Mr Liam Lawlor TD has a legal right to refuse to turn up at the Flood tribunal for questioning by its lawyers in private session, the High Court was told yesterday.
Mr Adrian Hardiman SC, for Mr Lawlor, was replying to submissions from counsel for the tribunal on the seventh day of a challenge by the Dublin West TD to orders by Mr Justice Flood, chairman of the tribunal.
Mr Justice Kearns told counsel yesterday he will deliver judgment on July 2nd. The hearing is expected to conclude today.
Mr Lawlor is challenging three orders by Mr Justice Flood directing Mr Lawlor to appear before tribunal lawyers and answer questions; to set out on affidavit the names of any companies of which he was a shareholder or director, or in which he had a beneficial interest, between 1987 and 1994; and to produce documents relating to any payment to him by Arlington Securities plc and/or Mr Thomas Gilmartin or by anybody on their behalf during the same period.
In submissions for the tribunal, Mr Patrick Hanratty SC said the kernel of the case was that a tribunal has a different function from a court and its powers were consequently different from those of the High Court.
Section 4 of the Tribunals of Inquiry (Evidence) Act 1979 outlined the power to make such orders. It did not matter what the court thought of the section, or of the orders. The issue was whether they were intra vires the section.
Mr Hanratty pointed out that the body concerned was a tribunal. Its role was to ask questions. If a person refused to answer, and a tribunal could take no action, that was the end of the tribunal.
While he believed the tribunal's order directing Mr Lawlor to furnish an affidavit was without precedent, the tribunal had power to make such an order.
Mr Justice Kearns said this was not just an information-gathering process but a person could also be cross-examined on their affidavit. The power to direct an affidavit was significant and could impose a great burden on a person attending a tribunal.
"That's life," Mr Hanratty said.
Mr Hardiman said the powers contended for under Section 4 were not found in any other jurisdiction. It was for the tribunal to show it had jurisdiction to make such orders, which were admittedly unprecedented and without statutory provision.
He said the court must read Section 4 in its entirety and in context and every word must be given its natural and ordinary meaning. There was no ambiguity in the section; it clearly said the tribunal had the powers of the High Court. That was also evident from parliamentary debates on the legislation.
All agreed the High Court did not have the power to compel a person to turn up for questioning in the circumstances envisaged, he said. The order violated Mr Lawlor's right of free movement and his fundamental right to say nothing.
A tribunal needed to make orders to ensure a measure of co-operation and in that context the Oireachtas gave it the powers of the High Court and only those powers. If there was a deficit in the powers, that was for the Oireachtas, not the court.
Mr Hardiman added it was not a "Doomsday situation" if the tribunal did not have the powers contended for.
