The Mahon tribunal has rejected claims that it does not have the jurisdiction to investigate the financial affairs of Taoiseach Bertie Ahern and has said it will proceed with taking his evidence as scheduled.
Tribunal chairman Judge Alan Mahon said Mr Ahern "is and always was a material witness in the matters under inquiry" and the tracing of funds through his accounts was "in no sense extraordinary".
He also refused a request that Mr Ahern's evidence not be given until the cross-examination of property developer Tom Gilmartin is completed. He did rule however that counsel for Mr Gilmartin could not cross-examine Mr Ahern until after Mr Gilmartin's cross-examination was completed.
The tribunal is investigating planning issues relating to the development of the Liffey Valley shopping centre at Quarryvale, Dublin. Mr Ahern is due to appear before it on July 26th and 27th.
Counsel for Mr Ahern, Conor Maguire SC, argued last Friday that that the proper interpretation of the recent Supreme Court judgment in the case of the Fitzwilton Group meant that the tribunal did not have jurisdiction to continue its inquiries into Mr Ahern's finances.
He also argued that if the inquiry did go ahead, the tribunal should wait until it was finished hearing evidence from Mr Gilmartin before initiating the public hearings into Mr Ahern's finances.
However, Judge Mahon said the tribunal was mandated under its terms of reference to complete its inquiries into the Quarryvale II module.
"These inquiries involving Mr Ahern flow directly from the decision of the sole member of the tribunal taken prior to the 20th of December 1999, to conduct a public inquiry into allegations of planning corruption in relation to the rezoning of lands at Quarryvale," he said.
The module brief circulated to Mr Ahern included allegations that he was paid £80,000 by Owen O'Callaghan, Judge Mahon said, as well as information in relation to "substantial cash transactions", which took place between October 1994 and December 1995.
It also contained information from bank officials on the transactions, he said.
The tribunal rejected any suggestion that its inquiries into Mr Ahern's financial affairs were disproportionate.
"A similarly detailed analysis of the finances of many other witnesses including elected councillors and national politicians, have been necessarily conducted by the tribunal," Judge Mahon said.
He said the tribunal had legitimately determined that the lodgments merited public inquiry.
In relation to the scheduling of witnesses, Judge Mahon said the tribunal had had to cope with an enormous volume of work and had experienced a number of delays.
He said Mr Gilmartin could only give evidence for half a day at a time, due to ill health, and it was likely that when Mr Dunlop appeared before the tribunal in the autumn, he would be in the same position.
"The tribunal has a duty to ensure that the second halves of these days . . . are utilised to the greatest possible extent," the chairman said.
Evidence in relation to transactions in Mr Ahern's accounts was not dependent on the conclusion of the evidence of Mr Gilmartin, the judge said, and was capable of being dealt with "in a ring-fenced manner".
"Other matters and issues with which Mr Ahern is concerned . . . will be dealt with in the course of a subsequent attendance by Mr Ahern in the course of this module," he said.
Judge Mahon also pointed out that Mr Ahern's counsel could have cross-examined Mr Gilmartin before Mr Ahern gave evidence.
"It was their decision, and their decision alone, to decline the invitation," he said.
