Orders made by the Moriarty tribunal for production of documents, including bank accounts, relating to Mr Charles Haughey and members of his family, are to be quashed.
The Supreme Court yesterday ruled that Mr Justice Moriarty, the sole member of the tribunal, should have given notice to the former Taoiseach and his family of his intention to make the orders and give them the opportunity to object and make representations.
Legal teams for the Haugheys and the State and tribunal will return to the Supreme Court today after consultations to agree a list of which orders applied to the Haugheys. If the list is agreed, the orders will be formally quashed.
The Haugheys had made a number of appeals after a High Court judge dismissed their attempt to stop the tribunal investigating their financial affairs.
It was not looking good for Mr Haughey for most of the three hours that the judgments were read out yesterday. Each appeal made by him and his family was dismissed, one after the other, but in the last 15 minutes, the final points turned in his favour.
The first claim rejected by the five judges was the key issue of Mr Haughey's challenge to the constitutionality of the legislation under which the tribunal was set up.
The main point he won, however, involved fair procedures and his claim that Mr Justice Moriarty made orders for discovery in relation to the Haugheys' financial affairs without notifying them or providing them with the opportunity to be represented.
The Chief Justice, Mr Justice Hamilton, said fair procedures required that before orders were made at a tribunal the persons likely to be affected should be given notice of its intention to make the orders, and the Haugheys should have been given the opportunity of making representations before the orders.
The High Court judge had ruled that the tribunal did not act in accordance with fair procedures, but he had refused to quash the orders, one of the reasons being that "it would be pointless to declare void the discovery orders and force the tribunal to embark on a new and cumbersome procedure before it would be able to get back whatever bank accounts it now has".
The Chief Justice said while this approach by the judge "may enjoy the attractiveness of being pragmatic and, indeed, realistic", it did not have regard to the seriousness of the breach of the Haugheys' right to fair procedures.
The quashing of the orders did not preclude Mr Justice Moriarty making similar orders in the future if it was considered necessary for the tribunal's functions, provided he applied fair procedures, he added.
The judgment quoted a letter dated December 2nd, 1997, sent by the tribunal solicitor to Mr Haughey's solicitor which informed him that orders for discovery had been made against 16 institutions or people. The list comprised banks, the official liquidator of Merchant Banking Ltd and Mr Jack Stakelum.
The other point that Mr Haughey and his family won was that Mr Justice Moriarty was obliged to explain the interpretation of the tribunal's terms of reference as they related to the Haugheys. The Haugheys were entitled also to seek clarification about the terms even though they had not sought or been granted representation before the tribunal.
However, on the issue challenging the constitutionality of the Tribunals of Inquiry (Evidence) Act 1921, as amended, under which the Moriarty tribunal was set up, the Haugheys were unsuccessful.
The Chief Justice, who read this as a separate judgment, said it had not been established to the satisfaction of the court that the provisions of the 1921 Act were unconstitutional.
The judgment clarified the functions of a tribunal. The Chief Justice said that although a tribunal had the power to make orders, it did not have the power to enforce them or impose penalties. Compliance could only be enforced by the High Court.
The powers conferred on a tribunal did not amount to the administration of justice: it was conducting an inquiry. This point was also quoted in the dismissal of the claim that a High Court judge should not be appointed as sole member of a tribunal.
Submissions by Mr Haughey that the tribunal was not entitled to conduct its preliminary investigation in private, that the Oireachtas should have availed of other forms of inquiry, that it acted arbitrarily, that he was entitled to equality of treatment, that the tribunal was adjudicating on ethics, or that his constitutional privilege was violated, all failed.
Dealing with Mr Haughey's claim that he had a constitutional right to privacy, the Chief Justice said that the court was satisfied that the orders did not unjustifiably encroach upon the Haugheys' rights and was justified in this particular case by the exigencies of the common good.