Impeachment has no legislative weight

DESPITE the fact that Bunreacht na hÉireann allows for the removal of a judge by impeachment, it has never been given legislative weight nor is any process specified by which the impeachment process can be carried out.

Under Article 35.4.1 of the Irish Constitution, both High Court and Supreme Court judges can be removed only through a majority vote of both Houses of the Oireachtas. That security of tenure has since been given to both circuit and district judges, although the standard of proof required for their removal is unclear.

Following the Sheedy affair in 1999, which caused the resignations of Hugh O’Flaherty from the Supreme Court and of Cyril Kelly from the High Court, the Government promised a constitutional amendment that would flesh out the procedures to be adopted in an impeachment process. It got nowhere.

In the current circumstances, the Government could find itself the subject of a judicial review if it were to proceed with the impeachment and seek to use evidence ruled inadmissible in Brian Curtin’s criminal trial. It may bring a motion of impeachment to the Dáil and the Seanad, but on what factual basis? It is unlikely that the Dáil or Seanad, in its consideration of an impeachment motion, could have access to evidence that was rendered inadmissible in a criminal trial.

Currently, a judge can be removed from office by a simple majority of both houses of the Oireachtas. However, new legislation to formalise the process, proposed by Justice Minister Michael McDowell, would make it even more difficult to remove a judge from office.