LAWYERS for a former member of Republican Sinn Fein's ardchomhairle claimed yesterday his constitutional rights had been "consciously and deliberately" violated when he was released from custody and rearrested last November.
They submitted to a three judge Divisional Court of the High Court that Mr Michael Hegarty's rearrest had been an abuse of due process of law.
The three judge court, presided over by Mr Justice Geoghegan and consisting of Mr Justice Kelly and Mr Justice Smyth, is inquiring into the legality of Mr Hegarty's detention.
Mr Hegarty (43), a native of Co Clare with an address at Knockmore Grove, Tallaght, Dublin, is one of 16 men released from prison after it was discovered that Judge Dominic Lynch had sat in the Special Criminal Court on a number of occasions following his delisting from the court last August.
He has brought a constitutional application against the governor of Limerick Prison seeking his release.
The Minister for Justice, the Garda Commissioner, the DPP and the State have been made notice parties to the claim.
Mr Hegarty was charged at the Special Criminal Court in November 1995 with the unlawful possession of an explosive substance with intent to endanger life at Longfield, Etra, Carrickmacross, Co Monaghan, on November 10th, 1995.
Mr Hegarty claims he was never properly charged before the Special Criminal Court on November 7th last year when he was remanded in custody and that the remand is invalid and he is in unlawful custody.
Mr Paul Callan SC, for Mr Hegarty, submitted there had been "a conscious and deliberate violation" of his constitutional rights regarding his right to liberty and to due process of law.
He said the Minister for Justice was aware Judge Lynch had been delisted from the Special Criminal Court because she attended the Cabinet meeting in August 1996 when the decision was taken.
Mr Callan also submitted that there was an arrangement between the DPP and the Garda with the acquiescence of the Minister for Justice to bring about a situation where Mr Hegarty could be rearrested illegally for a totally unnecessary recharging.
Mr Turlough O'Donnell BL, also for Mr Hegarty, submitted that the purpose of Mr Hegarty's rearrest outside Limerick Prison on November 7th last year was to continue his detention. He said if the rearrest was wrongful it was clearly deliberate and it was on that basis it was contended that his present custody should be ended.
Mr O'Donnell said the crux of the matter was the authority of the Minister for Justice to release the prisoner at all.
He said the question of the Minister examining court orders to determine if they were lawful was "clearly troublesome" for the division of powers under the Constitution.
He argued Mr Hegarty's subsequent charging and remand on November 7th before a validly constituted Special Criminal Court were the fruits of an arrest which was a conscious and deliberate violation of his constitutional rights.
Mr Edward Comyn SC, for the governor of Limerick Prison, the Minister for Justice and the Attorney General, said there was no evidence whatsoever that there an agreement had been made by the DPP, the Garda and the Department of Justice that there would be no release until other measures were in place.
Mr Pejer Charleton SC, for the DPP, said there was no conspiracy. He said all the parties involved had acted with the utmost expedition" to vindicate the constitutional rights of Mr Hegarty and the DPP had acted according to his duty in bringing about a prosecution.
The hearing continues today.
