Liz O’Donnell

Saturday 26 July 2014

Liz O'Donnell: Supreme Court grants women their rights, not our politicians

Published 30/07/2013|04:00

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THE Government's appointment of two female High Court judges to the Supreme Court is a timely move which recognises not only the calibre of the two lawyers concerned – Ms Justice Mary Laffoy and Ms Justice Elizabeth Dunne – but is also an important statement of diversity.

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For many years, women have been competing and excelling at the Bar and as solicitors, to the extent that if current trends continue, female barristers will outnumber male colleagues within 10 years.

The dearth of women in positions of public authority and leadership in Ireland is a persistent concern, but all the signs are that women are increasingly rising to the top of their chosen careers and professions based on merit. The posts of Chief Justice, Attorney General, DPP and Chief State Solicitor are held by women.

The one exception is the thorny issue of women in politics, which at long last is about to change with the introduction of quotas. There are arguments for and against quotas – or positive action to counter gender imbalance – but this Government has taken the enlightened view that for a finite period at least, quotas will be used to compel political parties to make space for women candidates. At the next general election, 30pc of candidates on party tickets must be women, and they will compete fair and square with men to win electoral support.

In a properly functioning democracy, it is in the national interest that women are present in significant numbers when public policy is shaped and determined, such as in the Oireachtas and in the courts. Decisions taken without the perspective of women, who comprise more than half the population, can be said to lack credibility. Women's life experience and priorities are different, and should be taken into account in designing social and economic policy.

The superior courts have been instrumental in developing social policy in Ireland since the foundation of the State. The jurisprudence handed down by the Supreme Court has effectively acted as a radical reforming force since the 1960s. This is particularly so in relation to Supreme Court decisions in constitutional cases pertaining to family and personal rights, in particular the rights of women.

Sadly, our 1937 Constitution enshrines an extremely conservative template of what it means to be a woman. De Valera's notion of a woman's role within the home is one of subservience and almost cliched Peigin Mike. The constitutional ban on divorce, for example, was successfully removed in 1995 – but only after two failed earlier referendums. The reform was carried by a tiny margin, and it is the most restrictive divorce regime in the western world.

Such was the tyranny of the Catholic ethos on the Constitution and lawmakers that the acquisition of women's rights in a whole range of areas was left to the reforming zeal of successive Supreme Court judges. The right to contraception, even within marriage, was a gift not of the Oireachtas but of the Supreme Court.

Women in Ireland owe whatever rights we enjoy, not to legislators but primarily to Supreme Court interpretations of constitutional rights contested in the courts. Similarly, the raft of equality legislation bestowing rights to maternity leave, employment protection and equal pay were driven in the main by EU directives that forced modernity and equality on a conservative domestic polity.

The vexed narrative of women's reproductive rights has been a long walk to freedom, and we are still not there. The Protection of Life in Pregnancy Bill which has just passed through the Oireachtas was a fraught affair, involving unprecedented levels of heated and divisive debate, analysis and commentary. It now stands poised for possible reference to the Supreme Court by the President following consultation with the Council of State to test its constitutionality.

There are aspects of the bill that are arguably inconsistent with the 1983 Right to Life Amendment (Article 40.3. 3). The new legislation is long overdue since the Supreme Court decision in the X case in 1992.

ULTIMATELY, a decision of the Court of Human Rights and the tragic death of young Indian woman Savita Halappanavar in a Galway hospital forced the Government's hand.

What emerged is minimalist in the extreme. A woman must be dying or medically determined to be at risk of death to legally avail of a termination, and any woman who attempts or procures an abortion faces a jail sentence of up to 14 years.

Raped women and those with serious health problems or women carrying non-viable babies are not covered; exclusions described by Minister for Justice Alan Shatter, quite correctly in my view, as an "unacceptable cruelty".

Before long, there will be a legal challenge to such cruelties, and we will again look to our courts to set women free in hard cases.

Irish Independent

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