Judge Brian Curtin is expected to begin a legal battle to halt the Oireachtas inquiry into his conduct if he fails to stop evidence seized from his Tralee home from being used against him.
The judge's legal team is due to go before the High Court next week in a bid to prevent the inquiry from getting access to his computer and other records seized under an out-of-date search warrant in May 2002.
These materials should be "declared inadmissible as unconstitutionally and unlawfully obtained evidence", Mr Curtin's solicitor, Mr Robert Pierse, said in a plenary summons and statement of claims.
The Circuit Court judge should also be awarded damages for trespass, unlawful interference with constitutional rights, costs and other damages deemed legitimate by the High Court, the statement read.
The Government has noted carefully that the judge's legal team, which includes former attorney general Mr John Rogers, has decided for the moment not to challenge the formation of the seven-strong Oireachtas inquiry, to be chaired by Fianna Fáil TD Mr Denis O'Donovan.
"It is our strong legal advice that the proceedings as served pose no impediment to the House in proceeding to establish the committees as proposed," the Dáil was told by the Minister for Agriculture, Mr Walsh, who was filling in for the Taoiseach.
However, if the judge's first line of attacks fails, a High Court challenge to the existence of the committee itself is deemed inevitable, TDs and senators spoken to yesterday by The Irish Times said.
The inquiry, established by the Dáil and Seanad, will hold its first meeting on Tuesday week after the local and European Parliament elections.
Insisting it would operate in a "non-partisan, non-political" way, Minister of State Ms Mary Hanafin said:
"The committee will not be a jury and its function is not to undertake a trial."
However, Fine Gael TD Mr Jim O'Keeffe expressed concern that the inquiry could be open to challenge because its rules and procedures had been dictated by the Government rather than by an all-party Oireachtas approach.
Meanwhile, it has emerged that then minister for justice, Mr John O'Donoghue, appointed Mr Curtin to the Refugee Appeals Tribunal three months before he was appointed by the Government as a Circuit Court judge in November 2001.
Mr O'Donoghue, who is now Minister for Arts, Sport and Tourism, appointed Mr Curtin to the tribunal on August 3rd, 2001, though Mr Curtin did not hear any cases.
In a reply to Mr O'Keeffe yesterday, the Minister for Justice, Mr Michael McDowell, said Mr Curtin had not received any fees during the period and that he was "not aware" of any other State appointments held by Mr Curtin.
The quasi-judicial Refugee Appeals Tribunal is made up barristers and solicitors of more than five years' experience, nominated by the minister for justice of the day, and backed up by a permanent staff seconded from the Department of Justice.
Established by Mr O'Donoghue in November 2000, the tribunal has the power independently to decide on appeals lodged by people whose application for refugee status has not been accepted by the Refugee Applications Commissioner.
