Friday 24 January 2020

John-Paul McCarthy: First judgement in X Case was the real 'moral crime'

The judge had plenty of options available to him in the controversial 1992 case, writes John-Paul McCarthy

John-Paul McCarthy

I thought I'd gotten Christopher Hitchens out of my hair last week when I tapped out a terse adieu to the old warrior.

But though I take a severe view of people who don't share my admiration of Conor Cruise O'Brien's book Maria Cross, for some reason I seemed to see Hitchens everywhere this week.

And I found myself recalling the best joke in Hitchens' memoir.

When he met a former boarding school tormentor, who ended up a reeking tramp, Hitchens called out his name. The tramp-tormentor stared back blankly.

Hitchens knew he had his man and leaned forward conspiratorially and whispered, "We've had our eye on you for quite some time." Pause. "And we aren't too happy with what we've been hearing lately."

Then, when someone asked me randomly if I knew any good books by WG Sebald other than his work on the obliteration of Dresden in 1945, I sent a link to an electrifying debate between Hitchens and AC Grayling on the ethics of Bomber Harris' air war before an audience of ashen-faced Germans at the Goethe-Institut in 2006.

Hitchens loomed into view once again then when reading one of the most sordid news stories of 2011.

President Karzai of Afghanistan recently intervened to pardon a young woman who had been jailed for 'moral crime', an antique legal term used to cover the plight of women who have been raped by a relative.

Even while imprisoned, this woman had been raising the child that followed her rape, while attempting to deflect various attempts by her rapist's family to force her to marry her attacker.

Reading the details of this woman's feudal plight, I thought of Hitchens' debate with George Galloway in 2008.

Galloway compared the suicide fanatics in Iraq to Patrick Pearse and Charles James Fox.

Hitchens parried ably before finishing with the observation that the Blair-Bush intervention in Afghanistan may have been the only occasion in the 20th century when American weapons of war were deployed to bomb a country out of, rather than back into, the Stone Age.

But, as Marx reminded readers in The Communist Manifesto, the "idiocy of rural life" dies hard.

'Moral crime' also had a nastier domestic resonance in my mind. The image of an incarcerated rape victim sharing a cell with her attacker's progeny might not fit the details of Ireland's 'X Case' in 1992 in every instance, but it comes just that bit too close for comfort all the same.

An adolescent, suicidal rape victim ended up before the High Court judge Declan Costello in 1992. She was due to have an abortion in England but her parents brought her home and unwittingly walked her into the strait-jacket of the Eighth Amendment.

Costello made sympathetic noises while trussing her up.

He signed an order forbidding her from leaving the State while pretending that he was simply enforcing the solemn will of the Irish people as expressed in the 1983 amendment.

The fact that his order was reversed on appeal shows that he had plenty of options before him if he really wanted to help the suicidal child.

He could have read the ambiguous 1983 text literally and sequentially, that is to say, he could have read its first clause to stand for the declaration of one right, 'the right to life of the unborn', while reading the second clause on the mother's 'equal right to life' as logically qualifying the first clause.

He could then have anticipated the second senate of the German Constitutional Court and gave a generous meaning to the mother's 'right to life', construing that right to include the right to the free development of her personality, as well as the right to be free from the profoundly destructive burden inherent in coerced motherhood after a sexual assault.

Or he could have read the Irish text of the 1983 amendment and focused on the term "ceart na mbeo gan breith".

Literally, this means 'the right of the alive without birth'. He might then have said that 'alive without birth' could reasonably be said to cover only fully formed babies on their actual way into this vale of tears.

This strange phrase might mean many other things but if the people in their wisdom meant to protect the contents of the mother's womb seconds after actual conception, then maybe they should have bloody well said that.

And since they couldn't be bothered to demand clarity from their legislators, maybe they should get what they paid for.

The point of these analytical permutations is not so much to show that Costello was 'wrong' in 1992, but to emphasise the phoney judicial humility that suffused the language of his feudal injunction order.

Costello's 'liberal' Catholic social conscience looks increasingly invertebrate when his juggling act in the X Case is assessed comparatively. Germany's Judge Dieter Grimm did much to popularise the idea of proportionality-analysis in constitutional interpretation, but I find it hard to imagine him settling for Costello's argument that the X Case could be decided by weighing the indeterminate likelihood of the mother's suicide against the certainty of the foetus' destruction if she fled Ireland.

And South Africa's Justice Albie Sachs has explained why the actual dignity of actual citizens forbids these kinds of degrading calculations.

But all of this is forgiven it seems because of Costello's thin Just Society document, more of a menu than a manifesto to all but the most credulous.

JP McCarthy writes for

Sunday Independent

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