I believe we should be grateful for High Court Taxing Master James Flynn's frankness in his comments about tribunals. In describing tribunals as "Frankenstein monsters" and "Star Chambers" which deny human rights and are not cost-effective, he queried the conventional wisdom that tribunals serve to dissipate public anxiety about scandals, suggesting that, because of fears about the extent of their powers, they may have the opposite effect.
In this regard he fingered the media, pointing out that the alleged public disquiet was itself created by the media. Pausing only to admire the deft manner in which Master Flynn deflected public attention away from the potentially embarrassing aspect of his awarding substantial costs to Mr Haughey, I welcome his comments. For a decade now, it has been difficult effectively to question the all-singing, all-dancing tribunal, because the only channels for doing this are impelled by a vested interest operating in the opposite direction. I have several times made comments similar to Master Flynn's, but these had the appearance of deep eccentricity in a media infested with tribunalism.
Tribunals are established by politicians to appease the media, who are therefore both architects and main beneficiaries of tribunal culture. There was a time when media just reported and commented upon what was going on in society and its institutions, but in recent years this process has been supplanted by another - let's call it Watergate Syndrome - whereby media perceive their chief role as the bringing down of governments.
The former US presidential hopeful, Gary Hart, in his book The Patriot, described this very well. "Since Watergate," he wrote, "there has been a perceptible increase in the media's arrogation to itself of the role of tribune of the people. Over the life of the republic, the media have gone from watchdog to critic, investigator, and tribune. Originally, in classic Roman republicanism the tribunal was a democratising force, representing the people against monarch and nobles. But as its power grew, it soon became its own form of tyranny, attacking and eventually contributing to the destruction of the republic. The Roman tribunes became dangerous demagogues, causing leaders and citizens to fear the `self-elected tribunes of the people'. Through tabloidisation and sensationalising of politics, the media - the modern self-elected tribunes of the people - are close to becoming equally dangerous demagogues."
Both Gary Hart and Master Flynn have touched on the same ominous syndrome.
If politicians are concerned about wrongdoing, they can always call in the Garda Siochana. As legislators, they have every opportunity to do whatever is necessary to protect the public interest. The appeal of the tribunal is that it creates a long-running, ineffective and ultimately toothless investigation, which protects contemporary politics from inconvenient piecemeal revelations in the media. Although the cost of these is a far greater scandal than anything under investigation, this solution is entirely congenial to the media, which relish a ready source of easy material.
Sad to report, most media are interested less in truth and justice than in sensation and titillation, which means that their attachment to tribunals is not on account of the alleged immorality of financial wrongdoing but because tribunals create a reliable, packaged commodity which can be sold to the public. What is offered is the instant gratification of seeing shamed in public those whose horizons have stretched farther than the average. This is the unedifying reality of public disquiet about scandals: it is based not on moral outrage but on the envy and vindictiveness of the downtrodden.
It is not an accident that certain politicians end up before tribunals and others do not. Neither is it a question of guilt or innocence: certain figures are immune to indictment, whereas others are always guilty. The tribunal, therefore, is a process of public accountability to a version of public opinion created by the desires and aspirations of those with almost absolute power to describe reality. The tribunal has enabled a certain caste within the Irish media to enact its prejudices in a series of show trials which serve to validate a specific analysis of Irish society.
The tribunals of the past decade have all pursued the media's objective of "getting" Fianna Fail. The problem is that, whereas this desire may willy-nilly lead us in the direction of truth and justice, this cannot be guaranteed. Tribunals have become such a way of life for the media that they are unlikely to relinquish this toy without a great deal of resistance.
The central role of the media can be observed most acutely in the Flood tribunal, which is essentially a battle between competing media factions. All of the issues under investigation have their roots in campaigns waged by specific journalists, to the extent that virtually every witness is identifiable as adhering to one or other "side". It has become unsayable in the post-Watergate era that there is no such thing as "investigative journalism": there is only the individual journalist's capacity to persuade people who know things, and have vested interests in their revelation, to talk to him or her, preferably on an exclusive basis. Journalists are not detectives, and do not have police powers. (Tribunals are therefore a perfect device for doing the work journalism cannot do.)
The trouble is that journalists are to a high degree beholden to their sources and so tend to see things from the perspective of those from whom they obtain information. What becomes important, then, is not so much the truth as the chances of making the story "stand up", which involves the contradiction of opposing versions. Thus, journalists become more like lawyers, putting selective versions of the facts before the public, cheering their sources to the echo and adopting an adversarial attitude to anyone offering dispute. In a tribunal context, this has meant that, even where a witness is doing badly, those journalists who have promoted that witness will bend over backwards to present him or her in a favourable light, and to discredit all dissenters.
Journalists behave like this not because they are unethical but because they must survive in an increasingly competitive environment, in which the principal imperatives are not truth and justice but circulation, audience and readership profile. Perhaps we need a tribunal to investigate this.