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Michael McDowell: Why hasn't O'Brien sought to quash tribunal findings?

THE publication by the Irish Examiner last week of a letter written in March by Denis O'Brien to Minister for European Affairs Lucinda Creighton TD is of some significance.

Minister Creighton had publicly expressed her unease at the attendance of Denis O'Brien at a State-sponsored Economic Summit at Dublin Castle, a view shared by many of her party colleagues and by Labour Party backbenchers.

The letter itself shows that Mr O'Brien seems determined to proceed on the basis that the Moriarty tribunal's findings in relation to his dealings with Michael Lowry were worthless and wrong and of no consequence, and that the Government should deal with him on that basis.

His letter dismisses all tribunals' findings as "inherently unsound in law" and states that "tribunals constitute a gross violation of a person's constitutional and civil rights".

He claims that "tribunals can destroy people's reputation without providing even a modicum of protection to those individuals".

He then states that tribunals are "part of what the Supreme Court has described as a gross 'coarsening of legal standards'".

His letter also claims that tribunals do not have to "burden themselves with facts at all".

This delusional and absurd viewpoint would be simply abject, laughable and pathetic if it were not also part of a culture of impunity which characterises the behaviour of many of those against whom major findings of wrongdoing have been made by tribunals and statutory inquiries in Ireland over the last 20 years.

If there had been any truth or substance in his view of the Moriarty tribunal's procedures and findings, one would have expected Mr O'Brien to invoke his constitutional rights by asking the courts to set aside and quash the findings of the tribunal. That would have been a relatively simple legal step to take. He had the resources -- legal and financial -- to bring such a challenge. Mr O'Brien chose not to do so.

Mr O'Brien elsewhere explained this failure to do so by making another claim -- that the courts would close ranks around Mr Justice Moriarty and, by implication, would not give him a fair hearing for such a case.

Apart from contrasting totally with the claim in his letter that tribunals are not to be trusted precisely because they are not courts of law, Mr O'Brien's claim that the judiciary would close ranks around Mr Justice Moriarty to deny him justice amounts to a claim that the judges of the High Court and Supreme Court would choose to violate their constitutional declarations made before God to administer justice "without fear or favour, without affection or ill-will towards any man" to do him down -- a grave slur on the judiciary for which he offers no evidence.

That cowardly assertion against our judges collectively made by a man who has not hesitated to use the courts to defend what he regards as his reputation shows the way in which the Constitution can be flourished and brandished by those who have no compunction

in publicly degrading its institutions if they stand in their way.

The law reports are, by the way, replete with cases where the High and Supreme Courts have intervened in the conduct of tribunals and inquiries to vindicate the rights of individuals when necessary.

The truth is that Mr O'Brien and Mr Lowry prefer to publicly dismiss the gravest findings of the tribunal in relation to them, and to hope that the public will let the significance of those findings recede into the realm of history.

Enda Kenny has now stated that he accepts the findings of the Moriarty tribunal. If that is so, it follows that he now accepts that Mr Lowry, when he was a colleague of Mr Kenny in the Cabinet, wrongly intervened in the Esat-Digiphone licensing process in favour of Mr O'Brien, and that Mr O'Brien

thereafter engaged in a sustained campaign of efforts to enrich Mr Lowry in amounts approaching €1m. These are grave findings.

Far from being a process involving no evidence, the tribunal heard a huge amount of evidence over many years, all of which is available on the internet. Moreover, the tribunal's reasoning and its evaluation of that evidence is, in my opinion, careful and compelling, and is there on the internet for all to see.

If you doubt me, read the report online. It is not easy going but it rewards the effort.

The trite point made by Mr O'Brien in his letter to Minister Creighton (herself a qualified lawyer) -- that tribunals do not equate to the administration of justice in criminal or civil trials in courts -- entirely misses the point that it is part of the democratic right of the people under the Constitution to have matters of public importance inquired into even where there is no way in which the criminal law or the civil law, based as they are on adversarial justice, can for one reason or another deal with the issue in question.

To claim, say, that the Murphy Commission of Investigation into clerical sexual abuse of children should not have its findings accepted by Government because some of the alleged abusers were not convicted in the criminal courts and have always rejected the allegations made by their victims would be absurd.

Likewise, it would be absurd to argue that allegations of corruption in the planning process should never be inquired into except by criminal prosecution.

The same applies to the findings of last week's Hillsborough Inquiry report.

Of course, Mr O'Brien and Mr Lowry remain free to reject and contradict the Moriarty tribunal with impunity. But when the Irish State acting though the Oireachtas lawfully establishes an inquiry which is subject to judicial review, and when that inquiry makes grave findings of wrongdoing against individuals into whom it was directed to inquire, it would be a cause for great concern if a Government were to act as though nothing had happened -- as Denis O'Brien impliedly asks of Minister Creighton. And of the Taoiseach.

Lucinda Creighton's reaction was right -- morally, politically and factually. Given that Enda Kenny now says he accepts those tribunal findings, we should expect him to reflect the gravity of those findings in his behaviour as the political leader of the State which authorised the inquiry, and as a TD who approved its establishment in the first place.

Sunday Independent