It would be difficult to argue that information that a minister for finance was in receipt of payments in "an unorthodox fashion" in 1993 was not in the public interest, a High Court judge remarked yesterday.
He did not believe it could be said that a disclosure to that effect should not be made, Mr Justice Peter Kelly added.
The president of the High Court, Mr Justice Richard Johnson, also said later yesterday that the three-judge court hearing the action by the Mahon tribunal over an Irish Timesarticle accepted that the fact of a minister for finance receiving payments "is a matter of public interest".
The court made the comments after Eoin McGonigal SC, for The Irish Times, had begun outlining the context of the newspaper's argument that publication of the article disclosing the payments to Mr Ahern was in the public interest and that the order sought by the tribunal requiring the answering of questions aimed at establishing the source of that article was not necessary in a democratic society.
Mr McGonigal read extracts from Dáil debates and other material for the purpose of demonstrating that concern about payments to politicians extended back to 1996 and had provoked serious and continuing public and political concern.
He referred to the inquiries into payments to former minister Michael Lowry and former taoiseach Charles Haughey.
He quoted extensively from Mr Ahern's statement to the Dáil following publication of the McCracken tribunal report. Mr Ahern had said public representatives must not be under a personal financial obligation to others, he praised the media's role in exposing political corruption and said a free press was vital in a democracy.
In submissions earlier yesterday, Mr McGonigal said the tribunal was wrongly seeking to distinguish this case from the recent case involving the Sunday Business Post where the Supreme Court found the tribunal could not assert confidentiality over briefs released by it.
There was no difference between the two cases, he said.
This case involved a situation where the material had been released by the tribunal, in the form of a letter to businessman David McKenna, before the information came into the possession of The Irish Times.
He did not accept that the tribunal document was confidential and there was no invasion or trespass by The Irish Times on the internal workings of the tribunal.
In exchanges with the judges, Mr McGonigal said his case was that the tribunal had no power to make orders last September requiring editor Geraldine Kennedy and Public Affairs Correspondent Colm Keena to answer questions aimed at disclosing the source of the article. The tribunal had no power to investigate sources, he also submitted.
He said the tribunal could act only within its terms of reference and those terms did not provide for an inquiry into sources. The tribunal had not produced any evidence to show that the publication of the article had hindered its work and the information relating to Mr Ahern was now contained in a brief released by the tribunal last April for its Quarryvale II module, he added.
Later yesterday, Mr McGonigal referred to decisions in which the European courts refused to make orders requiring journalists to disclose their sources. These illustrated that one of the basic conditions for press freedom was protection of sources and there was "a vital public interest" in this. An order requiring disclosure of sources could only be justified by an overriding public interest and there was no such interest in this case.
Mr McGonigal argued that the court should not make an order requiring the journalists to answer questions about the source of the article because they could not obey such an order. If they were then sent to jail or damages were awarded against them, what message would that send to persons who were trying to assist the democratic process by disclosing information, he asked.
The fact Ms Kennedy had stated the source was anonymous did not alter that principle as the tribunal might still be able to identify it if his clients answered questions, he added. The Irish Timesrespected the court but every source, anonymous or otherwise, had to be protected. The court should not make an order in vain.
If his clients lost this case, they would maintain their stance and the matter could go to the European courts. Mr Justice Kelly remarked that it would be "a prescription for anarchy" to ask the court not to make an order because persons would not obey it. Mr McGonigal said he was not suggesting anarchy, but the court should have regard to the fact any such order as sought by the tribunal could not be obeyed.
Mr Justice Iarfhlaith O'Neill said if The Irish Timesignored the court's decision, it was "thumbing their nose" at the rule of law. Mr McGonigal said he did not accept that. His clients had a right to freedom of expression and part of that was the protection of sources. His clients would not ignore the court's decision.
