An Oireachtas Committee is now expected either to ask the Government to change the law to compel the two former judges involved in the Sheedy case to explain their actions, or to establish a tribunal of inquiry into the affair.
The decision follows the refusal of former Supreme Court judge Mr Hugh O'Flaherty to give evidence to the Oireachtas Committee on Justice, Equality and Women's Rights. The committee said yesterday it disagreed with Mr O'Flaherty's view that the Constitution precluded him from doing so.
Mr O'Flaherty's decision has added to Opposition frustration over the apparent inability of the Oireachtas and Government to find out why the two former judges and the former senior court official acted as they did. The Minister for Justice, Mr O'Donoghue, yesterday accused the Opposition of using the affair for "political point-scoring in advance of the forthcoming European and local government elections".
The Oireachtas Committee met yesterday afternoon in private session to consider how to proceed and asked its legal adviser, Mr Kevin Feeney SC, to prepare a written opinion on its options. The committee will consider this opinion in private session next Wednesday and again in public session the following day.
The options have effectively been narrowed down to two - seeking a change in the law to allow the Oireachtas to compel the two former judges to attend, or establishing a tribunal of inquiry. A variation of this second suggestion is that such a tribunal could be chaired by a politician. However, which ever option is chosen may be the subject of a constitutional challenge.
This prospect arises from Mr O'Flaherty's letter which said: "I am quite clear in my mind that neither a judge nor a former judge is accountable to the Houses of the Oireachtas or any other institution of this State . . . . " except where a move is being made to dismiss a judge.
Mr O'Flaherty's letter was received yesterday by the Oireachtas Committee, which expressed annoyance at the publication of the letter in yesterday's editions of The Irish Times. In a statement after its private meeting the committee said that it "considers Mr O'Flaherty's interpretation of the constitutional constraints placed upon him to be unduly wide and would have preferred to explore this matter further with him in the first instance."
However, Mr O'Donoghue said he would not dispute Mr O'Flaherty's interpretation of the Constitution. "He is clearly saying there would have to be a referendum to change the Constitution to allow him to appear."
Such a change would involve "recalibrating the separation of powers between the judiciary and executive", a move he said he would be "slow to favour".
Former High Court judge Mr Cyril Kelly, who was also asked to appear before the committee, has told it he is reserving his position until the committee decides how it is going to proceed. The former Dublin county registrar of the Circuit Court, Mr Michael Quinlan, has said he will attend, subject to certain clarifications.