Explainer: How does the Oireachtas seek to impeach a judge?
Any TD can seek a motion to remove a judge from office for ‘stated misbehaviour’
The controversy over Mr Justice Séamus Woulfe has now moved to the political realm. Photograph: Nick Bradshaw
The controversy over Mr Justice Séamus Woulfe - who the Chief Justice Frank Clarke said should resign - has now moved to the political realm and the Government must now decide whether it should seek to remove him.
The Chief Justice said in correspondence to Mr Woulfe that the “unanimous view” of all members of the Supreme Court, including ex officio members, is that Mr Justice Woulfe has caused “significant and irreparable” damage to the court by how he has handled the matter.
So how does the process to seek to impeach a judge work?
Any TD can seek a motion to remove a judge from office for “stated misbehaviour”.
Under the constitution, if the motion is passed by a majority in both Houses of the Oireachtas, the President will then remove the judge from office by signing an order.
However, the process for which the Oireachtas might make such a decision is complex and time-consuming; it is not simply a matter of having a vote in the Dáil and Seanad.
Under Dáil standing orders, if a member of the Dáil lodges a motion for the removal of a judge, under Article 35, the Dáil can either reject the motion, or vote to set up a special committee for the purpose of reporting on the issue to the House.
The Dáil must select a chairman and committee members and terms of reference for the committee which will hear evidence on the “stated misbehaviour” of which the judge is accused.
It will conduct its proceedings in private, including hearing witnesses, except where the judge requests otherwise and the committee decides to accede to this request.
However, Dáil standing orders are very clear: it is not the committee’s job to decide on anything, merely to make a report to the Dáil for the purposes of the vote.
“The Select Committee shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same,” according to Dáil standing orders.
Once the report is completed, the matter then goes before the Dáil and Seanad. However, it is not a normal Oireachtas debate.
Standing orders warn of the need to observe fair procedures, and the judge, or his legal representatives, would have a right to address the Dáil or Seanad before any vote.
This morning, Mr Howlin told The Irish Times that the issue would now have to be resolved by the Oireachtas.
“A core principle of our democracy is an independent judiciary functioning without political or other interference,” Howlin said.
“It must therefore be in exceptional cases that the Oireachtas takes action under Article 35.4 of the Constitution.
“However, that power is vested in the Oireachtas for a purpose. Ultimately the Oireachtas is required to ensure the unfettered working of our courts. Since the action of the judiciary in this case has come to a close the matter falls to the elected Oireachtas to resolve.”