The following is the statement made to the Dáil yesterday by the Minister for Justice, Mr McDowell introducing the motion calling for the removal from office of Judge Brian Curtin:
The motion in my name is unprecedented in the history of Dáil Éireann and is the first time in which a resolution calling for the removal of a member of the judiciary has been moved under Article 35.4 of the Constitution or pursuant to statute.
The House will appreciate that in moving this motion, without precedent in this jurisdiction, I am deeply conscious of the underlying obligation which binds all of the organs of State established by the people under the Constitution to act fairly and in accordance with the terms of that Constitution.
For this reason, I am heavily constrained, in the interests of fairness, as to what factual material I can appropriately lay before the House today. The House has adopted a Standing Order (SO 63A) this day to provide for a framework in which resolutions under Article 35.4 can be dealt with.
That Standing Order envisages that a motion under Article 35.4 (and pursuant to section 39 of the Courts of Justice Act, 1924 or section 20 of the Courts of Justice (District Court) Act, 1946) can be moved and can be either rejected or that the debate on it can be adjourned in order to enable a Select Committee to be established to examine the matter further. It is my present intention accordingly having proposed the motion to move the adjournment of further discussion on that motion so that the procedures envisaged by SO 63A can be followed.
I think I should say at the outset that the Constitution vests in both Houses of the Oireachtas a power to entertain and pass resolutions calling for the removal of a judge for stated misbehaviour or for stated incapacity.
That power does not amount to the administration of criminal or civil justice and it is also to be distinguished from the process of impeachment set out in Article 12.10 of the Constitution in relation to the President.
The presidential impeachment process under Article 12.10 consists of an elaborate procedure requiring 30 members of one House of the Oireachtas to propose impeachment and that such proposal requires the support of not less than two-thirds of the total membership of the House in which the proposal is originally made. The impeachment charge is required to be investigated by the other House of the Oireachtas and requires that the other House may remove the President from office if at least two thirds of its total membership support a resolution declaring that the charge against the President has been sustained.
In Article 35.4, by contrast, the term "impeachment" is not used and each House must come to a separate conclusion on a resolution before it calling for the removal of the judge which can be passed by a bare majority of the members of that House who attend and vote.
Each House of the Oireachtas is vested with a separate power of making its own rules and Standing Orders under Article 15 of the Constitution.
The power vested in each House to consider and pass removal motions in the case of the Judiciary is, as I mentioned earlier, not an instance of the administration of civil or criminal justice but, on the contrary, a distinct constitutional function vested in the Houses of the Oireachtas, which is sui generis.
It is to the Houses of the Oireachtas that the people have entrusted the function of removing any judge who engages in stated misbehaviour or who is found to be subject to stated incapacity where, in the opinion of the Members of those Houses, such misbehaviour or incapacity warrants the removal of the judge from office.
Every judge appointed under our Constitution is required to make a declaration under Article 34.5 to uphold the Constitution and the laws.
Every judge is likewise required to be independent in the exercise of the judicial function and to be subject only to the Constitution and the law.
In a constitutional democracy such as ours which is, broadly speaking, in the common law tradition, the judiciary occupy a unique central position as independent arbiters and administrators of justice and are accorded great respect and dignity by the other institutions of the State because of their unique constitutional powers and functions.
Central to the relationship between the judiciary and the people is a duty cast on every member of the judiciary not to bring his or her status as a member of the judiciary into disrepute or in any way to breach the constitutional expectation of the people that the judge's ability to uphold the law and to administer justice fairly and impartially would not be compromised.
There is, accordingly, a correlative obligation on the members of the Houses of the Oireachtas to be vigilant to ensure that the standard of behaviour and capacity necessary for the proper discharge of the judicial function is maintained and is not compromised or damaged and, where it appears to the Members of either House of the Oireachtas that there are serious grounds to believe that there has been a departure from those standards, to enquire into the matter in the context of exercising the Houses' powers under Article 35.4.
Accordingly, it is not merely the entitlement of the Members of the Houses of the Oireachtas to fairly and dispassionately discharge their functions under Article 35.4 in appropriate cases; it is their manifest constitutional duty to do so. Failure to do so in certain circumstances could be deeply damaging to the whole constitutional order of things.
