A decision of historic significance for the independence of the Judiciary and the separation of powers in this State was handed down by the Supreme Court yesterday. On a micro level, the Oireachtas committee charged with investigating allegations against Judge Brian Curtin can at last resume its work, following the rejection of his constitutional challenge in the highest court in the land. This will come as a relief to the Government and the members of the Oireachtas who set it up in the wake of his acquittal, by direction of the trial judge, on charges of possessing child pornography almost two years ago.
But, the procedure outlined to deal with the long-running Curtin case is a mere by-product of the seminal judgment from a united Supreme Court yesterday. In the Curtin appeal, the court was being asked to interpret the provisions of Article 35.4.1 of the Constitution regarding the parliamentary procedure for the removal of a judge. That Article, which is silent on a procedural code, simply provided that a judge of the Supreme or 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.
In one of the few occasions in the annals of legal history in which the procedures for the removal of a judge has been considered by a court since the foundation of the State, the Supreme Court produced a judgment which is hugely significant for all branches of government and the entire constitutional balance of powers. It is a good judgment for the citizen.
The Supreme Court made clear that the principle of judicial independence invoked by Judge Curtin was not intended to be of benefit to individual judges. Instead, as the judgment states, the independence of the judiciary is designed to guarantee the right of the people "to have justice administered in total independence, free from all suspicion of interference, pressure or contamination of any kind". This is why judges have special protections against removal from office, except in exceptional circumstances and following a most solemn procedure provided for in the Constitution.
The corollary of this, the judgment adds, "is that the judges themselves behave in conformity with the highest standards of behaviour both personally and professionally".
The Supreme Court did accept some points made on Judge Curtin's behalf, in particular that he should have the right to present evidence to the Houses of the Oireachtas relating to the allegations, and that there should be two separate decisions made by the Oireachtas: a finding that "stated misbehaviour" occurred and then a further vote on his removal. It offered suggestions as to how these concerns might be met.
Whatever the outcome of this particular case, a template for the removal of judges has now been drawn up by the Supreme Court. This is an important development of the Constitution.