The Twenty-Second Amendment of the Constitution Bill, currently before the Dail, is not receiving the attention it deserves. One of a package of four referendums to be put before the people in six weeks' time, it is being presented as an amendment of minor significance piggy-backing on the Nice Treaty for political convenience. Nothing could be further from the truth, for the referendum to regulate judicial conduct is of paramount importance to the equilibrium of the balance of powers under the Constitution.
The constitutional equilibrium between the Executive, the Oireachtas and the Judiciary has been disturbed by the fall-out from the Philip Sheedy affair over the last two years. The Government asked the Chief Justice, the late Mr Justice Liam Hamilton, to investigate the role of judges in the handling of the case. He did so, and the rest is history. It was only when the Government threatened to move the impeachment process that the two judges had to resign.
The step which the Chief Justice took on that occasion was unusual, indeed unprecedented. Though compelled by the complexities of the issues involved, it has since been argued that, unwittingly, the Judiciary was subordinated to the Executive. Mrs Justice Susan Denham of the Supreme Court, in a paper delivered to a judges' conference in Australia last year, went as far as describing the happenings of that period as "a constitutional crisis".
The context which has given rise to the birth of the Twenty-Second Amendment of the Constitution Bill was alarming. What is even more alarming, however, given the importance of the issues involved for the balance of the separation of powers, is that there is no cross-party consensus about its contents in the Dail. Fine Gael and the Labour Party are set to oppose it in the referendum.
The new Article 35.4 of the Constitution provides for "a body" to be established to investigate, or cause to be investigated, whether a serving judge has engaged in conduct constituting misbehaviour or is affected by incapacity. The body will comprise judges "and one or more persons who are not judges or former judges". It will have the power to make and publish findings and recommendations. This proposal has the agreement of the judiciary in principle.
The new Article 35.5 will change fundamentally the existing provision for removing a judge from office for stated misbehaviour or incapacity. A motion will have to be signed by no fewer than 30 members of the Dail or Seanad to prefer a charge of misbehaviour against a judge. Furthermore, two-thirds of members of either House will be required to initiate an investigation or to impeach a judge thereafter.
Fine Gael and the Labour Party have difficulties with these proposals. They stopped the Minister for Justice from rushing the Bill through the Dail before Easter to allow for further debate after the recess. They objected to the Bill being published without an explanatory memorandum. More seriously, they rightly insisted that the details of the legislation to set up the investigative body should be known to the people before they vote in the referendum. Most importantly of all, they wondered why the Government - on its own initiative apparently - should be raising the barriers from a simple majority to a two-thirds vote to make the impeachment of a judge more difficult.
The circumstances surrounding the Sheedy affair make a compelling case for an open forum of judicial accountability in a modern democracy. There is no process for complaints at present. The European Convention of Human Rights will compel this State to have such a remedy in the future. A judicial complaints procedure which enhances public confidence in the administration of justice and maintains the independence of judges in carrying out their duties should be put to the people in a referendum. A workable balance between these two objectives will not be found, however, until the main parties are in a position to support such a fundamental referendum.