Historic defeat for cronyism as Hugh O'Flaherty bows out

 

At last, when the long drawn out agony came to an end, it was not with a bang but with the quiet hum of a fax from Cahirciveen. However undramatic, the final act in the drama could not have been worse for the Government. Right up to last Monday morning, it could have salvaged some shred of honesty and integrity by facing up to the reality that Hugh O'Flaherty was not going to become a vice-president of the European Investment Bank and publicly withdrawn his candidacy. Though it would have been too little too late, such a move would at least have acknowledged the strength of public opinion and shown some kind of contrition.

Instead, there was a final example of the astonishing incompetence that has dogged every word and action of the Government since the original decision to reward a man whom it had threatened with impeachment a year earlier. Already, it had become clear that even a notoriously unaccountable institution in Luxembourg, the EIB, was more sensitive to the concerns of Irish citizens than their Government. By allowing Hugh O'Flaherty to end the tortuous humiliation, the Government showed that even a man deemed unfit to remain in office as a Supreme Court judge had a stronger sense of public duty than the Taoiseach, Tanaiste and Minister for Finance put together. Admittedly, after three months of the O'Flaherty saga, that's not saying much.

The scale of the humiliation only really sank in after Mr O'Flaherty's dignified bow to the inevitable. Ministers, it became clear, were afraid to show their faces. They stayed off the airwaves, not only when asked to de al with the O'Flaherty fiasco, but in relation to all other matters, lest they be asked any questions about the great unmentionable.

And it was not hard to see why. Mary Harney's brief statement that Hugh O'Flaherty had "done the right thing" merely achieved the seemingly impossible task of making her look even more foolish. The hapless Martin Cullen, who has inherited Brian Lenihan's role as Flak-Catcher General and Waffler Without Portfolio, made the worst of a bad job on Questions and Answers by repeating, as if nothing had happened, all the old formulae about O'Flaherty's superb qualifications and insignificant "mistake" in the Sheedy affair.

But something has happened and it could hardly be more significant. The old system of cronyism and golden circles has suffered a historic defeat. The power of bad government has been weakened. At a European level, the ability of national governments to shift their problematic mates into obscure havens of unaccountable luxury has been checked. And most importantly, these things have been achieved primarily by the people.

The media did a good job defying the conventional wisdom that they have no stamina for a long-running story. The Opposition parties succeeded in treating the issue as one of fundamental principle rather than simply of party politics. Inspired mavericks such as Denis Riordan and Michael Nugent put some nice legal spokes in the wheels. But the media's persistence would have been worn down had the public remained indifferent. The Opposition was thwarted by lobby fodder in the Dail. The Supreme Court rejected Denis Riordan's legal challenge. What defeated the Government was the refusal of public opinion - expressed in votes in South Tipperary, e-mails to the EIB and myriad complaints at TDs' clinics - to be fobbed off.

It is an historic victory, but not yet a complete one. The old system is down but not out. The principle of accountability has been upheld, but there has not yet been a proper account of what this saga was about, the Sheedy affair. Either the Government suffered a collective attack of incurable idiocy or there was something else going on. Common sense would suggest that a Government fond of power does not persist with actions that are clearly resulting in national and international humiliation just because it wants to make the late middle age of a nice man from Kerry even more comfortable than it already is. Whatever the root of the debacle may be, it must lie somewhere in the Sheedy case.

If anything, the mystery of the Sheedy case is deeper than ever. Before that controversy blew up again, Mr O'Flaherty and his supporters had stuck to a single explanation of why one of the State's most senior judges got involved in a case in which he had no jurisdiction. His defenders seized on the use of the word humanitarian in Mr Justice Hamilton's report and repeated it ad nauseam. All he did, in his own official version of events, was make a general query of the Registrar of the High Court, Michael Quinlan to check the accuracy of what he had told a couple who approached him on the street, that there might be a possibility of having the case re-listed.

Yet in the interview he gave to Eamon Dunphy at the height of the row over his nomination to the EIB, Mr O'Flaherty said that "humanitarian wasn't the best word" to describe his motivation. Instead of painting himself as a Good Samaritan, he was anxious to portray himself simply as a judge going about his normal business of administering justice and trying to clear up a messy case.

In that interview, however, he gave a radically different account. In speaking to Michael Quinlan, he was, as he put it, "suggesting a course of action to have a case come before the court". This wasn't a general inquiry inspired by compassion. It was a deliberate plan to get Philip Sheedy out of jail. And this kind of thing, Mr O'Flaherty stressed, was quite a routine piece of judicial behaviour.

THE implications of this are enormous. If Mr O'Flaherty's new account is accurate, then the kind of private influence which operated in the Sheedy case is a routine feature of the operation of the law in Ireland. No law-bound democracy worthy of the name can afford to let such an implication pass without finding out whether it is true.

Nor can it ignore the fact that though the careers of those who unlawfully contrived to release Philip Sheedy from jail have been damaged, the question of possible criminal liability has barely been addressed. At an early stage in the unfolding of the Sheedy affair, a criminal investigation was considered.

The Department of Justice report on the scandal notes: "On March 15th 1999, the DPP phoned the Secretary General [of the Department of Justice] about the case and asked in particular whether a Garda investigation was underway. The Secretary General explained that no such investigation was underway as we had no complaint of criminal conduct. The Director agreed that a criminal investigation would have been premature." Why did no complaint come from the Department of Justice and why did a "premature" investigation become no investigation at all?

Such questions can only be answered by a full sworn inquiry, and a Fine Gael motion to establish one will come before the Dail when it returns from its long summer recess. Now that the public has tasted a partial success it is likely to demand the full victory that only a proper accounting can deliver.

fotoole@irish-times.ie