I move the Second Reading of the Third Amendment of the Constitution Bill. The object of it, as is apparent from the title, is to provide better machinery than is extant at the moment in the provisions of the Constitution to safeguard the independence of the judiciary. I should like to say, on my own behalf and, I think, also on behalf of Deputy Dillon, at the outset, that the introduction of this Bill is in no way intended to be in the nature of a criticism of the Minister for Justice in connection with his handling of the situation that arose in connection with a recent judicial problem. I want to make that perfectly clear. While, to some extent, the circumstances of that case have given rise to the introduction of this Bill, yet it is not to be taken as in any way reflecting on the conduct of that affair by the Minister for Justice. I am perfectly satisfied that whatever differences we, on this side of the House, had with the Minister were due, to a very large extent, if not entirely, to misunderstanding. I think that the circumstances of that occasion do give rise to grave misgiving as to the effectiveness of the existing machinery in the Constitution. We have now only very few days within which the Constitution may be amended by ordinary legislation, and we think that a matter of this kind is more properly dealt with by an ordinary Bill in this House, while the law permits it, than by the elaborate machinery of referring the matter to the people for amendment under the Constitution.
The traditional method of securing the independence of the judiciary has, of course, always been to provide that a judge shall not be removable except by both Houses of the Legislative Assembly. That method has been effective largely because there have been very few occasions on which the power of removal has been exercised. Once such a power of removal has been exercised in a given case, it will almost certainly follow that the effectiveness of the guarantee will cease. While removal by both Houses of a Legislative Assembly is regarded, from the point of view of tradition, as a great safeguard of the independence of the judiciary, familiarity breeds contempt, and once the thing has been tried out and it has been seen how easy it is, in fact, to operate, then the tendency will be, we fear, to operate it with greater and greater frequency. Recent events do, I think, show that there is a problem to be solved. There are two sets of facts to be considered: one is where a judge is guilty of misbehaviour or misconduct, and the other where he is incapacitated. The same remedy is provided in the Constitution for both these sets of facts. The problem to be solved by this complicated machinery is entirely different when it consists of misbehaviour rather than of mere incapacity. Under the system obtaining here at the moment, we have in the Dáil machinery of Government depending upon the Party system. We have, therefore, the position that the Government is dependent for its life upon the majority of the House. Under the system of election to the Seanad, it must necessarily follow that whatever Party, or combination of Parties, has a majority in the Dáil must have a majority in the Seanad. The only possible safeguard of this principle of the independence of the judiciary, while the existing constitutional position remains, would be if the Seanad were differently constituted from the Dáil. While the Dáil and Seanad are similarly constituted the safeguard has no real validity whatever.
Once the existing machinery in the Constitution for removal of a judge is tested and it is found easy to operate, the tendency will be, or may be—I do not say for a moment that, with this Government, it will be, but we have to look to the future as well as to the present—to utilise that machinery more and more. There is always the tendency for Governments whose policy, perhaps, is of such a character as to bring them, from time to time, into conflict with the law to be restive and irritable when legal decisions and judicial opinions and pronouncements hamper their operations and the working of their policy. I think it is generally admitted—it is certainly admitted by all Parties in this House—as a fundamental principle that there should be some constitutional safeguard for the independence of the judiciary. It is essential in a State such as we live in that that principle should be very carefully safeguarded. I think, as I say, all Parties are of the same mind on that principle. We think that the principle has been shown to have considerable weakness as it stands at the moment in the Constitution.
The Bill introduced by Deputy Dillon and myself is merely an effort by way of suggestion to provide a more adequate safeguard for the principle of the independence of the judiciary than exists at the moment. I am not wedded to the plan that is in the Bill. It is merely put forward in my view as the high-water mark. Views have been expressed to me, in fact, that the system in this Bill is a bad system from the point of view of safeguarding particular branches of the judiciary. The Bill is intended to cover all branches of the judiciary from the lowest to the highest. As matters stand at the moment district justices are not within the constitutional provisions, nor are the circuit judges. District justices are subject to the Disciplinary Committee that was imported into the law by the Courts of Justice Act, 1936. At that time I objected very strongly to setting up a committee which was designed to inquire into the conduct of district justices. Anything that has since happened has merely confirmed me in the view I expressed then. The circuit judges have no Disciplinary Committee, but I imagine it will be only a matter of time until some Government conceives the idea that as they have got some control over district justices through the Disciplinary Committee, it would be an advisable thing, from the official point of view, that some control should also be established over another branch of the judiciary, the circuit judges, by some similar committee. Then the process of eating into the principle of independence of the judiciary will go from district justices to circuit justices, from circuit judges to High Court judges and from High Court judges to judges of the Supreme Court, until the erosion into the system will crumble the whole structure.
