Judicial guidelines to be voted on by the State’s judges on Friday do not have the status of rules or a code, but are intended to assist judges in coming to their own decisions concerning conduct and ethics including, for example, whether to withdraw from hearing a case.
Judges should withdraw from hearing cases if they, or a close relative, have a financial interest in the outcome, or in case where a judge, or a family member, has shares in a company involved in proceedings coming before that judge.
In an effort to ensure equal treatment for all coming before a court, judges should be aware of and understand societal diversity and difference, including in relation to gender, sexual orientation, disability and ethnicity, the guidelines state.
According to judicial sources, the new guidelines are based on seven international principles of judicial conduct known as the Bangalore Principles, approved by the United Nations Human Rights Commission in 2003.
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The principles are judicial independence, impartiality, integrity, equality, propriety and appearance of propriety, competence and diligence.
Under the procedure, a committee of judges and lay people have power to ask the Minister for Justice to direct the government to consider whether to exercise its power, under Article 35.4 of the Constitution, to have a judge removed from office on grounds of serious misconduct or incapacity.
The Judicial Council Act 2019 requires that procedure to be operable by late June this year.
The 2019 Act provided for the establishment of a Judicial Conduct Committee (JCC), comprising the Chief Justice, presidents of the other four court divisions, three judges elected by vote of the judiciary and five lay members, to draft guidelines concerning judicial conduct and ethics.
The Judicial Council has prepared detailed rules governing the making, withdrawal, resolution by way of reprimand, investigation, and determination of complaints. In some cases, where complaint is heavily contested, a hearing could take considerable time.
The procedure also provides for an informal complaint resolution process but any informal resolution will be subject to the complainant agreeing to that process.
Under the complaints procedure, registrar of the Judicial Council Kevin O’Neill will first consider if a complaint is admissible, involving considering whether the alleged conduct, if substantiated, could amount to judicial misconduct.
Judicial conduct
The 2019 Act defines judicial misconduct as conduct, by act or omission, in judicial office or otherwise which constitutes “a departure from acknowledged standards of judicial conduct” and “brings the administration of justice into disrepute”.
A complainant whose grievance is deemed inadmissible can seek an internal review of that decision.
If a complaint is deemed admissible, it will be referred to the JCC whose powers include to refer it to an inquiry panel for investigation. The panel will have the full powers of the High Court and will report and make recommendations to the JCC.
The final decision on a complaint is for the JCC which can seek to hear from the complainant and judge before the complaint is finally determined. Any such hearing will normally be in public unless the JCC decides a private hearing is required.
A judge who is subject of a complaint may, after the complaint is deemed admissible but before any investigation, consent to being reprimanded. That can be the issuing of advice, the judge agreeing to pursue a course of action such as training, admonishment or a combination of those.
The JCC can refer a complaint for investigation even if the complaint is withdrawn. Even where no complaint has been made, the JCC can refer any matter relating to the conduct of a judge for investigation if it believes that is necessary to safeguard the administration of justice.
