Silence over High Court judgement on Shannon
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Saturday May 17, 2003 11:41
by Eoin Dubsky - Refueling Peace
info at refuelingpeace dot org
+353876941060
Why has there been such silence over the landmark judgement of J Kearns in 'Horgan v. Ireland' -- Ed Horgan's case about the Constitution and helping to kill Iraqi people? Kearns had more power to stop Shannon shenanigans than any individual politician. And yet there's not a peep about it from activists campaigning against the war.
(Picture is of victim from massacre at Fallujah, Iraq - 28 April 2003)
The 72-page judgement, and entire transcript, of Ed Horgan's recent High
Court challenge against the government and the state for participating
in war against Iraq is now online:
http://www.redbrick.dcu.ie/~slack/rp/ed/judgement.doc (203k) and
http://www.gluaiseacht.org/legal/HorganvIreland/
In explaining part of his judgement (which went in the government's
favour), Judge Kearns explored the possibilities of what horrors may
occur if he had ruled in Ed's favour instead:
"(e) interpretation of the Constitutional principles as argued for by
the plaintiff would clearly permit a challenge to a war declared by the
Executive even with the approval of the Dáil under Article 28.3, on the
grounds that it was a war that did not comply with justice and morality,
or the principle of pacific settlement of disputes, under Articles 29.1
and 29.2.
I accept and hold with the submission of the defendants that the
provisions of Article 29.1 . 3 are to be seen therefore as statements of
principle or guidelines rather than binding rules on the Executive."
...In other words, even if you know for a fact that the government have
allowed part of the country be used for aggression against Iraq (which
itself is an act of aggression), there's nothing the courts will do
about it. If a majority of parliamentarians will support the government
into battle, irrespective of how grossly immoral and illegal it is, war
is what Ireland will get (only they won't call it participation in war,
they'll call it "Irish military neutrality").
...Or to put it another way... The only recourse to justice is to stop
the state's flagrant misconduct directly "by hand" in a peaceful, open
and accountable manner. Then explain it to a jury a few months later.
With any luck they won't be as callous as the judge who declared on 28 April 2003 "This
court is not at all persuaded that any untoward conduct has occurred" (J
Kearns at p. 71 in Horgan v. Ireland), when earlier
that day soldiers and weapons that were passing daily through Shannon
Airport had destroyed at least ten more lives when they shot
demonstrators and children outside school in Fallujah, 50km west of
Baghdad
(http://www.ccmep.org/2003_articles/Iraq/050403_iraqi_rage_grows_after_fallujah.htm
or http://www.counterpunch.org/leupp04302003.html).
How can he get away with making such a shameful judgement
without at least someone dropping a banner from the
bridge outside the courtroom saying "Assisting in mass-murder and armed
robbery is very fucking untoward conduct, asshole!"?
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Comments (2 of 2)
Jump To Comment: 1 2We have a judicial system where judges are appointed a judge because of who they know , not on merit. That's just the way it is in dear old Ireland. It is unjust and infuriating . If you are a good solicitor in Ireland you are put on a UDA death list , not the list to the bench.
Who is Kearns? Who are his friends? Where does he live? Down his local golf club is the place for that poster. Down where all his friends from politics and business can see it too. In fact it could apply to them all. Kearns is just the legal wing of the fascist army. There is a political wing, an educational wing, a media wing and a corporate wing all working together in their little clubs to subvert any democracy that might emerge. Not as a complicated "conspiracy" but in a feeing frenzy on promotions, profits and perks that blinds them to their true nature.
It is themselves they wrong most because having been fooled into forgetting their true nature they think they are their title or wealth and that is all that counts. Long may they enjoy it's temporary comfort and eternal reward. Like many a tyrant before them they will find it an empty docket at the next level of consciousness.
Re the silence from anti-war people I’d say (I’m coming from an anarchist background here) it’s hard to get to worked up about something about which is entirely expected.
The main problem is that a tiny minority can make decisions over the heads of the population. Mostly that means politicians, but also, as in this case, the courts get in on the act.
It was expected, it happened. Investing energy in even keeping track of court cases like this, let alone taking them, isn’t a priority.
“...In other words, even if you know for a fact that the government have allowed part of the country be used for aggression against Iraq (which itself is an act of aggression), there's nothing the courts will do about it.”
The courts will not overturn a decision of parliament even if that decision is immoral.
The point here is who decides that a war or any other activity is immoral?
The power to do so remains in the hands of a small elite, whether that be politicians or the judiciary, both of whom have fundamentally the same interests, namely the preservation of the status quo.
It would be asking a lot for the judiciary to go against their class interests on an issue of fundamental importance. To expect, or even to hope, that their fellow ruling elite will overturn a major policy area is naïve I think.
Perhaps it’d happen if there were loads of riots in the streets! Unless the pressure from the population is very pressing the courts will confine their interference with government to matters of lesser significance.
You may consider a policy decision wrong, but you aren’t in a position of power, so your opinion, like most of ours, isn’t of much importance.
A few words on the Irish political system:
It is not the function of the courts to make policy. The government have a wide range of powers in relation to foreign policy; it’s one of the few areas where the role of the executive is spelled out in the constitution (Art 29.4.1). As such the courts would need an extremely strong case before they should overturn a decision of the executive.
We don’t live in a democracy, but rather under an oligarchy which has some restrictions on it (i.e. there is some freedom of speech, protest etc). The fact that a system run by a few can get away with calling itself a democracy, albeit qualified with the word “representative”, is an impressive propaganda achievement.
In a representative democracy the population basically agree to hand over to a select few the running of the country for 5 years. These few have the right to make policy as they see fit. With regard to US-Iraq war it was to assist the US government by providing facilities at Shannon primarily.
While part of the judiciary’s function is to rein in abuses by the other parts of government (parliament and the government (executive)), the granting of facilities at Shannon was hardly such and therefore there wasn’t really a basis for overturning the government’s decision.
That’s not to say that the decision was a good one, but there are loads of decisions that get up people’s nose: we can’t expect the courts to sort it out for us. As they’re part of the ruling elite, they’re part of the problem, not the solution.
The political system is functioning quite well according to its own logic; an elected government decided, the courts gave a citizen the opportunity to question that decision. For those who didn’t like the result (or are unhappy with the decisions of the government and courts on a continuing basis), perhaps you should consider changing the political system.
Totally agree that the way forward is to encourage self-activity, i.e. “directly by hand”. This conclusion can be generalised to other issues as well as anti-war activity. Instead of appealing to the minority in power to change things, acting directly, preferably in cooperation with others, offers some hope for the future.