Court finds Act to set up tribunals is constitutional

The Supreme Court declared that the Tribunal of Inquiry (Evidence) Act 1921, as amended, is constitutional and it rejected the "root and branch" attack mounted by the Haugheys on the Act.

While the 1921 Act did not empower the establishment of a tribunal like the Moriarty tribunal, the court said the Oireachtas had jurisdiction to pass a resolution that a tribunal be established to inquire into matters of urgent public importance. It stressed that such powers were not absolute and might be restrained by the courts if abused.

In the court's 48-page judgment on the constitutionality of the 1921 Act, it declared it had not been established that the provisions of the 1921 Act were unconstitutional and further, that the 1921 Act (save where amended) continued to be of force and effect pursuant to the provisions of Article 50 of the Constitution.

The court found there was no provision in the Constitution prohibiting the Oireachtas from resolving that it was expedient that a tribunal be established for inquiring into a definite matter of public interest described in the resolution (establishing the Moriarty tribunal) as of urgent importance.

It was satisfied that nothing in the Constitution prohibited the Taoiseach or a minister from appointing a tribunal in pursuit of such a resolution.

While the 1921 Act, as amended, did not empower the establishment of a tribunal such as the Moriarty tribunal, the court said the Oireachtas had inherent jurisdiction to resolve that a tribunal be established to inquire urgently into what the Houses of the Oireachtas considered to be urgent matters of public importance. (Counsel for the Haugheys had argued that the Oireachtas had no such jurisdiction.)

The court added that the powers of both Houses of the Oireachtas in this regard "are not absolute". The power could not be abused, exercised for improper motives or in breach of constitutional rights including the right to fair procedures. If such circumstances arose, the exercise of such power could be restrained by the courts.

The Haugheys had also disputed whether the Taoiseach or a government minister, acting on foot of such a resolution, had jurisdiction to appoint a tribunal for that purpose; whether the provisions of the 1921 Act could apply to such a tribunal and whether these were constitutional.

In its judgment rejecting all those submissions, the court set out the provisions of the 1921 Act and noted it was amended by the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (the 1979 Act), and by the Tribunal of Inquiry (Evidence) (Amendment) Act 1997 (the 1997 Act).

It noted the 1979 Act provided that a tribunal "may make such orders as it considers necessary for the purposes of its functions and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that court in respect of the making of orders".

The court said the tribunal had all the powers, rights and privileges of the High Court regarding enforcing the attendance of witnesses, compelling the production of documents and the issuing of a commission or request to examine witnesses abroad.

The tribunal also had the power to make such orders as it considered necessary for its functions and had all the powers of the High Court to make orders but not in enforcing compliance with those. To secure compliance, it had to apply to the High Court.

The court said the Haugheys had submitted that the 1921 Act (as amended) did not empower the establishment of a tribunal of inquiry. That submission was accepted by the State and was also accepted by the court.

The court also agreed with the statement of the former President of the High Court, Mr Justice Costello, who in his judgment in the Goodman case said there was no statutory provision empowering the establishment of the beef tribunal, either by the Oireachtas or the minister for agriculture. Mr Justice Costello found the tribunal was established by an administrative act, that is by ministerial order.

The Haugheys had submitted that, in the absence of a statutory provision, the Houses of the Oireachtas had no jurisdiction to pass the resolutions regarding the Moriarty tribunal and that the Taoiseach or any minister had no power to establish such a tribunal, having regard to the provisions and framework of the Constitution.

In its judgment, the court said this argument was based on a "misunderstanding of the role of the Oireachtas as set out in the Constitution".

It said each of the organs of government enjoyed the powers normally exercised by such organs in a sovereign and democratic State and were not restricted to the powers expressly set out in the Constitution. They were, however, subject to the provisions of the Constitution and, in the exercise of such powers, were obliged to have regard to such provisions.

The court said the powers of the Houses of the Oireachtas were not limited to those set forth in Article 15 of the Constitution (which states "Each House shall make its own rules and standing orders . . . and shall have power to ensure freedom of debate . . . to protect its official documents . . .").

The court was satisfied there was nothing in the Constitution prohibiting the Oireachtas from resolving it was expedient that a tribunal be established for inquiring into a definite matter of public interest described as of urgent public importance, or which prohibited the Taoiseach or a minister from appointing a tribunal on foot of such a resolution.

The court said the question still remained whether it was in the jurisdiction of the Oireachtas to establish such a tribunal, there being no statutory provision enabling them to do so.

The court was satisfied that the Houses of the Oireachtas had and have the inherent jurisdiction to resolve that it was expedient that a tribunal be established to inquire urgently into what they considered to be urgent matters of public importance.