A claim by lawyers for the Haughey family that the Moriarty tribunal should not have been established in the absence of specific allegations was disputed in the High Court yesterday by counsel for the State.
Mr Haughey and his wife, Mrs Maureen Haughey, his daughter Mrs Eimear Mulhern and his sisters Ms Maureen Haughey and Ms Ethna Haughey are seeking an interlocutory injunction restraining the Moriarty tribunal from investigating their financial affairs.
Mr Frank Clarke SC said the existence of "reasonable grounds" for public concern was sufficient reason for a tribunal to be set up. He also rejected the suggestion that this was a political matter which could be inquired into by a committee of the Oireachtas.
Mr Clarke said there was a legitimate concern that people in the political process who were asked to become "fact-finders about their own peers" might have their judgment coloured by their political affiliations. A judge was the most appropriate and independent person to carry out such an inquiry, he added.
He said the existence of an accusation was not a required precondition for setting up a tribunal. Instead, there should be reasonable grounds for concern about a matter of legitimate public interest. The test should be whether there were circumstances in the public domain or known to government ail which would lead to reasonable grounds for concern. On that basis, it was well within the scope of the Dail and Seanad to conclude there were such grounds and to pass the resolution they did.
Stressing the importance of such an inquiry, he said considerable constitutional weight should be attached to the maintenance of legitimate confidence in the operation of government in all its forms. Mr Clarke said the outcome of this tribunal was not known. If it discovered nothing existed which could legitimately have impaired confidence, then it would have had an important role in establishing public confidence.
If it established that something had happened to dent that confidence, then equally it would have done a valuable job. That matters were brought into the public domain and dealt with was also a legitimate way of restoring that confidence.
Mr Justice Geoghegan said the Haughey legal team had argued that the tribunal's terms of reference should be definite and clear about its task. He said Mr Clarke had had difficulties the previous day in interpreting some paragraphs of the terms of reference.
The judge said section (a), which dealt with possible payments to Mr Haughey between 1979 and 1996, was "reasonably all right". It was when one started moving into the later paragraphs that difficulties arose.
He asked if paragraph (d) "suddenly goes back" to payments made to Mr Haughey since 1961. Mr Clarke said the section potentially did go back to 1961.
Mr Clarke said the success of the McCracken tribunal was that it had gone after the money trail. Paragraphs (a), (b) and (c) of the terms of reference were a way of defining that money trail. "The starting point of such inquiries should be the money trail, who paid what to whom."
Counsel for the tribunal, Mr John Coughlan SC, said Mr Haughey could have sought legal representation before the tribunal but had not done so.
The tribunal then wrote to Mr Haughey requesting information on payments he had received. Mr Coughlan agreed with the judge that the letter effectively asked Mr Haughey to inform the tribunal of any payment of more than £500 he had received since 1961.
Mr Justice Geoghegan said that first one might have no documents going back that far, while there might also be memory problems. There was also the question of whether £500 was a substantial sum, although it might have been in 1961.
Mr Coughlan said such a sum might be significant, for either the donor or the recipient. But at that stage it was simply a request to Mr Haughey, and not a tribunal order. It was clear Mr Haughey understood that from his reply, in which he had raised the difficulty of finding records and remembering that far back.
Mr Coughlan said the tribunal had to start somewhere. It was not just gathering evidence, but looking for information that might lead to evidence.
The sole member of the tribunal, Mr Justice Moriarty, was required by the terms of reference to look at these matters. He was not required to seek anyone's permission to look at bank accounts, and his role was more analogous to that of an inspector appointed under the Companies Act than that of a judge administering justice, counsel added.
A tribunal was not required to give notice to affected parties when investigating, but it was required to do so if the information gathered was to be used in the later, public stages. "Any witness before a tribunal who may be affected is entitled to seek representation," Mr Coughlan said.
The judge questioned Mr Coughlan at length about the necessity of investigating the bank accounts of Mr Haughey's siblings. Did the terms of reference, by referring to "connected persons", automatically mean their bank accounts had to be discovered? Mr Coughlan said they did.
What if the siblings came in and successfully persuaded the tribunal there was no connection, asked the judge. Would the tribunal still be justified in pursuing the accounts, unless it had specific information that gave rise to suspicion? Mr Coughlan: "At the end of the day the tribunal itself must be satisfied."
The judge said counsel was saying it was in the terms of reference, so the tribunal had to get hold of the sisters' bank accounts. Wasn't that a very literal interpretation of the terms of reference, given the impact of the investigation on the people affected?
Mr Couglan said that was a question of sensitivity, as opposed to a point of law. The judge said it was a question of giving notice and allowing people to argue whether their bank accounts should be looked at. Mr Coughlan: "I know it's one of concern and I appreciate the sensitivity of it."
Asked by the judge if there might be some way the documents would be immediately returned to Mr Haughey's siblings, Mr Coughlan said he saw no difficulty with that.
The hearing continues.
