Genuine concerns arise about the constitutionality of the Moriarty tribunal's terms of reference because of the "undoubted ambiguities and lack of clarity" in those terms, Mr Justice Geoghegan said. The issues arising had caused him "very considerable difficulty."
There was a presumption of constitutionality and validity of the Dail and Seanad resolutions establishing the tribunal, and a court would be very slow to hold that a resolution was made in excess of the powers of the Tribunal of Inquiry Act, 1921 or was unconstitutional.
"But, unfortunately, genuine concerns do arise on those fronts because of the ambiguities and lack of clarity in the terms," he said.
The problem was not just of ambiguity but that, on certain interpretations, there might be well-founded arguments that the plaintiffs' constitutional rights would be infringed in a manner that could not be justified by the legitimate concerns giving rise to the tribunal.
From Mr Haughey's point of view there were serious questions of interpretation of the terms, the judge said. The main one was how far back Mr Haughey had to go.
The judge said he would have preferred to have left it to the tribunal to interpret its terms of reference. But, in the circumstances, the court must take on the task of interpreting the relevant ambiguities.
He said he would apply three principles in that interpretation: the court should make every effort to interpret the terms in such a way that the tribunal was not invalidated; the court would have no regard whatsoever to anything publicly said at the time the terms were drafted; and would not interpret the resolutions establishing the tribunal as though they were statutes.
The judge detailed a number of ambiguities in the terms, including whether the expression "public office" was confined to ministerial office or included being a TD.
In his view, there were indications that the expression "public office" meant "ministerial office", that it was intended the tribunal should inquire into any substantial payments made to Mr Haughey and the other persons referred to in the terms at any time between January 1st, 1979, and December 31st, 1996, and should investigate whether payments made to Mr Haughey after he retired might still be connected with his having held public office.
The judge also addressed the tribunal's terms of reference directing it to investigate the source of any money "held" in the Ansbacher accounts for the benefit, or in the name, of Mr Charles Haughey or any other person who holds or has held ministerial office, or in any other bank accounts discovered by the tribunal to be for the benefit or in the name of Mr Haughey or a connected person, or for the benefit of any company owned or controlled by Mr Haughey.
He interpreted the word "held" to mean "ever held" and found this term confined the tribunal to examining accounts within the period of the Ansbacher accounts, which he said apparently date from the mid-1970s.
If his view was wrong, and the tribunal did envisage an investigation of all bank accounts historically held by Mr Haughey, he would have grave doubts about the constitutional legitimacy of such an inquiry.
The judge said the terms of reference were undoubtedly ambiguous in some material respects. The plaintiffs were entitled to know how the tribunal itself resolved the ambiguities and, as an explanation was not forthcoming, had come to court and the court had reluctantly to form a view as to how the terms should be interpreted.
As construed by the court, the terms of reference were not in excess of the Tribunal of Inquiry Act, 1921, and - subject to the relevant legislation being in accordance with the Constitution - there was nothing to prevent the tribunal proceeding accordingly, the judge found. In his view, neither the 1921 Act nor any amending statutory provisions offended the Constitution.
Regarding the actual conduct of the proceedings in the Moriarty tribunal to date, the judge said there is an obligation on the tribunal to explain its terms of reference, at least on a provisional basis, if fair procedures require that that be done.
He said the tribunal was engaged in evidence gathering and in that context he did not think the requirement of fair procedures would dictate the holding of some kind of formal public hearing in which the tribunal would give a preliminary explanation of its terms of reference.
But, he said, persons intimately affected by the inquiry ought, at the very least, to have been written to personally, or through their agents, clarifying any serious ambiguity in the terms of reference, particularly relating to dates.
On the specific question of whether discovery orders relating to the plaintiffs' bank accounts should have been made without advance notice to them, the judge said the failure to give advance notice was, in his view, an unfair procedure.
He said the tribunal had decided from the very start to probe the bank accounts of the connected persons at the same time as it was probing Mr Haughey's own accounts. He must assume that was reasonable.
"But what I find difficult to regard as reasonable is the failure to communicate in some way . . . with the connected persons, explaining to them the context in which they were becoming involved and the reasons why bank documentation of theirs was required."
There was always the possibility that a connected person would have no political, financial or business links with the person to whom they were connected. Such a person, who suddenly learned their bank accounts had been commandeered by a tribunal, was naturally likely to be extremely disturbed and upset.
He wanted to make it clear he was not saying there might not be exceptional circumstances where a tribunal would be justified in seeking bank accounts without prior notice to the account-holders. In an extreme situation, relevant documents might be destroyed. But there was no suggestion of anything like that in this case.
He believed Mr Haughey's sisters, his wife and daughter should have received prior notice of an intention to make the discovery order against the banks to enable them to raise objections, or at the very least should have been served with copies of the orders with an accompanying note giving them a right to apply to the tribunal to have the orders varied or discharged.
The judge said Mr Haughey's position was somewhat different. The tribunal was entitled to expect, given its terms of reference, that he would know that orders would, or were likely to be, made in respect of his accounts. But, due to the ambiguities, Mr Haughey could not be expected to know the period for which discovery would be sought and, in the absence of clarification, Mr Haughey was entitled to an opportunity to object to the orders.
The judge noted Mr Haughey had declined an invitation, in a tribunal letter of December 12th, 1997, to apply to have the orders varied or discharged. "Having done so, he cannot legitimately complain about unfairness," the judge said.
Even though he did not believe fair procedures were adopted regarding the obtaining of orders against the banks in relation to the accounts held by the other plaintiffs, he did not think the unfairness was sufficient to render void the proceedings of the tribunal to date.
He was satisfied the tribunal had acted bona fide and the plaintiffs had now had an opportunity of airing their legitimate complaints.