The Supreme Court yesterday voiced concern as to whether the Taoiseach, Mr Ahern, had the power to direct the establishment of the Moriarty tribunal, which is inquiring into the financial affairs of the former Taoiseach, Mr Charles Haughey, and the former Fine Gael minister, Mr Michael Lowry.
The Chief Justice, Mr Justice Hamilton, raised the question during the hearing of the appeal by Mr Haughey and members of his family against the High Court's refusal to stop the Moriarty tribunal investigating their financial affairs.
Following closing submissions yesterday on behalf of the State, the tribunal chairman, Mr Justice Moriarty, and the Haughey family, the court reserved its decision on the four-day appeal.
The Chief Justice said he and the other four judges were concerned as to where the Taoiseach acquired the power to direct an inquiry under the provisions of the Tribunal of Inquiry (Evidence) Act, 1921, as amended.
The 1921 legislation refers to "the King's most excellent Majesty", to the British parliament and also to "a Secretary of State".
During the course of submissions by lawyers on behalf of Mr Haughey, it was claimed that the 1921 legislation was a "British Act . . . which specifically applied to a separate and distinct constitutional parliamentary system".
It was also argued on behalf of Mr Haughey that the 1921 Act gave no power to direct the holding of a tribunal but power only to allow evidence to be taken.
Yesterday Mr Justice Hamilton reviewed the legislation introduced since the setting up of the Irish Free State, which transferred powers to the present-day Government.
The Chief Justice spoke of a 1930 "adaptation" order which held that a reference to His Majesty would be a reference to the Governor General.
He also referred to a 1936 instrument which stated that the 1921 Act would be adapted by the insertion of "Minister" to serve in the Executive Council of Saorstat Eireann in lieu of "Secretary of State".
The question was whether the Taoiseach was a "Minister", Mr Justice Hamilton said. He said the Executive Council could transfer powers to an executive minister. The question in these proceedings was whether or not the executive powers of State were exercisable only by the Government unless it made a specific order transferring power to a minister or a Taoiseach.
The court was concerned as to whether power had been transferred by the Government to the Taoiseach to direct the setting up of a tribunal. This concern arose since it was established in the Goodman case in relation to the cabinet confidentiality issue that the Government acted collectively.
Mr Frank Clarke SC, for the State, argued that, under a series of adaptation orders made by successive administrations since 1922, a "Secretary of State" became a "Minister" and the Taoiseach as head of a government department was a "Minister".
Mr Clarke said the Taoiseach was a person who had authority "to cloak" the tribunal with powers as set out in the 1921 legislation as he was a successor to a "Secretary of State".
Responding to submissions that the tribunal failed to inform members of the Haughey family that their bank accounts were being investigated, counsel for Mr Justice Moriarty, Mr John Coughlan SC, said the tribunal was not under an obligation to inform interested parties that orders were being made.
He said it was not unrealistic for the tribunal to assume that the banks would inform those customers.