Editorial from Church & State, Spring 2007 (Number 88)

Crown Immunity For Newspapers

The newspaper industry has now been placed beyond the law by the law itself.

This has been done by a judgement of the Supreme Court regarding documents presented to the Mahon Tribunal on the understanding that they would remain confidential unless the Tribunal judged that it was necessary in the general interest to make them public.

The Supreme Court ruled that a newspaper which gets possession of such documents, by whatever means, has the right to publish them. This deprives the Tribunals of the judicial power of self-protection. It is an abdication of law by the law. It is justified in the name of freedom of the press.

What freedom of the press now means is that newspaper Editors can publish what they please, subject only to the law of libel. Libel law is for the very wealthy. Only millionaires can have recourse to it with any feeling of assurance.

Politicians, for all the talk of corruption generated by the press, are on the whole not very wealthy people. And, because their position is dependent on the will of the electors as expressed every few years, and they seek a mandate from the electors in free competition with rival politicians, freedom of speech is their medium of existence. They take it for granted as a fact of life, and for that reason, as well as for the reason that most of them do not have millions to spare, they rarely have recourse to the law of libel.

It was notorious that Charles Haughey might be libelled at will—and because of that he was libelled at will.

Albert Reynolds, on the other hand, had the habits of a millionaire. He had made himself wealthy by private enterprise before going in for politics, and as a politician he acted as a wealthy man who could take libel litigation in his stride. The free press therefore curbed its freedom with regard to Reynolds in a way that it never did with regard to Haughey.

The relationship between the press and the state has changed fundamentally in the course of the last generation. It used to be the case that newspapers were owned by different interest groups within the state, connected with the political life of the state. They were part of the representative political system of the state, which they influenced and were influenced by. The Irish Times was then an exception, being maintained by a small but wealthy segment of the old Protestant Ascendancy, and conducted in collaboration with the British state. Its influence on politics, exercised from outside politics, was negligible.

Today there is no national press in Ireland. The newspapers are owned by globalist capital. And the Irish Times has become a major newspaper controlled by an Oath-bound cabal and mysteriously financed.

The press operates outside the national body politic. Its purpose is not the representation of opinion within the body politic, but manipulation of opinion. Free speech in any general sense is not what it is about.

The press likes to invoke the sacred tradition of the Fourth Estate. That antique term derives from an era when the British Parliament discouraged reporting of its debates. When it decided to allow reporting, and set up a reporters' gallery, somebody called that gallery the Fourth Estate, the other three being the King, Lords, and Commons. It was felt that something new had happened when Parliamentary debates about state affairs were made part of the daily reading of the populace.

Who reads Parliamentary debates today? If you want to read them, where can you find them?

The London Times, until about forty years ago, still took its function as an institution of the Fourth Estate in earnest. It carried every day an impeccably sub-edited account of the previous day's Parliamentary proceedings. That was also done to some extent by the Irish papers. The doing of it did much more than inform the populace about what their representatives were saying in the Legislature. It improved the debates by subjecting them to public scrutiny.

We believe that the Fourth Estate still survives in the USA. When we see an American newspaper, it puts us in mind of times past in these regions. The birthplace of monopoly capitalism sets bounds to monopoly, which we are incapable of doing here.

The Supreme Court ruling in the Sunday Business Post case brought by the Mahon Tribunal is absurd.

Tribunals have turned out to be the greatest interference with the liberty of the person since absolutist times—for all except the press! They can jail people for being in contempt—and we have seen that being insufficiently cooperative in turning over personal documents going back for decades is classified by the Tribunals as contempt warranting imprisonment. They also have the power to impose severe financial penalties in the form of refusing to pay for legal representation for respondents who don't subjugate themselves abjectly enough to the Tribunal process. As legal representation is essential, and wickedly expensive, for major figures appearing before the Tribunal, this constitutes a power to fine severely.

These powers go far beyond those possessed by any Court of Law in this land.

And yet. There is one Power which has now been ruled to be greater than the mighty Tribunal. That Power is the Press.

So, in law, a respondent may be forced by a Tribunal to divulge financial and other matters going back for decades, on pain of jail and financial penalty, but on a promise of confidentiality unless wrongdoing is found. But if the Tribunal fails to keep that information confidential, it may by broadcast by the press, and the Tribunal has now been banned by the Supreme Court from even taking out an injunction to prevent publication, if it should find out what is about to happen. The press can thus broadcast the personal affairs of people under investigation, who have not been found guilty of any offence.

The Supreme Court has arranged that the Tribunals and the Press are in an effective conspiracy to subvert the standing of any hapless individual who becomes caught up in the process.

What has happened to innocent until proved guilty?

The Tribunals need not have turned out the way they have. They are based on a different system of law to the Common Law, with its duelling lawyers. There should be no spirit of controversy in the Tribunal process, only a calm and fair attempt to reach the truth. But that is not how things have been.

