A college lecturer claimed at the High Court yesterday that the Government's nomination of Mr Hugh O'Flaherty to the position of vice-president of the European Investment Bank was "utterly and totally politically motivated".
Mr Justice Kelly was told that lawyers for Mr O'Flaherty, a former Supreme Court judge, will not be making any submissions in the action, in which Mr Denis Riordan is seeking leave to challenge the nomination, and an interim order restraining the appointment of Mr O'Flaherty to the £147,000 a year post.
Mr Riordan, of Redgate, Co Limerick, said the case was about "the appalling vista of corruption within the judiciary".
While he was not disputing the right and authority of the Government to nominate a person to the EIB, he and other citizens had been excluded from applying for the publicly funded post which had not been advertised and for which no job criteria were spelled out, he argued.
When Mr Riordan brought his application last week, Mr Justice Kelly said he wanted the other parties named in the case to be put on notice. The action is against the Government; the Taoiseach, Mr Ahern; the Minister for Finance, Mr McCreevy; the Attorney General, Mr Michael McDowell, and Mr O'Flaherty.
Yesterday Mr Seamus Wolfe, for Mr O'Flaherty, said his client was obliged that the judge had afforded him an opportunity of considering the papers. However, he did not wish to make any submissions and said he proposed to withdraw from the case.
The barrister and his solicitor then left the courtroom. The other respondents in the case were represented by counsel.
Mr Riordan is seeking leave to take proceedings in which he will apply for a declaration that Mr O'Flaherty is an unfit person for appointment as vice-president of the EIB. He is also seeking a declaration that the method of selecting the nominee is unfair, unjust and unconstitutional.
The court is also being asked to grant orders restraining the Minister for Finance from nominating the ex-judge to the EIB post and requiring the Minister or the Government to advertise the position and to request suitably qualified persons to apply.
In an affidavit, Mr Riordan said Mr O'Flaherty was a "lying, corrupt" Supreme Court judge who had "perverted the course of justice" and a "corrupt man who has lost the ability to distinguish between right and wrong".
He said Mr O'Flaherty, as a judge, had refused to be bound by the Constitution and the law, as required by the Constitution. He said the former judge had refused to go before a joint Oireachtas committee "to explain his actions in perverting the course of justice in the Sheedy case".
He had shown his contempt for the rules of law and the rules of court by his actions.
Mr Riordan said he and other citizens had the right and should have the opportunity of applying for any publicly funded position or vacancy that became available, if they met the job criteria.
The position of EIB vice-president was such a post but it had not been advertised and no job criteria were published. He and other citizens had been denied equal access to the position by virtue of its non-advertising, apart perhaps to a small group within the "Golden Circle". Such appointments, it seemed, were reserved for people with the "correct political background", he argued.
Mr Riordan said Mr O'Flaherty was unfit to occupy the EIB position and the decision to nominate him for it was irrational, as he had refused to explain the circumstances of his resignation to an Oireachtas committee when court proceedings against Mr O'Flaherty alleging corruption were pending.
Ms Nuala Butler, for the Government and State respondents, said the EIB was an international inter-governmental body and the nomination of a person to its board of directors for the position of vice-president was not judicially reviewable. The EIB's board of governors appointed the vice-president on the recommendation of the bank's board of directors, following nominations by individual EU states.
Counsel said there was no procedure for the nomination of directors, it was done by international political agreement.
Asked by Mr Justice Kelly how the State went about garnering the names of persons suitable for nomination for submission to the EIB board of directors, counsel said there were no procedures set down. It was a decision made by members of the government of the nominating country and a matter of discretion for the individual governments of the EU.
The fact that procedures, as in the case of a public service appointment, had not been followed did not make the nomination invalid, she argued.
Mr Justice Kelly said it may be unfair. Ms Butler said there were several precedents for the appointment by governments of people to positions such as programme managers, where such appointments were for the tenure of that government.
Mr Justice Kelly said: "Yes, but is it lawful?"
Counsel said she believed it was. There were instances of people holding public appointment not advertised to the public.
Ms Butler also submitted that since the decision was an executive one, and not an administrative one taken under statutory power, it was less amenable to judicial challenge. Only where there was a clear breach of the Constitution were such limited reviews appropriate. In this action, the circumstances did not approach this level of concern.
What was at issue here was not whether the way chosen by the Government was the fairest, but whether it was constitutionally permissible.
There were numerous other examples of Government appointing people to public positions without resort to advertising. These included EU Commissionerships, appointments to the EU Court of Auditors and, up to relatively recent times, judges themselves were appointed by the President on the nomination of governments.
The hearing continues today.