It is arguable that the Houses of the Oireachtas do not have the power to remove a Circuit or District Court judge, writes Henry Murdoch
The Constitution is abundantly clear about the power of the Houses of the Oireachtas to remove a judge of the Supreme or High Court. Article 35(4) specifically provides: "A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon resolutions passed by Dáil Éireann and by Seanad Éireann calling for his removal."
Nothing could be clearer.
But Article 35(4) mentions only Supreme and High Court judges. Surely if it had been the intention that the Article was to apply to other judges, these other would have been specifically mentioned. There are many instances in the Constitution where it is made abundantly clear that a particular article applies to all judges.
In fact, when the Bill to put the 1937 Constitution to the people was going through the Dáil on June 2nd, 1937, the prohibition on reducing the remuneration of judges in Article 35(5) was then limited, as drafted, to judges of the High and Supreme Court. On the protestation of Deputy Norton and Prof O'Sullivan, the President of the Executive Council, Éamon de Valera, agreed to examine the matter and the article was subsequently amended to apply to all judges.
However, the same did not happen to the removal of judges under Article 35(4), despite the protestations of the same two. In answer to O'Sullivan's question - "Why will the President not apply Article 35(4) to all judges"? - de Valera replied: "I would want to examine all possible classes of judges in the State to see whether it would be right that a judge appointed in some petty capacity could not be removed except by some extraordinary resolution here in this House."
Persisting, O'Sullivan said: "Why not give the judges in the Circuit Court and the District Court the advantages that Section 4 of this Article gives the judges of the Supreme Court and the High Court?"
When de Valera indicated that he would only examine the remuneration issue, O'Sullivan responded that as regards Article 35(4) there were two classes of judges being created. In his view it was more necessary to guard the independence of the lower class of judge than the more highly paid judges.
Article 35(4) was not modified, and was accepted by the people in the 1937 referendum in its original form. Consequently, as Article 35(4) is specifically restricted to a particular class of judge, the High and Supreme Court, it has no applicability to any other class of judge.
In fact at that time, the Courts of Justice Act 1936 allowed a District Court judge to be removed from office by the Government on a certificate from a committee consisting of the Chief Justice, the President of the High Court, and the Attorney General.
In reading the parliamentary debates, the reluctance to include the judges of the District and Circuit Courts in the judge-removal provisions in the Constitution appears to relate to the feeling at the time that the High and Supreme Courts were "more associated with the new Constitution", as one deputy remarked. The lower courts had no function in interpreting the Constitution.
In any event, the constitutional argument notwithstanding, it could be argued that the removal from office provisions in the Constitution, which apply to the highest judges in the land, should also apply to those lower down the hierarchical tree.
But this is where the Courts of Justice Act 1924 and Courts of Justice (District Court) Act 1946 come in. Section 39 of the 1924 Act provides that Circuit Court judges "hold office by the same tenure as the Judges of the High Court and the Supreme Court". Section 20 of the 1946 Act provides identical wording for District Court judges.
Neither of these Acts specify that the Houses of the Oireachtas have any function in relation to Circuit or District Court judges. However, the logic seems to be that if a judge holds office "by the same tenure" as judges of the higher courts, he should be capable of being removed from office by the same process, i.e. by a resolution of each of the Houses of the Oireachtas.
This was clearly the understanding of the legislators when the 1946 law was being considered in the Dáil. The minister for justice told the Dáil on July 3rd, 1946: ". . . we are making the position of the district justice more secure because he cannot now be dismissed by the Government on the report of any committee; he has got to be brought to both Houses, where every Deputy and Senator will have a chance of saying what he has to say on the matter".
A further complication arises because there is no definition in either the 1924 and 1946 Acts as to what constitutes "tenure". In its most expansive form, it can mean all the conditions which attach to possessing or holding of an office or position. In fact as regards retiring, judges of the District Court have for many years a lower retiring age than that which applies to judges of the High and Supreme Courts. Does this mean that they hold office by the same tenure?
The Constitution can be amended only by referendum of the people and not by legislation. Even giving "tenure" its widest meaning, it does appear to be a step too far to interpret widely an Article in the 1937 Constitution which is restricted in its wording, by reference to Acts of 1924 (Circuit Court) - 13 years earlier - and of 1946 (District Court).
The 1946 Act provides for a judicial inquiry into the conduct or health of a District Court judge with a report from the inquiry being forwarded to the Minister for Justice. There is no such provision for a Circuit Court judge.
As Deputy Cosgrave pointed out to the Dáil on July 9th , 1946: "If a district justice has the same tenure as a Circuit Court judge or a High Court judge, he should have the same rights and privileges."
The Oireachtas recently enacted the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) (Amdt) Act 2004 so that it can compel a judge to attend before an Oireachtas committee which is established for the purposes of a matter relating to that judge arising from, inter alia, the 1924 Act s.39 and the 1946 Act s.20. If there is a doubt about the power of the Oireachtas to remove a Circuit or District Court judge, there must be a doubt as to its power to compel a judge to appear before one of its committees in relation to his tenure of office.
Some politicians have said that we are entering uncharted waters. Ships have sunk and people have suffered in uncharted waters! There must be doubt as to whether the Oireachtas currently has the power to remove a District Court or Circuit Court judge. These doubts should be removed by constitutional change. There should be no room for doubt in this important area.
We need a clear, transparent system for dealing with complaints against judges, protecting the independence of the judiciary on the one hand, while dealing effectively and fairly with all judges in relation to alleged misbehaviour or incapacity. The present Oireachtas arrangements may be a step too far.
Henry Murdoch, barrister, is author of Murdoch's Dictionary of Irish Law, the 4th edition of which is planned for publication by LexisNexis in September 2004