Defence (Amendment) Act 2007
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Insertion of new Chapter: Military Judge. |
34.— The following Chapter is inserted after Chapter IVB (inserted by section 33 ) of Part V of the Principal Act: | |
“Chapter IVC | ||
Military Judge | ||
Military judge. | ||
184J.— (1) The President may appoint, on the advice of the Government, one, or more than one, qualified officer of the Permanent Defence Force to be a military judge. | ||
(2) An officer who is a practising barrister or a practising solicitor of not less than 10 years standing shall be qualified for appointment as a military judge. | ||
(3) For the purposes of this section service for any period in a position in the full-time service of the State (including as a member of the Permanent Defence Force and as a civil servant within the meaning of the Civil Service Regulation Act 1956 ) for which qualification as a barrister or solicitor was a requirement shall be deemed to be practise as a barrister or a solicitor, as the case may be, for that period and an officer, while holding that position, shall be deemed to be a practising barrister or a practising solicitor, as the case may be. | ||
(4) The military judge, or where there is more than one military judge, the Chief Military Judge, shall not be below the army rank of colonel or the equivalent naval rank. | ||
Committee. | ||
184K.— (1) For the purpose of identifying officers and informing the Government of the suitability of those officers for appointment to judicial office, there shall be established a committee consisting of— | ||
(a) the Chief of Staff, | ||
(b) the Judge Advocate-General, and | ||
(c) a Judge of the High Court, nominated by the President of the High Court. | ||
(2) The committee may adopt such procedures as it considers appropriate to carry out its functions under this section. | ||
(3) The committee shall, whenever so requested by the Minister, select an officer or officers for appointment under this section and shall inform the Minister of the selection made and of his or their suitability for the appointment and the Government shall consider for appointment the officer or officers so selected. | ||
(4) The committee shall not submit or recommend the name of an officer to the Minister under this section unless the officer concerned satisfies the requirements of section 184J(2) as regards the proposed appointment, and the committee shall not recommend the name of the officer to the Minister unless, in the opinion of the committee, the officer— | ||
(a) has displayed in his or her practice as a barrister or solicitor, as the case may be, a degree of competence and a degree of probity appropriate to and consistent with the appointment as a military judge, | ||
(b) is suitable on grounds of character and temperament, | ||
(c) is otherwise suitable, and | ||
(d) complies with the requirements of subsection (5) of this section. | ||
(5) An officer who wishes to be considered for appointment under section 184J shall undertake in writing to the committee, if appointed as a military judge, to take such courses of training or education, or both, as may be required by the Judge Advocate-General. | ||
(6) All proceedings of the committee and all communications to the committee shall be confidential and shall not be disclosed except for the purposes of this Chapter. | ||
Terms and conditions of appointment. | ||
184L.— (1) Subject to this Chapter, a military judge shall hold and vacate office on and subject to the terms and conditions (including terms and conditions relating to remuneration and superannuation) determined by the Minister with the consent of the Minister for Finance. | ||
(2) A military judge shall be independent in the performance of his judicial functions under this Act. | ||
(3) A military judge shall not hold any other office or employment in respect of which remuneration is payable. | ||
(4) The remuneration of a military judge shall not be reduced during his continuance in office. | ||
(5) A military judge may at his own request be relieved of office by the President. | ||
(6) It shall be a condition of his appointment that a military judge— | ||
(a) who is relieved of office by the President under subsection (5) of this section shall cease to be an officer, | ||
(b) who ceases to be an officer under any of the provisions of this Act shall cease to be a military judge, | ||
(c) who retires in accordance with the terms and conditions of his appointment under this Chapter shall cease to be an officer, | ||
(d) who is removed from office under section 184O, shall cease to be an officer. | ||
(7) Every officer appointed as a military judge under this Chapter shall, before entering upon his duties under this Act and in any case not later than 10 days after the date of his appointment, swear an oath or make a solemn declaration in the prescribed form which shall be administered by the Judge Advocate-General and a military judge who declines or neglects to swear an oath or make such a declaration shall be deemed to have vacated his office. | ||
(8) A military judge shall neither report on, nor be the subject of any report in respect of, the performance of his functions under this Act. | ||
Functions of military judge. | ||
184M.— A military judge shall preside at courts-martial and shall perform any other judicial functions that may be prescribed. | ||
Chief Military Judge. | ||
184N.— (1) The President may appoint, on the advice of the Government, a military judge to be the Chief Military Judge. | ||
