renders the judge unable to perform his or her judicial function.
Using the general term "misbehaviour" recognises that it is impossible to list exhaustively the various judicial misdeeds that may justify removal; the idea is broad enough to cover the varied cases whose nature the Constitution's architects could not foresee. Our legislators must decide whether any act or omission by a judge is misbehaviour.
The task is to decide what it means for a judge to misbehave. To say that a judge is misbehaving is to judge that his or her act or omission falls short of what we rightfully expect from judges.
Removing a judge from office ends his or her judicial career. That outcome justifies qualifying the word "misbehaviour" in two ways. First, it must be qualified by the word "judicial" so that we must find a reasonable link in any case between the alleged misbehaviour and the judicial function.
Second, the word "serious" or "grave" must qualify "misbehaviour". Because removing a judge is a major step, it must be based only on conduct that makes a judge unfit. A more lax approach would endanger the separation of powers and judicial independence.
We can imagine examples of grave judicial misbehaviour. First, a judge who realises that he or she is so impaired that he or she cannot perform his or her judicial functions properly, but insists on staying on the bench to the detriment of litigants, misbehaves.
Second, a judge misbehaves when he or she commits serious crimes. Accepting a bribe to decide the outcome of a case is a serious offence. Committing a serious offence off the bench, like rape, would justify removal.
But, third, judicial misbehaviour is not limited to the commission of crimes. The generality of "misbehaviour" must include non-criminal wrongdoing. Thus, a cumulative pattern of ethical breaches might justify removal. A judge who persistently bullies defence lawyers and so disadvantages their clients in criminal cases misbehaves.
A single breach might be grave enough, for example, when a judge secretly helps one side during a trial.
Fourth, if a judge misuses judicial power, he or she commits a serious wrong. So a judge misbehaves who tries a case involving his or her golf club to do it a favour.
Imagine a judge who assists an escaped prisoner to evade capture. Although this is not a judicial act, it would justify removal. A judge who bribes a planning official to get a planning permission would not be entitled to any public confidence. Or take a judge who lies while giving evidence as a witness in a negligence action. A judge who swears to tell the truth and then misleads the court is clearly unfit to remain in office.
Finally, grave private misbehaviour may justify removal. But wrongdoing must have some bearing on the judicial function. Take a judge who privately cheats on his or her spouse. No sensible constitutional scheme would make a judge removable on such grounds. Judges too have a constitutional right of privacy.
Might purchasing child pornography for use justify removal? Legislators might fear that this exploitative conduct would have an undetectable but real effect on how the judge tries cases involving sexual offences or issues about children's welfare.
Also, since judges need public respect to administer justice, it is desirable to remove a judge who brings the judiciary into disrepute. A judge who has been acquitted of an offence may still be liable to removal. In 1989, the US senate removed Judge Hastings for lying under oath. Judge Hastings had been tried for conspiring with a friend to "fix" cases in exchange for money. His friend was convicted, but he denied conspiring and the jury acquitted him. The House of Representatives found that he had lied to the jury, and voted to impeach him. The house managers' report said: "To bolster one's defence by lying to a jury is separate, independent corrupt conduct. For this reason alone, Judge Hastings should be removed from public office."
Judges must be held to higher standards because they hold the unique position of administering justice. Judges must do justice and give people reason to believe that justice is being done. Judicial misbehaviour that justifies removal from office has a critical quality. It stains the judge's character and saps public confidence in him or her and in those who administer justice. And so the judge is unfit for office.
Tom Cooney teaches law at UCD Dublin's school of law