Tribunal is a public inquiry, not criminal trial
It is sometimes said that a well-travelled defendant would, if allowed the choice, opt to be tried before a British or an Irish court in order to take advantage of the protections afforded him in a common-law trial.
If our notional defendant were convicted, however, he or she would prefer it if sentence were given in the continental courts, since their punishments are more lenient.
Whatever about that, there seems no doubt that if one could choose where one's misconduct was to be investigated before a public inquiry, any well-informed person would prefer to undergo this process in Ireland. Consider some international comparisons.
The closest is the British Scott Inquiry of 1995 into the conduct of various leading politicians and senior civil servants, in violating the rules controlling the export of arms to Iraq. Here none of the parties - who included Mrs Margaret Thatcher and the former foreign secretary, Sir Geoffrey Howe - was represented.
Indeed, the only lawyers at this inquiry were Lord Justice Scott and the counsel for the tribunal, who asked all the questions in a comprehensive and impartial way.
Witnesses were told beforehand the area the questions would cover so they could not be ambushed.
Again, Mr Clinton is known to be fond of all things Irish. What would he not have given for some Irish-style constitutional justice to protect him from the Starr inquiry of last summer, which investigated his behaviour, disclosed the outcome to the media and laid the trail for his impeachment? Yet he was allowed no representation.
The South African Forum for Peace and Reconciliation was responsible for investigating horrific events in a way which cut very deeply into many people's reputations. Yet none of these people was represented before it.
The focus of the disagreement, before the Flood tribunal, concerns whether Mr Ray Burke, Mr Michael Bailey, Bovale Developments and JMSE, hereafter "the parties", should be required to show their hand before they cross-examine Mr James Gogarty on the damaging testimony he has given.
Counsel for the tribunal has proposed that the parties should be required to choose one of the following options: first to submit statements outlining the evidence they propose to give, before Mr Gogarty is cross-examined; or alternatively, actually to give their evidence straight away and to postpone the cross-examination of Mr Gogarty until they have done so.
The reason for these proposals is that the parties have not co-operated in giving an indication of their line of evidence, as requested earlier by the tribunal.
As a result, if something like counsel for the tribunal's proposals were not adopted, they would be in a position to cross-examine him without indicating their side of the story; and without being committed to their own account.
Thus they would be able "to ambush, spring traps or surprise the witness or pull rabbits out of hats", to quote the alarming, multi-fold mixed metaphor coined by counsel for the tribunal.
Counsel for the tribunal's proposal is opposed by the other parties which claim that procedural fairness, as mandated by the Constitution, requires that Mr Gogarty be cross-examined before their clients give any evidence.
If this tribunal were not a public inquiry, but rather a criminal trial, this claim would be incontrovertible.
For the procedure at a criminal trial was shaped in the days when one could literally be hung as well for a lamb as for a sheep, and when it was a piece of liberal law reform to introduce the possibility of transportation to Van Diemen's Land.
In the light of such horrible punishment it seemed only just to slant the process in favour of the accused, for instance requiring proof beyond reasonable doubt or providing no appeal against an acquittal.
Another aspect of this slanting is that the prosecution should be required to lay all its cards face-up on the table before the accused decides how to make his reply.
But these tribunals are not courts of law. All they do is express an authoritative view on the facts of some complicated matter of public interest. Therefore they affect, at most, a party's reputation.
It is true that the Constitution protects a citizen's "good name"; but not in such stringent terms as those in which it protects "due process" in respect of a criminal trial.
To put it simply: what the defence of one's good name requires is that there should be a level playing pitch as between those who traduce the good name and those who are defending it.
The lawyers for the three parties have said there is no level playing pitch in that Mr Gogarty is being favoured. But in fact what has happened is that Mr Gogarty has been required to set out his stall first. (Sorry, these metaphors are catching.)
The issue now is whether those who claim he is not speaking the truth should have the distinct advantage of attempting to undermine his evidence without first giving their own version of events.
This seems to go beyond what is necessary in order to enable them fairly to defend their reputation.
One should recall too, that, as every first-year law student learns, the object of a criminal trial is not to establish the truth, but to see whether the prosecution has proved, beyond reasonable doubt, the particular facts necessary to bring home the crime to the accused.
The proceedings are adversarial and involve a conflict between two partisan parties. By contrast, the establishment of truth or at any rate the most likely version of the facts is exactly what the impartial tribunal was set up, on behalf of the Oireachtas and the public, to achieve.
It is certainly true, however, that the parties can call upon some precedent which, at first sight, seems to support their contentions. The strongest of these comes from Re Haughey 1971.
This case arose out of the Dail Committee of Public Accounts investigation into the expenditure of the grant-in-aid for Northern Ireland relief, substantial amounts of which had ended up in the hands of the IRA.
Serious evidence before the committee pointed to Mr Padraic Haughey, who should therefore, so the Supreme Court ruled, have enjoyed the following procedural safeguards: "(a) he should have been furnished with a copy of the evidence against him; (b) he should have been allowed to cross-examine his accuser; (c) he should have been allowed to give rebutting evidence; (d) he should have been allowed to address the Committee in his own defence."
No doubt the parties would argue that since, in this passage, (b) cross-examination comes before (c) rebutting evidence, this means it would be unconstitutional for the cross-examination of Mr Gogarty to be postponed until after the three parties had given their evidence.
But this seems a rather too literal argument, bearing in mind the facts in Haughey, namely that Mr Haughey had been allowed no procedural protection whatsoever. In these circumstances, nothing turned on the sequence, and it is likely that the Supreme Court simply wrote out the essential protections in the order in which they conventionally occur, without thinking any more about it.
This week the parties have to bite the bullet and decide whether to accept an unpalatable proposal suggested by counsel for the tribunal. If they refuse, they must take their case to the courts. In deciding on this they will have to take a view as to how the courts might decide, and apart from the factors mentioned earlier there is one other consideration which might be expected to influence them.
It is that governing legislation states that it is for the tribunal chairman to determine its procedure.
Yet, as anyone who has kept an eye on the events of last week can see, the conversations between the chairman and the barristers appear almost to be negotiations between equals.
Such a situation would be encouraged if the courts were to countermand tribunal chairmen too often.
This would substantially undermine the whole idea of tribunals. The courts will probably also bear in mind that the chairman is a High Court judge, so that it is reasonable to trust him with a good deal of autonomy.
Despite the comic-opera appearance, these tribunals are important. In a society in which information is power, the establishment and publication of the facts relevant to the public interest are vital.
Rightly or wrongly, the view has been taken that the political process is not to be trusted to clean out its own stables.
The media are hampered in doing so by the libel laws. If the legal process (using the term widely to include tribunals) is unable to do so, then what is left?
David Gwynn Morgan is a professor of law at University College Cork