Monday 26 September 2016

Dearbhail McDonald: Fennelly's forensic post-mortem allows us all to draw our own conclusions

The interim Fennelly Report says the Taoiseach didn't intend to sack the Garda Commissioner but, says Dearbhail McDonald, the public have made up their own minds

Published 13/09/2015 | 02:30

Mr Justice Nial Fennelly
Mr Justice Nial Fennelly

Imagine a pathologist who performs a forensic post-mortem, removing and weighing the organs, analysing the deceased's body fluids, measuring the fatal gunshot wounds to the nearest millimetre - even identifying the type of barrel used - but declines to give a cause of death.

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That's what it feels like to me when I read the Interim Report of the Fennelly Commission.

I've re-read the 300-page report several times now. Nial Fennelly, the retired Supreme Court judge who investigated the events leading up to the 'retirement' of former Garda Commissioner Martin Callinan, accepted the Taoiseach's word that he didn't sack the Commissioner.

The interim report is all very courteous and anticlimactic in a Beef Tribunal kind of way, but who could blame the judge?

Not accepting Mr Kenny's anaemic version of events would have led to the immediate collapse of the Government.

Judge Fennelly, whose hands were tied as he had nothing but the various key witnesses' word for it (no notes, for example, were taken of the key meeting that led to a senior civil servant being sent late at night by the Taoiseach to the Commissioner's home), acquitted Mr Kenny of issuing direct orders to depose Callinan.

But Judge Fennelly's report, with its sprawling menu of delicate nuances, succulent qualifications, mouth-watering 'howevers' and morsels of at times grossly conflicting versions of events, nonetheless allows us - like that second pathologist called in for a second opinion - to draw our own conclusions.

And the public has made up its mind: it doesn't believe Mr Kenny, who cherry-picked those parts of the report that 'vindicated' him whilst discarding all the glaring caveats.

It didn't have to be this way.

The Government is perfectly entitled to remove a Garda Commissioner, especially one in whom it has lost confidence.

The Supreme Court has already ruled on the issue in the Garvey case, which says that the decision must be one taken collectively by Government, who must give stated reasons and an opportunity for the nearly departed to respond.

That's the law, now laid bare in the 2005 Garda Siochana Act.

But you can make up your own mind whether or not Mr Kenny followed or flouted it.

Many of you already have. Just 12pc of people believe Mr Kenny's version of events leading up to Mr Callinan's departure, according to a poll conducted for RTE's Claire Byrne Live programme last week.

The Amarach Research poll found that 55pc of people don't believe the Taoiseach's version of events, while 33pc say they don't know.

It's not the only issue on which the Taoiseach's veracity has been openly questioned. Earlier this month Matt Moran, the former chief financial officer at Anglo Irish Bank, contradicted evidence given by Mr Kenny at the Banking Inquiry.

Both men gave evidence on oath to the inquiry. Both stand by their versions. But both of them can't be right, can they?

Is it any wonder, then, that Mr Kenny's integrity is now so seriously undermined even when there is nothing but good news - economic news to boot - being churned out months ahead of the election?

It's the reason why Fine Gael strategists will limit even further the Taoiseach's public appearances in the run-up to the election amid fears that he has become a liability in the eyes of voters.

It's not just the Taoiseach.

The sepsis has spread to Fine Gael, billing itself as the eternal party of law and order but finding itself outsmarted at every turn by An Garda Siochana which, not for the first time, has proved to be a law unto itself.

How else can we explain (and Judge Fennelly will attempt to do so in his final report) how the security arm of the State (the gardai) operated a system of covert recordings of telephone lines in and out of Garda stations without - and you have to really suspend your disbelief for this one - ever informing successive governments?

How else could the loss of Mr Callinan's Sim card from his official Garda-issued phone, which may have contained critical information in respect of his departure and other matters, be shrugged off as one of those things, as if he lost a cheap earring on the dance floor?

The political stage management of the Interim Fennelly Report and Mr Kenny is, to borrow a phrase from Mr Callinan, disgusting.

What it says to the electorate Mr Kenny hopes will return him to power is that the truth, based on objective facts, no longer matters ... that honesty, trust and accountability in political life are mere shibboleths. All that matters in this political culture is extracting and spinning the most sellable version possible and hoping the media and electorate fall for it.

And we usually do.

Such was the genius of Mr Kenny and his handlers' orchestration of the report's release (late evening, before anyone could read it, allowing Mr Kenny free rein on RTE's Six One News) it allowed the narrative that the Taoiseach had dodged the bullet to prevail.

The most dangerous aspect of the Interim Fennelly Report is our weary indifference to it.

The clever party strategists are relying precisely on this indifference and our collective contempt for the political institutions of State to get Mr Kenny out of the electoral bunker.

That's fine, I suppose, in the short term. But when the next crisis erupts and we throw our hands up and cry 'how' and 'why,' we must take some of the blame for turning a blind eye to this brand of profane politics.

Sunday Independent

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