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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
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.
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