Judicial impeachment is a matter of political judgement

In the continuing fallout from the ‘Golfgate’ affair, something of a ‘constitutional crisis’ has arisen in recent weeks following the revelation that Chief Justice Frank Clarke called on Mr. Justice Séamus Woulfe to resign for his role in the affair. This has been followed more recently with discussion of a possible impeachment motion being moved against the judge in Dáil Éireann.

The moment has probably passed, for now – the Taoiseach has indicated there is no political appetite, on the government side, to invoke Article 35.4 of the Constitution against Judge Woulfe for his involvement in the ‘Golfgate’ affair. It is still procedurally possible for an opposition TD to trigger the process, but given the Government’s stance, the required motions seem unlikely to pass.

Nonetheless, the way the affair has been handled reveals a lot about our political and legal culture – and especially the role of constitutional law, or of perceived constitutional constraints, in stymying and deflecting from political judgement.

The parliamentary removal of judges is a fairly obscure and, frankly, quite an odd constitutional mechanism that has never successfully been used, and which, to a degree,  still remains shrouded in uncertainty.

A large part of that uncertainty has to do with the very vague standard the Constitution sets down for removing judges – the standard of ‘stated misbehaviour’. This is not defined in the Constitution, and there is no consensus on what it means.

In rejecting the impeachment idea, the Taoiseach referred to the ‘deliberately high standard’ the Constitution sets down for removing judges. In tandem with this, various legal commentators have recently said, both on and off the record, that they do not think that Judge Woulfe’s conduct meets the constitutional standard for removal.

The truth is, however, that all of this legal noise really overlooks just how indefinite and open-ended this standard actually is. In reality, it simply doesn’t have any particular legal content. While it is not exactly a blank canvass on which any meaning might be imposed, the Oireachtas does, nonetheless, have considerable freedom to decide what it means.

Despite the Taoiseach’s comments then, the task of defining ‘misbehaviour’, for the purposes of judicial removal, is essentially a matter of political judgement and political decision – not a matter of technical legal expertise. And whatever the merits of any potential removal process, what has happened this week, essentially, is that inflated legal and constitutional constraints have been invoked as a pretext to deflect from or avoid this responsibility of political judgement.

It makes less sense to talk of ‘stated misbehaviour’ as a standard that already exists – as one that has definite content – than it does to discuss what the standard should be. And it is up to the Oireachtas, as the state organ entrusted with judicial removal, to decide what that standard should be. The Oireachtas has considerable freedom to define that standard, whether relatively narrowly or relatively widely: it can do so reasonably free of legal constraint. Whether or not it wishes to exercise that freedom in this case is another matter, but we should not lose sight of the fact that this freedom exists. This has been lost sight of in a fog of constitutional verbiage that has served to distort rather than illuminate the issue at stake.

Indeed, in the only important ruling we have concerning the judicial removal process – Curtin v Dáil Éireann (2006) – the Supreme Court indicated that while an accused judge enjoys a right to fair procedures, the Court would have to defer to the Oireachtas in deciding what sort of process or procedure was appropriate. I believe the Court would almost certainly show the same deference to the Oireachtas in deciding what meaning to give to ‘stated misbehaviour’.

Our Constitution does, in fact, leave considerable scope for what we might call ‘political judgement’ – even in relation to something affecting constitutional rights – but this is often ignored. When it comes to various political issues, whether it be private property rights or judicial removal, constitutional law often imposes fewer constraints than political actors suggest it does. It is often convenient or expedient, for one reason or another, to use constitutional excuses to evade choices and judgements that are essentially political, not legal in nature. And this saga has fallen within that general pattern of constitutional obfuscation. Indeed the government’s invocation of judicial independence and the separation of powers to avoid answering for itself to the Dáil concerning the circumstances of the judge’s appointment falls in that pattern also – although, it must be said, in an unusually unfortunate and egregious way.

The constitutional mechanism for removing judges is itself far from ideal, to say the least. It involves parliamentarians adjudicating on potentially complex factual questions while themselves facing potential conflicts due to their representative role. Yet the mechanism does have its own logic – that the people’s elected representatives should deliberate on and decide the ethical standards that are appropriate for judges. And while this has its obvious pitfalls, we must take the mechanism on its own intelligible terms and face up, frankly, to the political judgement that it calls for.