The problem is not just that the £30,000 payment to Mr Burke by JMSE is not mentioned in the terms of reference. The terms of reference as now written by the Government appear to implicitly exclude the payment to Mr Burke from the scope of the tribunal.
A Government spokesman insisted last night that this is not the intention, and that amendments will be considered today.
The problem is apparent from a careful reading of the four-page document published below. Section 4 contains the only indication that the tribunal will investigate payments. This section as written, however, may well exclude payments made by Mr Gogarty of JMSE, and payments received by Mr Burke.
It says the payments it will investigate are those made by "persons or companies referred to in sub-paragraph 3 (i)". That subparagraph refers to people "who had a material involvement in the matters aforesaid". These "matters aforesaid" are rezoning resolutions, resolutions for material contravention of the Dublin County Development Plan and other applications.
Translated into English, the tribunal is to examine payments made by persons or companies who had a material involvement in applications for rezoning, material contraventions and planning permissions for the 726 acres of land at the centre of this controversy.
The problem is, however, that Mr Gogarty and JMSE appear to have made no such applications. JMSE ultimately sold the land at an agricultural price to Mr Michael Bailey of Bovale.
There is another clause which appears to exclude the payment to Mr Burke from the terms of reference. The payments to be examined by the tribunal are those received by persons "referred to at sub-paragraphs 3 (ii) and 3 (iii)".
Sub-paragraph 3 (iii) covers local authority officials, and therefore excludes Mr Burke. Sub-paragraph 3 (ii) covers politicians who were involved in rezoning and planning applications through lobbying for them, voting for them or otherwise attempting to influence the outcome of votes on them.
As Mr Burke has said, and the Taoiseach has accepted, that he did not do any of these things, the payment to him appears to be excluded.
Yet other extraneous matters appear to be included. The tribunal will inquire into whether applications for special tax designation status were made in relation to these lands, and whether any politicians lobbied for these designations.
Mr Ahern already knows the answer to this. He gave it on radio last Sunday when he said that Mr Ruairi Quinn as Minister for Finance had granted tax designation status to some of the lands, and that Ms Roisin Shortall, the Labour deputy for Dublin North west had lobbied for this. Mr Ahern indicated on radio that he saw no problem with this. If so, it is difficult to see why he wants a tribunal to investigate it and thus confuse the matter further.
The Government appears to have left it open to the tribunal to expand its inquiries should it come across "any acts of corruption in the operation of planning procedures" in relation to lands other than the 726 acres at the centre of the present controversy. But this may not be as it seems.
The tribunal can only get involved in inquiring into "acts" of corruption, not allegations of corruption. It is hard to recall the emergence of a proven "act" of corruption in the history of the State. It is difficult to see this section, as written, having practical meaning.