Mr Charles Haughey's challenge to the constitutionality of the Moriarty Tribunal seems to me unlikely to succeed. At a broad level, we have been this way before. For the first of the legal challenges to the beef tribunal, mounted by Mr Larry Goodman, was a mixture of (not very convincing) argument against the constitutionality of tribunals in general as well as that tribunal in particular.
Mr Goodman's submission included the claim that to investigate matters that might later be the subject of a criminal prosecution would be to prejudice a fair trial.
It seems likely, from media reports summarising his affidavit, that Mr Haughey's lawyers will attempt to resurrect this argument. Presumably, the court will return the same answer to him as it did to Mr Goodman, namely that if and when there is a trial of Mr Haughey, then will be the time to take the point that the unfairness is such that the trial should be postponed or not held at all.
One argument unavailable to Mr Goodman is that the tribunal investigation would violate the personal privacy of Mr Haughey and members of his family. Legal decisions in government are the product of a complex balance between a number of competing interests and values. Thus all these statements of individual rights, in the Constitution, are qualified. In the case of the provision in which privacy is said to be implicit (for all the Constitution says is "personal rights"), the cautious phrases, "as far as practicable" and "as best it may" are used. It is accepted that these formulations refer to the community interest that sometimes pulls against an individual right, such as privacy.
It is for the courts to balance individual rights with community interests. They must, however, pay some respect to the views of the elected members of the legislature. And this is especially so in the present highly-charged political area, which involves political mores and finances. In such an area, it would be a bold court that would intervene to substitute its judgment for that of the political organ, except in an extreme case.
And the case Mr Haughey is bringing hardly appears to be extreme. It is not as if his political opponents set up the tribunal; or as if the events being investigated are in the past and unlikely to recur; or as if Mr Haughey had been an insignificant local councillor. Another of the central arguments outlined in Mr Haughey's affidavit is that the earlier McCracken Tribunal did not find him guilty of any political impropriety (though such a thing would have been outside its terms of reference). But this seems poor logic, for if there has to be evidence of specific wrongdoing before a tribunal begins an investigation, this comes close to saying that it must know specifically what it is seeking to discover before it begins its search. Which would be nonsense.
It would be more reasonable to say there should be some objectively sound grounds before a tribunal is set up. And these surely exist in the present case in the form of the huge payments made to Mr Haughey by a businessman when he was head of government, coupled with his behaviour towards the McCracken Tribunal.
It should also be recalled that the terms of the tribunal are carefully drafted so as to minimise unnecessary damage to the reputation of those under investigation. For the tribunal is enjoined "to carry out investigation . . . including where appropriate conducting its proceedings in private, in order to determine whether sufficient evidence exists . . . to warrant proceeding to a full public inquiry". Although this is done apparently to protect Mr Haughey, he seems to intend to argue that the tribunal of inquiry's powers to hold investigations other than in public are restricted by the governing legislation. But it seems probable from the legislation wording that even as restricted, the powers would cover the practice of the tribunal.
There are two subsidiary points on which Mr Haughey may have a more tenable case. The first concerns the amount of searching through swathes of documents that the tribunal is ordering. In the Warnock case the plaintiff claimed that a notice issued by the Revenue Commissioners to provide certain information regarding the affairs of the accountants' clients was "unduly burdensome and oppressive" in that compliance would involve an excessive amount of the accountants' staff time. The claim failed on the facts, although the judge indicated that in extreme enough circumstances, it would have succeeded.
Second, last week legislation was passed closing the loophole as a result of which Mr Haughey was not required to pay the earlier McCracken tribunal's costs. The precise point of complaint here is that the legislation was retrospective in that it included the Moriarty Tribunal, set up in September. It is possible that the retrospective dimension of this legislation is unconstitutional.
Some extravagant estimates have appeared about the extent to which Mr Haughey's challenge, before the High Court and no doubt on appeal before the Supreme Court, will delay the tribunal. I believe these estimates go too far. The higher courts have become much better at giving priority to cases which require this. A recent example is the Goodman case, mentioned earlier, which went through both courts in less than a month. I predict the Moriarty Tribunal will be back on track at least by St Patrick's Day.
