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1916 values diverted

by admin 24 February, 2016 0 Comments

One value of the 1916 Rising commemorations is to highlight the contrast between the aspirations of those who set out to establish an independent Irish State for the whole island of Ireland and the reality of what exists today – a partitioned country whose native language, Irish, is on the point of death as a cradle-spoken tongue, and in which the State that did come from the independence movement has been reduced to provincial or regional status in a supranational EU quasi-Federation that now makes most of our laws. The Easter Proclamation read: “We declare the right of the people of Ireland to the ownership of Ireland and to the unfettered control of Irish destinies to be sovereign and indefeasible”. “Indefeasible” means cannot be lost. That right may notionally exist still, but the reality of a sovereign Irish State in which its own Parliament and Government are the sole source of the laws prevailing in its territory has clearly been lost, as with the 27 other EU countries, through membership of the EU. Growing public awareness of this fact, in Ireland and other EU countries, is at the root of the current EU discontents. Article 29.4 of the Constitution, which was inserted by referendum in 1972 to enable Ireland to join the then European Economic Community (EEC), gives European law primacy over any countervailing Irish law. It reads: “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of membership of the European Union, or prevents laws enacted, acts done or measures adopted by the said European Union from having the force of law in the State”. Realisation of the implications of supranational EU law being given primacy in this way over the provisions of the 1937 Irish Constitution that he had personally drafted led then President Eamon De Valera to say, somewhat poignantly, to his family on New Year’s Eve 1972, the day before this change took place: “I am the first and last President of an independent Irish Republic”. So Eamon O Cuív TD, De Valera’s grandson, who was present on that occasion, told me*. The loss of independence has gone much further since. In 1999 Ireland abolished its national currency and joined the Eurozone, thereby abandoning control of either its rate of interest or its exchange rate – the former essential for controlling credit, the latter for influencing economic competitiveness. EU Commission President Romano Prodi underlined the political significance of this when he said at the time, “The two pillars of the Nation State are the sword and the currency, and we have changed that”. The 1987 Single European Act, the 1992 Maastricht Treaty, the 1998 Amsterdam Treaty and the 2001 Nice Treaty saw further growth of EU powers and simultaneous diminution of national State powers. This culminated in the 2009 Treaty of Lisbon, which gave the EU the constitutional form of a supranational Federal State. Lisbon incorporated 99% of the provisions of the Treaty Establishing a Constitution for Europe that had been rejected by French and Dutch voters in referendums in 2005. Whereas the rejected constitutional treaty gave the EU a Federal Constitution directly, the Treaty of Lisbon did so indirectly, in the form of amendments to the existing EU treaties. Although the legal content of the two treaties was virtually the same, the French and Dutch were not allowed referendums on Lisbon. Ireland was the only EU country to be allowed that, because of the Supreme Court’s decision in the 1987 Crotty case that, as the Irish people were the repositories of State sovereignty, only they could agree to surrender it to the EU through a referendum. When Irish voters rejected ratifying Lisbon in 2008, they were made vote on exactly the same treaty the following year to deliver a different result. In the Lisbon Two referendum the constitutional amendment permitting Lisbon’s ratification differed from that in Lisbon One in that it included the sentence: “Ireland affirms its commitment to the European Union…”. Here was a supposedly independent Irish State affirming a constitutional “commitment” to a superior entity made up of other States – surely a remarkable development? Yet the Explanatory Handbook which the statutory Referendum Commission sent to all voter households, supposedly to inform them what the referendum was about, made no reference to this change. Neither, so far as I know, did anyone in the Irish media. The Lisbon Treaty replaced the existing European Community with a European Union that had full legal personality and its own constitution for the first time. It made citizens of the different Member States into real citizens of this new federal-type Union for the first time also. One can only be a citizen of a State. Before Lisbon, citizenship of the then embryonic EU was stated to “complement” national citizenship. It was an essentially notional or honorary concept. The Lisbon Treaty provided that EU citizenship should be “in addition to” one’s national citizenship, just as citizens of provincial states like California, Massachusetts, Bavaria or Brandenburg have two citizenships, for they are citizens also of their respective Federal States, the USA and Germany. Lisbon also gave explicit primacy to EU law over national law for the first time in an EU treaty. In most years nowadays arguably the majority of laws that are put through the national Parliaments of the EU Member States come from Brussels, although most people do not realise this. Eur-Lex estimates that there are currently some 134,000 EU rules, international agreements and legal acts binding on or affecting citizens across the EU. These include 1842 EU Directives, 11,547 Regulations, 18,545 Decisions, 15,023 EU Court verdicts and 62,397 international standards which the EU has signed up to and which are therefore binding on all its 28 members. If a Member States does not obey any one of these, the EU Court of Justice can impose heavy daily fines to enforce compliance. The EU Treaties prevent voters at national level, their parliaments and governments from amending or abolishing

