Fabien Barthez should take comfort from the judgment of the three High Court judges last Friday on Abbeylara. The Manchester United goalkeeper, who has gifted more goals this season than Ben Dunne gifted bank drafts in the old days, could find solace in the revelation that he may not be the world's top blunderer. Politicians of Dβil ╔ireann and Seanad ╔ireann would give him a run for his money (no improper insinuation concerning Mr Barthez is intended.)
Our politicians intended, apparently, to institute an inquiry into what happened at Abbeylara when John Carthy was shot dead by garda∅ on April 19th last year. Fairly simple, you might think, and there is nothing complicated about the rules for such an inquiry for these were laid down clearly 20 years ago in a famous case, In re Haughey.
But could they get their act together to set such an inquiry under way in a proper and coherent manner? You're quite right. No.
First, the Dβil simply referred the Garda report to a joint committee of both Houses of the Oireachtas, with no instructions or authorisation to do anything with it. The Seanad also referred the report to the joint committee but did so under the wrong Order of Reference. Then, on March 8th, 2001, the joint committee set up a subcommittee and directed it to "consider" the Garda report.
On April 10th the joint committee decided to amend its own order of March 8th to enable the subcommittee to take evidence in relation to the killing and to report back with findings, conclusions and recommendations. It seems this order subsequently went missing.
On April 11th, 2001, the subcommittee applied to the Committee on Procedure and Privileges to get its consent to utilise the legislative provisions requiring the attendance of witnesses, the production of documents and other matters necessary for an inquiry. But in making this application it mis-stated its terms of reference and, of course, it did not accompany its application with the revised terms of reference of April 10th, the previous day, because, it seems, it could not find them.
Then the next day, April 12th, the joint committee came up with a third version of the subcommittee's terms of reference.
Before the subcommittee had got proper authorisation from the Committee on Procedures and Privileges to proceed it issued directions to various potential witnesses to attend its hearings (It had no authority to do that.) For some reason, Seamus Brennan, the chairman of the Committee on Procedures and Privileges, did not issue the proper consent until April 30th, by which time the subcommittee had started its hearings. Even after the hearings began the joint committee further amended the subcommittee's terms of reference.
When these shenanigans were questioned at the hearings by John Rogers SC, counsel for garda∅ summoned to give evidence, there was what amounted to a cover-up. Indeed, they did not own up to this litany of incompetence until the judicial review hearings in the High Court had begun. It was on the third day of those hearings that a supplemental affidavit was supplied owning up to the bungling.
But there was worse. They decided on a procedure that was in brazen conflict with the unambiguous guidelines for the conduct of such hearings, laid down by the Supreme Court in 1971. The High Court was quite right in finding that the Abbeylara hearings had gone off the rails - that's if it had ever been on the rails. But the High Court judges went a step further, a step far too far, in my opinion.
They deliberated on whether any inquiry by the Oireachtas, which could reflect on the good name of a citizen, was proper at all. They all agreed that an inquiry established by the Oireachtas and presided over by a judge was fine but they quoted at length from academic literature on the recklessness and partisanship of (British) politicians in conducting such inquiries.
They had to get around two Supreme Court judgments which, at least by implication, suggested such inquiries were constitutional but stated that because the explicit issue of whether such inquiries were constitutional had not been argued in these cases, the matter was not decided. They went on to decide that such inquires were not proper, in effect because they felt that politicians were too thick or too partisan to be trusted not to infringe the constitutional rights of citizens. The finding is difficult to reconcile with the 1991 case, In Re Haughey.
How, possibly, could the Supreme Count have set out the guidelines for such inquiries if it did not accept that such enquires were fundamentally OK? And there is also the little point that the Constitution provides that the Government, the executive arm of the State, is responsible to the Dβil. If the Dβil cannot inquire into the exercise of executive power how can it hold the Government accountable?
Just one further point. It concerns Alan Shatter. He presented himself in front of the Court and went on at very considerable length on a variety of issues concerning the case and was found (quite properly, in my opinion) to be entirely wrong on several of them. No doubt he irritated one or more of the judges with his long-windedness.
Could this explain the curious references to Spy Wednesday (the Wednesday of Holy Week marking the bargain of Judas to betray Jesus) and Low Tuesday (presumably the Tuesday after Easter - low Sunday is the Sunday after Easter) in the judgment? Alan Shatter is Jewish, and the question arises what possible relevance have these comments in the judgment to do with the issues at stake in the case?
vbrowne@irish-times.ie