The provisions of this Bill contemplate that district justices, Circuit Court judges, High Court judges and Supreme Court judges should all get the same constitutional privileges. I can appreciate the official point of view which displays irritation when a district justice fines somebody 2/6 who, the Department thinks, should get six months. Perhaps a cumulative series of matters of that kind lead to the official attitude that these district justices are lacking in their duty and require some gingering-up and that the only way they can be gingered-up is by officials in the Department of Justice or some other Department. I have always expressed the view that no Government can be sure of getting the best person for a particular judicial position, no matter what care is taken in the selection or no matter what the machinery of selection is. At the present time, the machinery of selection is very largely based upon political considerations. It may or may not be a very bad system. No system will ensure that the best man for the particular position will be picked, however much the Government may try, but whatever care is taken and whatever the system is, once the man is appointed you have to lump it. He may turn out very good, very indifferently or extremely badly, but good, bad or indifferent he has to be accepted. That is the only way in which the public interest, taking the long view, can be served.
With that approach towards this problem I have always taken the view, even irritated, as I have been frequently, by judicial decisions and pronouncements, that the matter has to be approached along the lines I have stated. A judge once he is appointed has to be given the status, the respect and the privileges with which the Constitution provides him. Now, the question is, how best can this principle be safeguarded in future, because we are now faced with the last possible occasion on which this matter may be dealt with? We are, in my view, committed to the system that exists in the Constitution as long as the present Constitution lasts, if we do not take any measures now to reinforce the safeguards which are in the existing Constitution. As it stands at the moment, a political majority of one in this House and a political majority of one in the Seanad, can remove any judge. I do not think that is a system that can be justifiably defended.
It can only be defended on the basis that it is the traditional method, the method we got from the British unwritten Constitution, the method that had its validity merely from the fact that it was a power that was never exercised, or exercised only on two or three occasions in the whole history of the judiciary in the last 140 or 150 years. I think in this country there has been only one occasion when a judge has been removed from office and then he was only removed after his conduct had been inquired into by an independent commission that had been set up. That system is based on political expediency, if it is looked at in its naked defencelessness. It can only have any validity if there is general agreement amongst all Parties that resort should not be had to the removal of a judge except in the last extreme. I doubt very much whether that principle will get practical recognition in the years to come in this country. For that reason we are anxious that there should be some additional safeguard— not necessarily those we have suggested in this Bill—provided in the Constitution before it becomes as rigid as it will be in the course of a few weeks.
The machinery that is proposed in this Bill is a two-third majority of both Houses, the Dáil and the Seanad. It is also proposed that, before such a vote is taken by either House, the matter should be inquired into by the Supreme Court and an opinion given by that court. A person who is charged with misconduct will then have an opportunity of making his defence. A person who is alleged to be incapacitated may be able, if given an opportunity, to demonstrate the fact that within a short time he will be able completely to perform judicial functions or that within a short space of time there is a reasonable probability that he will recover all his faculties. Under the existing system there is nothing necessary to secure the removal of a judge but a vote of the Oireachtas, and if the Government recommends that a judge should be removed, that recommendation must be accepted by both Houses, otherwise the Government would have to fall. I think that is a principle that should not be accepted in present circumstances. I am very adverse to the system that is in vogue at the moment under the Courts of Justice Act of 1936 in reference to district justices and I would be still more strongly opposed to any proposal to extend that system. At the same time, there is the problem that a judge who is about to be removed either for misconduct or incapacity, should in accordance with the ordinary principles of natural justice be given some sort of opportunity of making his case or his defence, if defence be needed. There is no such machinery in existence in the present constitutional provision.
The proposal in this Bill, that the matter should be inquired into by the Supreme Court, is an effort to suggest an appropriate tribunal where the question of capacity or incapacity, misconduct or innocence can be independently investigated before the matter is adjudicated upon by both Houses of the Legislative Assembly. As I said at the start, I am not wedded to that system. I regard the provisions of this Bill as perhaps the high-water mark of safeguarding the principle. I would not be opposed to any reasonable suggestions that might differ in detail, provided the principle was fully recognised, that it should be difficult to remove a judge for misconduct or incapacity, that it should not be dependent upon a mere political majority in both Houses as it is at the moment and that, above all, there should be some machinery which would be of an independent character and which would give the person affected an opportunity of making his case and putting forward his defence, before he was tried in an atmosphere perhaps of political prejudice.