The removal of a judge by the Oireachtas is more a political than a legal act, according to an expert on constitutional law.
It is for this reason that the Constitution is "vague" as to the grounds for such a move, said Dr Laura Cahillane, a lecturer in law in the University of Limerick and co-author of a book on the Irish Constitution.
The possibility of the Oireachtas initiating impeachment proceedings against Mr Justice Séamus Woulfe has arisen following the decision of the Chief Justice Frank Clarke to publish correspondence in which he expressed the view that his colleague should resign.
Mr Justice Woulfe, who was recently appointed to the Supreme Court, has said he does not intend to step down over controversy surrounding his attendance at an Oireachtas golf society dinner in Clifden, Co Galway on August 19th, a day after the Government tightened Covid-19 restrictions on gatherings.
The Constitution says a judge “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”.
There is no guidance on what “stated misbehaviour” means, and the phrase has never been interpreted by a court.
Other jurisdictions use yardsticks such as bringing the administration of justice into disrepute, or damaging the administration of justice in the eyes of the public, Dr Cahillane said.
The phrase “stated misbehaviour” could be said to assume a behaviour that has been proven and that is serious, such as committing a crime, she said.
It could be argued that the actions of Mr Justice Woulfe have damaged the administration of justice, or that his attitude has demonstrated he is unfit for office, she said. “But in the end of the day, the removal of a judge is a political act, it is not really a legal act.”
Prof Donncha O’Connell of the school of law at NUI Galway, said “stated misbehaviour” is what the Oireachtas determines it to be, “but that does not mean that there’s no threshold”.
If the Oireachtas determined, based on the opinion of the Chief Justice, that Mr Justice Woulfe’s conduct reached the threshold of “stated misbehaviour” that would be sufficient to remove him from office.
"However, it cannot ignore the contrary conclusion reached by the former chief justice, Susan Denham, albeit in relation to a narrower range of matters than those considered by Chief Justice Clarke, and the trenchant arguments that Mr Justice Woulfe will proffer to question the opinion of the current Chief Justice."
In a report on Mr Justice Woulfe’s attendance at the Oireachtas golf society dinner, Ms Denham said it would be disproportionate to seek the judge’s resignation.
In the correspondence published this week, Mr Justice Clarke said the controversy arising from the transcript of Mr Justice Woulfe’s interview with the Denham inquiry, had caused “even greater damage” than his attendance at the dinner. Elements of Mr Justice Woulfe’s recent correspondence had added to the damage, he also said.
In his interview with Ms Denham, Mr Justice Woulfe complained of a “mood of hysteria” and “overblown” press coverage of the dinner.
A structure for disciplining judges is being put in place under the Judicial Council Act 2019, but it cannot be used for the current crisis.
The Act provides that a judicial conduct committee can decide to refer the case of a particular judge to the minister for justice, and says that the minister “shall”, as soon as practicable, initiate a motion for impeachment.