A Cosy Consensus
national |
rights, freedoms and repression |
opinion/analysis 
Saturday June 03, 2006 14:20
by Sean Crudden
sean.crudden at iol dot ie
Jenkinstown, Dundalk, Co Louth.
087 9739945
The Rule of Law
Is a cosy consensus the same thing as the rule of law? How are politicians or judges prevented from mucking about with the law, introducing bad law, administering the law in a partial or unfair way? Does the system require more checks and balances? Is obscurity and obfuscation the order of the day? Are we taking the modh direach to a lawless and capricious Alice-In-Wonderland world?
Under the old mental health legislation (1945 act - still in operation?) many patients felt that things were being done in a cosy consensus in a way that suited doctors and families of the mentally ill but in a way that many patients felt was capricious and inimical to their interests. I’m talking about "committal" and continuation of treatment. Somehow there seemed to be a "doctor’s way" of doing things which paid scant regard to the patient. Of course there has been an attempt by new legislation to correct any imbalance in the system by setting up "Tribunals" and a "Commission" to oversee this matter.
For a person my age (62) perhaps an authoritarian or paternalistic system is more direct and less cumbersome. I don’t mind being at the mercy of a doctor because I know the doctor and the doctor’s track record and I am relieved of the burden of appearing before people I do not know and for whom more than likely I would have even less respect than I have for the doctor. What I am trying to say is that in practical terms there is a trade-off. We are trading what could be termed a personal or "professional" relationship for a more legalistic, taxing and long-drawn out route.
However at the end of the day a mental patient expects the law of the land to hold him or her in proper regard as a human being. And the patient expects the law to be a bulwark against capricious treatment or downright abuse.
Really I am outlining these concerns because there seems to me to be an analogy here with the way the criminal courts operate in regard to the ordinary citizen.
For example only yesterday draconian legislation was put in place governing the sexual activity of young people.
There is some suggestion that the director of public prosecutions may have discretion as regards who should be or should not be prosecuted under this law. This suggestion (whether it is realistic or not) is made to mitigate the heavy burden placed on young people by the new law. Incidentally it flies in the face of the basic republican precept that the law should be applied strictly in every case without fear or favour.
The latter is the reason why all laws should be exact and logical. Needless to say any half-baked or uncertain law should be weeded out of the statute book and repealed.
Then again if too much of a discretionary role is given to the director of public prosecutions or even to the courts - including the highest court - the appalling spectre of political influence raises its ugly head.
Just as it often seemed to me that the doctor’s way of doing things (in the past?) was bad medicine so it seems to me that the lawyer’s way of doing things this past week is bad law. And the frightening thing about it is that it seems that the "lawyers" have been backed by hook or by crook by the politicians.
Comments (6 of 6)
Jump To Comment: 1 2 3 4 5 6Really its the whole 26 county free state that needs to be weeded out and replaced by the 32 county Republic. There's no point mucking about with something that was set up in the first place to twart democracy .
Tinkering with the Free State.
ah jayzhus would they never leave us alone. & we'll have a caravan for the mammy, Parnell promised us one
"Really its the whole 26 county free state that needs to be weeded out and replaced by the 32 county Republic. There's no point mucking about with something that was set up in the first place to twart democracy ."
Oh yeah? By you and whose army?
Well yes the likes of Tony O'Reilly have the free state police and free state army protecting their ill gotten gains and they have leinster house politicians giving away the nations resourses to their cronies, but its no harm if the Irish people at least recognise who their enemies are.
the most ridiculous has to have come in the sunday independent.
"most Irish people blame the Attorney General and not Mc dowell"
http://unison.ie/irish_independent/stories.php3?ca=9&si...14167
I seriously doubt this. - How many Irish people can name the Attorney General?
answers on a postcard please.
The nicest commercial coverage came from the Examiner. With little picture of a Jolly Roger in the corner ( "A crewman from the Pirates of the Caribbean yacht competing in the Volvo Ocean Race sits high up the mast after crossing the start line in Portsmouth, England, yesterday. ") The Examiner had been really onside with indymedia throughout the week. Curious little collusion there.
http://examiner.ie/irishexaminer/pages/story.aspx-qqqg=...1.asp
Rather than describing "hysterical democracy"as the Dublin based Tribune did, the Examiner focussed on "flower people women of Ireland power"
http://examiner.ie/irishexaminer/pages/story.aspx-qqqg=...1.asp
Readers will recall that Justice Laffoy decided to release a man from prison who had been convicted of "statutory rape" because of an earlier decision of The Supreme Court that the old 1935 law under which he had been convicted was not in accordance with the constitution.
On Wednesday 31 May 2006, speaking in the Senate, Michéal McDowell, Minister for Justice, Equality and Law Reform, said:-
"Although that offence has now been struck down as inconsistent with the constitution, things done under it are not retrospectively made unlawful."
The state, through the governor of Arbour Hill Prison, appealed Justice Laffoy’s decision to The Supreme Court and last week an unanimous judgement was handed down by The Supreme Court overturning Justice Laffoy’s decision.
Writing in last Saturday’s Irish Times Mr McDowell said:-
"Anyone who now reads the five Supreme Court judgements will see that the view taken and argued by the state was not simply correct; it had overwhelming logic, it had ample international precedent, and it had deep foundations in Irish constitutional jurisprudence, in justice, and in common sense.
"The Supreme Court did not, as predicted, tear up its own jurisprudence to ‘square the circle,’ but carefully and consistently applied it in a manner that the constitution demanded, and that foreign Supreme Courts faced with comparable problems have consistently done.
"The alternative view, if upheld in The Supreme Court, would have produced grotesque results unprecedented in our own law and unknown in any comparable system of law."
To my way of thinking the original Supreme Court decision (referred to in my first paragraph) should certainly not be regarded as making unlawful retrospectively anything which was done under the aegis of the stricken law. But whatever The Supreme Court says it is a nonsense to confine a man in prison, this summer and into the future, under a law that was declared, in Spring 2006, unconstitutional.
Having lived through the period I think that the more recent of these two Supreme Court decisions was unwisely made in a period of flagrant political distress and uncertainty created in no small measure by the minister himself.
Sean Crudden
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