Tribunals have become the Frankenstein of modern Irish society, analogous to a star chamber, High Court Taxing Master James Flynn declared yesterday. He was ruling in favour of former Taoiseach Mr Charles Haughey and members of his family regarding legal costs they incurred when challenging decisions of the Moriarty tribunal.
Master Flynn said tribunals could and did deny basic fundamental rights, seem to have "a bottomless well" of funding, and might engage in their work without the problem of "watching the clock".
Taxpayers financed tribunals, he said. When the costs of these ran into hundreds of millions of pounds - as one might expect if all the costs of tribunals over the past 10 years were accumulated - there was an onus on the Oireachtas to reassess the viability of the investigation.
"Rather than allaying public disquiet, it appears that tribunals have had a deeply disturbing effect on the perception of the rule of law and, in my opinion, society as a whole is possessed of a grave anxiety with the absolute power of tribunals."
He continued: "The only analogous forum between tribunals as we have become accustomed to as opposed to courts of law properly understood is that of the star chamber . . . which obtained its evidence by requiring answer to detailed interrogatories peculiarly without the assistance of juries."
The Oireachtas, in setting up a tribunal, was in effect legitimating a system which could and did deny basic fundamental rights.
It was to be hoped that the Oireachtas in the future would, in the light of its experiences of the many tribunals that had been set up, not rush into a "protracted and costly method of correcting improprieties" without exploring other cost-effective methods.
The public might be somewhat disenchanted with the practices of tribunals which were not usually expert in certain fields of inquiry. Given that the expertise of the tribunal was one of law and not, say, international finance, there was indeed a huge learning curve for all concerned.
The Taxing Master was dealing with a bill of costs incurred by Mr Haughey who, along with his wife Maureen, daughter Ms Eimear Mulhern and sisters, Ms Eithne and Ms Maureen Haughey, had challenged orders for discovery of documents made by the Moriarty tribunal.
The Supreme Court, in an appeal brought by the Haugheys against High Court findings, decided in July 1998 to quash 36 discovery orders made by the Moriarty tribunal in respect of financial accounts held by the Haugheys, and directed that the tribunal might not have the benefit of such documents in its possession.
Master Flynn said the claim brought by the Haugheys had been defended by both the State and tribunal lawyers. Those lawyers had been involved in the Moriarty tribunal from the start.
It was necessary to assess the costs of the Haughey case in light of the work necessary for the defence of the action. The Haugheys had effectively to take on the resources of the State twofold. The tribunals seemed to have a bottomless well in relation to funding.
"It is, I believe, a classic David and Goliath scenario, in that the massive resources of one is pitted against the underdog."
The Taxing Master said that tribunals were answerable to the Oireachtas, as were consultants brought in by a company. If, in the commercial sense, an investigation carried out by a consultant was not achieving its objective, the company must assess whether to continue to employ such consultants.
He said tribunals were "the Frankenstein" of modern Irish society, "usually sending panic attacks to all who may likely be called to give evidence whether or not they have anything to fear". Tribunals were also becoming "the badge of absolution for society for probing the misworkings of secretive public activity across the whole political spectrum."
He said the media would have the public believe that the existence of tribunals was a way of appeasing public disquiet. But the irony was that the public disquiet was fuelled by, and was a product of, the media. Rather than allaying public disquiet, it appeared tribunals had a deeply disturbing effect on the perception of the rule of law, and society was possessed of a grave anxiety with their absolute power.