Tribunals attach unfair 'under investigation' tag

BUSINESS OPINION/COLM KEENA: For those dragged into the vortex that is the tribunal process in Dublin Castle, it must seem a rough and unfair phenomenon.

The list of witnesses who have appeared before the Flood and Moriarty Tribunals is a veritable who's who of the upper echelons of Irish business: Ben Dunne; Margaret Heffernan; Michael Smurfit; Dermot Desmond; Larry Goodman; Laurence Crowley; Michael Bailey; John Byrne; Michael Fingleton; Edmund Farrell; John Magnier...

The list could go on and no doubt will. The fact that such a high percentage of the small pool of top business people has appeared to give evidence is no doubt in part a factor of the relatively small size of the Irish economy, especially the pre-boomtime one.

It is unfair, but it is the case, that to be extremely wealthy and to appear before a tribunal is sufficient cause for damnation in some people's eyes.

The tribunal system is tortuously slow and scandalously expensive but there is no obvious alternative for probing the links between politics and business. The Dáil Public Accounts Committee's inquiry into DIRT and the Revenue's relationship with the banks was successful in many ways, not least in terms of speed and cost, but it was a complete failure in terms of examining the culpability of the various Ministers for Finance under whose watch the scandal developed.

So when it comes to business and politics and the links between them, it seems we are stuck with tribunals. A methodology has evolved for their operation, which may or may not be the best that can be done, but one aspect of which seems unquestionably unfair. The best example of this is how the Moriarty tribunal is currently treating Denis O'Brien.

Mr O'Brien is probably the most successful entrepreneur of his generation. He has established radio stations here and abroad, set up mobile and landline telephone companies, tried his hand at a few other sectors, and bid to buy Eircom a short time after selling Esat to BT for €254 million. As one very irate member of his camp said recently, while railing against the Moriarty tribunal, Mr O'Brien went on roadshows in the US in the late 1990s and raised hundreds of millions of dollars, which he brought home for investment in the Republic.

The tribunal is now investigating whether Mr O'Brien gave money to Michael Lowry and whether there was any flaw in the process whereby Esat Digifone was awarded a mobile phone licence by Mr Lowry in May 1996. The tribunal process gives cover, so to speak, for journalists to make statements such as the above, statements which would invite speculations which would otherwise be prohibited by the libel laws.

Of course the media must give vigorous full and fair ongoing coverage of the tribunals. The problem is that the tribunals are so slow-moving that the people dragged into them in the way Mr O'Brien has been can find themselves with a semi-permanent tag of "under investigation".

An inquiry by the tribunal into an event or suspected event takes a particular course. A private, behind-the-scenes investigation takes place. If it is deemed warranted, the tribunal then decides to hear evidence in public. Evidence is usually heard in short bursts, with often lengthy periods in between when further investigation takes place in private. A ruling on the issue is not then given until the tribunal chairman publishes his final report.

In Mr O'Brien's case the public element of this process began in May of last year. Since then a lot of evidence has been heard about payments and political donations. The tribunal last sat on November 4th, 2001, and said that when it returned it would hear evidence about the competition process for the licence given to Esat Digifone. It has not yet resumed hearing evidence and may not do so until after the general election. It may not do so until after the summer law break. We don't know.

The closing date for bids for the licence was August 4th, 1995 and the fact that Digifone had won was announced on October 25th, 1995. The tribunal has already spent more time examining the awarding of the licence than the process of actually awarding the licence took.

Meanwhile, the tribunal's investigation into the licence process and whether Mr O'Brien gave money to Mr Lowry gives the media cover for writing on the issue. This could continue to be the case for another year, or two. Or more. No one knows and predicting when the tribunal will finish up is a waste of time.

Meanwhile, fairly or unfairly, a question mark hangs over the head of Mr O'Brien and the biggest success of his career to date. That's all very hard.

Yet the truth is that the tribunals may not be as tough as the matter they are inquiring into requires. The raids on seven accountants' and solicitors' offices earlier this month - on matters unrelated to the Moriarty tribunal - by officers of the Criminal Assets Bureau investigating planning corruption in west Dublin may be more representative of the type of attitude that is necessary. There can be a lot of very expensive pussyfooting in the tribunal process, a process which is, after all, charged with discovering whether rich and powerful individuals schemed together to corrupt the body politic. It is not the kind of thing people are going to confess to on foot of a letter from a tribunal solicitor. Perhaps a few gardai should be seconded to the tribunals in the way some have been seconded to the new Office of the Director of Corporate Enforcement.

It is in everybody's interest, and in particular in the interests of business, that there is vigilance against corruption. Those dragged into the process need to be treated as fairly as possible but not to the extent they are treated with kid gloves. If legal due process means events moving at a snail's pace, then it chips away at the fairness it sets out to protect.

The only winners are our learned and overpaid friends, who gleefully continue to send their bills to the Paymaster General.