Bertie fails to show for his selfless defence of Constitution

COURT SKETCH:Taoiseach's Challenge The name 'Haughey' was bandied about, which was unfortunate, even though it was only mentioned in relation to case law

ONCE UPON a time, not so long ago, "Bertie's Team" was a caption on election posters above photographs of happy Fianna Fáil candidates. Yesterday, Bertie's team consisted of two senior counsel, two junior counsel and a solicitor.

That's how bad things have become for the Taoiseach.

Ahern the applicant wasn't present for his selfless and courageous defence of the Constitution when court six opened for business.

Nor were his spindoctors, who nonetheless managed to hit the telephones with remarkable gusto in the afternoon, claiming victory and vindication for their man before the opening day of his High Court challenge had even finished.

They haven't had much to shout about recently, so their reaction to events in the Four Courts was understandable.

Bertie's team (they had something in common with certain Fianna Fáil election poster boys down through the years: all four wore wigs) were challenging the Mahon tribunal on a number of fronts.

These were Bertie's planks of privilege.

This must be a very distressing state of affairs for the Taoiseach, who has made a career out of never claiming privilege.

A pint of Bass in the local and a Dubs match has always been enough to keep him happy.

Although in the early 1990s, Bertie was privileged enough to trouser at least £450,000 from unexplained sources, and privileged enough 14 years later to forget where the money came from.

He is also privileged to be prime minister of a European country where Cabinet members are unable to say publicly that they believe the evidence their leader gave to a sworn Government inquiry.

He is privileged to be in charge of a parliamentary party of inbertiebrates, who seek election on a platform of people before politics, but once they get in, adhere to the credo of politics before principle.

For Bertie, privilege has delivered many advantages.

It was a long day in the Four Courts. A day for the courtroom anoraks, played out in front of a three-judge divisional court and taken up entirely by mind-numbing legal submissions.

At the outset, the first of Bertie's planks was conceded by lawyers for the Mahon tribunal. The Taoiseach's team had been demanding documents prepared by Dublin Castle to help them arrive at a conclusion that money lodged to an account held by Ahern's then partner, Celia Larkin, was a dollar transaction.

The tribunal calculates that the amount, in excess of £28,000, equated to $45,000 on the day in question.

Bertie says this money came from an unsolicited briefcase full of sterling cash that was given to him by Manchester coach driver Michael Wall and it is part of his hilariously convoluted story about buying houses and not buying houses, changing money back and forth from sterling to punts and funding an incredibly lavish refit of a house he intended to rent.

In the end, with the tribunal agreeing to hand over most of the documents, the court was spared lawyer Brian Murray's argument on that particular plank.

Of course, there was another question. But it wouldn't be asked in court six yesterday.

Whether it was dollars, dongs, dirham or dinar, where did Bertie get the money?

And so to plank number two. Brian Murray got stuck into the rip-roaring rollercoaster ride that is the concept of "litigation privilege".

Thanks to litigation privilege, or LP, for short, the Taoiseach should not have to give up documents relating to his lawyers' dealings with Paddy Stronge.

Paddy the banker is the former AIB hotshot who prepared the information the Taoiseach is relying upon to refute the suggestion that he dealt in dollars. Court six was treated to four hours on the issue of LP. After the first half hour, most people were praying for a CD. But compaction is not the name of the game when lawyers get out to play.

So we took a ramble through English precedents to do with the proceedings of "inquisitorial bodies" by way of legal advice privilege (LAP) and an apparently very important case that went to the House of Lords known as "Three Rivers". The acoustics weren't great, and some of us were wondering why on earth somebody would want to go to law over three livers.

It was thrilling. "The essence of litigation privilege is to prevent you from seeing your adversary's briefs," declared Brian Murray at one point. The man from the Sun snapped to attention.

Furthermore, Bertie is not a witness, but a party. Or maybe that was the other way around.

The name "Haughey" was bandied about with abandon, which was unfortunate, even though it was only mentioned in relation to case law.

It seems Bertie just can't get away from CJH.

We also had "presentational privilege". This is not the privilege that occurs when a finance minister is presented with large sums of cash that are entirely inconsistent with his earnings, but the inbertiebrates in his party think there is nothing wrong with this.

What seemed like 40 hours later it was 3.10pm. "Now. And that is our case on litigation privilege," concluded Brian Murray.

But not before he introduced "The Factual Matrix." No. We can't explain, except it had nothing to do with the factual matrix of the minister for finance receiving over £450,000 in 1990s money.

Finally, with time running out, Bertie's last plank of privilege was produced - the constitutional one of Dáil privilege.

Except it isn't one anymore, because the tribunal indicated it will not question Bertie on the statement he made to the Dáil in October 2006 about his personal finances.

This was the point when, outside of the Four Courts, the phones from Fianna Fáil went in to meltdown.

Victory. Vindication. No problem commenting on issues still under judicial consideration now.

So what is the big courtroom triumph? Bertie cannot be questioned on what he said in the Dáil. But he can be questioned on what he said outside it.

The court considered this. In essence, if the Taoiseach comes out with the most awful lie - hypothetically speaking, of course - in the Dáil, he can't be challenged. However, the record of the House can be displayed for all to see, and people "can draw their own conclusions".

Yesterday's proceedings were a fine example of a citizen exercising his constitutional rights. Would that the same citizen were as keen to address what the dogs in the streets are talking about.

Your own Ministers don't believe you. They won't defend you when you are publicly called a perjurer.

So where did you get all the money, Taoiseach?

" In essence, if the Taoiseach comes out with the most awful lie - hypothetically speaking, of course - in the Dáil, he can't

be challenged