The die has been cast. For the first time in the history of the State, a motion has been tabled to remove a serving judge from office. What happens in the coming days and weeks will set the parameters of the relationship between the Government, the Oireachtas and the judiciary for a long time. Vigilance is required.
The events leading up to this unprecedented action are exceptional. A judge was charged with a serious criminal offence, unrelated to his role in the administration of justice. The charge of possessing child pornography attracted especial public odium. And he was acquitted, not because the evidence was considered and rejected by a judge and jury, but because it was ruled inadmissible on a technicality, and never reached the court. Inevitably, this failed to remove the cloud of opprobrium now surrounding the judge. This was compounded by details of his personal life that emerged in the following days, suggesting a lack of judgment, to put it at its best, and his arrest on suspicion, as yet untried, of drink driving. It was obvious that he would not enjoy the confidence of the public if he returned to the bench.
Judge Curtin did not resign, however, and the Government made it clear it was not prepared to negotiate an early retirement package on health or any other grounds. The scene was set for the full-scale confrontation that is now unfolding.
The motion to remove him has been tabled and adjourned pending the hearing of evidence and the preparation of a report by a select committee. The "stated misbehaviour" is specified as "subscribing to, accessing and use of websites containing child pornographic images". If the motion is eventually passed, this will be of little help in defining what constitutes such behaviour in future.
It is also unclear how this allegation will be supported, given that the evidence collected from his computer was ruled as inadmissible in the criminal proceedings. His lawyers have already lodged their objections to its use in the High Court. Other legal issues, relating to his compellability and his right not to incriminate himself, will also arise.
The courts have never before been asked to adjudicate on a specific constitutional function of the Oireachtas. Because this function is granted by the Constitution, they will be reluctant to challenge it. Yet there is considerable legal opinion that they have every right to intervene, if asked, to ensure that Judge Curtin's constitutional rights are upheld, and that the procedures are fair. It is important that, if necessary, they exercise this right.
Abhorrence of the alleged behaviour of the judge should not blind us to the broader implications of any decisions on his future ultimately taken by the Oireachtas. The independence of the judiciary is a crucial asset of our democracy. The procedures being followed now must not be open to future use in a way that could compromise that independence. The separation of powers will be tested as never before.