Let’s despatch the Eighth

by Ailbhe Smyth 23 February, 2016 0 Comments

One morning recently I woke up to abusive tweets. “What is it with lesbians hating unborn babies?? Please explain!”. “Why so many lesbians pushing abortion when they should never really need one??!!!”. As a long-time feminist campaigner and Convenor of the Coalition to Repeal the Eighth Amendment, vulgar interactions from anti-choice supporters are inescapable. I’m too long in the activist tooth to let them bother me (much), but this latest batch does make me wonder. Why is “lesbian” used as a term of abuse, and what has it got to do with “hating” babies, or women, or men, or indeed anything else? I’d like to tweet back (but I don’t): “Look here, you with the vituperative tweet finger, I’m a feminist, lesbian, radical Irish grannie (of two, so far), and I’m pro-choice because I believe in equality, in human rights, in justice, and in a world where all women, everywhere, including my daughter and my granddaughter, have the right to make decisions for ourselves about our bodies and our reproductive lives. It’s a national issue, it’s global and it’s also very personal. So there!”. The Coalition to Repeal the Eighth Amendment was set up in recognition of evident and popular demand for change. Our members include trade unions, pro-choice and feminist groups, human-rights organisations and many other NGOs and groups. The next year or so will be vitally important in advancing this issue. It has become a real election issue. If political soundings are to be believed, we can expect a “national conversation” after the election in the form of a Citizens’ Convention, followed by a referendum. It is hard to exaggerate the ‘chilling’ impact of the Eighth Amendment on women, on doctors in preventing them from working in the best interests of their patients, and on our society as a whole. What does it say about respect for women and our capacity to make our own decisions about our lives? What does it say about respect for human rights principles? Successive Governments have ignored robust criticism of the Eight Amendment from UN and other international human rights bodies. Even as I write, there’s a woman setting off from Sligo or Kerry or Wexford or Dublin on that dismal journey to the UK for an abortion she can’t obtain here with the support of her partner, her family, her friends, her GP. There’s another woman getting off the plane on her lonely trek back, and another desperately trying to find the money or the vital travel documents, or whatever else she needs to go abroad for an abortion. Every day, at least ten women are forced to go through this exhausting and demeaning process because the law and the health services fail to provide for women’s full reproductive needs and rights. We have no idea how many more women are in tears and desperate because they don’t have the resources of money, travel papers, childcare, time off work, good enough health and capacity, or whatever it is they would need to be able to make the journey. We predicted the direct and dangerous implications of the Eighth Amendment for women when it was introduced into the Constitution in 1983. We have learned with terrible sadness and anger of women dying. We have had to bear unwilling witness to innumerable personal tragedies dragged through the Courts and exposed in the media. As women, the Eighth Amendment ensures that our human rights are consistently breached during pregnancy by making a dangerous, unworkable distinction between our lives and our health. It denies us life-saving treatment such as chemotherapy. It forces us to remain pregnant against our will, even in cases of rape, incest and where a fatal foetal abnormality has been diagnosed. The Eighth Amendment puts our health at risk, denying us options even when the outcomes are clearly long-term and debilitating. It discriminates against poor and marginalised women and all those who cannot travel abroad for an abortion. Disgracefully, it criminalises women for the ‘procurement’ of an abortion, including women who obtain the abortion pill, the safest and most straightforward means of abortion. It criminalises medical professionals who assist women to do so. It places punitively strict parameters around the crucial information that reproductive health services can provide. It’s clear that the Eighth Amendment no longer reflects public opinion, with poll after poll showing strong support for its repeal. While we certainly don’t underestimate the amount of work to be done, our members are committed to the battle ahead. With public support we will campaign vigorously for repeal of the Eighth Amendment. In 2016, we don’t think that’s too much to ask. Do you? Ailbhe Smyth Ailbhe Smyth is Convenor of the Coalition to Repeal the Eighth Amendment

