A DANGEROUS CONSTITUTIONAL FORAY
I will be voting No in the referendum this week on the proposal to give each House of the Oireachtas new constitutional powers of inquiry because I believe that the proposal amounts to an ill-judged over-reaction to the decisions of the High Court and the Supreme Court in the Abbeylara case. They have received virtually no public scrutiny, and only a pathetically inadequate, toothless legislative consideration by the Dáil and Seanad.
While I do support, and have always supported, the right of the Oireachtas to restore its rights to those which were generally believed to exist prior to the Abbeylara judgments, the terms of the proposed constitutional amendment go far, far further than is necessary.
I have always believed that the High Court and the Supreme Court in the Abbeylara case failed to strike the proper balance between the rights of the individual and the rights of parliament under our Constitution and failed to give due weight to the constitutional separation of powers.
The courts in question (correctly in my view) found unlawful the process whereby a group of elected politicians were conducting their own mini inquest/tribunal of inquiry into the shooting of an armed civilian at Abbeylara and upheld the claim by the gardaí involved that the Oireachtas inquiry was an impermissible invasion of their constitutional rights.
However, I think that while the High Court and the Supreme Court arrived at the right decision in respect of the flawed Abbeylara inquiry itself, they did so on the basis of a fundamentally flawed reasoning process which has left the Oireachtas power of inquiry largely emasculated.
These court decisions, in my view, have now created a constitutional mess. But the Government is asking the people to compound the original problem by granting to the Houses of the Oireachtas virtually unlimited powers to establish highly politicised “star chamber” inquiries to investigate whatever and whomever future politicians of the day believe to be of “general public importance” – a frighteningly wide category which potentially includes virtually everything. The new powers could well be used to justify, say, the establishment of the Irish equivalent of a McCarthy-era congressional committee on Un-American activities.
Since elected politicians (principally the Government) are now attempting to bounce us into acceptance of this dangerously flawed proposal, it is incumbent that the media speak out loudly and clearly against the proposed amendment to the Constitution. We should insist that the Government abides by its constitutional duty which is to widely consult with the people and to carefully consider and debate how the constitutional balance can be properly restored post the Abbeylara judgments in a manner that respects the fundamental rights of ordinary citizens.
I should say here that, as Attorney General, I notified the Government of my intention to intervene in the Supreme Court appeal in the Abbeylara case.
In the independent role of Attorney General, I sought to persuade the Supreme Court that the High Court decision as far as its reasoning was concerned had gone too far and that a fundamentally different approach to striking the balance between parliamentary and personal rights should be taken by the Supreme Court.
Although the submissions made by us found limited traction among a minority of the Supreme Court, it was unfortunate that a majority of the Court appears to have adopted what I believed was the same erroneous analysis that characterised the original High Court decision.
We sought to persuade the Supreme Court that although the Oireachtas and its Houses did not have an unlimited power of inquiry, the Constitution did allow for parliamentary inquiries by each House of the Oireachtas where that power was clearly and proportionately deployed in aid of the constitutional function of that House.
We argued that Dáil Eireann was not merely a legislature. It was also envisaged by the Constitution to be a democratic organ of Executive accountability.
The Government is answerable to the Dáil for the manner in which the executive power of the State is exercised. The Government is not answerable to the Seanad in the same way that it is answerable to the Dáil.
We submitted that the parliamentary power to inquire by committee and to summon witnesses before it had to be exercised, in the case of the Dáil, primarily in respect of its legislative and accountability functions, and in the case of the Seanad in respect of its legislative function only.
The thrust of our submission to the Supreme Court was that the issue as to whether or not the good name of a un-elected citizen could be affected by the findings of a properly constituted parliamentary inquiry was not the dominant or decisive element in a test of constitutionality. We urged that the status of the person whose reputation was potentially concerned (i.e. was he or was he not a member of the Oireachtas) was not the appropriate determining factor in deciding whether a parliamentary inquiry was legitimate.
Unfortunately, the middle way that we argued for between the more obnoxious aspects of the Abbeylara inquiry and the rights of the Oireachtas was not accepted by a majority in the Supreme Court.
The reaction of most democratic politicians to the Supreme Court’s decision in the matter was to see it as a “bull in the china shop” event that had damaged the delicate balance of the separation of powers.
Arguably, what the politicians saw as a judicial calamity is now about to spawn a political calamity. For many people, a judicial error in relation to the separation of powers is now being availed as a pretext to accord to the Houses of the Oireachtas very dangerous powers of a highly political kind to summon before each House or its committee ordinary citizens for investigation and judgment provided that the House in question considers the issue to be “of general public importance”.
The proposed amendment provides that the conduct of any person (whether or not a member of either House) might be investigated and that the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.
The proposed amendment also seeks to seriously reduce the power of the courts to protect the rights of ordinary citizens in such inquiries.
This would allow any future Government of the day and its political supporters in the Dail to establish, say, the Mahon Tribunal, the Moriarty Tribunal, or the Smithwick Tribunal, or the Beef Tribunal, as “committees of inquiry” populated by politicians chosen by the self-same Government or its self-same supporters in the Dáil. It could be used by the Government to investigate the opposition (but not vice versa).
We could have political inquiries into press stories of public importance and into journalism.
Remember that the US congressional Kenneth Starr process started with one public issue, suspected corporate fraud in Arkansas, and ended with Monica Lewinsky before a Grand jury testifying about her clothing!
The implementing draft Bill published (which as the Chairman of the Referendum Commission, Bryan McMahon, rightly points out may never be enacted and could be amended or repealed at a later stage) already envisages the appointment of a parliamentary “investigator” who can appoint authorised persons to interview any witness considered relevant and to require them to sign statements of proposed evidence.
A person authorised by the investigator may be given power to enter at any reasonable time any premises where it is believed there are documents or information in any form relevant to the inquiry and to secure for inspection such documents and to copy or remove documents or information and to direct any person on the premises to produce any document or any information.
The investigator will also be entitled to get a court warrant to have authorised persons search your home in the company of members of An Garda Síochána.
Is this stuff the fantasy of Robespierre or the Christmas wish-list of the Stasi?
I confess that I was absolutely shocked by what I found in the proposed constitutional amendment and in the proposed legislation (for what it is worth since it can be amended at any later stage). The proposal is utterly disproportionate and completely unjustifiable.
A different, moderate, well thought out, and balanced amendment could, and in my opinion should, be drafted.
Combined with their other proposal to get rid of the Seanad on the ground of cost, this amendment sets the scene for a malign majority in the Dáil alone in the next few years to have the power to remove the President, remove judges, haul ordinary citizens before them for investigation and adverse findings, and to have the homes of citizens searched under court powers by investigators accompanied by gardaí to assist in this process.
If no politician in the present Government and only a handful in the Dail have had the courage to speak out against it when it was being cooked up in secret, how can we trust a Government in future not to abuse these powers?
Finally, lest it be said that I am motivated by the interests of “fat-cat tribunal lawyers”, I am not. I publicly spoke out repeatedly against the cost and length of Tribunals. I waived all fees in the Moriarty tribunal. I established the successful alternative Commissions of Inquiry system. I initiated the reform process of excessive legal fees which is still undone five years later. I am not the mouthpiece of the judiciary or of the legal profession or of any greedy vested interest.
I think I can see this proposal for what it is – and isn’t.
Permit me then to point out that the emperor is totally naked. Vote No – while we still have a democracy.