The work of the Moriarty tribunal may be significantly delayed by a Supreme Court determination yesterday that fair procedures were not followed by the tribunal when it made orders compelling the discovery of documents related to financial accounts held by the former Taoiseach, Mr Charles Haughey, and members of his family.
According to legal sources, the decision effectively means the Moriarty tribunal will have to begin its investigative work all over again. It will also affect the work of the Flood planning tribunal.
The Supreme Court yesterday quashed the 36 discovery orders already made by the Moriarty tribunal in respect of financial accounts held by the Haugheys and directed that the tribunal may not have the benefit of such documents in its possession.
The court stressed that the quashing of the existing orders regarding the Haugheys' accounts does not prevent the tribunal making similar orders in the future, provided that fair procedures were applied in the making of those orders.
Under those procedures, the Haugheys are entitled to be given notice by the tribunal of its intention to make such orders and are entitled to an opportunity, before the making of such orders, of making representations regarding them.
If the Haugheys insist on those procedures in relation to all orders, the tribunal's work would experience serious delays and costs would escalate, legal sources said.
The Supreme Court also directed that Mr Haughey is entitled to an explanation by the tribunal of its terms of reference, "certainly so far as they relate to him". It accepted such an explanation may not be final and that it may be necessary for the tribunal to explain any further interpretation it may place on the terms in light of facts that may emerge.
Although the court rejected the Haugheys' "root-and-branch" attack on the constitutionality of the tribunal, the decision on fair procedures has potentially serious implications for the tribunal.
The court found fair procedures were not observed regarding the making of the discovery orders by the tribunal. It rejected a claim that the Oireachtas and Taoiseach exceeded their jurisdiction and violated the Haugheys' right to fair procedures in establishing the tribunal.
The five-judge court, presided over by the Chief Justice, Mr Justice Hamilton, yesterday delivered its judgment on the appeal by the Haugheys against the High Court's refusal to stop the Moriarty tribunal, established last September, investigating their financial affairs.
The court's judgment extended to 181 pages. A 48-page section dealt with the constitutionality of the Tribunals of Inquiry (Evidence) Act 1921 (as amended) and found against the Haughey side on these.
In its 133-page judgment on the other issues raised in the appeal, the court found against the Haugheys on all but two of these. It concluded fair procedures were not followed in relation to the making of discovery orders in respect of the Haugheys' accounts and also held Mr Haughey was entitled to an explanation of the tribunal's terms of reference.
The appeal was taken by Mr Haughey, his wife Maureen, daughter Eimear Mulhern and sisters, Ms Maureen and Ms Ethna Haughey, against the refusal of the High Court last April to stop the Moriarty tribunal.
In its judgment on the issues in the appeal not related to the 1921 Act, the court said the Haugheys were seeking a declaration that the tribunal chairman was, in the manner in which he was conducting the inquiry, acting in breach of the Haugheys constitutional rights and ultra vires his powers under the Tribunals of Inquiry (Evidence) Acts 1921-1997.
They were also seeking an order quashing the orders of discovery made by the chairman in relation to their bank accounts or, in the alternative, a declaration that those orders were of no legal effect.
