ANALYSIS: The High Court has re-stated people's rights before tribunals, writes Carol Coulter,Legal Affairs Editor
THE HIGH Court was asked to examine the position of former taoiseach Bertie Ahern before the Mahon tribunal under two headings: as a citizen and as a public representative. It concluded that as a citizen he was entitled to all fair procedures necessary to defend his good name, and as a public representative to be immune from examination from any body external to the Houses of the Oireachtas.
His position as a public representative came up in relation to the tribunal's claim that it was entitled to draw his attention to inconsistencies between statements he made in the Dáil and statements he made to the tribunal. Mr Ahern maintained that he was not amenable to the tribunal for statements made in the Dáil.
His position was based on Article 15.13 of the Constitution, which states: "The members of each House of the Oireachtas . . . shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself."
While the tribunal claimed it was merely seeking to draw his attention to inconsistencies for "completeness", Mr Ahern said it was impossible to imagine this being done without him being made "amenable" to the tribunal for statements made in the Dáil.
The court agreed, holding that Article 15.13 protects a member of the national parliament from both direct and indirect attempts to make them amenable to any body other than the House itself for statements made in parliament.
This does not mean that public debate on such statements is in any way restricted. The court itself stressed this by stating that it would be for the reader of the tribunal report to draw his or her own conclusions about Mr Ahern's statements in the Dáil. "Mr Ahern may be judged by the court of public opinion," it said.
The second issue concerned Mr Ahern's constitutional entitlement to fair procedures and his good name. The tribunal wanted to examine 150 documents concerning bank lodgements generated in the course of preparation for his appearance at the tribunal.
Mr Ahern argued that these documents were protected by legal privilege. The tribunal responded that litigation privilege did not arise, as it was not engaged in the administration of justice, but in an inquisitorial exercise.
The court pointed out that, while not engaged in the administration of justice, the tribunal has "an adjudicatory function and may well affect Mr Ahern's entitlement to his good name."
He was thus entitled to the rights of a witness, already identified in the Re Haughey case, and was entitled to litigation privilege. Therefore, the documents should not be handed over.