Judge attacks 'modern' tribunals as 'grotesque'

A SUPREME Court judge has launched a strong attack on “modern” tribunals of inquiry, describing their powers as “truly awesome”, their expense “enormous”, the cost of participating in them “grotesque” and the duration of some “nothing less than appalling”.

It was also clear the law reports of tribunals were “legally sterile”, “devoid of legal consequences” and could not be used in legal proceedings as either a weapon or a shield, Mr Justice Adrian Hardiman said.

“Whether a body which is so ‘sterile’ is worth having in the first place is a question for the judgment of those who establish tribunals and not for the court,” he remarked.

The judge made his comments yesterday when rejecting arguments by the Director of Corporate Enforcement that he should be entitled to rely on aspects of planning tribunal reports in seeking orders against developers Michael and Thomas Bailey.

The director wants orders under section 160 of the Companies Act disqualifying the Baileys from involvement in managing any company on grounds of unfitness and gross misconduct in relation to the affairs of their company, Bovale Developments.

Mr Justice Hardiman agreed with Mrs Justice Susan Denham that it was well-settled law, since then Chief Justice Thomas Finlay’s decision in 1992 on a challenge by Larry Goodman to the beef tribunal, that tribunal reports were “sterile” of legal effect.

The director’s application was the second attempt in over a year to gloss over, or if necessary overrule, some of the findings in the Goodman case, he said.

The director had initially sought to rely on substantial material from the tribunal but later limited his application to contending that sections of tribunal reports should be admitted as prima facie evidence in the disqualification proceedings, Mr Justice Hardiman continued.

That position was still “extremely novel and far-reaching”.

In the absence of a specific statutory provision, a matter of fact to be established before a court must be established by admissible evidence open to cross-examination and given publicly before the court. A statement by a third party was not normally an admissible form of proof.

It was frequently observed that the power of the modern tribunal of inquiry was truly awesome, the judge said. The duration of some modern tribunals was nothing less than appalling; a recent one had ended after about 13 years and another seemed likely to exceed that “enormous total”.

As a result, the expense of participation in tribunals was “nothing less than grotesque” and beyond the means of individuals or corporations normally considered rich. Tribunals had also taken to sitting for long periods in private so the material gathered by them was known only to them, except for the “all too frequent” occasions when material is leaked.

Accumulation of the material in secret has sometimes created major injustice where material damaging to the account of an accusing witness has been quite deliberately withheld from the parties being accused, he added.

Given such matters, tribunals had frequently been subject of legal challenges involving very serious legal and constitutional issues.

Under the Constitution, justice had to be administered in public but something akin to the administration of justice appeared to take place in tribunals and people were prejudiced by their findings as much as by court judgments.

There was manifest scope for conflict between a tribunal and the constitutional rights of citizens, especially in relation to the administration of justice, civil or criminal, and the trial of offences, he said.

It was against this background the court’s decisions in Goodman preserved the constitutionality of the tribunal of inquiry by characterising and defining the legal nature of a tribunal in a very specific way, he said.

The “fundamental flaw” in the director’s claim about Mr Justice Finlay’s comments in Goodman – to the effect that tribunal findings had no legal consequence – was a failure to appreciate that those comments “preserved” the legality of a tribunal.

All constitutional guarantees concerning the administration of justice and fair procedures would be in vain if the Government could set up a “parallel process” – via a tribunal – which would have all the consequences of criminal conviction other than actual imprisonment, he said.

It was noteworthy that the Attorney General had not supported the director’s claims in this case but apparently supported the “sterility” of the tribunal’s findings, the judge added.

Mr Justice Hardiman also noted that the Baileys had engaged with the tribunal on the basis its findings would be legally sterile.

It was not now open to the State, or any emanation of it, to execute “a complete change of front” and declare the tribunal’s findings were prima facie evidence against the Baileys.