No to arbitrary exercise of power no matter how unpopular the cause

Free speech is upheld, but political caprice is unrestrained, in an Oireachtas where voluntary restraint is in short supply, writes Gerard Howlin.

No to arbitrary exercise of power no matter how unpopular the cause

Photo credit: Angela Kerins yesterday lost her action for damages over the Public Accounts Committee’s handling of a hearing over monies given to the Rehab organisation. Pic: Collins Courts

’YOUR Most Benign Highness’ was the form of address for George Washington, proposed by his vice president and ultimate successor, John Adams. Others suggested ‘His Elective Highness’. To Washington’s relief, a simpler ‘Mr President’ was decided on. The ‘elective highness’ syndrome remains a danger in democracy. In our parliamentary system, the president, by virtue of his right to refer legislation to the Supreme Court, is guarantor of the constitution. He is Commander in Chief, which reinforces constraint on the elected government. The flummery of protocol that attends him is as much a reminder to the executive of the limits to its pretensions, as embroidery for his office.

The furore over President Trump; his apparently capricious executive orders; and firing his acting attorney general puts the issue of an arbitrary exercise of power centre stage. Similar issues were at stake yesterday in the High Court’s decision in Angela Kerins’ case against the Oireachtas. A central reason her case failed was the voluntary nature of her attendance at the Public Accounts Committee (PAC). This, notwithstanding the opinion of the court that “much of what was put to her, and said about her, in the course of this meeting was damaging to her reputation personally and professionally”. Had she been legally compelled to attend, she would have been better protected.

Had she refused to attend, or to answer certain questions, the committee would have been powerless.

More fundamentally, yesterday’s ruling rested on the constitutional protection of Article 15.13 which protects “any utterance in either House” from “any court or any authority other than the House itself”. The unanswered question, of course, is what the Oireachtas proposes to do now. After Mary Lou McDonald’s utterances about people, not members of either House, alleging they held Ansbacher accounts, an ineffectual admonishment followed. That impotency has encouraged ‘elective highness’ since. Now, after Kerins, the Oireachas has a constitutional responsibility to the unelected citizen, which the courts cannot adjudicate and it will not uphold. Free speech is upheld, but political caprice is unrestrained, in an Oireachtas where voluntary restraint is in short supply. The issues raised by President Trump are different in degree, but they are not completely foreign.

Restraint and due process are essential for assent to the exercise of power. The Irish court relied not just on Bunreacht na hÉireann but refered to the 1689 Bill of Rights which provides: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” This was the full flowering assertion of the rights of parliament, over the King, specifically the recently deposed King James II. Under James, the royal prerogative had been upheld in the intensely controversial case of Godden v Hales (1686). The issue was whether the King, a Catholic, could ‘dispense’ Catholic subjects from the oaths required under the Test Acts, vouching for their Protestantism. The case was critical because it upheld James’ prerogative as king to commission Catholic army officers in a Protestant kingdom.

The arbitrary nature of Trump’s executive orders, replay the fundamental question in Godden v Hales of whether the executive has the power to ‘dispense’ persons or classes of people from the obligations or protections of the law. It should be remembered that King James won his case in court.

It was precisely this inconvenient fact, together with accusations of packing the bench, which prompted The Glorious Revolution, ironically at the hands of an invited but foreign invasion. The legislative supremacy subsequently enshrined in the Bill of Rights then, was the fulcrum of the legal test faced by the British government over its use of the royal prerogative as the Queen’s ministers, to invoke Article 50 without an Act of Parliament. The UK Supreme Court ruled against, and the consequential parliamentary debate began at Westminster yesterday. The history of democracy is an ongoing contest between parliament, government and courts.

The reality of political power in 18th century Britain was an oligarchic, aristocratic, land-owning class which combined its inheritance of the royal prerogative with control of parliament. Because of its parliamentary base, it was dulled to any sense of itself, being a capricious or arbitrary government. This is precisely what it was in the American colonies. An irony, perhaps unrealised by President Trump is that the American Revolution was a rebellion against arbitrary government. An essential outcome as an antidote, was the separation of powers between executive, legislature and judiciary.

It’s an open question whether Donald Trump’s executive orders will ultimately be adjudicated legal after a substantive case is heard. What is unquestionable is that the arbitrary, sudden nature of their imposition smacks of despotism. That is not to consider the underlying policy issues. On this, there has been more heat than light. Every country’s visa system is inherently discriminatory, in that it treats different people in different ways. Our citizenship referendum in 2004 provided that people born on the island of Ireland thereafter would not have a constitutional right to be Irish citizens, unless, at the time of their birth, one of their parents was an Irish citizen or was entitled to be an Irish citizen. It was a very significant limitation on what prevailed before, but was adopted to prevent what was considered a major pull factor for economic migrants.

Donald Trump
Donald Trump

What is at stake in the USA now, is not the right to act in its interests as it sees them. It is the prerogative of its president to act capriciously, and perhaps unconstitutionally. Taking in refugees is both a moral necessity, and an act of self-interest. Arbitrary detention of travellers at airports, strikes at fundamental freedoms. Magna Carta in 1215 guaranteed all free men immunity from illegal imprisonment. The law will ultimately be determined by the courts in the United States. Here, we have similar obligations to protect those travelling through Irish airports, who engage with US customs authorities here.

But before we demonise Donald Trump, we should look at our own affairs. Angela Kerins is not a popular cause. I don’t and won’t defend the governance of Rehab, where serious questions had to be addressed. But due process is important, and the rights, especially of the unpopular, are important. The Dáil will be alive today with criticism of Trump. I doubt, however, there will be much reflection on the reputation of witnesses coming before it. Self-criticism is not an attribute of ‘elective highness’. That is not to mention forthcoming criminal cases for the false imprisonment of Joan Burton and her adviser. People, thought politically opposed, who take the law into their own hands and act arbitrarily, have more in common than they are comfortable admitting. It’s age old.

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