Decision on challenge to O'Flaherty post is due on Monday

The High Court will deliver judgment on Monday on the challenge by a Limerick lecturer to the Government's nomination of the former Supreme Court judge Mr Hugh O'Flaherty as vice-president of the European Investment Bank.

The hearing of the two-day challenge by Mr Denis Riordan concluded yesterday. The President of the High Court, Mr Justice Morris, reserved his decision to noon on Monday and continued until then an order restraining the appointment of Mr O'Flaherty.

In submissions yesterday Mr Riordan, of Clonconane, Redgate, said he had thought a banking and accountancy qualification would have been necessary for the EIB post, but this was not the case. If he had been aware no such qualifications were required, he would definitely have been interested in a position with a salary of £147,000 a year with an annual pension of £40,000 payable after four years' service.

"I'm not a total fool," he said. He assumed everybody else in the country would have applied for it if they had the right to do so.

He argued that the appointment of Mr O'Flaherty was "a political decision" by the Government "to favour someone within their own group."

The State argued that Mr Riordan's case was frail and almost unstatable, and fell at the first hurdle because there was no constitutional right under which a citizen could claim to be entitled to an opportunity to apply for a post paid out of public funds.

It claimed Mr Riordan was not really interested in the EIB post and his real motivation was to attack Mr O'Flaherty who, as a Supreme Court judge, had turned down several appeals by Mr Riordan in other constitutional cases.

At the outset of yesterday's hearing Mr Riordan sought to amend the grounds on which he was given leave to challenge the nomination (that, as the salary was paid by EU taxpayers, Mr Riordan had a right to the opportunity to apply for the post).

Mr Riordan said he now wished to argue that it was the right of every citizen to apply for such a position. The judge stressed Mr Riordan was confined to the grounds on which leave was granted.

Mr Riordan's action is against the Government; the Taoiseach, Mr Ahern; the Minister for Finance, Mr McCreevy; the Attorney General, Mr Michael McDowell; and Mr O'Flaherty. The former judge is not represented at the hearing.

In his submissions, Mr Frank Callanan SC, for the State, disputed Mr Riordan's locus standi to challenge the nomination. Mr Riordan had no real desire to apply for or be nominated to the EIB post, and his claim that he wished to be considered for the post was "quite contrived" and "a transparent tactic" to invest him with an artificial locus standi when his "real motivation" was to register an objection to the nomination of Mr O'Flaherty, counsel said.

Also for the State, Mr James O'Reilly SC contended Mr Riordan's claim was based on the premise that he had a fundamental constitutional right, as a citizen and taxpayer, to have an opportunity to apply for a post paid out of public funds. There was no such constitutional right.

Mr Justice Morris noted Mr Riordan also relied on the rights to work and to equal treatment. Mr O'Reilly said these were not absolute rights. The right to earn a livelihood was not an unqualified right to any particular livelihood and was subject to legitimate legal restraints.

There was no constitutional right to absolute equality and could not be. Not everyone could be Taoiseach, for example. The object of Article 40.1 of the Constitution was to prevent arbitrary discrimination but it did not guarantee absolute equality.

It was for the Government to nominate a person, or draw up a method of selection, for the position of vice-president of the EIB. There was no legal authority for the proposition that all public positions must be advertised for open competition, although many public posts were filled in that way.

There was even less legal basis for saying public positions with the institutions and bodies of the EU must be filled in a particular way when they were to be held by Irish candidates.

Replying, Mr Riordan rejected the assertion that the decision to appoint a person to the EIB was an executive function. In nominating a person to the post, the Government was carrying out an administrative act on behalf of the board of directors of the EIB, and not an executive function under the Constitution.

He said his constitutional right to equal treatment had been breached by the selection process adopted by the Government. If a position was available, all persons with the necessary qualifications had the right to be considered and it was wrong to exclude people who did not share your political viewpoint, which was what happened in this case.

He accepted the right of the State to limit, through setting qualifications, the scope of people who could apply for posts provided that, in the end, all those with the necessary qualifications were considered. There could only be discrimination on legitimate and reasonable grounds and, in this case, the discrimination against him was "arbitrary and unreasonable".