News Analysis

Wednesday 24 September 2014

Dearbhail McDonald: We need a proper debate before voting on handing over our rights

Published 17/10/2011 | 05:00

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I MISSED the presidential debate on RTE as I had a violin lesson that night and was grappling with Vivaldi's Concerto in A Minor when Dana almost dissolved on set.

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It is risky, as a journalist, to deliberately dodge key political events.

But my personal, as opposed to my professional, interest in the presidential election has peaked, hence my descent into a maelstrom of the musical kind.

This is not because the office of the President and who occupies it is not of huge importance to me. It is.

But my interest has waned.

This is because I believe that the critical decisions to be taken by the electorate on October 27, that will have a much bigger impact on the lives of Irish citizens, have been swept away by the admittedly enthralling presidential campaign.

Most people do not know that on the day they pick our next president that they will be asked to make two fundamental changes to the Constitution that could radically alter our political and legal landscape and the relationship between the citizen and the State.

The first is to reduce judges' pay.

The second is to give politicians (and not the courts) the power to determine the "balance" between the rights of a person against whom politicians will be able to make findings of fact and the public interest in seeing an inquiry conducted.

I am voting no to both.

Not because I believe that judges' pay and pensions should not be reduced. I believe emphatically that judges' pay should, subject to certain safeguards that are not included in the proposed referendum, be reduced.

The current economic crisis requires that the judiciary plays its part.

But the separation of powers requires that an independent commission on judges' remuneration -- and not the executive -- is needed to ensure that the judiciary, for all its faults and botched handling of the pay and pension issue, is free of political manipulation.

That safeguard of independence is not to protect the judges, but to protect those -- you and me -- who may appear before them.

I'm also voting no to the referendum on inquiries. Again, this is not because I believe that the Dail and Seanad should be prevented from carrying out effective investigations into matters of public importance.

It is only right that the Oireachtas be entitled, on our behalf and in the public interest, to call individuals -- especially vested interests and the executive -- to account for their actions.

My objection to this referendum is the fact that it will be up to politicians, vulnerable to swings in public mood and media pressure -- witness the botched Ivor Callely inquiry -- to decide what "balance" of rights witnesses are entitled to.

I hold certain adverse feelings, for example, towards the stage villains of the financial crisis who have invited the IMF to our shores.

But I would fight tooth and nail for their right to have a fair hearing in whatever forum they are (unlikely to be) hauled before.

At least Callely, whatever your views on his behaviour and conduct, had the option to go to the High Court to successfully vindicate his rights to fair procedure when his colleagues rode roughshod over them.

But if this referendum is passed, future witnesses who are denied fair procedures whipped up on an ad hoc, "trust us" basis by politicians, may find their path to the Four Courts significantly if not entirely blocked.

This is a step too far and potentially dangerous for any witness who finds their constitutional right to natural justice and fair procedures, such as the right to legal representation or cross-examination, thwarted in a political show trial.

This is especially the case when the findings of fact made by political inquiries can have a bearing on the reputation of witnesses or, in severe cases, on their liberty.

At first blush, the referendums look, in the words of one enthusiastic TD, like "no brainers". On their own, they seem harmless, sensible initiatives.

But the referendums, coupled with the new Legal Services Bill that will see the Government assume de facto control over the legal profession, is evidence of a new strain of executive mission creep: a barely disguised power grab by politicians to undermine the separation of powers.

The doctrine of the separation of powers is the system that acts as a bulwark against abuse or overreach by any one of the three branches of government: the executive, legislature and judiciary.

It provides the vital checks and balances to ensure there is no abuse of state power.

This is not to assume that all governments or even this current one harbour malign intent.

But even politicians with the best of intentions can, through exuberance, incompetence or negligence, get it wrong. Fair procedures need to be present when they do.

Having removed the power of the Referendum Commission to present the advantages and disadvantages of each referendum, we have now been left with virtually no debate. We need much more discussion on issues of such importance.

Irish Independent

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