Taoiseach Bertie Ahern, who is challenging the Mahon tribunal in the High Court over its right to ask him questions about what he said in the Dáil, answered questions put to him at the tribunal in 2004 concerning comments he had made in the Dáil.
A spokesman for Fianna Fáil said last night that the legal situation had changed since Mr Ahern's 2004 appearance, as a result of the Howlin ruling in December 2005.
Before his appearance at the tribunal on April 7th 2004, Mr Ahern submitted a statement in which he referred to comments he had made in the Dáil and attached a copy of the relevant Dáil record to his statement.
During his appearance, excerpts from the Dáil record were displayed on a screen and the Taoiseach was asked questions about what he had said there.
On the day in question, Mr Ahern was represented by Conor Maguire SC, who continues to represent Mr Ahern at the Mahon tribunal.
A three-judge divisional court of the High Court is to hear Mr Ahern's challenge on April 1st next. He is challenging the tribunal's right to question him about comments he made in the Dáil, arguing that the Constitution precludes this.
He is also claiming privilege over documents connected with advice received from his banking expert, Paddy Stronge, and seeking access to certain information in the possession of the tribunal.
In the Dáil last week Mr Ahern said he was taking his case on a point of principle. "It is a separation of powers issue and one of constitutional importance. As Taoiseach I cannot and will not ignore it," he said.
However, in December 2003 Mr Ahern responded to a letter from the tribunal seeking his response to a query concerning certain claims by the developer Tom Gilmartin, by referring to comments he had made in the Dáil on the matter.
"My recollection of my meetings with Mr Gilmartin is set out in detail in the course of my statement and exchanges in the Dáil on the 27th of January 1999. Following on from my remarks in the Dáil I sent the tribunal a copy of my remarks in the House.
"For your convenience I am again sending you a copy of this material."
The excerpt from the Taoiseach's letter to the tribunal was read out at the tribunal sitting on April 7th, 2004. Mr Ahern was asked questions about his Dáil statement by counsel for the tribunal and by counsel for Mr Gilmartin, without any objection from Mr Ahern or his counsel, Mr Maguire.
In a lengthy statement last night issued through the Fianna Fáil press office, it was stated: "After the leaks of September 2006 published in The Irish Times . . . the Taoiseach made himself available to answer questions in the Dáil.
"Shortly after making statements in Dáil Éireann, the tribunal sought to interrogate the Taoiseach in respect of his utterances in the Dáil and other statements. This was objected to by the Taoiseach and his legal representatives on a number of grounds.
"After written exchanges between the Taoiseach's lawyers and the Mahon tribunal, in December of 2007 the tribunal decided that the Taoiseach was not entitled to Dáil privilege on the basis of their interpretation of the Howlin decision in December 2005. The Taoiseach is advised that the Mahon tribunal's interpretation is not correct hence he has instituted legal proceedings in relation to inter alia Dáil privilege."
The statement also said: "The circumstances that existed in 2004 are radically different to those that now exist. Firstly and most importantly, the tribunal is denying the right to Dáil privilege as a matter of constitutional entitlement.
"Secondly, the tribunal has been found to have acted in breach of the right to constitutional fair procedures. Thirdly, the tribunal has made unlawful attempts to obtain family law documents from the Taoiseach."
Statement, full text: Issued by Fianna Fáil press office
After the leaks of September 2006 published in The Irish Times by Mr Colm Keena, the Taoiseach made himself available to answer questions in the Dáil. Shortly after making statements in Dáil Éireann, the tribunal sought to interrogate the Taoiseach in respect of his utterances in the Dáil and other statements. This was objected to by the Taoiseach and his legal representatives on a number of grounds.
The Taoiseach has made it clear to the Mahon tribunal that he would not answer any questions posed of him by the tribunal about Dáil statements on the grounds of Dáil privilege. After written exchanges between the Taoiseach's lawyers and the Mahon tribunal, in December of 2007 the tribunal decided that the Taoiseach was not entitled to Dáil privilege on the basis of its interpretation of the Howlin decision in December 2005.
The Taoiseach is advised that the Mahon tribunal's interpretation is not correct, hence he has instituted legal proceedings in relation to inter alia Dáil privilege.
The circumstances that existed in 2004 are radically different to those that now exist. Firstly and most importantly, the tribunal is denying the right to Dáil privilege as a matter of constitutional entitlement. Secondly, the tribunal has been found to have acted in breach of the right to constitutional fair procedures. Thirdly, the tribunal has made unlawful attempts to obtain family law documents from the Taoiseach.
The Taoiseach has made it clear that there is nothing to stop the Mahon tribunal from cross-examining him on what he said in the Bryan Dobson and other media interviews before he made his statements in the Dáil. Everything he said in the Dáil is available to be read by each and every citizen on the Dáil website
In April 2004 at a public hearing of the tribunal, the Taoiseach referred to a statement and accompanying comments that he had read into the Dáil record on the 27th of January 1999. In fact, that statement and the full Dáil record was provided by the Taoiseach to the tribunal. What was said by the Taoiseach in April 2004 related to matters raised by him in the Dáil which in turn were furnished voluntarily by him to the tribunal.
There is no secret about what he said in the Dáil, it is a matter of public record. Nothing is hidden, the Dáil records are there for all to see. The Taoiseach will answer as a matter of law to Dáil Éireann, and only Dáil Éireann, for what he says in that House. The reality is that journalists, politicians and members of the public can and regularly do ask the Taoiseach about what he says in the Dáil.
The crucial difference here is that the tribunal is trying to force the Taoiseach to answer for what he says in Dáil Éireann under the implicit threat of legal sanction.
It is also to be remembered that the Taoiseach has undergone many hours of cross-examination at the Mahon tribunal and that can be read on its website, and he will be further examined by the Mahon tribunal this week. What is at stake is a constitutional principle which he as Taoiseach cannot ignore.
The Taoiseach's case addresses two other significant issues. Firstly, the issue of the disclosure to him by the Mahon tribunal of its documents on the dollar, sterling and other theories. Secondly, the Taoiseach is challenging a decision of the tribunal that certain legal privileges cannot be relied on by him.
The Taoiseach is seeking to protect privilege in relation to dealings between his lawyers and Mr Stronge. The Taoiseach has in fact never met or spoken to Mr Paddy Stronge. The Taoiseach has in fact given the two reports from Paddy Stronge to the tribunal on the dollar and sterling theories and he is seeking in the legal proceedings to access the tribunal's reports or documents on these issues.
It is important that the constitutional propriety of the position adopted by the Mahon tribunal on the Howlin decision and other legal issues are clarified by the courts.