An attempt by Mr Charles Haughey and members of his family to prevent the Moriarty tribunal investigating their financial affairs failed in the High Court yesterday.
Mr Justice Geoghegan said it was "bordering on the absurd", in the light of the findings of the Dunnes tribunal, for Mr Haughey to claim he was being discriminated against compared with other former Taoisigh, ministers, TDs or other holders of Ansbacher accounts. It was also "preposterous" to suggest the obligations of ethics in public office only came into being with the 1995 Ethics in Public Office Act.
"The position of Mr Haughey in public life, the nature and the amounts of the gifts given to him by Mr Ben Dunne, and the lifestyle evidence singled him out and he cannot complain, in my view, that he is, in some way or other, being discriminated against." There were clearly questions of public concern as to the ethical behaviour of Mr Haughey, he said.
The judge refused to grant a number of orders and declarations which would have had the effect of stopping the Moriarty inquiry. However, he held that the affected members of Mr Haughey's family should have been given a reasonable opportunity to object to the tribunal's orders directing discovery of their bank accounts. He also found Mr Haughey and his family were entitled, if they so requested, to a prima facie explanation from the tribunal of any relevant ambiguities in its terms of reference.
The judge said there were "genuine concerns" about the constitutionality of the tribunal's terms of reference because of the "undoubted ambiguities" and "lack of clarity" in those terms.
In the absence of an explanation from the tribunal, he "reluctantly" interpreted the terms, finding that the tribunal's remit was to inquire into any substantial payments made to Mr Haughey, or other persons referred to in the terms, between January 1st, 1979, and December 31st, 1996.
He also held the terms meant the tribunal was to investigate the source of any money held in the Ansbacher accounts for the benefit of, or in the name of, Mr Haughey; or any other persons who hold, or have held, ministerial office; or in any other bank accounts discovered by the tribunal to be for the benefit of, or in the name of Mr Haughey, or a connected person; or for the benefit of any company Mr Haughey controlled or owned.
He found the failure to give advance notice to Mr Haughey's wife, daughter and sisters of the intention to make discovery orders regarding their bank accounts was an unfair procedure. But the unfairness was not sufficient to render void the proceedings of the tribunal to date.
Mr Justice Geoghegan was delivering his reserved judgment on judicial review proceedings taken by Mr Haughey, his wife Maureen, daughter Ms Eimear Mulhern and sisters Maureen and Ethna Haughey, aimed at preventing the Moriarty tribunal investigating their financial affairs.
Following judgment yesterday, lawyers for the Haughey side applied for costs of the six-day hearing and other costs. After hearing legal submissions, the judge said the plaintiffs had failed in their fundamental attack on the tribunal but he also noted the ambiguity of the tribunal's terms of reference must be considered. The terms were open to many interpretations and the plaintiffs were justified in criticising their vagueness.
He said the fairest order he could make was to award the plaintiffs the costs of a three-day hearing. Those costs were awarded against the State. A 21day stay on the costs order applies in the event of a Supreme Court appeal.
In his lengthy judgment, Mr Justice Geoghegan said the plaintiffs were seeking a number of orders and declarations which, if granted, would stop the Moriarty tribunal. He divided the issues in the case into three categories and noted that within those, there were a number of separate arguments.
The first issue related to whether the Taoiseach's order establishing the Moriarty tribunal was outside his power to make for a number of reasons, the judge said. The second issue centred on the argument that the Tribunal of Inquiry (Evidence) Act, 1921, was not consistent with the Constitution and not "carried over" under the Constitution.
As a subsidiary matter, it was also alleged that the new costs provisions under the Tribunal of Inquiry (Evidence) (Amendment) Act, 1997, operate restrospectively and were accordingly constitutionally invalid. The third issue was whether the tribunal was being conducted in accordance with fair and constitutional procedures and whether there was constitutional justification for the tribunal carrying out its work in private up to now.
Ruling on the first matter, the judge said there was a presumption of both validity and constitutionality in respect of the two parliamentary resolutions under which the Taoiseach acted to set up the tribunal, and the plaintiffs had not discharged the onus on them to rebut that. He held the Dail and Seanad were entitled to pass the resolutions and that the Taoiseach was thereby entitled to set up the tribunal.
Mr Justice Geoghegan said Mr Haughey clearly took the view that the Dunnes tribunal found no impropriety on his part and that there was nothing at all of public concern arising out of it in relation to him which could justify setting up a new tribunal.
Particular emphasis had been placed, on Mr Haughey's behalf, on the fact that the Ethics in Public Office Act of 1995 was not in place during his periods in office. "This entire perception is misconceived," the judge said. He agreed with "every line" of the State's argument in a paragraph of its written submissions, which included the observation that: "The integrity of public administration is adversely affected, not merely by payments made for particular political favours, but also by payments made in circumstances giving rise to a feeling on the part of the body politic, or a section thereof, that the motive for making the payment was connected with a public office held by the recipient, even if the motive for making the payment was not connected with such office.
"Ethical behaviour in public office surely incorporates more than simply refusing to take bribes. It demands of an officeholder that he conduct him or herself in such a manner as does not give rise to an apprehension or inference in the part of those making up the democratic society in which we live that the motive for making a particular payment was connected with any public office."
The judge noted that Mr Justice McCracken, in the Dunnes tribunal report, expressed similar sentiments and had stated that the Dunnes tribunal "considers it quite unacceptable that Mr Charles Haughey, or indeed any member of the Oireachtas, should receive personal gifts of this nature, particularly from businessmen within the State. It is even more unacceptable that Mr Charles Haughey's whole lifestyle should be dependent upon such gifts, as would appear to be the case. If such gifts were to be permissible, the potential for bribery and corruption would be enormous."
Mr Justice Geoghegan said it followed that there were "clearly questions of serious public concern as to the ethical behaviour of Mr Haughey".
The judge said that the legitimate public concern which he had identified largely disposed of the claims that the resolutions of the Dail and Seanad, under which the Moriarty tribunal was established, were unconstitutional.
He said: "Some invasion of Mr Haughey's constitutional rights, such as his right of privacy etcetera, is justified having regard to the legitimate public concern."
Mr Justice Geoghegan also found the absence of a right of appeal from any costs order made by the tribunal and the absence of an advance indemnity in relation to costs were not grounds for impugning the parliamentary resolutions establishing the tribunal. It would not be practical or reasonable to expect an advance promise of indemnity, he said. "Any unfortunate loss incurred on this account is simply an unfortunate consequence of the legitimate right to hold such an inquiry."
On the allegation that the plaintiffs' constitutional right to privacy was infringed by what was described as a trawl through their financial affairs, he said the "so-called trawl" was a necessary consequence of the legitimate right to hold the inquiry, if the inquiry was within constitutional limits.
He rejected the argument that Mr Haughey's right to privilege over his acts and decisions while in office had been infringed. He also dismissed the claim that the appointment of a High Court judge as the tribunal's sole member infringed the Constitution.
