Strasbourg, 14 February 2002
CCJE (2002) 10
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Ireland
Questionnaire on the conduct, ethics and responsibility of judges
1. What are the statutory obligations by which judges are bound?
There are no statutory obligations relating to conduct, ethics and responsibility by which judges are bound. The only obligations binding a judge are those contained in the constitution of 1937:
Article 34.5.1 :
“Every person appointed a judge under this Constitution shall make and subscribe the following declaration:
‘In the presence of Almighty God I, do solemnly an sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me’”
Articles 35.2, 35.3:
“2. All judges shall be independent in the exercise of their judicial functions and subjects only to this Constitution and the law
3. No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office of position of emolument”
2. Is there a judges’ code of conduct?
No. The Report of the Committee on Judicial Conduct and Ethics, 1999 stated that the Conduct and Ethics Committee could establish a general code of ethics which would be given to new members of the judiciary. This Committee is not yet in existence.
2.1 If so, who drafted it and who adopted it?
2.2 What are the obligations imposed upon judges?
2.3 Is there provisions for sanctions in the event of violation by judges?
3. What incompatibilities are there between the duties of a judge and other functions or professions?
In effect, the job of a judge is a full-time one and it precludes payment to a judge for any other employment Article 35.3 provides.
“No judges shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position of emolument”
The Constitutional Review Group notes that the phrase ‘any other office or position of emolument’ is regarded as preventing a judge from holding any other paid appointment. Many judges hold honorary appointments, often charitable. They frequently are appointed as chairperson of tribunals of inquiry. The Government tends increasingly to appoint judges as chairpersons of groups or bodies required to report on policy issues. It is important for public confidence in the judiciary and public perception of their independence and impartiality that judges do not directly or indirectly make public statements on matters of policy. There may be certain areas, for example relating to the administration of justice, where it is proper for judges to participate in a group or body whose report may have a policy dimension.
4. In what circumstances can the impartiality or apparent of judges be called into question in accordance with the law or case-law?
The rule against bias, called the nemo judex in causa sua principle, means judges should not be involved in any matter in which they may have an interest, whether financial or otherwise, or where they may have previously publicly expressed a view on the issue in question, or where they may have advised one of the parties in the case. In such a situation, the judge should decline to adjudicate on the matter. This happens on a relatively infrequent basis.
5. Can judges incur criminal or civil liability for acts committed in the performance of their duties?
No. Public policy dictates that the common law recognise that a judge is absolutely immune from any claims arising from any acts done in his or her judicial capacity.
As is noted in Kelly, The Irish Constitution, (3rd ed., 1994) at p 547:
“ ... The desirability of maintaining public confidence in the judiciary, considerations of judicial esteem and independence and, indeed, the very propriety of stigmatising another judicial decision as negligent all tend to reinforce the continued vitality of this common law rule in the much changed constitutional environment. In other words the citizen’s right of action to sue and recover damages in respect of a justiciable controversy will probably have to yield to the State’s constitutional duty to safeguard the independence of the judiciary.”
5.1 In what circumstances? - See above answer
5.2 What is the procedure involved? ditto
5.3 What is the competent institution or authority? ditto
5.4 What sanctions or compensatory measures can be applied? ditto
6. Can judges be subject to disciplinary proceedings?
6.1 In what circumstances?
Where there is ‘stated misbehaviour or incapacity’ after resolutions have been passed in both Houses of the Oireachtas a judge may be removed from Office. Article 35.4.1 (High Court and Supreme Court); s. 39, Courts of Justice Act, 1924 (Circuit Court) and s. 20, Courts of Justice (District Court) Act, 1946 both carried forward by s. 48, Courts (Supplemental Provisions) Act, 1961.
The question of removal of a judge , sometimes referred to as impeachment, had never been given serious consideration between 1937 and 1999 and so the phrase had never been interpreted by the Courts. It has been suggested that ‘incapacity’ suggests physical unfitness for office, in the sense that the judge in question was suffering from a physical or other disability such as a stroke or other mental illness. ‘Stated Misbehaviour’ would appear to include both misbehaviour off the bench, e.g. accepting a bribe. It might also embrace more general matters, for instance a judge’s endorsement of a particular political party’s views.
6.2 What is the procedure involved?
The procedure comprises articles of impeachment in the Oireachtas. Articles 35.4.1 of the 1937 Constitution is silent on the question of how the impeachment process might work and since no judge has been the subject of such a charge there is no practical precedent to guide the members of the Oireachtas.
Even though the Constitution does not require it, statue demands the same procedure for the removal of Circuit Court and District Court judges (s. 39, Courts of Justice Act, 1924 and s. 20, Courts of Justice (District Court) Act, 1946, carried forward by s. 48 Courts (Supplemental Provisions) Act, 1961. This procedure has also never been invoked.
There are some disciplinary provisions which apply only to Judges of the District Court. Under s. 10(4), Courts (Supplemental Provisions) Act, 1961 where the Chief Justice forms the opinion that a District Court judge’s conduct is “such as to bring the administration of justice into disrepute” he “may interview the [judge] privately and inform him of such opinion”. No sanction is provided to compel the judge to mend his/her ways.
Section 36(2) of the same Act provides another control mechanism. When it appears to the President of the District Court that the conduct of a colleague is prejudicial to the prompt and efficient discharge of the business of the court, the President may investigate the matter and may report to the Minister for Justice. The president must consult the judge concerned.
If an unfavourable report were received the Minister could invoke the powers under s. 21, Courts of Justice (District Court) Act, 1946. Here the Minister mat request the Chief Justice to appoint a Supreme Court or High Court judge to hold an inquiry which may be into a District Court judge’s health, mental or physical, or his/her conduct either generally or on a particular occasion. The appointee may conduct the inquiry as he thinks fit and may conduct it in private. On completion a report is sent to the Minister for Justice who would have to consider initiating the impeachment procedure outlined above.
6.3 What is the competent institution or authority?
See Above. It is envisaged that the Committee of Conduct and Ethics will be the competent institution once the Judicial Council is established.
6.4 What disciplinary sanctions can be imposed?
The Report of the Committee on Judicial Conduct and Ethics recommended that the proposed Judicial Council be the mechanism for dealing with other instances of judicial misbehaviour, falling short of “stated misbehaviour of incapacity”. The Report recommended that where any allegation of misconduct is found to have been established, the Panel of Inquiry may take action in any of the following forms:
Ÿ a private reprimand by the Conduct and Ethics Committee to the judge;
Ÿ a private reprimand by the Conduct and Ethics Committee to the judge;
Ÿ A recommendation by the Conduct and Ethics Committee to the Attorney General that the executive consider the tabling of a resolution in both Houses of the Oireachtas calling for the removal of the judge from office for stated misbehaviour or incapacity
Ÿ The first two recommendations may contain an additional recommendation that the subject of the complaint be requested to attend courses of counselling or treatment.
The report of the inquiry should be considered by the Conduct and Ethics Committee which may decide to implement any of the recommendations with or without modifications.
However in the absence of the implementing legislation which was due to be passed in the current session of the Oireachtas (Parliament) but was withdrawn, the only formal sanction which may be imposed is removal from office, and then only for “stated misbehaviour or incapacity”.