THE FOUR COURTS – HISTORY REPEATING
During the Easter Rising of 1916, some of the most intense battles were fought out at the Four Courts, the rebels there under the command of Limerick’s Ned Daly, then all of 25 years old (he was the youngest of those executed after the Rising).
100 years later the Four Courts is again the scene of an intense battle.
On Thursday last the Supreme Court began its hearing of the appeal by Joan Collins TD on the constitutionality of the now infamous €31bn Promissory Note debt.
By any measure and regardless of outcome, given a) that €31bn was several billion more than the sum of the entire take in Ireland in 2010 from Income Tax, Corporate Tax and Capital Tax combined, and given b) that one person – the then Finance Minister Brian Lenihan – made the decision to gift that enormous amount to a financial institution without recourse to the Dáil, this is an issue of major significance for the nation.
If Joan Collins wins her case, it makes that decision not just illegal, but unconstitutional.
If she loses, it means that any future Finance Minister can make a similar commitment on behalf of the people – nay, it would go even further; given that this isn’t about the amount so much as the principle, it means any future Finance Minister can commit the people to a debt without limit.
BALLYHEA SAYS NO JOINS THE BATTLE
To show our support for Joan, and because she has been such a consistent supporter of our own campaign, a group of us from Ballyhea Says No and from Charleville Says No went up for the day to the Supreme Court. It was a day well spent.
Arguing the case on behalf of Joan is former Attorney General John Rogers SC (Senior Counsel). Four hours John spent on his feet on Thursday last, four intense hours during which he laid out his arguments to the seven Supreme Court Judges, four hours of sharp and very pointed questions, four hours of presenting, defending, arguing, rebutting, four hours of considering every syllable of every word uttered. One slip, and it could be game over.
A STUDY IN CONTRADICTION
Watching John in action and listening to John in action are two entirely different experiences.
He stands to his considerable height, hands gripping the sides of the lectern on which are placed the copious case files, gazes at the Judges from under his considerable brows and as he readies to speak, inside his head you can imagine the whirring of the cogs of a precise, finely-tuned, super-charged mind accelerating smoothly and powerfully through the gears, then into overdrive as the implications of each and every question are considered. High revs but no smoke, no oil burned because this engine is as finely-tuned as you’ll get. That’s what you see.
Then there’s what you hear. Or what you don’t hear. Pauses… long pauses… … … … many, many long pauses… … … … … …
John Rogers SC doesn’t speak, he allows words their freedom only after every letter has been strip-searched for potential explosives.
And he’s right.
One by one, through their questions, the Judges invited John to take a stroll down side-streets, up an adjacent boreen, across to this lovely parallel avenue but no; John was on one road and one road only, would not be diverted from that path.
His argument as to why the Promissory Note deal as signed by Brian Lenihan is considerable but can be summed up in a sentence: Brian Lenihan assumed a debt of €31bn for the State without a Dáil vote; this is in breach of Article 11 of the Constitution. Period.
The fact that the €3.1bn per year that was scheduled to be borrowed and destroyed from 2011 onwards under the original schedule, did actually appear in the Budget estimates for 2011? Irrelevant – the commitment to pay the full €31bn was already made, this was merely the payment schedule, presented to the Dáil only as an FYI (for your information) line item.
Imagine it as taking out your mortgage for €200,000, or whatever; that’s the loan agreement finalised, you don’t then go back to the bank to agree every monthly payment when it comes due.
An emergency situation, the country and its banks on the brink? Irrelevant – Mr Lenihan should still have gone to the Dáil for its approval.
Precedents, other situations in which a Dáil vote hadn’t been sought or given? Again, irrelevant. Two wrongs don’t make a right kind of thing, precedent can be wrong as easily as being right.
I don’t know about the seven Judges but certainly all of us from the Ballyhea group were firmly convinced by John Rogers. But it’s a funny old game, this Supreme Court appeal system.
WE’RE WINNING, BUT…
It’s very much a game of two halves and our side, in the person of John Rogers, had the ball for all of the first half.
On Monday, we’re back in the Four Courts again and this time, apart from the first ten minutes when John Rogers gets to complete his arguments, Michael McDowell will have the ball. Yes, THAT Michael McDowell, former Attorney General himself, former Minister for Justice also, and grandson of Eoin McNeill, Chief-of-Staff of the Irish Volunteers and one of those who countermanded Pearce’s orders for the Easter Rising, thus reducing the number of Volunteers engaged.
Ah, history, and wheels within wheels!
Like John Rogers, Michael McDowell is a man of considerable intellect and with the ball now in his court (pun very much intended), all we can do is sit back and again, bear witness.
Fascinating times, critical times.
Stay tunes, we’ll keep ye posted.
Regards, Diarmuid O'Flynn.