David Gwynn Morgan says the Supreme Court ruling on the Curtin case shows that the rights of the individual judge in uestion are not the only issues at stake
The Judge Curtin case links 17th-century history with a very contemporary trend.
Many people have commented that the involvement of the legislature in proceedings to remove a judge cuts across the separation of powers, by which the judges exercise the judicial function, leaving the political organs to exercise the political function. In other words, the judges render unto Caesar that which is Caesar's, keeping for themselves that which is the Lord's. But the origins of the dismissal procedure go back before the separation of powers.
In the early 17th century, English judges stood up to the absolute monarch and handed down judgments highly inconvenient to him. During this period, they held office at "the pleasure of the king". So he exercised this convenient power to dismiss many of the offending judges. By the middle of that century, the king's arbitrary behaviour had worsened so much that the parliamentary forces, supported by the judges, fought and won a civil war.
One consequence was a law which provided that judges held office for life (by now the age is about 70, depending on the court) unless they committed an act of misconduct, as determined by resolution of both Houses of Parliament.
This was very much a measure intended to protect the independence of the judiciary. This remains a vital principle today, as can be seen by events in, for instance, Zimbabwe.
Of course, the 17th-century English system was devised long before such developments as the central executive or the strong political party system. Nevertheless, it was copied unthinkingly into both the 1922 and 1937 Irish Constitutions.
With a High or Supreme Court judge, dismissal by way of the Houses of the Oireachtas remains the only possible sanction for an act of misconduct, however trivial or serious. This means that this system is mixed up with such factors as the electoral timetable, party politics and huge media publicity.
The inappropriateness of this blunderbus was demonstrated by the Sheedy case in 1999. Then Supreme Court and High Court judges and a court registrar resigned, with some additional pension increments. But this only came about following a week-long cliffhanger.
As a result of this episode a good deal of hard thought and private judicial debate went into devising a suitable judicial discipline system for the 21st century. Yet, despite the lesson of 1999, this system has been incubating in the Department of Justice for four years.
At the centre of Judge Curtin's unsuccessful argument in last week's case was a fork on which it was said that the Oireachtas had impaled itself.
On the one hand, the necessary resolutions have to be determined in the full Houses and not delegated to an Oireachtas committee. This is the outcome of a sometimes unrealistic principle by which a function has to be exercised by the body in which it has been vested. On the other hand, collecting and sifting evidence is plainly not work which can be carried out by a large chamber.
From these divergent conditions a compromise was reached. A joint Oireachtas committee was given the task of compiling a report on the judge's behaviour, while leaving it to the full Houses to hear the evidence and honour the judge's right to constitutional justice, that is a full opportunity to make his case, by giving evidence himself or cross-examining opposing witnesses.
The Supreme Court approved this procedure, while indicating that more extensive power to hear evidence and report on its findings could have been given to the committee.
Just because the judicial removal system is contained in the Constitution, Judge Curtin's action never looked likely to succeed; though it did cause a delay of a year (High Court and Supreme Court rulings combined). So, if there is any more delay, the possibility of the whole business dragging into the remit of a new Oireachtas, which would have to start the process from scratch, begins to seem possible. The relevant point here is that if any deputy or senator does something out of the way, perhaps suggesting that they have prejudged the issue, then this might lead to further court proceedings, with further delay.
But the Supreme Court had this possibility in mind. It went out of its way to give guidance and encouragement to the process and if there were further court proceedings, the Supreme Court would probably not feel the need to reserve its judgment for nearly five months, as it did.
From a different and broader perspective among the chief losers from this sort of episode is the judiciary, as well as citizens who depend on there being a peaceful system of resolving disputes in which there is a high level of public confidence.
As the Supreme Court judgment noted, it is a corollary of judicial independence that judges themselves conform to the highest standards of behaviour.
At a fundamental level, last week's case was about responsibility and devising practical machinery to enforce it. It comes at a time when the European Court of Human Rights has recently ruled that it is unjust to prosecute a doctor accused of offences involving patients where there has been a long delay.
This is so, even though some of the delay was created by court challenges brought by the accused. Again, last year, the High Court here ruled that it is effectively impossible to discipline a university professor appointed earlier than the University Act 1997. The worst aspect of these precedents is that they were not maverick decisions but well in line with modern legal trends.
What would an intelligent Martian make of a country which follows rules like this while professing to hold persons in authority responsible and to protect those in weaker positions? How has the law come to this state? It is, I think, because of a strong and strengthening preference for individual human rights and a failure of logic to see that such a preference inevitably has an effect in reducing the often more deserving rights of that disregarded body, the community. This is the legal version of Mrs Thatcher's bleak remark: "There is no such thing as society." The Curtin precedent is a welcome refusal to take this tendency to an even more extreme degree.
David Gwynn Morgan is professor of law at UCC