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From: Irish Political Review: Editorials
Date: November, 2011
By: Editorial

The 30th Amendment And The Rule Of Law

Celia Larkin, who was formerly a political adviser of Bertie Ahern and is now a journalist, has written, in opposition to the proposed 30th Amendment to the Constitution to allow the Dail to set up Committees of Inquiry, that what is proposed:  "is a lethal concentration of power in the hands of untrained and, perhaps, in the future, partisan individuals.  The potential for McCarthyism is enormous".  And she says that, though the public is fed up with the Tribunals—

"at least the tribunal investigators were/are trained legal professionals, separate from the political system and shielded, career wise, from the impact of public opinion.  They are, as the Constitution originally stipulated, independent of the political system.  T.D.s and Senators are utterly dependent on that system and on public opinion…  We've been screaming about the lack of relevant qualification of appointees to State boards, yet we're asked to believe that getting yourself elected to the Houses of the Oireachtas is qualification enough to investigate and pass judgment on the actions of any individual in the State?"  (Sunday Independent, 23.10.11).

Who was responsible for the extravagant misconduct of the Tribunals that led to the Amendment proposal?  Why, the legal professionals.

What is a legal professional?  It is somebody who is trained in the trickery of the law—and law quickly becomes, of necessity, a tricky business, despite the best efforts to keep it clear—so that he can make a living at it.  His expertise at this business is put up for hire.  He is hired by a client to make out a case for him while another lawyer is hired by the client on the other side to make out a contrary case.  And no client is ever so much in the wrong that legal expertise is not available to him for hire to make out a case that he is right.

The expertise of the lawyer is the expertise of the Sophists in Athens at the time of Socrates, who boasted naively that they could make out a good case for anything.

In a well-conducted Court action, the expertise on one side is effectively negated by expertise on the other side, so that the jury finds something relatively clear to decide on.  Lawyers are indispensable to systems of adversarial law, but their function, their virtue, in that system is not to be prudent in dealing with the matter at issue, but to be biassed in the service of the client that hired them.  What they are capable of when left to their own devices, freed from the constraints of the Courtroom where there is another set of lawyers hired to oppose them, is shown by their conduct of Tribunals.

A flock of former Attorney-Generals—8 of them—had a joint letter opposing the 30th Amendment in the Irish Times on 24th October.  They also opposed the 29th Amendment, permitting Judges' pay to be cut, along with that of everyone else.  Well, they would wouldn't they?  But all the letter shows is that the trade is biassed in favour of itself and that its practitioners do not tend to levitate above earthly concerns.

(The ex-Attorney Generals whose supreme concern is the rights of the ordinary citizen include Peter Sutherland who, having failed in his attempt to win a Dail seat, built a career first in Europe, then as head of the World Trade Organisation, followed by a lucrative post in the finance house, Goldman Sachs (currently under investigation for financial instruments it promoted).  He has called for stringent further public expenditure cuts in Ireland, whilst continuing to draw a Euro 50,000 pension in respect of his part in a Fine Gael-led Government.  Dermot Gleeson, a very capable barrister, went on to serve as Chairman of Allied Irish Banks.  Harold Whelehan was responsible for the X-Case scandal and subsequent referendums when, as President of the High Court, he prevented a suicidal teenager, who had become pregnant as a result of under-age sex, from going to England to get an abortion.  Michael McDowell, of the erstwhile Progressive Democrats, did his best to scupper the Northern peace process by making statements about Sinn Fein leaders doing the Northern Bank Robbery, which he was entirely unable to substantiate.  He went on to blacken the name of Martin O Muilleoir and his paper, Daily Ireland, on the Dept. of Justice website, and also pursued a vendetta against the Centre for Public Inquiry, which was chaired by a retired Judge, Fergus Flood, and which had Frank Connolly as an investigator.  He forced the disbanding of the institution, just as it was about to embark on an investigation of a prison McDowell was commissioning on a green-field site, outside Dublin.  The other Attorneys General who signed were Patrick Connolly, David Byrne, Paul Gallagher, and Labour's John Rogers—who we are surprised to see in this company.)

These lawyers naturally say they are protecting "the rights of individual citizens" from encroachment by the Dail when they oppose the Amendment.  Vincent Browne (IT Nov. 26) appears to be of the same opinion, but he supports it with the further argument that "we do not have a functioning parliament".  And, in the Sunday Business Post (Nov.16), he warns that the parliament will become an instrument of gross abuse beyond the reach of the Courts.  He puts us in mind of Lady Bracknell on "the worst excesses of the French Revolution".

It is true that the Dail has been weakened considerably in recent decades—in fact, since it was reduced to a mob by the panic of Jack Lynch and Liam Cosgrave in 1970.  The Amendment to enable the Dail to conduct Committees of Inquiry is necessary because, when the Dail tried to investigate the conduct of the Guards in connection with the Abbeylara affair, the Guards brought a legal action asserting that the Dail did not have the Constitutional authority to do this and the Courts upheld the assertion.  And of course the more power is taken from the Dail, the less the Dail will be able to function as a parliament.

