You call that justice?

The 30th amendment to the Constitution could see the Oireachtas take on the role of a kangaroo court, allowing members to assault the name of anyone they choose, writes Dan Buckley

IN the current edition of the legal journal The Irish Law Times the former chief justice, Ronan Keane echoes the concerns of many members of our judiciary when he argues that the proposal to cut the pay of judges, by way of referendum, will adversely affect their independence.

Apart from the obvious counterargument that a decade of pay increases hardly increased their independence, our judges should be far more worried about a second referendum to be put to the electorate next Thursday, the same day as the presidential election.

The 30th amendment to the Constitution will, if enacted, not only limit the power of judges but will also bestow on the Houses of the Oireachtas an extraordinary quasi-judicial function, allowing members of either the Dáil or the Seanad — including unelected senators — to pry into the conduct of anyone within the jurisdiction.

This is the most fundamental and extensive proposed change to the Constitution since it was enacted in 1937 and has profound implications not just for the Oireachtas but also for civil liberties.

If voted in, the amendment will allow Oireachtas members to make determinations of fact based on their investigations without any stated provision for the subject of such an investigation to be given the right either to an oral hearing, legal or other representation, cross-examination or any of the other rights we take for granted in a properly constituted court of law.

In that respect, the danger is that any Oireachtas inquiry could take on the role of a kangaroo court, allowing TDs and senators to assault the good name and reputation of anyone they choose.

A comparison has been made with the style of senate hearings carried out in the United States. While fears of McCarthy-era interrogations are unlikely to be realised, there remains the fear that individuals could be pilloried unfairly.

That was the experience of the British politician George Galloway who was accused by US senators in 2005 of manipulating the oil-for-food scheme, a UN humanitarian programme intended to alleviate Iraqis’ suffering from sanctions. His reply to the allegations was robust, to say the least.

Galloway responded: “I am here today but last week you already found me guilty. You traduced my name around the world without ever having asked me a single question, without ever having contacted me, without ever written to me or telephoned me, without any attempt to contact me whatsoever. And you call that justice?”

What is proposed in next Thursday’s referendum goes further than that allowed under the American constitution. It is, without question, the most overweening, excessive and unnecessary proposed constitutional change that has ever been put to an Irish electorate.

The proposed amendment is, in effect, a new constitution by stealth. The danger is that, given the X-factor style excitement over the presidential election, it will be carried by default.

If voted in, the new powers given to Oireachtas members will be outlined in three new clauses. It proposes to give the Houses of the Oireachtas (the Dáil and Seanad) express power to conduct inquiries into matters of general public importance and, in doing so, to make findings of fact about any person’s conduct.

The Constitution does not currently allow the Oireachtas to conduct such inquiries. The proposed change to the Constitution would mean that:

- The Dáil and the Seanad, either separately or together, would have the power to conduct an inquiry into any matter that either or both consider a matter of general public importance.

- When conducting any such inquiry, either or both Houses would have the power to inquire into the conduct of any person and the power to make relevant findings about that person’s conduct.

- The Dáil and/or the Seanad would have the power to determine the appropriate balance between the rights of people involved in any such inquiry and the requirements of the public interest.

When doing so, they would be obliged to have regard to the principles of fair procedures but — and here’s the rub — the determination of what is “fair procedure” lies with, guess what, the self-same Oireachtas members, and not the courts. This is about as fundamental a breach of the separation of powers as one can imagine.

There have already been 28 amendments to Bunreacht na hÉireann, one more than that of the 1922 constitution. In many ways, the previous constitution was a far more democratic document. It allowed for the holding of a referendum by way of plebiscite yet it tempered that with the sensible requirement that an amendment would not be deemed to have been passed unless at least a majority of registered voters participated in it and the votes in favour were equal to either a majority of all eligible voters, or a two-thirds majority of votes cast.

This provision was stricter than the current Constitution, which merely requires a majority of votes cast.

Therefore, there is a real danger that we could sleep-walk our way into passing an amendment that will have profound implications for our democracy and our civil liberties.

At the moment the constitutional position is as follows. Article 15.10 states: “Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.”

It is proposed to renumber this as 15.10.1 and to insert the following subsections:

- 2. Each House shall have the power to conduct an inquiry, or an inquiry with the other House, in a manner provided for by law, into any matter stated by the House or Houses concerned to be of general public importance.

- 3. In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.

- 4. It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2 applies.

The rationale behind the proposed referendum goes back to the Supreme Court finding in the case of Maguire v Ardagh, generally known as the Abbeylara case in 2002. A sub-committee of the Houses of the Oireachtas started an inquiry into an incident that occurred in Abbeylara during which a man, John Carthy, was shot dead by gardaí. The gardaí involved were compelled to give evidence and the sub-committee proceeded on the basis that it could make findings as to the causes of the incident and, if in its view this was warranted by the evidence, as to whether or not individual gardaí were responsible for the death. The Supreme Court held that the Houses of the Oireachtas do not have an inherent power to conduct such inquiries.

A new draft bill would give the Oireachtas such powers, if the amendment is passed.

The chairman of the independent Referendum Commission is Dr Bryan McMahon, a retired High Court judge, barrister, academic lawyer and formerly head of the law faculty at University College Cork. More importantly, he is not given to bouts of hysteria or hyperbole.

Yet, even he was prepared to concede that the proposed amendment, if passed, would have profound implications. Speaking yesterday on RTÉ radio’s Morning Ireland he reiterated the fears expressed in the Irish Examiner on Tuesday by Gerry Whyte, associate professor of law at Trinity Law School, who argued that the amendment would limit the power of judges.

Dr McMahon pointed out that, by passing the amendment, we would be giving, in effect, a blank cheque to present or future governments to determine the extent to which the new constitutional provision should apply.

“We don’t know yet what powers the inquiries of the Houses are going to have because all we have is a bill which purports to set out what the Government say they will do if these proposals are passed.

“The powers of such inquiries will be whatever the Government say they are. The amendment says the inquiry shall be allowed and shall be in a manner provided for by law, but the law is not defined as yet.”

In fact, there is no obligation on the Government — or future governments — to abide by the provisions in the draft bill. If the amendment is passed, any future government could amend it or ditch it and replace with a law more to their liking

More importantly, the provision to “have due regard to fair procedure” will be a matter for the Oireachtas and not the courts. The members of either the Seanad or Dáil — or both — will, in effect, be judges in their own cause and the courts will be circumscribed in any attempt to second-guess that decision.

That was the salient point of the Abbeylara case where the gardaí had recourse to the courts to judge whether proper procedures had been observed. The amendment would change all that and limit the existing constitutional rights within the prism of the new provision. As Dr McMahon put it: “You have to read all of these rights subject to this amendment. When your good name is challenged within an inquiry established by the House of the Oireachtas, it may be less protected because of this amendment.”

In other words, our current, hard-fought-for rights — specified and unspecified — in Bunreacht na hÉreann would, from now on, be subject to the whims of parish-pump politicians with their own agenda.

That is something that all of us — judges or laity — should consider next Thursday.

Picture: John Carthy, who was killed during a stand-off with gardai at Abbeylara in 2000