Recent controversy aroused by remarks by two judges about immigrants has re-ignited the debate on judicial accountability. This has lain dormant since the exoneration of Judge Donal Ó Buachalla by the Murphy Inquiry into allegations of bias in his treatment of a pub licence application from Mrs Catherine Nevin. It is unfortunate that such debate only occurs around specific controversies.
At the moment the only provision for dealing with allegations of judicial misconduct is the constitutional statement that a judge of the High or Supreme Court can only be removed for "stated misbehaviour or incapacity", and then only by a resolution passed by both Dail and Seanad. Nothing less is provided for. District Court judges enjoy similar protection by way of legislation.
It is undisputed by anyone, including the judiciary itself, that further measures ensuring judicial accountability are necessary. A committee under the chairmanship of the Chief Justice, Mr Justice Keane, put forward proposals two years ago that would allow for a Judicial Conduct and Ethics Committee, which would consider complaints from the public. Serious complaints would be referred to a Panel of Inquiry, made up of two judges (who could be retired) and a lay person appointed by the Attorney General. It could recommend a private reprimand, a public reprimand or a resolution for dismissal in both Houses of the Oireachtas.
Mr Justice Keane expressed the hope that these recommendations would be taken up by the Government, but this has not happened so far. Meanwhile, the Tánaiste said this week that the Government would be bringing forward its own proposals for legislation in 2004, without indicating whether they will be based on the Keane report.
However, there will undoubtedly be pressure on the Government to produce proposals which make the judiciary broadly answerable to public opinion. This must be distinguished from accountability.
The Constitution rightly places a high premium on judicial independence, which has been a cornerstone of Irish democracy. Often this has involved members of the judiciary taking unpopular decisions, and making judgments which contravene the interests of the Government of the day or of other organs of the State. It is vital that they can continue to do so, without fear or favour, and that, where necessary, they can make statements about the import of cases before them, even when this might leave them open to criticism.
In the light of this, the judiciary has argued persuasively that any disciplinary body must be self-regulating. But if such a body is to succeed and win the credibility it must have, it must be seen to act decisively when the conduct of judges falls below the high standards, in public utterance as well as behaviour, that the public is entitled to expect.