Haugheys challenge constitutionality of tribunal

The Moriarty tribunal would direct its inquiries beyond the private financial affairs of former Taoiseach Mr Charles Haughey and former Fine Gael minister Mr Michael Lowry if the Oireachtas had "a genuine desire" to reform the political system in regard to political payments, the Supreme Court has been told.

"No recommendations relating to the funding of political parties can sensibly be derived from such a narrow focus," lawyers for Mr Haughey and members of his family claimed.

The Haugheys are mounting a "root and branch" attack on the constitutionality of the Act setting up the Moriarty tribunal, Mr Eoin McGonigal SC, with Mr Colm Condon SC and Mr Eamon Leahy SC, for the family, told the court yesterday.

Counsel also submitted that the appointment of a High Court judge as chairman of a tribunal of inquiry was unconstitutional and breached the separation of powers as it left a judge open to criticism of partiality and bias, placed such a judge in an "unacceptably politicised" role and undermined the judicial system.

Yesterday was the opening day of an appeal by the Haugheys against the High Court's refusal to restrain the tribunal from investigating their financial affairs.

Mr Colm Condon SC said the terms of reference of the Moriarty tribunal were "unique in the jurisprudence of the State" and had been found to contain undoubted ambiguities.

He said the tribunal had refused to clarify its terms of reference for the Haugheys on the grounds that Mr Haughey had not sought representation at the inquiry. The High Court had purported to interpret the terms and found that while they contained undoubted ambiguities and a lack of clarity, they were constitutional. His clients rejected the finding of constitutionality and the High Court's right to interpret the terms.

The Haugheys also submit that the tribunal's invasion of their privacy in relation to financial matters is absolute and that the privacy of members of Mr Haughey's family was being violated under the guise of his "alleged perversity". The court was told the tribunal had made orders - without notice to the Haugheys - requiring every financial institution in the State to disclose all bank accounts held by them since January 1st, 1974.

Mr Condon was opening the Supreme Court appeal being taken by Mr Haughey; his wife, Maureen; daughter, Eimear Mulhern; and sisters, Ethna and Maureen Haughey.

None of the Haugheys was in court yesterday. The appeal is expected to last a week and is being fought on the basis of legal submissions.

Mr Condon argued that the Tribunals of Inquiry (Evidence) Act 1921, under which the Moriarty tribunal was set up, was unconstitutional and that the inquiry itself was unconstitutional.

He said the former Taoiseach had been given nine days to go through his financial records over many years. It was almost impossible to supply detailed information in such a time.

He said the tribunal had made orders directing a number of banks and financial institutions to discover documents relating to bank and other accounts held by Mr Haughey and members of his family without any notice being given to those affected.

In many instances, the orders had a return date prior to the time they were given to the Haugheys, counsel said.

In other grounds of appeal, it is claimed that, in the absence of an allegation of corruption (or even receipt of money), the purpose of the tribunal could only be to punish Mr Haughey for his alleged failure to co-operate with the McCracken tribunal and/or to satisfy the prurient interest of the media and public.

It is also argued that according to the terms of reference, the time span of the tribunal is unlimited. It is further argued that the High Court's apparent inference that there should be a time limit and the selection of January 1st, 1974, as the starting point exceeded the court's jurisdiction.