Obviously it is part of the mutual respect owed between the three arms of Government - legislative, executive and judicial - that the constitutional power and function of the Members of the Oireachtas under Article 35.4 should only be considered for exercise in cases where the facts appear to exceed a threshold of gravity which makes removal an appropriate option.
I would also like to point out to the House that there is no halfway house between a judge holding office and a judge ceasing to hold office under our law.
It is not possible for the Houses of the Oireachtas or for Government or for the president of any court to permanently "retire" a judge while in office.
As long as a person holds judicial office in accordance with the law, that person may not be side-lined or suspended from his or her judicial functions with indefinite effect.
In August 2001 members of An Garda Síochána were informed by Interpol that information had been obtained by the United States Postal Inspection Service in the course of a search of premises in Fort Worth in Texas concerning details of alleged customers of a company which apparently offered access to websites on the Internet featuring child pornography.
Since downloading and possession of child pornography was an offence under Section 6 of the Child Trafficking and Pornography Act 1998, An Garda Síochána commenced an operation investigating whether persons from Ireland whose names appeared as having used the services of the Texas company were in knowing possession of child pornography in breach of the terms of the Act.
The offence in question is a serious offence carrying a maximum punishment of five years' imprisonment on conviction on indictment.
The information supplied to An Garda Síochána through Interpol by the United States Postal Inspection Service included the names, individual passwords used for accessing the pornography website and credit card and charge card details of persons appearing to have a residence in Ireland.
One of the persons so named was a Brian Curtin with an address at 35 Ashe Street, Tralee, Co Kerry. Subsequent inquiries made by An Garda Síochána indicated that the person in question appeared to be Brian Curtin, a judge of the Circuit Court, residing at Ard na Li, Tralee, Co Kerry.
Members of An Garda Síochána applied to the District Court under section 7 of the Child Trafficking and Pornography Act, 1998, for a warrant to search Judge Curtin's home at Ard na Li, Tralee, Co Kerry.
This application was made on May 20th, 2002, and Judge Curtin's home was subsequently searched on purported reliance on the warrant and during that search gardaí took possession of a personal computer and other written and documentary material which they found in the course of the search.
An investigation file was submitted to the Director of Public Prosecutions in October 2002 and the Director of Public Prosecutions instructed that Judge Curtin [be prosecuted] for knowingly having in his possession child pornography on May 27th, 2002, contrary to section 6 of the Child Trafficking and Pornography Act 1998.
At a sitting of the District Court on April 4th, 2003, that court declined summary jurisdiction on the finding by the court that the facts alleged constituted a most serious charge. Accordingly, the matter was dealt with on indictment in the Circuit Court at Tralee in Co Kerry in a trial which commenced on April 20th, 2004, and which ended on April 23rd, 2004, on the basis that the warrant on which the gardaí searched Judge Curtin's house was spent on the day that it was executed, namely, May 27th, 2002.
Because of the manner in which the trial proceeded, the decision of the Circuit Court in relation to the validity of the warrant was dispositive of the case and the merits of the prosecution case and the defence were not entered into. Judge Curtin was acquitted of the criminal charge against him.
Because of the gravity of the charge against Judge Curtin, and in the context of his acquittal on a legal ruling on the validity of a warrant on foot of which his home was searched, and in view of the fundamental importance of maintaining public trust and confidence in the integrity of those exercising the judicial power of the State, the Government considered that it was appropriate that it should, through its Secretary General, request Judge Curtin to provide it with a full and complete explanation of the circumstances giving rise to the search of his home and subsequent prosecution.
The Government indicated to Judge Curtin that this explanation was being sought in the context of possible action being taken under Article 35.4 of the Constitution and pursuant to section 39 of the Courts of Justice Act, 1924. For the sake of completeness, arrangements have been made for all the correspondence which was transacted between the solicitors acting for Judge Curtin and the Taoiseach, the Secretary to the Government and the Ceann Comhairle to be placed in the Library of the Oireachtas for the information of Members of both Houses.
I think it appropriate that I should, however, put on the record of this House the first letter in that exchange of correspondence which is as follows: [See letter in accompanying panel.]
