The Gazette 1971

powers conferred on the Committee by the Act and the manner of the exercise of these powers were contrary to Article 34 of the Constitution in that they amounted to an administration of justice and an exercise of the judicial powers reserved by Article 34 for the Courts established under that Article. Firstly, as to the Dáil resolution of 1st December 1970 since it merely resolved that the Committee should make a special examination of the expenditure of certain monies and report as soon as possible on that expen- diture and since it was silent as to how that examina- tion was to be carried out, he failed to see how the provisions of the Constitution relied on could be invoked against that resolution. Such examination was not in any sense an exercise of judicial powers since the exam- ination and the report following on it did not affect rights or impose liabilities. As to the Act itself, even if there was validity in the submission that it empowered the Committee to exercise functions and powers of a judicial nature, since such functions and powers were limited and were not exer- cisable in a criminal matter, they were validated by Article 37 of the Constitution. The power given to the Committee by Section 3 (4) to certify an offence was not a power exercisable in a criminal matter : it was merely a power exercisable for the purpose of bringing into existence a criminal matter. (8) If judicial powers were given to the Committee by the Act, he would be prepared to hold that these powers were properly exercisable under Article 37 of the Consti- tution and since Article 37 provided that nothing in the Constitution should operate to invalidate the exer- cise of the functions and powers permitted by that Article, Mr. Haughey was thereby precluded from invoking against the Act, as he sought to do, Articles 6, 15, 28 and 34 of the Constitution. (9) Mr. Justice Henchy said that he would hold that nothing in the Act was repugnant to Article 38 of the Constitution. (10) As to the further complaint that the Committee had interpreted the Act in such manner that they had sought to try people for criminal offences and had otherwise had adopted procedures that violated or threatened to violate the constitutionally guaranteed rights of Mr. Haughey and others, he would first state that there was no evidence before the Court that the Committee had done so, and an application to receive such evidence was refused on the grounds that it would be irrelevant to the issue of guilt in this case. But even if such evidence were before the Court he would point out that the mere fact that an Act was or had been operated in violation of constitutionally guaranteed rights was not in itself sufficient to make the Act unconstitutional: the provisions of the Act must have clearly stamped on them the intention of the legislature that the Act may be operated unconstitu- tionally. If Mr. Haughey considered that any constitutionally- guaranteed right of his had been violated or was threat- ened with violation by the Committee, he was entitled to institute the appropriate proceedings in the Courts. But he was not entitled to seek to redress any grievance he may have by adopting a course of conduct which was forbidden by the Act and which was calculated to frustrate the constitutional operation of the Act. (11) It was also submitted that the Act violated Art. 40 (3) of the Constitution in that the Committee was given power to summon and examine witnesses in public without such witnesses being accorded any of the rights or protections accorded to the ordinary citizen in the Courts established under the Constitution. 19

was based on hearsay and which was incriminatory of Mr. Haughey (c) that the Committee had gone outside the scope of the Dáil resolution committing this special examination to the committee and (d) that the com- mittee had so interpreted that resolution as to investi- gate the commission of crimes by persons including Mr. Haughey. The application for liberty to cross-examine had been refused on the ground that none of the matters sought to be established by cross-examination could be said to be relevant to the issue as to whether Mr. Haughey refused to answer questions to which the Committee might legally require answers; and that was the only issue on which it was sought to adduce this evidence. Even if Mr. Haughey was justifiably aggrieved by the conduct of the Committee in regard to other witnesses, that could not justify him in refusing to submit to any examination whatsoever by the Committee. The conduct of the Committee in regard to other witnesses and the extent to which they were keeping within their terms of reference could conceivably be factors to be reckoned in deciding whether they could legally require parti- cular questions to be answered. But since Mr. Haughey's attitude was one of total refusal to divulge any infor- mation in response to any question the committee might put to him, the stage had not been reached when such factors could be taken into account. It followed that the matters sought to be brought out in cross-examination in that court were inadmissable on the issue of Mr. Haughey's guilt. In his view, Mr. Haughey failed in all the grounds relied on by his counsel as showing cause. (6) There remained the claim that the Act was invalid as being repugnant to the Constitution. The first and principal ground relied on in support of that claim was that the mode of trial and punishment laid down by Section 3 (4) of the Act for the criminal offence created by that sub-section was such that if Mr. Haughey's offence be other than a minor one he was denied his constitutional right to a trial with a jury. Mr. Justice Henchy said that for his part he was prepared to hold that the offences created by Section 3 (4) was a criminal offence and that a conviction for it did not take place until, the Committee, under the hand of the chairman having certified the offence, the High Court recorded a conviction "after such inquiry as it thinks proper to make". He then examined the authorities on this question and said that if the law, as laid down in those cases was applicable to the present case, it disposed of the argument that Section 3 (4) of the Act unconstitution- ally dispensed with trial by jury. But if for any reason the law as laid down in those cases were to be held not to govern the present case, he would hold that a person appearing before the High Court after the Committee had certified an offence under Section 3 (4) against him, was not debarred from trial by jury if the offence was not a minor one. The sub-section made it clear that there should be no punishment and, therefore, no con- viction in the High Court until "after such inquiry as it thinks proper to make". Mr. Justice Henchy said that the sub-section, in his view, clearlv permitted trial by jury if the judge or judges of the High Court considered that to be the proper form of inquiry or part of the proper form of inquiry to be made before punishment was inflicted. He saw nothing in the sub-section to prevent that mode of trial. He would reject this challenge to the consti- tutional validity of the Act. (7) Counsel for Mr. Haughey had proceeded to impugn the constitutionality of the Act by alleging that the