The planning tribunal will reach a turning point on Monday when it becomes clear whether Mr Justice Flood can proceed with the inquiry. Having heard sufficient direct, albeit uncontroverted, evidence from James Gogarty to warrant an investigation into bribery and corruption in the planning process, the omens suggest Mr Justice Flood will fail to get agreed rules of procedure with the parties next week.
How - and if - he will proceed with a tribunal set up at the Dail's request ail to investigate planning matters of public interest are questions that will have to be posed, and probably answered, by the courts.
After seven days of public hearings, it is no exaggeration to say that phenomenal efforts are being made by Ray Burke and the two builders, Joseph Murphy Structural Engineering and Bovale Developments, to challenge the tribunal's work at every opportunity. The common thread of argument put by their three senior counsel - Eoin McGonigal, Garrett Cooney and Colm Allen - is that there is no legal obligation on them to produce narrative statements of their involvement, or lack of it, in the events Mr Gogarty described.
It would be naive to suggest this defence, pioneered by Mr McGonigal for Charles Haughey in the McCracken tribunal, is unexpected, since it is in the best interests of what Mr Allen, speaking of his client, Michael Bailey, described as "the accused".
The frustration generated by the daily challenges to its authority clearly prompted the tribunal team to find an alternative strategy for proceeding on Thursday afternoon. It took the other legal teams by surprise.
To position and protect itself on a possible collapse of the tribunal, Patrick Hanratty SC put two options to the parties. They could provide the narrative statements of their evidence before they began to cross-examine Mr Gogarty. He asked JMSE to submit the "more detailed statement which they have said in correspondence they had already prepared".
He invited Mr Bailey and his lawyers to submit "a supplemental statement" on the £50,000 cheque paid to Mr Gogarty and the contents of the planning procurement letter of June 8th, 1989.
The second option was that every witness should give their direct evidence before anybody was allowed to cross-examine anyone else.
Before advancing these options for consideration over the weekend, Mr Hanratty put on public record the minimal level of co-operation from Mr Burke, Mr Bailey and the Murphys with the tribunal.
He presented the "rather odd situation" of Mr Burke. When asked for a statement of his role in events, Mr Burke's solicitor responded that he had made a full statement to the Dail. In those circumstances, he was not submitting a detailed narrative to the tribunal. When the tribunal then said that it intended to circulate his statement to Dail Eireann as a statement to the tribunal, Mr Burke's lawyers responded:
"We note the tribunal's intention to treat our client's Dail statement as a statement to the tribunal. This is a matter for the tribunal to deal with as they see fit. Our client's statement was a statement to the Dail and will not consent to it being used as a statement to the tribunal. There is nothing preventing the tribunal from circulating it if they saw fit."
The position adopted on Mr Burke's "line in the sand" statement to the Dail on September 10th, 1997, is a good example of constant challenges to the tribunal. It is all done, of course, while exercising a legal right.
The stalemate could lead to a crisis of confidence in the institutions of State if it is not speedily resolved in the public interest. For if there is one thing that Mr Gogarty's evidence has demonstrated, it is the absence of any real inquiry by the Fianna Fail leader, Bertie Ahern, into the allegations against Mr Burke before his appointment to the Cabinet in June 1997.
The Taoiseach told the Dail on June 3rd, 1998 that he was aware before appointing him minister for foreign affairs that "to call a spade a spade, there were people insinuating that Mr Burke was corrupt". Specific allegations varying in detail were made regarding developers JMSE and Bovale, he said.
"I sought to establish whether there was anything in them and made inquiries of my own in relation to this matter over quite a long period prior to the last election with senior people well placed to know," he said. More than once before the general election, "when I questioned Mr Burke, I was assured by him there was nothing troubling him or that he could not stand over".
Mr Ahern apparently never asked Mr Burke the direct question. But he sent his then chief whip, Mr Dermot Ahern, to conduct an "independent inquiry" on June 24th, 1997, two days before the appointment of his Cabinet.
Quoting from his contemporaneous notes of two meetings, Dermot Ahern told the Dail on June 3rd, 1998, that he travelled to London to meet Joseph Murphy jnr. This meeting had been arranged with Mr Murphy at the request of Mr Bertie Ahern through a third party. Mr Murphy categorically denied that he, or his father, had participated in any meeting with Mr Burke during which a large sum of money was handed over.
At a follow-up meeting at Mr Murphy jnr's request in Dublin on June 30th, 1997, he reiterated that neither he, the company nor Mr Murphy snr had at any time any dealings with Mr Burke. He confirmed that Mr Gogarty was the signatory for all their cheques in Ireland but they always required a second signatory.
Following Mr Gogarty's evidence, the inadequacy of this political inquiry highlights the democratic imperative that the Flood tribunal be armed with the necessary constitutional and legal tools to conclude its investigations.
