Publication of information 'a direct interference' with tribunal

The publication in The Irish Timesof information about financial payments to Taoiseach Bertie Ahern when he was minister for finance in 1993 was "a direct interference" with the functions of the Mahon tribunal, counsel for the tribunal told the High Court.

The Irish Timeshad made public in September last what should have remained private unless and until the tribunal decided the matter should be dealt with in public hearings, Denis McDonald SC said.

The fact that the tribunal had since decided to investigate the payments in public hearings in its Quarryvale Two module was not relevant as what The Irish Timesdid was "completely undermine" the private nature of an inquiry mandated by the Oireachtas with all-party support.

The tribunal's right to confidentiality over its private inquiries would be of little use if any third party into whose hands confidential tribunal information came could publish it, he said.

The tribunal wanted to preserve the private aspect of its inquiries for now and into the future and there was a "clear pressing social need" that privacy be maintained.

Closing the tribunal's case, Mr McDonald also said that the rule of law was very important in preserving democracy. The courts determined the rule of law and freedom of expression could not be guaranteed without the rule of law.

In this case, the court should look not at what the defendants said in court about respecting the law and the courts but rather at what they did "in the teeth" of the order made by the tribunal last September (to answer questions about the source of The Irish Timesarticle and to produce documents on which it was based).

He said the defendants had taken it upon themselves to decide that their right to freedom of expression trumped all other rights and, in those circumstances, they were free to destroy documents. Were these the actions of people who respect the rule of law upon which a democracy is founded, he asked. "I say the answer is no."

Mr McDonald also submitted it was "crystal clear" that the tribunal had power, both under its terms of reference and the Tribunals of Inquiry Evidence Act, to inquire into disclosures of its confidential information.

The Irish Timeshad failed last September to challenge the powers of the tribunal to make its order requiring the journalists to appear before it then and produce documents, Mr McDonald said. The order was made, the documents were then destroyed and the defendants had also taken legal advice prior to appearing before the tribunal.

He was not suggesting The Irish Timescould not now challenge the tribunal's power to make that order but it was a factor the court should take into account.

It was also ironic that The Irish Timeswas posing as the champion of freedom of expression but had also complained there should have been no public hearing on September 29th. The Irish Timeshad gone public with its report and the tribunal had no option but to deal with the matter in public.

When Mr Justice O'Neill said The Irish Timeshad argued that businessman David McKenna should also have been examined on oath, Mr McDonald said Mr McKenna had not published the material. He had been dealt with but had to be dealt with in a delicate and sensitive manner.

Mr McDonald also stressed that the tribunal was in this case asserting its own rights, not those of Mr Ahern.