Circuit Court judge Brian Curtin's argument that his constitutional rights always "trump" the broader constitutional interests of the community does not stand up, counsel for the State told the High Court yesterday.
Senior counsel Brian Murray was making submissions on behalf of the State on the sixth day of judicial review proceedings brought by Judge Curtin, who is challenging the mechanism - a select committee - set up by the Oireachtas to investigate and gather evidence into his alleged wrongdoings.
The judge was acquitted last year of possessing child pornography after it was held that gardaí used an out-of-date search warrant to seize his computer and other material.
Yesterday Mr Murray said the legal arguments made on behalf of Judge Curtin technically misunderstood relevant legal and constitutional principles.
The requirement of a process for the removal of judges was not only central to judicial independence, but it equally followed that there should also be a process that allowed for the gathering of relevant evidence to enable a decision-making body to arrive at a proper, just and complete conclusion, he said.
What Judge Curtin was seeking to do was to graft on to the process a series of restrictions that would gravely impair the efficacy of that process, Mr Murray argued. Judge Curtin was claiming that a judge who is the subject of an inquiry or removal process was constitutionally entitled to refuse to provide documents; entitled to refuse to provide other evidence which might be relevant; and entitled to refuse to provide explanations or to provide an account of himself.
Mr Murray said it appeared Judge Curtin was claiming he was constitutionally entitled to proffer an explanation to the Oireachtas of his conduct through his solicitor and then constitutionally entitled to refuse to have to stand over that explanation or to allow that explanation to be tested by means of access to documents and materials.
No legal authority had been given to the court from any other jurisdiction in which such constitutional rights had been recognised.
Judge Curtin, according to his claim, was in a better position when faced with removal than a person accused of a criminal offence who could never resist the seizure of his material or the production of documents, Mr Murray said.
The judge had also added on an equally striking limitation in claiming that, because the gardaí conducted an illegal search, the items seized were "clothed" effectively in a permanent immunity.
The hearing continues today.