From Irish Political Review: July 2007

Judge Mahon's Tribunal

"It represents a total travesty of my constitutional and legal rights to fair procedures to have allowed such malicious and ill-founded allegations to be made in circumstances which must have been calculated by the witness to do injury and damage to my reputation."
(Statement from Minister of Enterprise, Trade and Employment, Michael Martin. Irish Examiner, 9.6.2007.)

Minister Michael Martin's counsel, Dr. John O'Mahony, SC, reiterated to the Tribunal the "gross injustice" done to the Minister. But, as reported in the Irish Times, 13th June 2007, Tribunal Judge Alan Mahon "defended the handling of last Friday's evidence". The fact that Mr. Gilmartin retracted his own sensational evidence of giving a six-figure sum to Michael Martin to five figures didn't seem to move Mahon either way. (Martin himself acknowledges a four-figure political contribution.) But the counsel for the Tribunal, Pat Quinn SC, caught Mr. Gilmartin out in a number of inconsistencies subsequently—perhaps reflecting that while Chairman Mahon protested that Dr. O'Mahony's "comments" constituted "a personalized attack" on his handling of the evidence on that day, he felt it advisable to fire-proof his performance on the day in question to some degree.

It was interesting that Minister Michael Martin choose for his Senior Council, the Cork-based Dr. O'Mahony—a long time Fianna Fail supporter. In fact, Dr. O'Mahony who qualified as a Medical Doctor but went on to qualify for the Bar, practices locally. I first came across him in the General Election of November 1982, when he was involved in a turf war between his friend, Sean French TD—the long time Jack Lynch devotee, and former Lord Mayor—and the hungrier Danny Wallace who took French's seat in Cork North Central. (French, who came from a Cork political family, always secured his seat by coasting in on the high transfers from the Cork Taoiseach, Jack Lynch.)

Many of us have always been very suspicious over the setting up of the Tribunals and I would go so far as to say that they are totally without constitutionality or legality. In a very good article in the Daily Irish Mail, 11th June 2007, Mary Ellen Synon contended that reasons for establishing the first Tribunal—The Beef Tribunal on Larry Goodman's multi-million beef industry (especially his exports which were to Arab countries like Libya)—needed investigation. It was pushed by—she contends—the Left, at a time when the Irish economy was in ruins and young people were fleeing in their hundreds of thousands to get jobs abroad. But why was a successful enterprise like Goodman's really targeted and by whom? Charlie Haughey was stampeded into setting up a Tribunal of Inquiry in 1991 over something as innocuous as Export Credits. Who remembers that now? But Synon is wrong to attribute to the Left this appalling legacy. It was the media and certain figures in Dublin 4 who made the running and applied the heat day and night. It was not in Irish interests then nor now but it is legitimate to enquire whose hand was/is on the media tiller?

Unlike Ireland, Britain suppressed stories of corrupt payments by the giant arms conglomerate BAE Systems, and Premier Blair even made the Serious Fraud Office drop their investigation of large bribes paid to Saudi officials, citing Britain's national security being at risk! Now of course that the Americans have sniffed out the story—

"…talk is rife that BAE's progress in the world's biggest defence market, the US could be blocked. It is in the process of buying Armor Holdings for £2bn. There are fears the US Department of Justice is planning to launch its own criminal investigation into the corruption claims against BAE and that politicians will oppose any further deals in America" (Daily Mail, 9th June 2007).

And, unlike the piddling payments alleged to have taken place in Ireland, the Guardian, 9th June 2007), reveals (now that the US has uncovered the story) the payments being revealed are £1 billion to Prince Bander of Saudi Arabia (that old friend of President Bush as shown in Michael Moore's documentary). So, in the interests of their country's trade, the British shut down on their in-house financial shenanigans, while we—are made to set up useless Tribunals of Inquiry which have made many people very rich—all those parasitic media people, barristers and solicitors etc. And these bodies have thrown question marks over the names of good politicians and businessmen who brought the tiger into the Irish economy and for their pains have been subjected to abuse of hitherto unmentionable proportions.

Imagine a country where the makers of wealth have to answer to a quasi-judicial (?) procedure where, as Mary Ellen Synon attested, once they come calling, ignore: "the rules of evidence that a court would guarantee, leaving accusations against them untested, leaving charges against them vague and directing investigations that never end". Oh—and then being presented with an extortionate bill for their pains. Who could make it up?

As the Tribunal era chugs to an end and we survey the devastations left behind, I thought it would be an interesting exercise to look at the figures behind the Tribunals—those judges who have stood over such judicial incompetence and farce and try to work out how they came to be these people with such never-ending powers.

