So be it. Judge Brian Curtin has challenged the State. We now enter uncharted constitutional territory. By asserting his right to be answerable to the Oireachtas, he will offer some class of explanation for his behaviour, regardless of whether evidence was obtained unlawfully. By insisting on his rights, it is more likely now that the actions of the Oireachtas will end up in the courts, thereby compounding the balance of powers between the institutions of State.
Both the executive and the judiciary are diminished by his challenge since the Government and, presumably, the judiciary believe that Judge Curtin has compromised the administration of justice. For this reason, primarily, the Government decided yesterday to impeach Judge Curtin for "stated misbehaviour" following his failure to provide a full explanation for the alleged purchase and downloading of child pornographic material from the internet. It is the first time impeachment proceedings have been launched in this State. They are provided for in the Constitution . But the designing of the impeachment procedures, to allow for due process, has never been set down.
Nearly four weeks have elapsed since the Government announced it would not tolerate Judge Curtin's continuing membership of the judiciary, even though he had been acquitted in the Circuit Court on charges of possessing images of child pornography. The trial was stopped when the search warrant used to enter his home and seize the necessary evidence was found to be out of date. The Taoiseach, Mr Ahern, suggested that public confidence in the administration of justice required his removal from the bench. And he ruled out any question of a financial settlement, with special pension entitlements, as an inducement for the judge to retire voluntarily.
A Judicial Ethics and Conduct Bill is now being drafted to deal with any future difficulties. The Taoiseach's decision to consult with the leaders of the opposition parties, and to seek their support for the terms of an impeachment motion, is advisable. It contrasts starkly with recent initiatives on electronic voting and citizenship rights. And it underlines the importance of common ground in dealing with fundamental constitutional issues.
A motion will go before the Dáil and Seanad next week to empower a Joint Oireachtas Committee to hear evidence in relation to Judge Curtin. The issue of fair procedure will be paramount. The committee will sit in private and have the power to demand the production of documents and to compel witnesses - other than Judge Curtin - to attend. But it will not make findings of fact or recommendations. Its report will form the basis upon which members of the Oireachtas will decide Judge Curtin's fate.
The Oireachtas, at the end of the day, must vote on the impeachment of Judge Curtin. That action, in itself, compromises the independence of the judiciary. Judge Curtin should consider his position and resign.