Irish Times

Monday, February 26, 2001

Judging the Judges

Irish Times

The need for disciplinary procedures - short of impeachment by the Oireachtas - against members of the judiciary who are accused of professional misconduct or unethical behaviour, has been evident for some time.

The resignation of two senior judges in the aftermath of the Sheedy affair, in circumstances that threatened a full-scale Constitutional crisis and added greatly to public cynicism, simply confirmed the urgency of the requirement.

Last month, a report from the Committee on Judicial Conduct and Ethics, headed by the Chief Justice, Mr Ronan Keane, suggested a system of self-regulation as the way forward. And the Minister for Justice, Mr O'Donoghue, is considering the Government's legislative options in the context of an early Constitutional referendum.

Self-regulation, as a disciplinary mechanism, simply does not work in an effective manner where the individuals concerned enjoy close personal and professional contacts. Some professions have accepted it grudgingly, under pressure from government. But it has worked indifferently. And it has failed to reassure the public of impartial treatment. To introduce such a system in response to the Sheedy affair would be both short-sighted and inadequate.

For some years, the tide of public opinion has flowed strongly in favour of increased transparency in public affairs and of accountability when things go wrong or when powerful individuals behave in an unacceptable manner. We have the Ethics in Public Office Act, under which Ministers and elected members of the Oireachtas are constrained in their behaviour. And we have an Independent Ethics Commission that investigates and adjudicates on complaints. The existence of such a disciplinary body does not make members of the executive any less independent in their actions under the Constitution. But it does provide the citizen with a clear and impartial avenue of redress.

Why should the judiciary, second arm of the State, be treated any differently? The fact that the judiciary wishes to regulate itself is not a compelling argument. In resisting outside involvement its members are no different from other professionals. But judges are different, both in terms of their power and importance within society. And, because of that, the need for transparency and accountability is critical.

The Committee on Judicial Conduct and Ethics has proposed a complaints structure composed almost entirely of judges. The only concession to external influence involves a panel of inquiry, composed of two judges and an individual of standing, nominated by the Attorney General, that would investigate serious complaints. The nature of the proposed disciplinary system is so hermetic that even barristers and solicitors are excluded from participation. But their inclusion, of itself, would hardly be sufficient to reassure a cynical public that justice would not only be done, but would be seen to be done.

There is little reason why members of the judiciary should be so defensive. By and large, they provide an excellent and impartial service to the public. But they are, significantly, servants of the public. Legislation has been promised to address the issue of ethics, misconduct and accountability. Before that happens, a public debate on the issues would be of great importance.

© 2001