Historic legal ruling could have chilling civil rights repercussions

Mr Justice Adrian Hardiman, pictured, says that Judge Peter Kelly speaks on behalf of the judges

Ronan Fanning

April 25 2015 11:15 PM

Seismic shift as Supreme Court splits on key ruling," proclaimed the Irish Independent. "Landmark decision rewrites evidence rulebook," trumpeted the Irish Times. The headlines varied, but it was immediately apparent that the response of the media was unanimous: the decision of the Supreme Court by four votes to three to overturn its earlier ruling in the Kenny case in 1990 instantly acquired the status of the first great landmark case of the 21st century.

In the words of Mr Justice Hardiman, "this is as significant a case on criminal law and evidence as any that has come before the Court in the last 25 years. It affects in an important way the rights and liberties of every citizen".

Mr Justice Hardiman's magisterial denunciation of the majority verdict is lengthy and detailed: it runs to 166 pages. It is, perhaps, for that reason that there has so far been a strange silence about the political implications of his words.

The constitutional doctrine of the separation of powers dictates that judges of the Supreme Court and, indeed, of all other courts must steer clear of any political comment.

But that self-denying ordinance does not apply to other citizens of this state and a careful reading reveals that there are indeed political implications - and political implications of the most chilling kind - to be drawn from some brief but pregnant passages buried in his judgment.

The first such passage points out that:

"The rights of the ordinary citizen depend in the first place on the Government - successive Governments - being rooted in a tradition of legality and lacking any positive desire to cut down the citizens' rights. We in Ireland have been fortunate in enjoying several generations of governance which shares this tradition of legality and respect for civil rights. If, almost impossible to imagine, a government were to come about which was not rooted in the tradition of legality then the writing down of the rights of the citizen which I believe this [majority] judgment represents would be all the more hazardous.

"Judicial care for the rights of the citizen must always take into account what Chief Justice O Dalaigh called the contingencies of 'an improbable but not to be overlooked future'."

A key element in Mr Justice Hardiman's rejection of the majority verdict is that he is "horrified that it is proposed to make 'inadvertence' a lawful excuse for State infringements of individuals' constitutional rights".

He also points out that this will apply not only to gardai, but to other "officials with compulsory powers - tax inspectors, planning officials, water meter installers, customs, and official enforcers of all kinds" - that "wider legally-empowered class" he describes as the "force publique".

He also points out that "the risk inherent in judgments such as the present one would obviously be much greater if, almost impossible to imagine, a government came to pass which, or some significant portion of which, was not deeply rooted in the tradition of legality and respect for civil rights which we have been fortunate to enjoy for generations".

Nevertheless "the powers and immunities conferred on the force publique will continue to be enjoyed by it notwithstanding the changes of government and of political culture, and that the rights which the Courts must protect, must be sufficiently protected to ensure even in the unpredictable contingencies of 'an improbable but not to be overlooked future'."

Where I differ from Mr Justice Hardiman is that it seems to me that, given the prominence of Sinn Fein in the opinion polls, the prospect of a government coming to power in the near future "some significant portion of which, was not deeply rooted in the tradition of legality and respect for civil rights" is no longer "almost impossible".

It follows that consideration of the "not to be overlooked future" must instead take account of the real possibility that Sinn Fein may form part of the next government - or, failing that, of some future government.

There is little point in wasting words on dismissing out of hand any suggestion that Sinn Fein has even the slenderest of roots in the tradition of legality and respect for civil rights. It is sufficient to recall the testimony of the alleged victims of sexual assault by members of the IRA of their treatment in their so-called secret courts and the obscene offer of sentencing options - ranging from beating to death the alleged offenders either by the victims or, if the victims so preferred, by IRA executioners to the option of enforced exile from Ireland.

In the last analysis, the behaviour of other members of what Mr Justice Hardiman describes as the force publique pales into insignificance when set against the potential for abuse of the majority decision by ill-minded members of the gardaí.

And this at a time when the Minister for Justice, Frances Fitzgerald also acknowledged in July 2014 "the significant recent disquiet over the administration and oversight of justice in this State" and when we are still awaiting the report of Mr Justice Fennelly's commission of inquiry into the behaviour of the gardai.

Mr Justice Hardiman concluded that, at a moment when "very serious problems of Garda culture and practices have been revealed by Tribunals headed by two distinguished members of the judiciary and by the Garda whistleblower, and have been expressly acknowledged by members of the Government", the majority verdict was "absolutely extraordinary".

Ronan Fanning is Professor Emeritus of Modern History at University College Dublin