A seven-strong Oireachtas inquiry into the conduct of Judge Brian Curtin of the Circuit Court will be established today despite fears that it will be subject to a constitutional challenge, writes Mark Hennessy, Political Correspondent
The judge's legal team last night served a plenary summons on the Government, the Attorney General, the Garda Commissioner and the Director of Public Prosecutions.
Under the terms of the summons, the judge has eight days to go to court to try to prevent the inquiry getting access to his personal computer and other records.
The formation of the Oireachtas inquiry comes on foot of the Government's decision yesterday to formally begin proceedings to remove the judge from office.
Chaired by Fianna Fáil TD Mr Denis O'Donovan, the inquiry will be able to seek evidence, compel witnesses to attend, and to produce a final report for the Dáil and Seanad.
Three other TDs will sit on the committee: Fine Gael's Mr Jim O'Keeffe, Labour's Mr Joe Costello, and Independent Dr Jerry Cowley.
Three senators will form the rest of the membership: Fianna Fáil's Senator Geraldine Feeney, the Progressive Democrats' Senator John Dardis, and Fine Gael's Senator Michael Finucane.
Moving the motion to remove Judge Curtin, the Minister for Justice, Equality and Law Reform, Mr McDowell, said it was a unique action.
The Oireachtas was not only entitled to dismiss judges for stated misbehaviour under Article 35.4 of the Constitution, it had "a manifest constitutional duty to do so".
In a lengthy speech to TDs, he said: "Failure to do so in certain circumstances could be deeply damaging to the whole constitutional order of things.
"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.
Significantly, he emphasised repeatedly that Judge Curtin was not facing a trial. "This does not amount, in any sense, to a 'trial' by a committee."
He outlined the details behind Judge Curtin's arrest and charging with possession of child pornography, and his eventual acquittal when it was shown that the search warrant used was out of date.
Judges were "accorded great respect and dignity" by the State, he said. But equally there was an obligation on each of them not to bring the judiciary "into disrepute".
Despite a request by the Government, the Minister said Judge Curtin had so far failed to provide "a substantive explanation" for his conduct.
Meanwhile, the President, Mrs McAleese, yesterday signed into law legislation compelling judges facing removal demands by the Oireachtas to attend Oireachtas committees and to offer protection to TDs and senators required to view child pornography during an investigation into a judge.
The motion moved by the Minister, which calls for Judge Curtin's removal, was put on to the Dáil and Seanad's order papers despite protests from the judge's solicitors.
In a letter to the Ceann Comhairle, Dr Rory O'Hanlon, last Monday, solicitor Mr Robert Pierse said it was "constitutionally flawed and inherently unfair".
Demanding a full trial for his client before the Dáil and Seanad, Mr Pierse said this was "grounded and supported by constitutional and historical precedent".
In a reply yesterday, the Secretary General and Clerk of the Dáil, Mr Kieran Coughlan, said the judge was not entitled to "a trial", and nor would one be practicable.
The inquiry, whose existence and rules are likely to be challenged quickly by Judge Curtin in the High Court, could hold its first meeting next week, though it is more likely that this would happen after the June 11th elections.
Judge Curtin is expected to question the constitutionality of the rules, the admissibility of evidence that was seized using an out-of-date search warrant, and new legislation that compels him to appear before the Oireachtas inquiry or else face a two-year jail term.
Expressing confidence that the Government's proposals would withstand legal challenge, the Taoiseach, Mr Ahern, said: "We have to follow procedures, and we have followed them very carefully."