BURIED DEEP WITHIN the Bill, permitting the Referendum to proceed, that the Oireachtas has passed is the following proposed amendment to Article 35.4 of the Constitution:

“35. 4. 1. A judge of the Supreme Court or the High Court shall not be removed from office except for stated misbehaviour or incapacity, and then only upon a resolution passed by Dáil Éireann, supported by not less than two-thirds of the total membership of that House, calling for the removal of the judge.”

However, Article 35.4 of the Constitution currently states:

“35. 4. 1. A judge of the Supreme Court or the 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.”

We have been led to believe that the Referendum is about the abolition of the Seanad. So why does the proposed new Article 35.4.1, as well as removing the reference to the Seanad, have the new requirement that a resolution to remove a judge be ‘supported by not less than two-thirds of the total membership of that House’? Is the referendum also about giving additional protection from sanction to our judiciary as well as the abolition of the Seanad? Clearly it is about both issues as the wording of the amendment to Article 35.4.1 shows.

Article 35.4 used as a background factor

As in now stands under the Constitution a simple majority is what is required in order for the Oireachtas to remove a judge from office for ‘stated misbehaviour or incapacity’. The Oireachtas (Dáil and Seanad) has never voted to remove a judge from office since the passing of the 1937 Constitution, or since the founding of the State. However, there have been two occasions when the use of Article 35.4 was a consideration or a background factor.

The first was when the Oireachtas investigated the acquittal of Circuit Court Judge Brian Curtin The second was in connection with the Philip Sheedy affair when High Court Judge Cyril Kelly resigned.

The Constitution contains the three elements involved in the democratic principle of  ‘the separation of powers’ – the Oireachtas, the Cabinet, and the Judiciary. Article 35.4.1 is one of the very important and necessary checks and balances that constrain the actions of these three separate elements. These checks and balances are very important for the functioning of a democracy such as ours.

Many would argue that at present, contrary to what the Constitution envisaged, the very strict application of the whip system by all out political parties has turned the Dáil into a meaningless debating forum with the executive, in the form of the Cabinet, becoming far too powerful as a result.

Fundamental changes

A simple majority of 84 TDs out of the complement of 166, under Article 35.4 of the Constitution, is what is currently required for removal of a judge. Governments in our governments usually have small majorities (apart from the current coalition government) and so the simple majority required at present would be sufficient to allow the Oireachtas remove a judge from office. This will change fundamentally if the Referendum to abolish the Seanad is passed – 111 TDs will then be required to vote in favour of a resolution to remove a judge.

This, in turn, will mean that the government of the day – usually having only a small majority – will need the support of an opposition party or parties in order to pass a resolution in the Oireachtas for the removal of a judge from office. This may allow a judge, at risk of impeachment, to engage in political lobbying against her/his removal from office

Making the removal of judges even more difficult?

This represents a fundamental change in the current balance of power with yet more power being removed from the Oireachtas (already no more than a debating society because of the strict whip system) as a result of making removal of a judge from office even more difficult.

This shift in the balance of the separation of powers is unwarranted. Whatever about the effectiveness of, or the need for, the Seanad, I would be much more concerned about giving any protection from sanction to the judiciary that they currently have. Therefore I will be voting NO for this reason alone.

This proposed change to Article 35.4.1 has not entered the public debate about the abolition of the Seanad. The public needs to consider very carefully this aspect of the proposed change to the Constitution. This referendum is about much more than simply abolishing the Seanad.

Gerry Fahey is an Occupational Psychologist and a graduate of TCD and the University of Illinois at Urbana Champaign.