THE MAHON tribunal has now accepted that the Constitution prohibits it from questioning Bertie Ahern about the veracity of statements made to the Dáil about his financial affairs, the High Court heard.
Brian Murray SC, for Mr Ahern, said his side was "confused" about the tribunal's position on parliamentary privilege as it appeared to have "changed significantly" in the last few months since proceedings were initiated by the Taoiseach.
It now appeared the tribunal had a position in which it accepted, contrary to its earlier position, that under Article 15.13 of the Constitution, it could not cross-examine Mr Ahern about the veracity, propriety or motivation behind the statements about his financial affairs made by him to the Dáil in September and October 2006.
Mr Murray said that before the case was brought, the tribunal had told Mr Ahern in a letter to his solicitor last December that its view was that Article 15.13 - which states that members of the Oireachtas are not amenable, in relation to statements by them in the Oireachtas, to any authority except the Oireachtas - did not apply if Mr Ahern had made similar statements outside the House.
This was an indirect attempt to make him amenable for the statements in the Dáil, was contrary to Article 15.13 and was the "trigger" for the issue before the court, Mr Murray said. His side wanted the tribunal to confirm this position had altered as it was still unclear what the tribunal was going to do.
The tribunal appeared to be saying that, in questioning Mr Ahern about statements outside the House, it could draw to his attention a statement made inside the House with a view to cross-examination about the statement made outside. If this "drawing to attention" amounted to indirect examination of what was said in the House, it could not be done, Mr Murray argued.
Denis McDonald SC, for the tribunal, told Mr Justice Peter Kelly that his side was not seeking to question Mr Ahern about what he had said in the Dáil but wished to cross-examine him about statements outside the Dáil and to draw attention to the fact that he had made statements in the House.
Mr McDonald said the tribunal may wish to refer to the Dáil statements by Mr Ahern but there might be no reference to the Dáil statement. The tribunal wanted to be free to refer to the fact of a statement being made but not to question the veracity of that. The tribunal may wish to test the veracity of statements made elsewhere.
In reply to Mr Justice Richard Johnson, Mr McDonald said that if Mr Ahern said "white" in the Dáil and said "black" outside, and the tribunal concluded "black" was correct, it could not put to Mr Ahern that what was said in the Dáil was wrong.
Mr Murray, for Mr Ahern, accepted that the tribunal was entitled to report its conclusions regarding statements made by Mr Ahern outside the Dáil.
He said it could also report the statements made by Mr Ahern within the House but could not comment on those. He was not saying that what was said in the Dáil must be ignored but examination of it was forbidden territory.
If the tribunal concluded that the statements made outside the House were correct, it could report that, Mr Murray added. It could also record the content of a statement made in the Dáil which was inconsistent with what, based on examination of statements made outside the Dáil, the tribunal found to be true.
If statements made outside the House conflicted with what was said within the House, it was for the reader to draw their conclusions, not the tribunal, he said.
Mr Murray added that his side wished to "consider the position" now articulated by the tribunal. The case resumes today.
