The editor of The Irish Times, Geraldine Kennedy, and Public Affairs Correspondent Colm Keena could yet face proceedings for contempt of court if they refuse to obey any court order directing them to answer questions from the Mahon tribunal aimed at finding the source of an article disclosing that Taoiseach Bertie Ahern received payments from businessmen when he was minister for finance in 1993.
In response to questions from Mr Justice Peter Kelly at the High Court yesterday, Denis McDonald SC, for the tribunal, said that if the court made such an order and if the journalists refused to obey it, the tribunal would bring High Court proceedings for contempt.
However, at this stage, the only order he was seeking against Ms Kennedy and Mr Keena was one requiring them to answer questions relating to the source of information disclosing the payments to Mr Ahern in The Irish Timesarticle published on September 21st, 2006.
The tribunal's primary concern was to demonstrate it was not responsible for the disclosure, counsel agreed.
Mr Justice Kelly remarked that when the tribunal had asked former minister of state Noel Treacy to substantiate his claim that the tribunal was the source of the information, Mr Treacy was unable to do so and had made a "pathetic" response.
Mr McDonald said it was "wholly irresponsible" of the defendants to have published information gathered in the private session of the tribunal and then to have destroyed the documents on which the information was based. The Irish Timeshad usurped the functions of the court in taking a decision to destroy the document and had acted as if it was the "final arbiter" of the matter, he said.
The article was written by Mr Keena and entitled: "Tribunal examines payments to Taoiseach". The tribunal claims the article was based on a confidential letter sent by it during its private investigative stage to businessman David McKenna.
The article reported that Mr McKenna was one of three or four persons contacted by the tribunal about payments totalling between €50,000 and €100,000.
When summoned before the tribunal on September 26th last, both journalists refused to provide documents or answer questions which might identify the source of the information.
The tribunal then initiated High Court proceedings aimed at procuring a court order directing the journalists to answer the questions. The action entered its second day yesterday before the President of the High Court, Mr Justice Richard Johnson, Mr Justice Kelly and Mr Justice Iarfhlaith O'Neill.
Mr McDonald said the tribunal believed the journalists had information which would establish the tribunal was not behind the disclosure to The Irish Timesof the confidential letter to Mr McKenna and could also help the tribunal establish who disclosed that information.
If the journalists would even describe the document they had seen and later destroyed, that would assist the tribunal, he said.
If the copy of the document seen by the journalists had the official tribunal stamp and the signature of solicitor Susan Gilvarry, then it had not come from the tribunal as the original letter had been sent to Mr McKenna and the tribunal only had copies.
Having referred to several legal authorities, Mr McDonald agreed that the courts in those cases had not made orders directing journalists to disclose their sources.
However, he argued this case was different because the order sought was very narrow, there was a pressing social need for it and it was necessary in the interests of democracy. In this case, the tribunal had a right to privacy over what happened in its private stage and the Supreme Court had affirmed such a right.
It was entitled to maintain the confidentiality of documents gathered in its private stage. All of this was important to preserve public confidence in the tribunal.
The impression from The Irish Timessubmissions was that this case was a contest between the Government or Mr Ahern on the one hand and a free press on the other but it was more akin to a contest between newspapers, he said.
The tribunal was not seeking to preserve the information but was contending it had a right to decide if and when that information should be released. Many issues would not be brought to light were it not for tribunals and thousands, if not millions, of newspaper articles were based on the work of tribunals, he said.
It was not in the public interest for a person to disclose information gathered in the private stage by the tribunal and such disclosure breached the tribunal's obligation to protect the constitutional rights of persons whom it was dealing with in its private stage.
The journalists had acted irresponsibly in publishing the information and destroying the documents. The correct thing to do was challenge the tribunal in the courts, as journalist Damien Kiberd had done when an order was made against him by the beef tribunal, counsel said. All of these matters should be taken into account by the court in balancing the rights of the tribunal with the right to freedom of expression of the defendants, he said.
