The Morris tribunal view that politicians must use their privileged position responsibly is a key principle of justice writes John Waters
PROTESTATIONS BY two senior Opposition politicians in the wake of criticism of them by the Morris tribunal have attracted huge publicity for their substance but little comment concerning their deeper significance. This is odd. For many years, discussion of justice issues has centred on the principle that ends cannot be used to justify means, that the relaxation of due process can never be considered legitimate in the pursuit of results. This principle was at the heart of the Morris tribunal.
Yet Jim Higgins, now a Fine Gael MEP, and Labour's Brendan Howlin, Leas Ceann Comhairle, have this week suggested that in certain circumstance this principle may be suspended, and this suggestion has not elicited the condemnatory response that would greet it in any other context.
Under the headline "Howlin and Higgins reject criticism by Morris tribunal", this newspaper on Wednesday reported the two politicians' response to the findings of the eighth and final Morris report, which called on the Oireachtas Committee on Procedures and Privileges to review the manner in which members deal with allegations brought to their attention by "whistleblowers". The tribunal mildly rebuked the two politicians, observing that damage to people's reputations by the peddling of false stories to TDs may be "quite devastating". The tribunal called on the Oireachtas to seek a balance between the right of people to bring matters to the attention of their public representatives and the rights of those accused.
The context is that in 2000 Brendan Howlin and Jim Higgins alerted the then justice minister, John O'Donoghue, to the contents of a fax received by them alleging that two Garda assistant commissioners, Kevin Carty and Tony Hickey, had been involved with Det Sgt John White in the fabrication of evidence. The tribunal found that the reputations of the two officers had been improperly impugned. (Indeed, it also found allegations in this fax against Det Sgt White to be without foundation.)
Responding to the findings, both politicians rather petulantly insisted that had they not brought their concerns about the behaviour of gardaí in Donegal to the attention of O'Donoghue, there would have been no tribunal. Howlin said that, had he and Higgins not acted as they did, "the shocking saga of corruption, abuse and mismanagement that we now know about would never have been uncovered and would, in all probability, still be going on. Among the abuses identified in earlier reports were perjury, insubordination, a total breakdown of discipline and attempts to use Garda informants to secure the conviction of persons for crimes of which they were totally innocent."
All this is true, but none of it concerns assistant commissioners Carty and/or Hickey. The tribunal found that the allegations against Carty were "completely untrue" and that he had carried out his work with determination, integrity and vigour. It found that Tony Hickey was "an assistant commissioner of the highest integrity and professionalism".
The tribunal said the two politicians had acted in good faith. "However," the report continues, "having regard to the serious implications of the allegations for the two assistant commissioners and Det Sgt White, and any other person who might be subject to such allegations in the future, it is important that they only be acted upon by parliamentarians when they have carried out all reasonable inquiries, interviews, correspondence or meetings in relation to the allegations made before taking them further."
The tribunal observes that the false allegations in this instance were given standing and authority by virtue of being taken up by two senior public representatives. This is the point. Deputies Higgins and Howlin insisted on their right to claim parliamentary privilege to conceal the identity of their informant. As a result of this insistence, which they took all the way to the Supreme Court, the contents of the fax, including the identities of the implicated officers, came into the public domain, being presented in at least one publication as established fact.
But instead of admitting that they acted in this single instance with less than scrupulous care, the two politicians continue to stand over their record, as though their role in the establishment of the tribunal cancels out any unwarranted harm to innocent individuals. This is dangerous thinking, and might lead to the inference that their purpose was other than the pursuit of justice, which would surely do less than justice to themselves. A member of An Garda Síochána is as entitled to his reputation as anyone else. Central to the logic of this tribunal to begin with was the principle that there can be no question of balancing the cutting of corners in the administration of justice or due process against the successful outcomes of investigations or prosecutions.
Brendan Howlin and Jim Higgins performed an important public service, but they should think again about their present line. Instead of complaining about the tribunal's findings, they should apologise to the assistant commissioners and endorse the tribunal's recommendations on procedures to be adopted in relation to allegations made by whistleblowers to politicians.