Diarmaid Ferriter: Whatever happens next the judiciary is badly damaged

The last time we had such a display of stubbornness from the Four Courts it led to civil war. Holed up in the court’s complex from mid-April to the end of June 1922, the defiant anti-Treaty IRA residents were not for turning and it ended tragically when the new provisional government, under increasing pressure from within and in the face of ominous threats from the British government, began shelling the building, marking the commencement of a year of hellish conflict.

We won’t quite reach civil war as a result of Mr Justice Séamus Woulfe digging his heels in, but there is the potential for full-scale battle between a judge and the Oireachtas while the judges themselves already have their own war raging. There is nothing straightforward, however, about a showdown between the Oireachtas and a recalcitrant judge and we have no precedent for successful impeachment; what we have instead are reminders from history of how fraught and complex the trajectory of this controversy is likely to be.

In 1941, the then minister for justice Gerry Boland moved a Dáil motion seeking the removal from office of Munster Circuit Court judge Edward McElligott, who still had five years to serve before retirement age, “on the grounds that he is unable owing to physical incapacity to perform the functions of his said office”. Before the motion could be debated, Boland withdrew it after he received an assurance that McElligott would retire “at an early date”.

Opposition leader Fine Gael’s William T Cosgrave protested strongly that it had been moved in the first place, maintaining, “the principle of the independence of the judiciary is not one that should be interfered with… We view this motion with grave concern as one tending, in the circumstances, to create an evil precedent…We deprecate the methods employed and we wish to put on record our opinion that this motion should never have been taken”. Despite attempts to provoke a debate, the Ceann Comhairle removed the motion from the order paper.

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The moves to oust McElligott had alarmed his judicial colleagues. Three days before the Dáil motion judges of the Circuit Court met at the Four Courts. They appointed a deputation to interview minister Boland, and the County Kerry Law Society did likewise, in view of “so drastic a motion” being introduced. The Kerry Medical Association maintained it was fully satisfied McElligott was competent to perform his duties.

In truth, the real concern of the Department of Justice was McElligott’s personal life, as revealed in a memorandum prepared in the department for the minister. Acknowledging McElligott had been an “excellent judge…expeditious and courageous”, it asserted there were “other circumstances which detract from his value as a judge. It is understood that he is separated from his wife.” It was also contended he “has no home: he lives in hotels, a kind of existence which has certain obvious disadvantages and dangers”.

Palpable relief

McElligott’s decision to retire and the withdrawal of the Dáil motion prevented an unprecedented and potentially embarrassing showdown. There was also palpable relief in 2006 when Circuit Court judge Brian Curtin resigned, but that followed a 30-month saga. Curtin had been acquitted in Tralee Circuit Court in 2004 on a charge of possession of child pornography after 280 such images were allegedly found on his computer. The warrant used by gardaí to search his house was out of date. Then minister for justice Michael McDowell tabled a motion to impeach Curtin and the Oireachtas agreed a seven member all-party committee would be established to gather evidence.

But the committee’s work was suspended for 15 months while Curtin’s legal response progressed. Curtin was given leave to challenge the process in December 2004 and only in March 2006, when the Supreme Court upheld the constitutionality of the process, was the committee in a position to resume work. Despite the halting of the inquiry due to Curtin’s resignation, the committee’s chairman, Fianna Fáil TD Denis O’Donovan, observed that at least the Supreme Court had approved a process that could provide a template for future impeachment hearings. The overwhelming sentiment, however, was relief that it had not come to that.

Woulfe is, of course, entitled to due process. Likewise, arising from the publication of the judicial correspondence about the controversy, observers are entitled to conclude that for or all the long-winded jousts about propriety and proportionality and the patent failure over the years for judges and legislators to fashion a satisfactory method of dealing with judicial conduct, this crisis has its roots in the blind righteousness of a judge who has demonstrated remarkably poor judgement. His various, lengthy defences will forever sit alongside the reality of the distress of those, who at the time of the notorious golf dinner, could not even give their dead family members the funerals they deserved. Whatever transpires, the damage to the reputation of the judiciary is immense.