The facts revealed and the conclusions reached by the Chief Justice about the involvement of two senior judges in the Philip Sheedy case create an unprecedented constitutional difficulty.
They raise the most serious questions, for the first time, about the perception of the impartiality of the administration of justice. Furthermore, they threaten, in a way that has never happened before, the separation of powers between the Executive, the Oireachtas and the judiciary.
For these reasons, no matter how well-meaning their motivation, Mr Justice Hugh O'Flaherty, the senior judge in the Supreme Court, and Mr Justice Cyril Kelly of the High Court have to resign.
A factual distinction can be drawn, at a superficial reading, between the established level of the involvement of Mr Justice O'Flaherty and Mr Justice Kelly, then a member of the Circuit Court, in the Sheedy case.
Having outlined the non-disputed facts, the Chief Justice concluded that the Sheedy case "might not have been relisted in the way it was but for the intervention of Mr Justice O'Flaherty". He also concluded that Mr Justice O'Flaherty's intervention was "inappropriate and unwise, that it left his motives and actions open to misinterpretation and that it was, therefore, damaging to the administration of justice". He accepted, however, that Mr Justice O'Flaherty became involved in the case in a spirit of "humanitarian interest".
The Chief Justice took the view that Judge Kelly should not, in the circumstances of this case, have entered on a review of a sentence imposed by one of his colleagues. He concluded that, having entered on the review, he failed to conduct the case "in a manner befitting a judge". In these circumstances, he concluded that Judge Kelly's handling of this matter "compromised the administration of justice".
Despite the disparity in the interventions by the two judges, however, they were, at the very least, equally unusual, unwise and harmful to the independence and integrity of the courts. With all the unfolding scandals in the Dail, the tribunals, the banks and the Catholic Hierarchy in recent years, never once has it been suggested that justice was not done, and seen to be done, in open court.
The Chief Justice should be commended for the courage he has displayed in coming to tough conclusions about his colleagues. But the fact that the two judges are, so far, refusing to resign is complicating the constitutional difficulties surrounding this affair.
There are several respects now in which the Chief Justice's report is in danger of crossing the constitutional line separating the Dail from the courts. It is unprecedented, not just because of its contents, but because of the manner in which it had to be made. For the first time, the judiciary has had to respond to a request from the Government about its internal affairs.
But the real constitutional difficulty posed by the Chief Justice's conclusions relates to what will happen now. The Chief Justice, as he points out himself, has no power to hire or fire members of the judiciary. He is in a position comparable to Cardinal Cahal Daly at the time of the Bishop Casey affair, rather than a Taoiseach in a Cabinet. His main function is to allocate court business to his judges. He cannot compel the judges to resign.
The refusal of the two judges to resign in turn poses a major challenge to the Government and the Dail on the separation of powers. Like the Chief Justice, neither the Government nor the Oireachtas can force their resignations. The only action open to the Government is to move a resolution for impeachment on the grounds of "stated misbehaviour or incapacity" in the Dail and Seanad. This action has never been taken before.
The first challenge to the impeachment process came from Mr Justice O'Flaherty yesterday when he sought the opportunity to attend the Oireachtas Committee on Justice, Equality and Women's Affairs to "fully explain my position". His attendance, he said, would be "entirely voluntary and at my own request". He opined that it would not create any problem relating to the separation of powers.
The Government will consider his request at its meeting on Tuesday amid serious concerns that such an attendance, by a sitting Supreme Court judge, would affect the balance of the separation of powers and the independence of the judiciary from the political system. It could also create a dangerous precedent whereby the judiciary could be compelled to submit to the Oireachtas on other issues in the future.
In such uncharted waters, it is difficult to see how the two judges could explain their positions to the Dail while they are members of the Supreme Court and High Court.
As the Oireachtas grapples with the most serious challenge to the independent existence of the judiciary under the Constitution, there is a wave of anger among senior judges that they are being placed in such a predicament.
A meeting of High Court judges has been called for Monday to consider the biggest controversy surrounding the administration of justice in the history of the State. There are expected to be many calls for the necessary resignations.
In all of these circumstances, it is, very sadly, incumbent on Mr Justice O'Flaherty and Mr Justice Kelly to resign to preserve the impartiality of the administration of justice and the separation of powers in the Constitution.