An Oireachtas investigation into the conduct of Circuit Court Judge Brian Curtin could cloud the concept of an independent judiciary, the High Court heard today.
Lawyers for Judge Curtin told the court a joint committee set up to investigate stated misbehaviour would have no legal effect as politicians were in no position to establish if a criminal offence had taken place.
The court heard the establishment of criminality was a fundamental principle in the law of the land.
John Rodgers SC, for Judge Curtin, claimed the Oireachtas Committee would not be asked to find evidence of law breaking unlike the basic procedures of the courts.
The court heard a number of precedents in the United Kingdom had dealt with the public conduct of judges in the House of Commons and the House of Lords.
And Mr Rodgers stated that other judges who faced similar committee inquiries headed by politicians at Westminster had been left short changed because there was no court hearing.
The court was handed a series of journals and records which noted cases of historical interest from Britain.
Mr Rodgers said these cases would support the view that select committee inquiries into the public conduct of judges were unconstitutional and disrupted the independence of the courts.
Under Article 35 of the Constitution all judges are independent in the exercise of their judicial functions, while no judge can become a member of either House of the Oireachtas.
Mr Rodgers said this was the basis of maintaining independence. Mr Justice Thomas C Smyth is hearing the case, the first of its kind with the High Court being asked to decide the meaning of Article 35 of the Constitution.
The outcome could mean a shift in the way judges are appointed and removed from office.
The final decision on the constitutionality of the committee, however, may be left for the judges of the Supreme Court to rule on.
Lawyers for the Tralee-based judge are also seeking an order quashing the decision of the Oireachtas Committee calling for him to produce his personal computer and its hard drive which was seized by gardaí.
The committee, chaired by Fianna Fáil TD Dennis O'Donovan, was formed last summer after the Government passed a motion to remove the judge for stated misbehaviour.
The 51-year-old was acquitted by a jury on the direction of Tralee Circuit Court on the charge of possession of child pornography.
It emerged during the hearing last April that the warrant used to seize his computer was out of date.
The Government intended the joint committee would present a report to the 166 Dáil Deputies before calling a vote on the judge's future.