Legal affairs

by Michael Smith 26 January, 2016 0 Comments

Village is loth to get into the salaciousness that drives the professional classes in decadent Dublin. Nevertheless the integrity of the judiciary, and indeed the perception of that integrity, has to be beyond doubt and a story unfortunately came our way which challenged it, anonymously, and was accompanied by affidavits submitted for in camera family proceedings. A bankrupt developer with an alpha personality and omega ethics alleged in the affidavits, which he was never allowed to open in court, that Irish High Court and Supreme Court judgments against him were tainted with bias because the lead Supreme Court judge in his case had an alleged affair affair with the High Court Judge who determined the matter originally, and that the Supreme Court judge anyway had shown in dealings with him in the judge’s former life as a barrister, that he despised him. The developer’s affidavits are clumsily drafted and he is careless as to whether the relationship may have continued at times when the Supreme Court judge heard the action – on occasion fudging the tenses about the timing of the relationship. Nevertheless as a matter of fact the relationship had ended by the time of the Supreme Court hearing, even if it had subsisted, insignificantly and irrelevantly, during the High Court hearing. The High Court judgment was persuasively damning of the developer personally, finding he had deliberately and fraudulently failed to make certain disclosures and misled the court and his ex-wife. The developer claimed he had been in the process of preparing disclosures when a settlement was reached that obviated the necessity for him to make the disclosures. But the High Court, on the facts, said there was no evidence of this. He had engaged in litigation misconduct. The appeal was fast-tracked to the Supreme Court but took four years to be heard. At the last minute, the Supreme Court panel of judges was apparently changed, with the particular Supreme Court justice who had allegedly had the affair stepping in to replace a judge who had been originally listed to sit. The developer claims to have been wrong-footed by the change between the judges and would have aimed to pre-empt the Supreme Court judge sitting on the matter had he known he intended to do so. He claims he had already advised his solicitor of the potential for the judge being compromised. His legal team noted that day one of a two-day appeal was already over, and they didn’t dare question the judicial etiquette. The Supreme Court upheld all the High Court’s substantive reasoning. When the judge endorsed his alleged former lover’s strong judgment without – according to the developer – “canvassing” all the developer’s fundamental grounds, the developer sought redress on grounds that there was a reasonable suspicion of objective or apprehended bias. Justice must not just be done but be seen to be done, was the cry. However, these days thankfully an alleged affair between judges that may have been finished for years does not constitute, or rather does not necessarily constitute, a reason for the appellate judge to refuse to hear an appeal of his former lover’s judgment. For obvious reasons the developer had difficulty getting any Irish lawyers to take on his prurient case. In the end he sought help from UK barristers but ultimately the Official Assignee in Bankruptcy successfully objected to the developer taking a judicial-bias challenge because he was bankrupt and therefore lacked the standing to take the case. The Assignee in Bankruptcy took the reasonable stance that even if the judgments were overturned it would not be appropriate for the Assignee, who alone could take the decision do so, to refight the substantive issues of fraud, failed disclosure etc on the part of the dubious developer. Even if the unsubstantiated allegation of bias could be proved, it would achieve nothing, for the case was not worth re-running. Michael Smith