Judge Alan Mahon

Any biographical profile of Mahon has the standard stuff but the Sunday Business Post, 27th May 2007, has the best by far. Judge Mahon, age 56, was born in Dublin on 3rd March 1951 into a proud legal family. He has three brothers and they were all raised in Tullamore, Co. Offaly and were educated by the Christian Brothers. He comes from solid Fine Gael stock and his father, a solicitor, was appointed a District Court judge by Liam Cosgrave's administration in 1974.

According to Phoenix, 10th October 2003, his "three brothers are the principals in the Tullumore-based legal firm of Hoey & Denning. His wife, Anne Marie Reidy, a solicitor whose family are solicitors and her two brothers, John and Pat Reidy—partners in the Newbridge law firm, Reidy Stafford—are well known in Fianna Fail circles. Both are close friends and allies of Charlie McCreevy and stood by the Fianna Fail dissident when he squared up to Charles J. Haughey in the dark days of the early 1980s". (This was the Fianna Fail Minister closest to the ideology of the PDs.)

The Sunday Business Post goes on to say that Alan studied in Clongowes Wood College and then trained as a barrister at the King's Inns in Dublin and was called to the Bar in 1976, practised in the Midlands Circuit and took silk in 1988. In the same year, he was called to the English Bar.

Phoenix adds that Mahon also had an extremely profitable relationship with solicitors Patrick V. Boland, which company has made over €14 Million from the army deafness claims. Judge Mahon was the principal senior counsel used by Bolands in these claims and is reckoned to have made at least €2 Million from such litigation. He also worked for a number of other solicitors in relation to this litigation, but then so did many legal colleagues who now also have risen to elevated positions.

Defrauding the Revenue

When Mahon heard that Phoenix were going to run with a story about his Tax affairs, he made a statement that he had disclosed his settlement with the Revenue Commissioners when he applied to become a judge. He claimed that his default was as a "result of miscalculation". But as the Phoenix states—

"…every year the Revenue Commissioners publish a list of tax defaulters who have coughed up settlements (including penalties) having come to the attention of the Taxman as the result of an investigation. The Revenue does not publish the names where the taxpayer has, in advance of any investigation, voluntarily furnished complete information relating to undisclosed tax liabilities. In 1992, one Alan Mahon of Roslevin, Mullacash, Naas, Co. Kildare—then a humble senior counsel—came to the attention of the Revenue investigators and as a result Mahon had to pay £20,000 in settlement, made up of £16,000 in underpaid tax and a further £4,000 in penalties."

Phoenix says that the "Revenue's own annual report for that year points out, “it must be recognized that there will always be a small minority who will try to evade their tax liabilities… It should always be remembered that tax evasion is not a victimless crime. The tax evader not alone deprives the Exchequer of revenue and places a greater burden on other taxpayers but also undermines legitimate business by obtaining an unfair commercial advantage”."

Tax evasion is a crime.

The Mahon Tribunal was formerly known as the Flood Tribunal. Mahon was appointed as an ordinary member of the Flood Tribunal in 2002. This was because Justice Fergus Flood asked for extra members to be appointed. Phoenix continues—

"The Government found it difficult to attract suitable candidates and the net was widened. The appointment of Mahon and two other barristers was eventually announced in February last year [2001] although complications associated with promoting the trio to the level of Circuit Court judges further delayed matters and it wasn't until October 2002 that Mahon took his place on the Tribunal."

As the Phoenix asked: "in appointing a tax defaulter as chairman", has "the Government shot itself in the foot?"

Constitutional Matters

The Constitution of Ireland does not mention Tribunals of Enquiry. However, Article 37.1 says

"Nothing in this Constitution shall operate to invalidate the exercise of limited function and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorized by law to exercise such functions and powers, notwithstanding such person or body of persons is not a judge or a court appointed or established as such under this Constitution."

Thus Article 37.1 does not refer to Tribunals of Inquiry.

The Moriarty and Mahon Tribunals are investigating possible bribery and corruption which are in the area of "criminal matters".

Then again under the heading of "Trial of Offences", Article 38.3 of the Constitution says:

"Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order."

The Tribunals are not "courts" and there are no plaintiffs or defendants before the Tribunals nor are the tribunals charged with the "administration of justice", so it would seem that Article 38 does not apply to Tribunals.

The Dail and Seanad are quite entitled to establish committees from among their members. Any body of persons is entitled to appoint a committee. But if the Dail and Seanad are not given powers by the Constitution to compel witnesses to attend and to answer questions, then how can the Dail and Seanad delegate these non-existent powers to Committees and to Tribunals?

The tribunals, as operated, seem to be intrinsically unlawful.

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