(2) The Chief Military Judge shall have such functions as are prescribed including assignment of military judges to preside at courts-martial and to perform other judicial duties under this Act. | ||
(3) The Chief Military Judge may delegate any of the Chief Military Judge’s functions to a military judge. | ||
Removal of military judge from office. | ||
184O.— (1) Subject to section 184P, a military judge may be removed from office by the President on the advice of the Government but only for stated reasons including because— | ||
(a) he has become incapable, through ill-health, either physical or mental, of effectively performing the functions of the office, | ||
(b) he has failed to perform the functions of the office with due diligence and effectiveness, | ||
(c) he has engaged in conduct that brings discredit on the office or that may prejudice the proper performance of the functions of the office, or | ||
(d) his removal from office would, in the Government’s opinion, be in the best interests of the Defence Forces. | ||
(2) On notifying a military judge under section 184P(1) that the Government intends to consider his removal from office, the Government may immediately suspend the military judge from duty. | ||
(3) The suspension from duty continues until the Government makes a decision in relation to the matter under consideration, but only if there is no undue delay in taking steps under section 184P or in making that decision. | ||
Steps to be taken before removal of military judge. | ||
184P.— (1) Before considering removal of a military judge from office under section 184O the Government shall— | ||
(a) notify the military judge that the Government intends to consider the matter and include in the notice a statement of their reasons for doing so, and | ||
(b) give the military judge an opportunity to make representations as to why he ought not to be removed from office. | ||
(2) The Government may, if they consider it necessary or appropriate to do so, appoint a Judge of the High Court nominated by the President of the High Court to— | ||
(a) hold an inquiry into any matter giving rise to a notification under subsection (1) of this section, and | ||
(b) report to the Government on the findings of the inquiry. | ||
(3) A Judge of the High Court appointed under this section to hold an inquiry may do one or more of the following: | ||
(a) direct a person, by notice delivered to the person, to provide any information that is specified in the notice and is required for the purposes of the inquiry; | ||
(b) direct any person, by notice delivered to the person, to produce at the time and place specified in the notice a document specified in the notice that is relevant to the inquiry and is in the person’s power or control; | ||
(c) summon witnesses to attend the inquiry; | ||
(d) direct a witness to answer a question put to the witness at the inquiry; | ||
(e) give any other direction that appears to the Judge appointed under this section to be necessary, just and reasonable for the purposes of the inquiry; | ||
(f) administer oaths and affirmations to witnesses and examine witnesses attending the inquiry. | ||
(4) A person whose evidence has been, is being, or is to be given before an inquiry under this section, or who produces or sends a document to the inquiry pursuant to a summons or direction, as the case may be, under subsection (3) of this section or who is required by such a summons or direction to give evidence or produce a document to the inquiry or to attend before the inquiry and there to give evidence or produce a document, shall be entitled to the same privileges and immunities as if the person were a witness before the High Court. | ||
(5) If a person fails or refuses to comply with or disobeys a direction or summons under subsection (3) of this section, the High Court may, on application by the Judge appointed under this section— | ||
(a) order the person in relation to whom the application was made to comply with the direction or, in the case of a summons, to attend the inquiry, and | ||
(b) make such other (if any) order as it considers necessary and just to enable the direction to have full effect or, in the case of a summons, to ensure the attendance at the inquiry. | ||
(6) A person who— | ||
(a) is notified under subsection (3) of this section and who, without lawful excuse, refuses or fails to comply with a direction under paragraph (a) or (b) of that subsection, | ||
(b) fails, without lawful excuse, to attend an inquiry in response to a summons under subsection (3)(c) of this section, | ||
(c) refuses to answer a question that the Judge of the High Court conducting the inquiry may legally direct the person to answer, or | ||
(d) does or omits to do in relation to the inquiry any other thing the doing or omission of which would, if the inquiry had been a proceeding in the High Court, have been contempt of that Court, | ||
is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 6 months or both. | ||
(7) If an inquiry is held, the Government shall— | ||
(a) consider the report on the findings of the inquiry, | ||
(b) make a copy of the report available to the military judge whose removal from office is the subject of the report, and | ||
(c) give the military judge an opportunity to make representations relating to the report. | ||
(8) As soon as practicable after the military judge is removed from office under section 184O, the Minister shall cause a statement of the reasons for the removal to be laid before each House of the Oireachtas.”. |