Lowest standard once again wins the day
OPINION: It is disturbing to see Taoiseach and Ministers place loyalty to a person over loyalty to the State
THE RULE of law is the cornerstone of any properly functioning democracy. Put simply, we as citizens of this Republic are mandated to adhere to and obey our nation’s laws even when to do so does not suit our own personal position or ambitions. This is demanded of us all.
Central to the rule of law is a functioning system of justice where disputes that arise among us can be resolved in an open, fair and balanced way. It is a human system and open to error but on the whole it works and has provided stability and security to our nation since its foundation.
At the heart of the system of justice is the requirement that witnesses tell the truth. Every witness, no matter how peripheral or insignificant, is required to take an oath. That oath is a sacred thing, for it is a public declaration that the witness makes, to tell the truth, the whole truth and nothing but the truth.
Perjury is the making of a statement on oath which the maker knows to be false or believes to be untrue. As it constitutes a criminal offence it is necessary to prove to the standard of beyond reasonable doubt the intent of the accused – you have to prove that the maker knew the statement was false.
In proceedings brought by the then aspiring Sinn Féin councillor Maurice Quinlivan to prevent repetition of a serious slander of Quinlivan by Willie O’Dea, Quinlivan sought an order pursuant to section 11 of the Electoral Abuses Act 1923.
The section in question provides as follows: “Every person who, before or during any election and for the purpose of affecting the return of any candidate at that election, makes or publishes any false statement of fact in relation to the personal character or conduct of such candidate . . . shall be guilty of an illegal practice.”
The act specifically provides that the High Court can restrain by injunction the repetition of such a false statement and that for the purpose of granting an interim injunction prima facie proof of the falsity of the statement shall be sufficient. The purpose of the act is clear – it is there to protect the democratic system of election in the State and is a necessary and important part of the democratic process.
There can be no doubt that a statement associating Maurice Quinlivan to the operation of a brothel was a false statement relating to the character or conduct of a candidate in an election and constituted therefore, prima facie, an illegal practice.
This is background to the affidavit sworn by Willie O’Dea in which he emphatically denied having made such statement. The denial is also the reason why the High Court refused the relief sought by Quinlivan. Had O’Dea come clean before the High Court it is most likely that the injunction would have been granted – O’Dea would therefore have opened himself up to a charge of illegal practice.
The penalties for illegal practice are severe. Section 15 provides that on conviction, a person will be barred from voting in all State elections for a period of five years. Section 16 provides that on conviction, a candidate for election to the Dáil or Seanad shall be incapable of being elected to such office for a period of up to seven years and if elected that election shall be void.
O’Dea explained his conduct by resorting to the defence of mistake born of amnesia or forgetfulness. This, we will remember, has been the primary defence employed in the tribunals of inquiry, as politician after politician, up to and including a sitting taoiseach, claimed memory loss when it came to answering questions touching upon awkward issues. In the absence of other evidence it is a great defence, hence its liberal use. But it stinks; and coming from a sitting Minister bound by the ministerial code of conduct, from a trained lawyer and able and seasoned politician, it is difficult to credit.
O’Dea claims he corrected his affidavit. This is not true. No correction was made ever to the affidavit – indeed there is no such provision in the rules governing affidavits – it can’t be done.
What the Minister did was to agree a settlement with Maurice Quinlivan which prevented any further airing of the matter before the court. The judge to whom the settlement was announced had no role whatsoever in the case other than to receive the terms of settlement. The court was not appraised of any of the background of the case or asked to comment or adjudicate on the merits of the settlement or how O’Dea conducted himself in the course of the case. To suggest otherwise is false and misleading.
O’Dea states that evidence is regularly corrected in courts without allegations of perjury. This is patently untrue and the allegation is damaging. Evidence may be expanded or clarified but when a witness swears something to be categorical and emphatic he or she cannot simply withdraw this when damning evidence to the contrary appears on the grounds of a mistake. This would make a mockery of the entire system and render it unworkable – witnesses could lie with impunity, safe in the knowledge that if they get caught out they can revert to the defence of mistake.
The fact that the Taoiseach and the Ministers for Justice and Finance, all trained lawyers, have condoned Willie O’Dea’s actions and explanations is disturbing.
O’Dea has damaged our democratic process in three distinct ways: he has falsely maligned a candidate in an election; he has given false evidence to the High Court upon which it relied; and thirdly, and perhaps most damning of all, he has declared from the Dáil, the very centre of our democracy, that his conduct is perfectly acceptable and that those who would take him to task are hypocrites.
I am saddened both as a lawyer and member of the Green Party, but perhaps mostly as a citizen, that last night the Dáil supported a motion of confidence in Willie O’Dea. There was something pathetic about it all, a mean-spirited loyalty to colleague over country, a reinforcement of the sense of them and us, an overarching and deep feeling that once again the lowest standard wins the day.
The Green Party stands for more. We must be true to ourselves regardless of the consequences. The alternative is to become what we hate.
Vincent Martin is a barrister and a former Green Party councillor. He was a member of the party’s reference group which last September renegotiated the programme for government