Like the rest of the Sheedy episode, the joint committee's attempt to clear up the "why" questions, by summoning the two judges before it, involves an unsatisfactory and unprobed area of the independence of the judiciary.

Mr Hugh O'Flaherty's recent letter to the committee puts the matter perfectly straightforwardly. He says that Article 35.2 of the Constitution precludes the committee from calling him before it or him from attending. This key provision states: "All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law."

By way of preliminary, one should say that the distinction which the former judge draws in the letter between giving evidence to the committee in the context of a general investigation, as the committee now has in mind, and on the other hand, his offer to appear earlier, in the context of impeachment proceedings, seems a reasonable one.

For, with a single exception, there is a strong trend against allowing the Oireachtas to discuss a judge's performance. This trend is to be found not only in the Constitution but also in the body of practice which underlies Oireachtas procedure and practice. Thus, for instance: judicial salaries are made a charge on the consolidated fund, so as to avoid discussion of a judge's conduct during the Estimates debates; as noted by Mr O'Flaherty, judges and former judges are excluded from the scope of the committees of the Houses of the Oireachtas (compellability, privileges and immunities of witnesses) Act 1997; and Oireachtas criticism of a judge is banned save on a substantive motion for his dismissal.

In short, the usual constitutional position is that judges are immune from criticism save in the single case of impeachment proceedings.

There is another point which might seem to conflict with this. This is an argument on which many who supported Mr O'Flaherty relied and which is indeed implicit in his earlier letter to the committee. This argument had nothing to do with being a judge but drew on the elementary precept of constitutional justice that where a person's reputation is being impugned by an organ of the State, he should have the right of reply.

As a result of this, it might seem that two of the provisions of the Constitution are in conflict. This is a not uncommon situation and it can be resolved only by one provision being chosen in preference to the other. Thus if Mr O'Flaherty declines to go before the committee, he does so because he sets a higher value on the independence of the judiciary than on his own right to make reply. This is a perfectly reasonable and honourable choice.

In relation to the operation of the constitutional provision, quoted earlier, the first question is whether the application of pressure by the committee to answer questions which a judge might prefer not to answer could be regarded as an interference with the independence of the exercise of a judge's "judicial functions". I think that, especially when taken in the light of the way the Oireachtas usually avoids discussion of judicial conduct, that such an experience might be sufficiently embarrassing or even humiliating to amount to an interference. Nor probably does the fact that here we are talking about a former judge lift the matter out of the scope of the provision, since such an episode might well be thought to have a chilling effect on the behaviour of current judges.

However, there is a significant restriction in the phrase "in the exercise of their judicial functions", especially when taken in the light of other constitutional provisions. This seems to confine the provision to judges being questioned about their conduct of court cases.

Thus, on a fairly literal reading, it might well be that this provision would not, in fact, apply to questions to Mr O'Flaherty about his own behaviour in the Sheedy episode. On the other hand, a more purposive reading might be made which, especially in view of what was said earlier regarding the Oireachtas avoiding any consideration of judges' conduct, would lead to the view that the judge was immune.

But even if the provision does not extend to protect Mr O'Flaherty, the question arises whether it would cover Mr Cyril Kelly. For there can be no question but that what he did was part and parcel of his judicial functions in that much of it involved his actual sitting on the review of Sheedy's sentence.

Yet the conventional view is that Mr O'Flaherty's transgression is much less serious than that of Mr Kelly. Is it not unfair to haul before the committee only the judge who committed the lesser transgression?

One answer to this question is that the provision is not about individual fairness but about establishing an independent judiciary for the longterm public good. Many would take the view that such a distinction is too icy and inhuman and this might well lead to neither judge being forced before the committee (though they might, of course, come voluntarily for the reason given below).

Further, on a practical level, it could well be said that the "why questions" require to be answered much less by Mr O'Flaherty than Mr Kelly and so to interrogate only the first former judge would be like Hamlet without the Prince.

There is another point too. Mr O'Flaherty's recent letter concludes: "I cannot help further your joint committee in relation to these matters. The Constitution does not permit me to do so." In other words, any ban on being called before a committee is not a privilege that the judges can waive if they choose to do so. Rather it is an aspect of the independence of the judiciary which, like certain other provisions of the Constitution, is not there for the better enjoyment of the holders of the position but rather for the public good.

Thus, assuming that the provision has the meaning which Mr O'Flaherty assigns to it, it is not something which the judges themselves can set aside.

Readers who have been brought up to believe that the independence of the judiciary was as much an unqualified, if a more mysterious, blessing than motherhood or sunshine, may have been pulled up in their tracks by the turn which events have now taken. At a general level, what the O'Flaherty letter teaches is that any attempt to make judges accountable can bump up quite violently against the independence of the judiciary.

For it is of the essence of accountability that the person made accountable may be called up before the body to which he is accountable and answers demanded from him to sharp questions, in the heat of the media spotlight. The independence of the judiciary, which comes from a different era of political thought, means that judges should be free of such pressure and trusted to get on with their job. A very great deal of hard thought, free of the pressures of the moment, will be required to make any sort of job of reconciling the two.