The Government has narrowed its own options in handling the Judge Curtin affair, writes Carol Coulter, Legal Affairs Correspondent.
In his letter to the Government, to be discussed by the Cabinet today, Judge Brian Curtin has in effect challenged it to remove him. If it decides on this course, the Government will then have to outline procedures for the process to take place.
Because no judge has ever been removed in the history of the State, there are no procedures, and this will have to be addressed.
Senator Joe O'Toole has suggested that members of the Oireachtas will not vote along party lines on this issue, and has told The Irish Times that the drafting of proper procedures is imperative. He suggested that legislation be introduced in advance of any charge or "impeachment" motion, so that it can be debated on its merits, rather than in the context of one case.
The problem is not new, as it arose during the Sheedy affair, and considerable thought went into the question at the time, leading to a proposed constitutional amendment to provide for a disciplinary procedure for members of the judiciary.
That proposal came to nothing because the Government failed to obtain all-party consensus on it, and it was never revived, leaving the present vacuum. However, it does provide a framework.
In March 2001, the then minister for justice, Mr O'Donoghue, announced that the government had authorised him to have a Bill drafted providing for an amendment to the Constitution regarding judicial behaviour and removal. It would have two elements: the setting up of a judicial body to deal with alleged judicial misbehaviour, and provision for the removal of a judge by both Houses of the Oireachtas.
Removal could follow two routes: a recommendation from the judicial body that a judge be charged or "impeached" before the Oireachtas, and an initiative from one or other House of the Oireachtas to charge him or her. This could only be made on the basis of the signature of not less than 30 members, later reduced to 20.
Where the impeachment proposal was made by one House, the other House would investigate the charge or cause it to be investigated. This clearly envisaged the setting up of a special investigating committee or tribunal by a House of the Oireachtas to investigate a charge against a judge. It follows a similar provision in the Constitution providing for the impeachment of a President.
According to the 2001 proposals, a judge charged with "stated misbehaviour or incapacity" would have the right to appear and be represented at the investigation. If the House decided that the charge was sustained, the Taoiseach would notify the President, who would remove the judge from office.
The decision to remove a judge would, under these proposals, have to be made by a two-thirds majority, to protect members of the judiciary against the possibility that the Government parties would seek to remove them against the wishes of the Opposition, thereby undermining their independence.
These proposals flowed from a number of sources: the Review Group on the Constitution, the Oireachtas All-Party Committee on the Constitution, and the judiciary's own Committee on Judicial Conduct and Ethics. They foundered when the Opposition parties refused to sign up to them, criticising the required two-thirds majority for impeachment and claiming the proposal "reversed accountability".
In his speech proposing the Bill, Mr O'Donoghue said that a constitutional amendment may not be mandatory for some of these proposals, but he considered it preferable, to ensure that they could not be constitutionally challenged. Legislation fleshing out the provisions of the Constitution could undoubtedly be enacted without an amendment.
What the previous government's proposals did not contain, however, was any definition of "stated misbehaviour or incapacity". While it is generally understood that "incapacity" refers to ill-health, there is no consensus on what amounts to "stated misbehaviour". The editors of what the courts regard as an authoritative legal text, J.M. Kelly's commentary on the Constitution, suggest that it includes serious criminal misconduct, but only speculate on what else might be involved.
"One must assume that the criminal misconduct must be relatively serious," Gerard Hogan and Gerry Whyte write. "A judge could scarcely be removed following conviction for minor traffic offences (although it might be otherwise in the case of, say, a series of drunk driving offences)". They go on to speculate that it might include an acquittal on a serious indictable offence because of a technical failure of the prosecution.
In the absence of any conviction against Judge Curtin, and with the evidence gathered excluded by a court ruling, it becomes a major challenge to define "stated misbehaviour" in a way that does not give hostages to fortune for the future. Should "stated misbehaviour" include abuse of alcohol? What about extra-marital affairs? Would it mean that all judges' behaviour in their private lives would have to be scrutinised? Once no longer in the realm of criminal convictions, a definition becomes very problematic.
The other category in the Constitution is "incapacity". This could well offer a way out for both the Government and Judge Curtin. It is understood he is at present in hospital, and it is known he has suffered from ill-health while waiting for the court case to be heard.
So far there is no sign the Government is prepared to contemplate a solution involving early retirement on health grounds. By refusing to consider this option, it may be reducing its options, so all that will be left will be unleashing a constitutional crisis.