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No judge has ever been charged in Ireland and the bar is high for politicians to remove a judge from office.
And yet the controversy over Seamus Woulfe’s attendance at that golf dinner at Clifden has now moved firmly into the political arena.
He has rejected the insistence of Chief Justice Frank Clarke to resign and is investigating, saying his actions do not amount to judicial misconduct.
The Constitution provides that a judge of a higher court can only be removed from office for “declared misconduct or incapacity” by resolutions passed by the Dáil and the Seanad.
However, “declared misconduct” has not been legally interpreted and it would have to be argued that something the judge did, or did not do, falls under that description.
What is agreed is that any attempt by the Oireachtas to exercise this power would be prolonged, open to legal challenges and without guarantee of success.
Therefore, the Government would have to act very slowly and carefully, rather than rushing down this route.
And there is the expectation that he will stay in contact with the opposition parties to move forward together before deciding to start any process.
If the decision is made to initiate impeachment, a select committee will likely be established to hear the evidence in private.
This committee could not determine the facts or resolve any conflict, but would simply be a means of gathering relevant information.
And the judge would have the right to be heard before any vote of the Oireachtas.
Fundamental to this would be the finding by Judge Denham that requesting Seamus Woulfe’s resignation would be “disproportionate.”
Since these powers have never been fully exercised when removing a judge, they would also be subject to legal challenge.
And this is where all politicians will have to be incredibly careful in their public pronouncements to avoid accusations of bias.
“The last thing the government wants is to be asked to act to remove a judge and the ministers have taken pains not to comment on the controversy.”
This has already been emphasized today by Jennifer Carroll MacNeill of Fine Gael, who urged members to hold back and not ruin for a “quick populist political journey.”
Labor’s Brendan Howlin said anyone who was involved in pre-determining the issue should recuse himself.
If impeachment were to become a formal motion, members of Dáil and Seanad would be expected to have a free vote.
There is a recent case in which the process began. This was against Circuit Court Judge Brian Curtin in 2003.
Following a public outcry at his acquittal on a charge of possession of child pornography, the politicians began the impeachment process and established a committee to examine the evidence.
Judge Curtin challenged the process in court, but the Supreme Court upheld its legality. However, he resigned before the process could be completed, but it took him three years to get to that point.
Similarly, in 1999, former Superior Court Judge Hugh O’Flaherty resigned before any impeachment began.
The last thing the government wants is to be required to act to remove a judge and the ministers have taken pains not to comment on the controversy.
And while the mess is not their doing, this Government and the previous ones are guilty of delaying the full implementation of the Judicial Conduct Committee, which establishes a formal process in law to investigate and punish judges.
Members have been appointed, but it does not yet have full powers. If so, everyone would have had a clearer idea of how to resolve this controversy and the current deadlock may have been avoided.
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