A seven-judge Supreme Court begins hearing an appeal on Monday by Circuit Court Judge Brian Curtin against the High Court's rejection of his challenge to the Oireachtas mechanism to investigate his alleged misbehaviour.
The appeal centres on the construction of Article 35 of the Constitution which deals with the appointment and removal of judges from office. This is the first time the Supreme Court has been asked to decide the precise meaning of Article 35 and whether the procedures set up by the Oireachtas for Judge Curtin conform with it for the purposes of removal of a judge.
The State will contend that the committee to investigate the alleged misbehaviour respects Judge Curtin's rights and allows him to put his case. The judge's lawyers will dispute those claims.
Three senior counsel will represent Judge Curtin in the appeal which is listed for three days. Two senior counsel represent the State and one senior counsel the committee.
Legal proceedings arose after the judge was acquitted in April 2004, by direction of a judge at Tralee Circuit Court, of a charge of having child pornography.
The acquittal came when it emerged a warrant under which the judge's computer was seized was out of date. Judge Curtin was the State's first sitting judge to be charged and tried on indictment.
In the High Court on May 3rd last, Mr Justice Thomas Smyth rejected Judge Curtin's challenge to the committee set up by the Oireachtas to investigate and gather evidence on the judge's alleged misbehaviour.
Judge Curtin had argued that procedures adopted by the Houses of the Oireachtas had failed completely to provide any mechanism by which facts could be found which might constitute stated misbehaviour.
He also claimed it was not open to the Oireachtas to seek to remove him from office under Article 35, and he applied for a declaration that the standing orders of the Dáil and the Seanad in setting up a select committee in June 2004 to inquire into his conduct were unlawful, unconstitutional and of no legal effect.
He also sought to quash the committee's decision ordering him to produce his PC and its hard drive which was seized by gardaí.
However Mr Justice Smyth found the procedures were constitutional and within the powers of the Houses of the Oireachtas. He also held the procedures were not an attack on the judiciary's independence and were not designed as such an attack.
Mr Justice Smyth said amenability to the provisions of the Constitution and the law was no less applicable to judges than to ordinary citizens.
He said the Government had considered the circumstances which had presented themselves in relation to Judge Curtin had given rise to grounds for disquiet, were of importance to the processes within the State for the administration of justice and public confidence therein, and were such as to justify and require the seeking of an explanation from Judge Curtin in respect of those matters.
