Ms Monica Barnes, T.D., Vice-Chairman of the Joint Committee on Justice, Equality & Women's Rights
I write to you with reference to the letter of the 23 April 1999 from Mr Eoin Ryan, T.D., Chairman of the Joint Committee and also with reference to the letter of the 29 April 1999 from Mr Tom Malone, Clerk to the Joint Committee.
Since I wrote to Deputy Ryan in my letter dated the 16 April 1999, your Committee has received the Report of the Chief Justice and you will know that on Saturday, 17 April, I resigned as a Judge of the Supreme Court.
Further it is clear from Mr Malone's letter, that since Deputy Ryan's letter to me dated 23 April, your Joint Committee has met again and has taken account of "a number of developments since last the matter was considered by it . . .". Needless to say, these are matters in which I was not involved in any respect.
However, it is clear from Mr Malone's letter that your Joint Committee has decided that:-
"...definitive decisions on how to proceed (including decisions relating to the hearing of evidence from (me) and Messrs. Kelly and Quinlan) should be deferred until such time as the Committee had given further consideration to the procedures to be followed and the extent to which the doctrine of the Separation of Powers might limit the extent to which the Joint Committee could enquire into matters arising."
Mr Malone's letter goes on to say that the Committee intends to return to these matters on tomorrow, 6 May, and that it "will not be in a position to meet with (me) on that day but would hope to have (my) response at that time."
I think it is important that in making a response the Committee should have a clear understanding of the background against which I make this response.
Firstly, I believe it is important to revisit my letter to you of the 16 April 1999. You will note from that letter that I entirely accepted the facts stated by the Chief Justice in his Report in so far as they concerned my own actions. However, as I pointed out, the Chief Justice's Report contained much material from a number of sources, some of it going back almost twelve months before my involvement in events. With this background, I asked that before any further step was taken that your Committee would accept a full statement from me and allow me the opportunity to respond to questions.
At the time of writing my letter to you on the 16 April 1999, I sent a copy of it to the Attorney General asking that he would draw it to the attention of the Government. I repeated to the Attorney General that I was most concerned that no question should be left unanswered about the matter and I indicated that the proposal in my letter to you was the best appropriate way of dealing with unanswered questions, especially since the Chief Justice's Report contained much material which was new to me.
Unfortunately, whilst the Government transmitted the Chief Justice's Report to you and was aware of my letter to you, the Government wrote to me later on the 16 April 1999 indicating that they would consider at its meeting on Tuesday, 20 April, proposing resolutions for the consideration of the two Houses of the Oireachtas pursuant to Article 35.4.1 for my removal from office.
Regrettably, this letter from the Government became a matter of public knowledge within a short time of its delivery to me. It put me in the unenviable position of having to respond to a charge of "misbehaviour" which was explicitly referred to in the government's letter to me. As members of your Committee may know, I stated in public on Friday evening, 16 April, that I had done no wrong and that I would not resign. However, by midday on Saturday, having reviewed the position and the regrettable impact of the events on the credibility of the judicial system, I decided to resign lest any further step taken by me would magnify the harm being done.
It is noteworthy that the letter of the Government contains no charge against me. Rather the Government intended to consider proposing resolutions "on the grounds that the facts admitted to the Chief Justice and established by him in his report" amounted to misbehaviour within the meaning of Article 35.4.1.
The Chief Justice made no such finding. The Chief Justice did not say I had misbehaved in the exercise of my office. Further, the Government did not refer my letter to you and my willingness to answer questions.
My purpose in writing to your Committee on the 16 April 1999 was to comply, as far as I could, with what I thought was constitutional propriety in relation to the then evolving situation where the Chief Justice's Report had just become available and might require to be considered by the Oireachtas. Thus, the Oireachtas never had an opportunity to consider the Chief Justice's Report and my explanation of my position in relation to that Report as offered in my said letter to Deputy Ryan.
Sadly, I have to say that I think these actions gave rise to a distortion in the operation of the constitutional provisions touching on the accountability of the judiciary as set out in Article 35.4 of the Constitution. If your Committee agrees with my analysis of these events and actions and their consequences it will hopefully affirm the Committee in a reluctance to make definitive decisions on how to proceed with this matter until it has the most thorough guidance on what are the constitutional implications of any step that may hereafter be taken by the Committee.
I would respectfully draw the Committee's attention to Article 35.2 of the Constitution which provides:-
"All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law."
This provision embodies the principle of judicial independence. This means that judges are not accountable to any person or body for their judicial functions "subject only to this Constitution and the law" - and this means subject only to Article 35.4.1 and the ordinary law touching on appeals against and judicial review of judicial decisions. This is so because there are no other legislative measures providing for judicial accountability or discipline.
I am quite clear in my mind that neither a judge nor a former judge is accountable to the Houses of the Oireachtas or any other institution of this State save in circumstances where the provisions of Article 35.4.1 are in the process of being invoked.
I think it is worthy of bearing in mind the comments of Mr Justice Lavery in the case of O'Byrne v. Minister for Finance & the Attorney General at Page 40 of Irish Reports (1959) where he says:-
"What forces might be anticipated as likely to threaten the judicial independence? Apart from violence, which may be left out of account as violence would threaten, not the judicial power only, but also the existence of the State, the danger of interference with independence is obviously from the executive and legislative organs of Government. History - not only our own - but all history teaches that such a danger can be very real.
"As the independence is declared, it is to be expected that it would be secured and protected. As has been said, the judicial power is the weakest of the three organs of Government as it holds neither the sword or the purse."
These views clearly apply today as they did to the provisions of Article 69 of the Irish Free State Constitution which was in similar terms to Article 35.2 and 35.3 of Bunreacht na hEireann.
I think the position as stated above is reflected in the provisions of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 and in particular sub-sections 4 and 11(a) thereof.
Having carefully considered these matters, I am of the opinion that it would be constitutionally improper for me in the events that have now ensued to make myself voluntarily available to give evidence or to offer explanations to your Joint Committee. I expressed myself willing to attend before your Committee in my letter of the 16 April in the circumstances then prevailing where it seemed likely a motion or motions might well come before the Oireachtas pursuant to the provisions of Article 35.4 of the Constitution.
However, as I have explained, the position has now changed utterly and in the absence of proceedings under Article 35.4 it is my opinion that any attendance in the manner and for the purpose envisaged by your Joint Committee would amount to my rendering some account either in respect of matters alleged to touch on my judicial functions or the judicial functions of some other person and I believe it is wrong and unconstitutional for me to render such an account in that such course would violate Article 35.2 of the Constitution and the Separation of Powers enunciated in Article 6 of the Constitution.
You will know from the Chief Justice's Report that my participation in the events enquired into by him was limited to advising Mr Anderson and Mr Sheedy's sister that they should instruct their legal advisers to seek a review of the sentence and speaking informally to the County Registrar to check whether there was a possibility of the case being listed for review and handing him a copy of the judgement in DPP V McDonald.
Thereafter I had no involvement. I did not seek to have the case heard in the absence of counsel for the Director of Public Prosecutions or seek in any other way to have the case dealt with other than in the ordinary proper established manner. There was no interference by me in the conduct of the case in court and I did not intervene in the "judging" in the case. In his report, the Chief Justice found that my involvement was motivated by humanitarian considerations but he found that my action left my position open to misinterpretation and in that way damaged the administration of justice.
I cannot help further your Joint Committee in relation to these matters. The Constitution does not permit me to do so.
Yours sincerely,
Hugh O'Flaherty