Restricting the right of TDs to receive information in confidence could have a "serious effect" on their ability to represent their constituents, the Morris tribunal heard.
Mr Frank Clarke SC, counsel for the Dáil and Seanad Committees on Procedures and Privileges, said the reason why the Constitution conferred immunities and privileges on parliamentarians was to facilitate free public discourse between them and the public.
In a submission opposing the tribunal's efforts to seek disclosure of documents belonging to former Labour and Fine Gael spokesmen on justice Mr Brendan Howlin TD and Senator Jim Higgins, Mr Clarke said unless Article 15 (10) of the Constitution was meaningless, it conferred some right on parliamentarians. That right was "an immunity from compelled disclosure".
While there was no legislation on the issue, regulations had been introduced in July 2001 by both Houses giving the committees he represented powers to protect documentary privilege, and he was exercising those powers by appearing before the tribunal.
In a similar vein, Mr Gerard Hogan SC, for Mr Higgins, said Mr Clarke's presence was "a graphic and vivid and living demonstration" that the Houses were protecting the privilege of their members. The Article in question could not be stripped of meaning because the Houses did not produce legislation.
He said the orders of discovery would have "dramatic" and far- reaching consequences in terms of drying up sources of information for all members of the Oireachtas, and he submitted this was most surely not in the public interest.
Both Mr Higgins and Mr Howlin received similar information on June 25th, 2000, and brought it to the attention of the then minister for justice, Mr John O'Donoghue, two days later.
Mr Hogan noted that his client could have taken the allegations hot off the fax and read them verbatim into the Dáil record, thereby enjoying absolute immunity. Was he to be punished now because he had behaved so responsibly and in such an impeccable fashion, Mr Hogan asked.
Mr Brian O'Moore SC, for Mr Howlin, stressed his client, like Mr Higgins, was approached as a TD and not in any other capacity, and as such was afforded the protections under the Constitution.
Mr O'Moore said if the chairman refused the orders for discovery, he should as a matter of principle refuse an order against Eircom for Mr Howlin's telephone records so that information would not be disclosed "by the back door".
Mr Justice Morris said he would give a determination on the matter within a week.
The tribunal returns next Monday when submissions will be heard from the Garda regarding its claims of privilege over certain documents which the tribunal is seeking access to.