Tribunals are not law-courts, a fact often forgotten because they have been presided over by judges and because they can imprison people and fine them. They are semi-judicial institutions.

But these civil bodies have powers that are greater than those of the criminal courts in two crucial respects. First of all they can apply the lower standards which are permitted in civil litigation to criminal matters. A person accused of a crime in a court of law must have evidence which proves guilt beyond all reasonable doubt. But, in a Tribunal, the dictator in charge—the sole Chairman—can find someone guilty on 'the balance of probabilities', as Judge Moriarty did with regard to Charles Haughey in his recent report.

Mrs. Liam Lawlor, widow of one of the Tribunal victims, is bringing a Court case demanding that the Mahon Tribunal should apply criminal standards of proof in reaching its decisions. It is a case which is vital to protect what remains of the liberty of the individual, since the advent of the Tribunal/Press axis.

And, secondly, in a court of law no-one can be forced to confess, to incriminate himself or to testify against himself. That is the system of the Inquisition, the inquisitorial system, from which the Tribunal process derives. In law courts there is a right to silence. The prosecution must find objective evidence to prove guilt. The underlying totalitarian approach is that the accused is guilty if he does not confess. Or he must prove his innocence by divulging every detail of his financial and personal affairs in which the Tribunal has an interest. Innocent till proved guilty is not a principle of the Tribunal process.

The powers of the Tribunals are so wide-ranging that they must be exercised with discretion to be tolerable. But on the whole the Tribunals have not been conducted with restraint.

Conscious of the huge costs they are accumulating for the taxpayer, and fearful of the power of the Press, they have been led into militant adversarialism. There is also the suspicion that they have primed journalists from time to time, to raise pressure on those they are scrutinising by means of press sensationalism, trial by media.

But, with all the pressure they have applied with their superabundant powers, the Tribunals have yet to show that a single politician has made a corrupt decision—whatever impression people may have gathered from the way the press reports things.

On 4th April 2007 Vincent Browne wrote a very guardedly-written column entitled, Tribunal Suppressed Evidence. Two developers, Owen O'Callaghan and Tom Gilchrist, have fallen out. Gilchrist made private allegations about O'Callaghan to the Tribunal, which the Tribunal acted upon but did not inform O'Callaghan of. And Gilchrist made different allegations in public. O'Callaghan brought a High Court action, accusing the Mahon Tribunal of favouring Gilchrist: a case which he lost. However, there are a lot of ramifications to the issues between the two men. Vincent Browne mentioned the late Hugh Coveney in particular. (It will be remembered that the sudden death of this Fine Gael Minister is generally politely described as an accident.) Clearly Browne knows that there is a very strange story here, one of public interest—but he dare not write freely about it. Possibly he fears the law of libel—he could hardly be afraid of being in contempt of the Tribunal.

Michael McDowell is currently engaged in liberalising the law of libel. This magazine is totally opposed to this project, because the Press has demonstrated that it will use any license granted to further undermine the democratic process and faith in Irish political institutions by targetting particular politicians, especially if they are in Fianna Fail.

It seems to us is that what is need is further curbs on the Press, not liberalisation. In particular it should not be allowed to publish documents stolen from Tribunals with impunity.

If a person can be put in jail by the Tribunal for failing to supply it with a document, should not the Tribunal also be able to jail a newspaper which publishes that document without authorisation?

It is often said that the freedom of the press is required to preserve democracy, but in Ireland the press is undermining democracy. It is not conducted to support a democratic political culture, but to demoralise the public and leave the State vulnerable to manipulation by globalist interests.

And, as Tribunals cannot guarantee confidentiality in their preparatory work for public hearings, should not their Chairmen now feel honour-bound, as officers of the legal system, to resign?

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Vincent Browne draws the attention of readers to Adrian Hardiman's "brilliant" judgement in the O'Callaghan case against the Mahon Tribunal. Though a minority judgment of 1 against 4, it is "a meticulously forensic judgement":

"The most astounding of the revelations is that at one stage in his dealings with the tribunal Gilmartin alleged that—in the words of Hardiman—“the demise of a deceased office holder was brought about indirectly by Owen O'Callaghan”. I understand the deceased office holder in question was the late Hugh Coveney…

"…Gilmartin also alleged… that O'Callaghan had “connived at the appointment of an important public servant to a position of significance in his own interest; that three well-known persons received bribes from Mr O'Callaghan and that these were lodged into offshore accounts in various named places; and that a named solicitor and other named parties were instrumental in seeking the resignation of another holder of public office in return for a large money payment”.

"The tribunal had withheld this from O'Callaghan…" (Tribunal Suppressed Evidence, IT 4.4.07).

Incidentally, Adrian Hardiman was in a minority of two in the other case concerning the Mahon Tribunal, the Sunday Business Post case.

You can read the judgements for yourself on www.courts.ie

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Contents of Number 88

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