The issue in the Army hearing scandal is not the authenticity of the claims. Nor is it the probity of lawyers involved. What is infinitely more important is the role of the courts, and the legal profession which has a monopoly supply of executives in those courts, in this democracy. The intellectual failure of the legislature to perceive the gross constitutional shift which has occurred in recent years is the primary reason why the Army hearings scandal now threatens to turn this State into an Indonesia.
We have permitted, through supinity and inertia, the creation of a new ruling caste in Irish life which is monopolistic, self-policing and ultimately, in its highest and most preposterous manifestation, self-judging. The caste is drawn from those who practise law, within which profession there has been a culture of energetic self-regard for a very long time indeed. But the caste had to operate within the checks and balances of a slowmoving democracy, in which there was a consensus that the caste should not overstep itself, that it was answerable to the law givers, and not merely in the letter of the law, but in its spirit too.
Political weapon
Over the years, the legal profession has been liberated from such restraints by the very lawgivers who repeatedly failed in their execution of their duty to the State. The law, mostly in tribunals, was used as a political weapon to curb dissent or to guide inquiry into safe channels. From the dismal farce of the money-lending tribunal of 28 years ago, designed to clobber RTE, to the beef tribunal which was given deliberately limited scope, politicians have reached for the legal profession to deal with essentially political matters.
And in their understandable enthusiasm for this access of power, which neatly coincides with an extraordinary separation from the consequences, some judges have been behaving with a potentially ruinous disregard for the commonweal - for that of course is not their responsibility.
While politicians capitulated to lawyers, our libel laws were simultaneously becoming the most restrictive in Europe. The largely anti-press interpretations by the courts have made it virtually impossible for journalists to investigate suspected wrong-doing by the rich and the politically powerful and have transferred major editorial judgments from journalists to lawyers.
Short-term gain
In short, responsibility was abdicated for short-term gain by those who possessed it - our politicians - and it was transferred to an already powerful caste, the lawyers, whose queen bees, the members of the judiciary, are virtually all-powerful in their hives. So if a judge makes a ludicrous judgment, that same judge can imprison and fine anyone who says it is ludicrous without recourse to another judge or jury.
This has been a major factor in all discussions about the way the courts have handled the Army compensation claims. It is therefore with some trepidation that I ask: if a man has suffered hearing loss through military service (for which he volunteered) how does a larger bank balance compensate him for that hearing loss? It does not. It merely gives him more money. Yet we have allowed the judiciary to rule that compensatory damages - unrelated to any cost resulting from attempts at remedy - are an appropriate response to injury.
This is wrong. Giving somebody more toes because they have no eyes is absurd. Compensating for inadequate hair with longer arms is ridiculous. These are unrelated things. And this would be so in a case where a claim is truly authentic, and hearing loss can be proven; it does not even begin to cover the case of John Naughton, a retired soldier who is still living in Army quarters in the Curragh.
Mr Naughton sued the State for hearing loss. However, the court accepted that he had no hearing loss, and that he had attempted to falsify an audiogram test. Judge Moriarty accepted Mr Naughton had "contrived and inflated" the test results.
Judge Moriarty also noted that during his Army service, Mr Naughton had made four previous compensation claims: two for falling into pot-holes; one for being required to lift a side of bacon; and one against a third-party driver after a collision involving the ambulance in which he was being carried. His total damages from those actions totalled £22,000.
Yet, in spite of his judgment that the plaintiff had "contrived and inflated" his test results, Judge Moriarty concluded that he was not "entirely falsifying his evidence knowingly." He awarded him £24,720.
What are we to make of this? Because the plaintiff genuinely believed himself to have hearing loss, he is entitled to almost £25,000 of public money? There might be some other interpretation available, but I can't work out what it is.
And why the figure of £24,720? What relationship is there between the medically undiagnosable tinnitus from which the ex-soldier claimed he suffered and the equivalent of the average annual tax-take from eight industrial workers?
Retroactive law
It is possible for the law-makers to dig us out of the abyss they have dug us into - by passing a retroactive law which requires that compensation through the courts be related only to the direct remedial physical, medical or psychologial action required to make good the injury or provable loss of earnings, and no more. And what is beyond remedy should not be compensated for in another currency, but accepted as one of life's great misfortunes. In other words, no more oranges to make up for a deficiency in apples. Most of all, it is vital to restore the sovereignty of Dail Eireann and return the legal profession to being well-paid servants of the State, and not its masters.