The expectation that there will be better government if the Dail is weakened in the interest of separation of the powers of state and maintenance of 'the rule of law' is cockeyed.

One of the great scandals of recent years, the conduct of the Industrial Schools etc., was more the business of the law than of the Dail.  But the law, though "shielded from the impact of public opinion", did not deal with it.

As to the danger of "McCarthyism", that is the cry of ignorant hysteria.  The US gets as close as possible to a thorough separation of powers and a rule of law, but that is where McCarthyism happened.  And McCarthyism had the serious business of clearing up the Capitalist/Communist ideological confusion that had come about in the catastrophic World War brought about by the British Empire.

The powers of State cannot be separated.  They must be run together in a functional State.  and the power that needs strengthening in the Irish State is the Legislature/Executive (because these are necessarily combined in the parliamentary system).
The "rule of law" is a misleading figure of speech.  It was literally intended in England in the 1620s, but it was found that the law could not rule, even when it was supposed to be something unchangeable passed on from time immemorial.  It was Parliament that ruled, or elected an Executive out of itself to rule.  And then it began to invent new laws at an ever-increasing rate at the behest of the Executive.

If we had something like the Laws of the Medes and the Persians—unalterable—perhaps something like a literal rule of law would be possible.  But what we have is a great tangle of new laws, produced by frenzied law-making by a Legislature whose Executive authority has been obstructed by the Judges under the doctrine of progressive legal activism which they adopted a generation ago.

Modern states cannot be governed within a closed system of responsibilities, in which each element is controlled by the other elements.  Some power of arbitrary action, to deal with the emergencies thrown up by a world in flux, is necessary.  This cannot lie with the Judges—who failed over the generations even to apply existing law to Industrial Schools etc.  It can only lie with the Legislature/Executive.  However poor that is, it is what we have got.  And the purpose of the Amendment was to reduce the obstructive power of an undistinguished and greedy Judiciary—which put the country to the cost of another referendum by declaring that the reduction of their salaries as a contribution to sorting out the financial crisis was in breach of the Constitution.

It matters little who is President—unless advantage is taken of a weak Dail to launch Presidential Activism to accompany Judicial Activism.  But it could matter a lot that the electorate has ratified the Judicial disempowerment of the Dail.

Referendum Results

Houses Of Oireachtas Inquiries
In a 55.94% poll, 53.34% voted against increasing the powers of the Oireachtas, while 46.66% voted in favour of doing so.

Judges Remuneration
In a 55.96% poll, 79.74% agreed that Judges' pay could be cut in line with that of other public servants, while 20.26% voted No.

The 30th Amendment And The Rule Of Law.  Editorial
Fianna Fail And The EU.  Jack Lane
The Libyan Charade.  Editorial
Reader's Letter And Editorial Response:  The Presidency And Sinn Fein.  Stephen Richards
Referendum Results.  29th and 30th proposed amendments to Constitution
The War That Made The Peace.  Brendan Clifford
Sinn Fein And Fianna Fail.  John Martin
Editorial Digest.  (Majority in North;  SDLP Leadership;  Derry Chief Executive;  City Of Culture;  Victims;  Al Hutchinson'  Pat Finucane;  James Connolly;  Gaddafi;  McGuinness & Presidency;  UUP;  War Statistics;  Council Of Isles)
Election Results.  Presidency. Dublin West By-Election
Irish Jewish Boys Assaulted On Poppy Day.  Manus O'Riordan  (Report)
Poems.  Driving Mr. Venus Flytrap.  Brave Sirte.  Wilson John Haire
Shorts from the Long Fellow (Ireland And Greece;  Gambling Debts?;  A Reactionary Demand;  The Crisis Of Capitalism;  Investment And Production;  Ireland And The Economic Crisis;  Defending The Catholic Churh
Letter To Martin McGuinness About His Presidential Campaign.  Philip O'Connor
Occupy Wall Street:  What Demand?  Jinger Dixon  (Report)
Es Ahora.  Julianne Herlihy (Fall Of President Gaddafi;  HSE And Children; 
General Tom Barry Commemoration)
Items From "The Irish Bulletin" Of 1919-1921.  (Part 4)
Vote For Revolution!!!  Pádraig Óg Ó Ruairc
Items From 'The Irish Bulletin'.  Part Four:  October 1919
Reply To Jeffrey Dudgeon On Peter Hart.  Niall Meehan
The Bowen Syndrom:  An Infantile Disorder.  Jack Lane (Review of Eibhear Walshe's Bowen Selected Writings)
Naval Warfare.  Pat Walsh  (Part 15)
Propaganda From The FT.  Report
Famine/Holocaust:  Some Letters.  Report from Jack Lane
Does It Stack Up?  Michael Stack (Dean Of St. Patrick's;  Brian O'Higgins; RTE Bias;  The Depression

Labour Comment, edited by Pat Maloney: