The Moriarty tribunal could only have been set up to punish the former Taoiseach, Mr Charles Haughey, for his alleged failure to co-operate with the McCracken tribunal on Dunnes payments to politicians, the Supreme Court was told yesterday.
Mr Eoin McGonigal SC, for Mr Haughey and members of his family, said there had been no allegation of corruption or even receipt of money before the setting up of the Moriarty Tribunal.
He was making submissions on the second day of the appeal by the Haughey family against the High Court's refusal to restrain the tribunal from investigating its financial affairs. The appeal is being taken by Mr Haughey, his wife, Maureen, daughter, Eimear Mulhern, and sisters, Ms Ethna and Ms Maureen Haughey.
In court yesterday Mr McGonigal said the legislation setting up the Moriarty tribunal applied to the British parliament and not the Oireachtas. The tribunal had been set up under the Tribunals of Inquiry (Evidence) Act of 1921 and that Act was not consistent with the scheme of the 1937 Constitution. This had set up a framework whereby the legislature was given the power of making laws and creating standing orders.
Under those orders Dail committees could be set up to inquire into legislative matters and any matters it considered appropriate.
The 1937 Constitution created the necessary powers to set up inquiries and the 1921 Act was not consistent with the operation of that scheme.
Mr McGonigal said his clients were attacking the constitutionality of the 1921 Act. Under that legislation there was power to enforce the attendance and examination of witnesses and to compel the production of documents, but such powers were contrary to Article 34 of the Constitution because, in effect, this was an exercise of the administration of justice.
The problem arose in relation to the Moriarty tribunal by reason of the orders made by the chairman, Mr Justice Moriarty, in relation to compelling the production of documents. This was the administration of justice.
The primary role of the tribunal chairman was to investigate. If he was to request documents from a bank and was refused, he could apply to the High Court to decide the matter. In that way there would be no administration of justice by the tribunal chairman and he could continue his investigation with the court's assistance.
Mr McGonigal submitted that a tribunal could only be established as an aid to the legislative process and as a matter of last resort. The Moriarty tribunal met neither standard.
The tribunal was only an inquiry into historical matters not related to current law-making because the ramifications of politicians accepting money had already been considered in the McCracken tribunal.
Mr McGonigal said that in order to see whether there were party-political contributions from undisclosed sources, one had to look at the entire political situation. They could not just isolate one or two politicians and on that basis make recommendations in relation to funding.
In the McCracken tribunal, the payment made by Mr Ben Dunne to Mr Haughey appeared to go towards non-political purposes. That tribunal report had also identified that many politicians received payments from Mr Dunne, as had political parties.
The hearing continues today before the five-judge court, presided over by the Chief Justice, Mr Hamilton.