Contrary to popular belief, the legislature's attempt to unseat Brian Curtin was not unprecedented, writes Diarmaid Ferriter.
Throughout the controversy relating to Judge Brian Curtin, who resigned last week, it was frequently maintained that no precedent existed for the removal of a judge from the bench by the Oireachtas.
In fact, it was not the first time an attempt was made to remove a judge.
In 1941, the minister for justice, Gerry Boland, moved a motion in the Dáil seeking the removal from office of Kerry, Limerick and Clare Circuit Court judge Edward McElligott, who still had five years to serve before reaching the retirement age of 72.
Notice of a motion to the Dáil seeking his removal was given on May 7th, 1941, "on the grounds that he is unable owing to physical incapacity to perform the functions of his said office". Before the motion could be debated, the minister withdrew it after he had received an assurance that McElligott would retire "at an early date".
Before the motion was withdrawn, the leader of the opposition, Fine Gael's William Cosgrave, protested strongly that it had been moved in the first place, maintaining that "the principle of the independence of the judiciary is not one that should be interfered with or jeopardised. We view this motion with grave concern as one tending, in the circumstances, to create an evil precedent. Suggestions seemed to have gained currency outside that we were consenting parties to this action. Nothing could be further from the truth."
The moves to oust McElligott had alarmed his colleagues on the bench.
Three days before the Dáil motion, a meeting of judges of the Circuit Court took place at the Four Courts. They appointed deputations to interview the minister for justice, and the Co Kerry Law Society did likewise, in view of "so drastic a motion" being introduced. The Kerry Medical Association also maintained they were fully satisfied McElligott was competent to perform his duties.
McElligott's decision to retire and the withdrawal of the Dáil motion undoubtedly prevented an unprecedented and potentially embarrassing showdown between the Irish legal fraternity and the government.
But there was more to the story than the government's motion suggested.
It was true that McElligott's health had been in decline since the winter of 1940, and in February 1941 his doctor had certified that he would not be fit for work for six months due to a "myocardial weakness". Nonetheless, the following month he embarrassed his deputy at Limerick Circuit Court by taking his seat on the bench.
But the real concern of the Department of Justice was McElligott's personal life, as revealed in a memorandum prepared in the department for the minister. Acknowledging that McElligott had been an "excellent judge . . . expeditious and courageous", and that "he is a man of very active disposition and very unwilling to recognise that his period of useful service is over", it was asserted that there were "other circumstances which detract from his value as a judge. It is understood that he is separated from his wife".
This situation was connected to two other aspects "which cannot be ignored: (a) the judge is believed to be in financial difficulties: (b) he has no home: he lives in hotels, a kind of existence which has certain obvious disadvantages and dangers".
The memorandum did not elaborate on what those dangers were, and McElligott's decision to retire ensured that there would be no debate in the Dáil as to the independence of the judiciary from the government.
Diarmaid Ferriter is a historian and broadcaster and lectures in Irish history at St Patrick's College, DCU