A seven-judge sitting of the Supreme Court, led by Chief Justice Frank Clarke, has unanimously dismissed businessman Denis O'Brien's appeal against an earlier High Court ruling concerning statements made in the Dáil about his banking affairs - interest in which Mr O'Brien has previously referred to as 'verging on voyeurism'.
Sitting at NUI Galway's historic Aula Maxima building - the first time the court has ventured west in its history - the seven justices were tasked with ruling on one of the most consequential defamation cases in living memory, the facts of which go straight to the core of one of the most fundamental aspects of our constitution: the doctrine of separation of powers.
The question before the court was one of justiciability: whether or not the court had jurisdiction to intervene in an internal Dáil matter when a committee of the Oireachtas is alleged to have failed to obey its own rules. Counsel for the plaintiff submitted that the Oireachtas Committee on Procedures and Privileges did not correctly apply its own rules when dealing with his complaint about the comments in question and that the matter should be referred to the courts for adjudication.
In a definitive and comprehensive ruling, the court held that to allow such an appeal would be tantamount to an indirect attack on utterances made in the Dáil, which are of course constitutionally protected under Article 15.13 of Bunreacht na hÉireann. Moreover, this article forms the basis of the defence of absolute privilege as contained in s 17(2)(a) of the Defamation Act 2009.
The following is a quotation from the para 9.10 of the judgment (courtesy of the Courts Service of Ireland):
'However, the broader question is as to whether a court, in reviewing the decision of the CPP in such a case might be said to be indirectly or collaterally (and, therefore, impermissibly) considering the appropriateness or otherwise of utterances made in the Houses. Ultimately, the only consequence of a successful challenge to a decision of the CPP which, as here, exonerated deputies in respect of utterances made in the Houses, could be that the deputies would be put on risk again of being subject to an adverse finding and a sanction. It is true that any such sanction, should it ultimately be imposed after a further consideration by the CPP of the matter after its original decision had been quashed, would nonetheless be a sanction imposed in a constitutionally permissible way from within the machinery of the Houses. But it nonetheless would remain the case that part of the process which led to such an ultimate sanction would have been taken by a court rather than a House or duly delegated committee of the House concerned. In the Court's view such a course of action would infringe the immunity conferred on deputies in respect of their utterances in the House. To enable a court to interfere in the process whereby the utterances of deputies are assessed in the duly appointed committee of the relevant House would in substance be to allow the Court to have a role in the ultimate determination of whether those utterances were found to be impermissible and in a decision as to whether, and if so what, sanctions were appropriate. While indirect, such a course of action would amount to making a deputy amenable to a court in respect of utterances in the House. This would, in the Court's view, be a breach of Article 15.13 and would amount to an impermissible departure from the separation of powers.'
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