IRISH JUDICIAL STUDIES JOURNAL
 Irish Judicial Studies Journal Vol 6(1)
alcohol and sought treatment for alcoholism.
This illustrates that incapacity and stated
misbehaviour are not mutually exclusive. Secondly, the relationship between the terms
‘misbehaviour’ (as per the Constitution) and ‘misconduct’ (as per the Act) is somewhat
unclear. On the one hand, the plain ordinary use of these words is to treat them as synonyms.
On the other hand, the constitutional standard is only engaged in the context of actions by
judges which could justify their removal from office, whereas the statutory standard may be
engaged in a broader range of contexts.
The JCC may refer a matter to the Minister for
Justice who shall then propose the motion that a judge be removed from office under Article
35.4.1 of the Constitution (the misbehaviour standard) following an investigation into judicial
This indicates that misbehaviour is a subset of misconduct, that judicial
misconduct includes misconduct which falls far below what is required to remove a judge
and that the JCC may consider both misconduct and misbehaviour.
The meaning of both ‘stated misbehaviour’ and ‘misconduct’ will be influenced by our
conception of the separation of powers and judicial independence under Article 6 of the
Constitution as well as a historical sense of when the legislature should be entitled to remove
a judge from office. The question has been raised as to whether the Houses of the Oireachtas
could define ‘stated misbehaviour’ in any manner or as any particular conduct that the
majority agree upon,
or whether stated misbehaviour involves ‘an objective standard of
misbehaviour […][which] could be reviewed by the High Court’.
In order for judges to be
able to meet the standards to which they are held, judges must be able to know of and comply
with those standards in advance of a misconduct allegation. Therefore, stated misbehaviour
ought to capable of at least some definitional parameters without waiting for an ad hoc
Oireachtas decision (although whether a factual pattern falls within such definitional
parameters is a different question). It seems possible that the courts could review an
Oireachtas characterisation of misbehaviour if it were necessary to do so in order to protect
judicial independence and to prevent abuse that could flow from a mere majoritarian dislike
of a judge or of any of their judicial decisions.
Such judicial review would require some
Gabrielle Appleby and Susan Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional
Integrity’ (2014) 38 Melbourne University Law Review 1, 13; James Thomas, Judicial Ethics in Australia (3rd edn,
LexisNexis Butterworths 2009) 170-1 [10.11].
The Constitutional Review Group sought to bring more precision to the concept of ‘stated misbehaviour’ by
suggesting the addition of the words ‘prejudice to the office of judge’ but this suggestion has not been adopted.
See Report of the Constitution Review Group (1996) 184-185.
This view was expressed by C ongressman (later President) Gerald Ford in the United States in 1970. When
Ford demanded an investigation and, if warranted, a vote on the impeachment of U.S. Supreme Court Justice
William O. Douglas, Ford declared that ‘an impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history’ and that a ‘conviction results from whatever ...
two-thirds of the [Senate] considers to be sufficiently serious to require removal of the accused from office.’
See Brian C Kalt, ‘Presidential Impeachment and Removal: From the Two-Party System to the Two-Reality
System’ (2019) 27 Geo. Mason L. Rev. 1.
Gerald Hogan, Gerry Whyte, David Kenny and Rachael Walsh, Kelly: The Irish Constitution (5th ed n,
Bloomsbury Professional 2018) para 6.4.51.
This seems likely in light of Curtin v Dáil Eireann  IESC 14
enced below) which notes that ‘the
Appellant’s complaint is necessarily narrowed down to an issue of whether he can show t hat the procedure
before each House, following receipt of the Committee report, will necessarily be in clear d isregard of [the
constitutional principles of basic fairness of procedures and the requirements of natural and constitutional
justice].’ Similar ly, Cahillane and Kenny are of the opinion that the courts might ‘prevent abuse’ such as a
decision ‘in bad faith or with reckless disregard for the independence of the judiciary’ but would give the