Denis O’Brien: Separation of powers key to High Court case

The separation of powers is being relied on by both sides in the case being taken by businessman Denis O’Brien against the Dáil Committee on Procedures and Privileges and the State.

The separation of powers – the assignment of defined roles to the legislature, the executive and the judiciary – is a key component of our democracy and, as has been argued for O’Brien, serves to protect the individual from the dangers inherent in the power of the State.

O'Brien's senior counsel Michael Cush said comments made by TDs Catherine Murphy and Pearse Doherty in the Dáil had the effect of determining the outcome of a High Court case O'Brien was taking to protect the confidentiality of his private banking details. The effect was that the Oireachtas strayed into the administration of justice by determining a matter that was before the courts for adjudication, Cush argued.

Early on in his submission to Ms Justice Úna Ní Raifeartaigh, Cush read from a transcript of comments made by Murphy in the Dáil ,which included alleged details of the businessman’s private banking affairs.

Jurisdiction

As Cush was outlining the effect of these comments, senior counsel for the committee Michael Collins interrupted to make a point and added it would be his argument, when his turn came, that the court had no jurisdiction to be looking into the matter at all.

O’Brien is arguing otherwise. His case is that the separation of powers argument cannot be used to subvert the separation of powers. Or, as Cush also put it on behalf of his client, one can’t rely on the Constitution to subvert the Constitution.

The core statement on the separation of powers is set out in article six of the Constitution: “All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in the final appeal, to decide all questions of national policy, according to the requirements of the common good.

“These powers of government are exercisable only by or on the authority of the organs of state established by this constitution.”

Cush said the separation of powers was important as it served to reduce the danger to freedom inherent in all government. The Constitution assigns powers to the various organs of government and restricts them to those roles. Politicians can properly be political and partial. Judges must be independent.

All the parties before the court agree that a temporary injunction granted last year preventing disclosure of O’Brien’s confidential banking details pending a full hearing of a case he took against RTÉ did not apply to Doherty and Murphy and could not have under the law.

‘Not amenable’

Article 15.13 of the Constitution says TDs and Senators “shall not, in respect of any utterance in either house, be amenable to any court or an authority other than the house itself.”

However, Cush said he would be making an argument as to the meaning of the word “amenable” as it concerned this case.

O’Brien had not taken a case against Doherty or Murphy, he said. Furthermore, the court was being asked for “declaratory reliefs”, and not damages. This means the judge is being asked to say who is right and who is wrong, without ordering that anything arise as a result.

The case by O'Brien follows a case taken by former Rehab chief, Angela Kerins, where she is contesting the right of the Dáil Committee on Public Accounts to have conducted an inquiry in the way it did. That case was heard by a three-judge High Court, which reserved its decision when the case ended on October 7th.