Why should the Dáil have unconditional confidence in a tribunal that has been found by the Supreme Court to have abused the constitutional rights of citizens for eight years? Vincent Brownewrites.
The planning tribunal, during the entire period that it was chaired by the former High Court judge, Feargus Flood, and afterwards, acted unconstitutionally, and there is good reason to argue that all the findings of the tribunal during this time are null and void.
Whatever about this null and void point, it remains that this tribunal acted illegally for eight years, so how come there is this rush to express full confidence in it? The tribunal was also found to have been thoroughly incompetent. The Oireachtas laid down specific and clear procedures for the tribunal to follow in a resolution on December 3rd, 2004. It was to continue with its investigations known as the Carrickmines module, the Fox and Mahony module, the Arlington and Quarryvale modules. Then it was to decide what additional matters it felt it should investigate, and record these decisions in writing by May 1st, 2005. Simple.
But the learned judges and lawyers of the tribunal were unable, apparently, to understand this clear instruction of the Dáil, and instead of deciding before May 1st, 2005, what issues it would go on to investigate, recorded a deferral of a decision.
And the Dáil is going to vote unconditional confidence in a tribunal that cannot adhere to the clear and unambiguous requirements of the Dáil itself.
There are further reasons for reservations about the tribunal. Although we accept that there was no intention to advise anything improper, the remark to Frank Dunlop in a private interview by one of the former counsel to the tribunal which suggested that the more he could establish he gave in bribes to politicians on behalf of clients, then the less liability he would have for unpaid income tax, was unfortunate.
This tribunal has also been grossly unfair to parties before it. Take the case of PJ Mara. The tribunal, in an opening statement, made the allegation that he and Ray Burke were on the "take" for radio licences - even though neither of them had any role in the awarding of radio licences. That allegation was permitted to remain on the record for well over a year before PJ Mara had an opportunity to refute it. And then, instead of apologising to him for giving currency to this allegation, the tribunal found against him on an entirely separate and irrelevant issue: the non-disclosure of a foreign bank account.
There was another injustice done to another person, Oliver Barry (I should acknowledge Oliver Barry and PJ Mara are good friends of mine). Oliver Barry gave a £35,000 contribution to Ray Burke before the 1989 general election and he did this at the instigation of Ray Burke on behalf of Century Radio, with which Oliver Barry was associated. At the time of giving this contribution, Oliver Barry had no anticipation, and could have had no anticipation, of any of the assistance Ray Burke subsequently offered Century Radio; had Oliver Barry and the other investors anticipated in May 1989 the financial crisis that prompted the subsequent assistance of Ray Burke, they would have abandoned the project before it got off the ground.
And yet, the tribunal found that £35,000 contribution to have been "corrupt", even thought it acknowledged that on every issue where Oliver Barry's evidence was contradicted by anyone else, it believed Oliver Barry!
And then there is the issue of the tape recordings of private interviews. The tribunal assured the High Court there were no such tapes, that none of the private interviews were recorded. Then it was found this was untrue and we are now asked to believe only a few such interviews were tape recorded and that the tapes of these interviews are not very clear. Hardly grounds for unqualified confidence.
If Fianna Fáil had the nerve to make an issue of these topics, they would be on good grounds. Instead, as of writing at least, they want to make an issue of quite separate matters, relying on a passing of the Supreme Court judgment of Mrs Justice Susan Denham in the Fitzwilton case. In making the point that the Oireachtas was properly concerned in December 2004 about the duration of the tribunal's work, she said: "The tribunal was established in 1997. The concept behind the establishment of a tribunal is that there be an inquiry into definite matters as a matter of urgent public importance. The fact that the tribunal is still inquiring 10 years later is the antithesis of an urgent public inquiry."
But the issue arises, why has the tribunal taken so long? First, several of the people whose actions have been examined by the tribunal have done everything in their power - from obfuscation and delay to judicial reviews - to obstruct the tribunal. The actions of Bertie Ahern are illustrative of ongoing delays, prevarications, withholding of information and obfuscation. And second, more and more evidence of corruption in public life has emerged and the primary locus of this corruption has been Fianna Fáil.