Members of the House will also note that the legal advisers to Judge Curtin contended in their letter to the Ceann Comhairle (which they asked to be made available to each Member of Dáil Éireann) as follows: Firstly, it appears to us that there is a absolutely no constitutional basis for the committee structure proposed by the Government.
Having considered this matter and taken advice in respect thereof, we submit that the proper constitutionally mandated process for the impeachment of our client must consist of full hearings before the Houses of the Oireachtas.
Further in our opinion Judge Curtin is entitled to a trial before both Houses of the Oireachtas as this constitutional function of both Houses of the Oireachtas cannot be delegated to any committee or any other body.
While I am reluctant at this point to appear to become involved in legal debate by proxy on the floor of this House, I believe that two points ought to be made in relation to those contentions.
Firstly, I believe and I am advised that the proposed process under the Standing Order is constitutional and does not amount, in any sense, to a "trial" by a committee or to a delegation of such a process to a committee.
I would emphasise that the process envisaged by the Standing Order adopted today enables the Joint Committee to avail of the compellability powers in relation to production of documents, records and evidence and will, accordingly, create a separate legitimate basis for the consideration of such material in no way circumscribed by the decision and outcome of the criminal proceedings against Judge Curtin. The decision on the exercise of compellability powers is one, of course, for the committee.
Secondly, admissibility or relevance issues will be dealt with fairly and properly in due course.
The House should be aware that it was out of respect for the judicial arm of the State that the Government sought an explanation and afforded an opportunity to Judge Curtin and his legal advisers to furnish such an explanation in advance of the tabling of any resolution under Article 35.4 in relation to Judge Curtin. The House should also be aware from the correspondence that no such substantive explanation was given and that the legal advisers to Judge Curtin take and took the view that the only bodies to which such an explanation might appropriately be tendered was to the Houses of the Oireachtas themselves.
I wish the House to know, accordingly, that the Government took every step to avoid a resolution under Article 35.4 being tabled without affording, as a matter of basic fairness, an opportunity to Judge Curtin to give reasons why such a step would be inappropriate or unwarranted.
As Minister for Justice, on the basis of material and information furnished to me, and in the absence of any substantive explanation indicating a basis for concluding at this stage at any rate that there was no stated misbehaviour, I regard it as my duty to place this matter before the Houses for the ultimate judgment of their Members.
In so doing, I am, as I mentioned earlier, conscious of the overriding need that the manner in which the matter should now be considered by each House of the Oireachtas should demonstrably conform with ordinary fairness and constitutional norms.
I stress that in moving this resolution I, like every other Member of the Houses of the Oireachtas, am obliged to keep an open mind as to whether the facts and information as known to me and as will become known to the Members of the Houses by means of the processes for which provision has been made in Standing Orders are established to our satisfaction, are capable of explanation consistent with the absence of stated misbehaviour or are of such gravity as to justify in the last analysis the passing of this resolution by this House.
We should all be careful in what we say and do, while not flinching from our constitutional function and duty in this matter, to say or do nothing which might be seen to incapacitate or compromise ourselves in any way in the discharge of that duty.
I want to make it absolutely clear that the tabling and proposing of this resolution is something which no holder of my office could ever have envisaged as a likely part of the discharge of that office.
If there were some approach open to me or to the Government other than the invocation of Article 35.4 of the Constitution which could preserve public confidence in the integrity of the judicial function, the House may rest assured that I and the Government would have given it every consideration.
But the House will see on careful examination of the correspondence furnished to it that no other course is reasonably open in the particular circumstances of this case and in the light of what has transpired.
Lastly, I want to appeal to all Members of this House to approach this matter in a fair-minded, open-minded and non-partisan way. This issue is one without party political or governmental/opposition implication.
The seriousness of the issue and the gravity of approach which it deserves should exclude from our proceedings on this motion any temptation to score points at each other's expense to the detriment of the objectivity of any ultimate decision we make on the motion.
Rightly, I believe, the eyes of the people whom the Constitution serves are focused on these Houses, and their expectation will be, I think, that we will deal with these issues in a manner which is effective, fair, devoid of self-interest - political or personal - and which demonstrates that the Members of these Houses stand capable and willing to discharge the functions imposed on them by that Constitution.