Social punishment is often far more severe than any judicially-imposed penalty, Professor O’Malley points out.
And the response to the Clifden golf outing is a good example of social punishment, he writes, except that it has been imposed and called for without any criminal charges, let alone a conviction.
Sanctions
He writes that while disciplinary sanctions and measures are often imposed on employees and others in the public and private sectors, and are also quite common in sporting organisations, they cannot be imposed arbitrarily or at the whim of a person in authority.
“People should not be subject to such sanctions unless they have had a fair opportunity to defend themselves, and any sanction imposed must be both reasonable and proportionate to the gravity of the wrongdoing,” he continues.
Professor O’Malley points to an extensive body of constitutional and administrative law confirming these basic principles.
“Proportionality is not just the overarching principle of sentencing in this country. It has also been described by the Supreme Court as a ‘well-established tenet of Irish constitutional law’ (Rock v Ireland [1997] 3 IR 484 at 500),” he writes.
The dinner held in Clifden was in breach of the rules and all those who voluntarily attended did some wrong, Professor O’ Malley continues, “The question is what the response to that wrong should be.”
He notes that many of the attendees are no longer actively involved in public life and the only ones being punished are.
Proportionate
Professor O’Malley reiterates that the sanction should be proportionate to the wrong, and that removal of Judge Seamus Woulfe from office would be disproportionate.
“Article 35.4 of the Constitution provides the only means now available for dealing with a judge accused of misbehaviour of any kind, and it is a very blunt instrument indeed.
“Either a judge is removed from office or nothing is done (formally at least).”
The Judicial Council Act 2019 was introduced after a long gestation period, to address this anomaly, Professor O’Malley writes, and it has a very detailed set of provisions for dealing with complaints made against judges. However, this act is not yet in force.
Removal from office should be reserved for cases of grave misbehaviour, Professor O’Malley believes.
Unjust
“It would surely be unjust and, indeed, irrational if a judge were now to be removed from office or effectively forced to resign when, in a few months’ time or sooner, there will be a system in place to deal with complaints and allegations of varying degrees of gravity and the possibility of imposing a commensurate sanction where there is an adverse finding against the judge in question,” he says.
“An apology (which he has already made) or an admonishment would surely be the appropriate response, assuming he is found to have been at fault in connection with his attendance at the dinner in question,” Professor O’Malley continues.
Principled
Judges are also entitled to due process and to be dealt with in a proportionate, rational and principled manner, he concludes.
“In the case of Judge Woulfe, removal from office would, in my respectful opinion, be entirely disproportionate.
“Bear in mind that this would entail, not only loss of employment and income, but many collateral consequences including the general opprobrium connected with the removal or forced resignation, and the serious impact on himself and his family.
“All of these matters should be considered when devising a proportionate sanction,” he writes.