Michael McDowell's recent statements in defence of his claims against Frank Connolly have broken new ground for a Minister for Justice, writes Carol Coulter, Legal Affairs Correspondent
The Frank Connolly/ Michael McDowell saga has taken a couple of new twists. At the weekend the Minister for Justice issued a statement defending his actions on the basis that he was defending the State against subversion.
He was responding to criticisms of his use of Dáil privilege to give a detailed account of allegations against the former journalist, including that he had used a false passport to visit Colombia in the company of a prominent republican.
Yesterday he followed up with a spirited defence of his actions on RTÉ radio, in which he admitted leaking the alleged false passport application to the Irish Independent.
He also repeated his claim that he was defending the State against subversion, stating: "I will not be put in the position that as Minister for Justice I cannot fight subversion of the State."
Asked how the Centre for Public Inquiry was a threat to democracy and the State, he replied: "I am not saying that. I am saying Mr Connolly himself has questions to answer."
While stopping short of stating that Mr Connolly was a threat to the security of the State, the inference was clear.
This, and the statement at the weekend in which he said that a person's constitutional right to fair procedure and due process took second place to the need to defend the State from subversion, raises very fundamental questions about individual rights, state power and the role of a minister for justice.
The publication of information gleaned from Garda files is only justified, under the Official Secrets Act, by a threat to the security of the State, which has now been invoked by the Minister.
But nowhere has he set out how and where the security of the State is under threat from Mr Connolly.
The allegations against him are that he applied for a false passport and travelled to Colombia in the company of his brother, a member of Sinn Féin, and a Belfast republican with IRA-related convictions, both of which Mr Connolly has vigorously denied.
Even if true, these allegations do not amount to a threat to the security of the State. Having a false passport may be fraudulent and illegal, but hardly constitutes a threat to the security of the State. The gardaí have investigated this matter, and no prosecution is pending.
Visiting areas in Colombia controlled by the Farc guerrilla group may be regarded as suspicious, but is not one of the scheduled offences in the Offences Against the State Act; nor is it prohibited by any other statute. Associating with members of the republican movement is also not a crime.
It appears from Mr McDowell's statement that what constitutes a threat to the security of the State is the opinion of the current Minister for Justice that a specific person or act is such a threat, and that this opinion justifies the suspension of that person's rights to due process and his good name.
This may not withstand judicial scrutiny. The European Court of Human Rights, for example, has not always found the State's own view of what is necessitated by national security to be decisive.
When this State was under attack, the Government and the Oireachtas took certain measures to defend it, notably the Offences Against the State Act and its various amendments, some of which placed limitations on people's constitutional rights. However, at no stage did a minister for justice claim that the threat to the security of the State justified his personally taking action against an individual. The minister for justice is not mentioned in the Constitution, and does not derive any special powers from it.
Due process and a person's right to his or her good name should not be treated lightly, according to leading academic lawyers.
"The principle of innocence until proven guilty is fundamental to civilisation throughout the world. Leaking documents from a criminal investigation to a particular newspaper - that's subversion of the State," Prof Dermot Walsh of the University of Limerick told The Irish Times.
"Michael McDowell is the Minister for Justice. He is the State. The State cannot declare a person guilty without the benefit of a trial and the presumption of innocence. He's saying he has the right to subvert the criminal process in this case. Mr Connolly has not had the chance of seeing the evidence against him.
"In 30 years, when the State was tottering at times, I can't remember a minister for justice doing this. Now, when the war is over, we're doing this. Is this the future?
"It's very scary. It's having a know-all government saying, 'Trust us, don't question us, I'm assuming the mantle of the criminal process to protect the State'."
Donncha O'Connell, lecturer in law at NUI Galway, shares this concern about the Minister's statement: "It is sophistry of a very predictable kind, and self-serving in the extreme."
As well as the right to due process, the right to one's good name is one of the specific rights mentioned in the Constitution, and has been found to be fundamental. It lies at the root of our cumbersome tribunal system. It was the basis for the Supreme Court overruling an Oireachtas committee seeking to inquire into the shooting of John Carthy at Abbeylara, on the basis that the reputations of members of the Garda could be under attack without adequate protection.
The law of privilege does permit politicians to say what they like in the Dáil without being sued for defamation, and to repeat what they said outside the House, provided they do not add to it, according to defamation expert Dr Owen O'Dell of Trinity College. But generally this right is used with circumspection.
"The law does not define how you can use this privilege," he said. "There is a distinction between what the law allows and what a person should do. Then it becomes a matter of judgment.
"I can't remember a time when this privilege was exercised in this way. But this is not a legal problem, it's a political problem.
"There are concerns about freedom of expression. Taking on a journalist because you disagree with him is one thing. But using the State to bring him down is another. It's disturbing that that's what seems to be going on. It's a targeted form of State action."
The Minister has also admitted that he leaked the passport documentation to the Irish Independent, which raises further questions. If he considered that the security of the State justified such use of a Garda file, why not raise it in the Dáil, or issue a public statement, outlining his concerns for the State?
It was this Minister who was vociferous in his denunciation of members of the Garda Síochána who leaked information about individuals under investigation. When asked to justify his allegations on this, he said: "I am not supposed to just throw out into the public domain facts which haven't been proven in court about people." Surely that is what has happened here?
When this controversy first broke, much of the attention focused on Mr Connolly, the allegations against him, and the manner of his response. The Minister's defence of his actions has widened the issues at stake, and poses fundamental questions about the power of the State and its ministers on the one hand and the rights of citizens on the other.
Meanwhile, there are numerous other NGOs in Ireland funded by Atlantic Philanthropies. Can their personnel expect similar personal scrutiny from ministers of government, especially if they threaten to question actions and policies of the State?