There are numerous precedents of serving Oireachtas members going to court, writes NOEL WHELAN
IT IS a measure of Ivor Callely’s unpopularity that his court application this week provoked an almost universally negative reaction. The public hostility towards him is so intense that it has become difficult to discuss in a detached way the basis of the defence he advanced at the Seanad committee last July, or which he is now advancing before the High Court.
Such is the political toxicity around Callely that his former Fianna Fáil colleagues and his Seanad peers have being tripping each other up in their stampede to distance themselves. Indeed, some politicians this week not only questioned the merits or appropriateness of his case but even the entitlement of any Oireachtas member to go to court.
While the separation of powers restricts the extent to which courts can inquire into and impact upon the functions of the legislature, it is wrong to suggest that it automatically prohibits members of the Oireachtas from appealing to the courts to protect their legal rights.
There are numerous precedents of serving Oireachtas members going to court in apparent conflict with decisions made by the Oireachtas itself.
Tribunals of inquiry are established by Dáil resolution but that has not stopped TDs challenging tribunal rulings in court. The media or popular opinion on whether they were right to do so is shaped by a view of the politician or their general behaviour rather than the merits of their case.
So, for example, when deputies Brendan Howlin and Jim Higgins challenged the Morris tribunal’s request for the source of their information about Garda misconduct in Donegal, most commentators and politicians supported them. On the other hand, when Bertie Ahern challenged the Mahon tribunal’s claim to rely on utterances he made in the Dáil most commentators and a public majority were appalled a serving taoiseach would do such a thing.
In both cases the judges hearing the cases – who must be blind to the acres of reportage and deaf to the clamour of radio talk shows – decided in favour of the deputies.
Interestingly, another Senator is currently going to court to mount what is, in effect, a full frontal challenge to the right of the Oireachtas to govern its own affairs.
The Constitution leaves the power to decide when and how Dáil byelections are held to the Dáil. The Dáil has twice voted down the writ to hold the Donegal South byelection. As a result, Senator Pearse Doherty has launched a High Court challenge.
As outlined by the Senator in radio interviews, the key relief sought seems to be an order prohibiting the Cabinet from impeding the holding of the byelection. At its baldest, this amounts to asking the court to instruct 15 Cabinet members how to vote if the writ is moved again.
Doherty has moral right on his side and has ratcheted up pressure on the Government to set a date for the poll. The legal merits of his case will be decided, however, not by popular opinion but by the courts.
Under our Constitution everyone is entitled to fair procedures, to have any decision on an allegation such as that faced by Callely determined on the basis of the facts, to have it decided with regard to the rules or laws as they applied at the time, and to have the inquiry conducted by a body of unbiased decision-makers.
The rule of law requires that those rights be extended even to the most unpopular of persons.
There is every possibility the High Court will find this is what Callely received from the Seanad committee inquiring into his travel expenses claim. However, media reports on the documents grounding his case appear to suggest he has at least an arguable case.
There is always something unsettling about the manner in which a committee of politicians comes to deal in a quasi-judicial mode with a controversial issue.
There is always a concern that, because they are politicians, the members of such inquiry committees are more interested in grandstanding or playing to a media audience than establishing the facts in an unbiased, detached manner.
When a committee of politicians comes to deal with an ethics allegation concerning a fellow politician these difficulties are exacerbated. The temptation to score political points, play to the public clamour for accountability and visit responsibility on the individual politician, rather than the expenses system designed by the Oireachtas itself, must be even stronger.
Because they touch on the most sensitive of constitutional issues along the boundary between the judiciary and legislature, the Callely case and the Doherty case will be fascinating for lawyers.
Their outcomes may, however, end up being infuriating for the public.