The Government has been forced to take the unprecedented step in withdrawing the Twenty-Second Amendment of the Constitution Bill, one day after it should have passed all stages in the Dail. Now three, instead of four, questions will be put before the people in the referendums on June 7th: the ratification of the Nice Treaty, the most important, is being coupled with two technical amendments to remove the provision for the death penalty and to allow Ireland to accede to the international criminal court of the United Nations. The referendum to regulate judicial misconduct has been postponed indefinitely.
The eleventh-hour decision to drop the judicial referendum was ultimately correct in the circumstances. Though a process for regulating judicial conduct - as distinct from judicial decisions - had been considered at length by four eminent committees in long reports, the final amendment was hastily-conceived in the after-heat of the Philip Sheedy affair to be pushed through the Dail. The proposal was picked, apparently at random, from the recommendations of two judicial bodies, headed by Mrs Justice Susan Denham and the Chief Justice, Mr Justice Ronan Keane, the Constitution Review Group and the All-Party Oireachtas Committee on the Constitution. Then the Minister for Justice added a couple of ingredients of his own.
The resulting proposed amendment was a mishmash. The Minister for Justice's original Bill provided for the establishment of "a body" to investigate, or cause to be investigated, whether a serving judge had engaged in conduct constituting misbehaviour or was affected by incapacity. It would have had the power only to make and publish findings and recommendations. The Bill also set out the steps for the initiation of the impeachment process. A motion would have to be signed by 30 members of the Dail or Seanad to prefer a charge of misbehaviour against a judge. Furthermore, two-thirds of members of either House would be required to initiate an investigation or to impeach a judge.
The Opposition parties argued that the Bill lacked the straight line of logic when it came up for parliamentary scrutiny. Like former Chief Justice, Mr T.F. O'Higgins, they outlined their strong misgivings. The Minister, in an unusual last-minute move, brought forward major amendments. He outlined the overall composition of the investigative body: eight judges, two legal figures and two lay persons. He could not state, however, who or how, the lay members would be appointed. Neither could he adequately justify the rationale for raising the requirement - from the present simple majority to two-thirds of the Dail - for the sacking of a judge.
The Taoiseach faced the inevitable when he postponed the referendum after it had failed to generate the desirable all-party consensus. He was disingenuous in his comments that he would not allow a constitutional arm of the State to be used as a political football in any referendum. There is a compelling case for an open forum of judicial accountability. The majority of judges have been brought around to this view. One senses, however, that the Government was so paranoid about the fall-out from the Hugh O'Flaherty affair that it did not prepare the ground politically. The amendment was so confused and contradictory that it could not be put with clarity to the people.
