ABSTRACT

There are two distinct mechanisms in Irish constitutional law for removing constitutional officeholders from office. Only one of them is referred to as ‘impeachment’—and it pertains to the President alone. The opening subsection of Article 12.10 of the Irish Constitution (Bunreacht na hÉireann) provides that: ‘The President may be impeached for stated misbehaviour.’ The other mechanism might be referred to as ‘removal by resolutions’—and it pertains to judges of the superior courts and to the Comptroller and Auditor General. The wording of Article 35.4 of the Constitution on removal of judges corresponds precisely with that of Article 33.5 on removal of the Comptroller and Auditor General. Thus Article 35.4.1 reads: ‘A judge of the Supreme Court, the Court of Appeal, 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.’ This chapter will consider both of these processes and it is set out in four sections. Section 7.2 considers the history and background of these two distinct mechanisms for removing constitutional officeholders: the impeachment mechanism seeming to follow from American and Weimar German sources, and the removal by resolutions mechanism following from British sources reaching back through the Judicature Act 1876 to the Act of Settlement 1701. Section 7.3 turns to three episodes of alleged judicial misconduct in recent Irish history in which removal proceedings were either contemplated or commenced. Section 7.4 gives particular attention to one of those episodes, and specifically to the constitutional challenge made by the judge in question to removal proceedings which had been initiated. Section 7.5 then considers recent legislative developments and issues which may need further consideration.