fallibilist

Thoughts on the day of the calm before the (electoral storm)

2007-05-23T13:35:00.000+01:00

The final furlong is underway; the radio and tv are staging their legally enforced broadcasting blackout; internecine struggles reach their highest pitch. The election is less than 24 hours away and no one knows what will happen. No one knew five years that Fine Gael would do so badly; no one knew in 1977 that Jack Lynch would win an overall majority. That is the great beauty of our system: whatever about the merits of the parties and leaders on offer, it is up to us to decide the question: Who governs?

**

I recently heard democracy being described as "government by opinion". The latest measurement of public opinion showed a five-point shift to Fianna Fail (41%), at the expense of a one-point drop for Fine Gael (27%) and a three-point drop for Labour (10%). When the PD's and the Greens are added to the equation, Monday's poll put the present Government parties and the Rainbow alternative tied at 43%.

**

As I thought might happen, the Opposition yesterday raised the spectre of a Fianna Fail-Sinn Fein government. Both the Taoiseach and Minister denied the possibility of an explicit deal with Sinn Fein, but the latter stated Fianna Fail could receive “unsolicited support.” Eoghan Harris has said recently in the Sunday Independent that Bertie Ahern would rather take a chainsaw and cut off his own legs than give Mary Lou McDonald a ministry. I agree. I'd be amazed if a FF-SF deal were to happen this time around.

**

Today's Irish Times Head2Head slot features articles by Bertie Ahern and Enda Kenny. Mr Ahern (sub req'd) says:
"Our record in government is second to none. We have raised pensions, cut hospital waiting lists from years to months, brought in 3,000 new gardaí, cut taxes, built roads and the Luas, raised child benefit and helped to create 600,000 jobs. This represents more progress in a shorter time than achieved under any government in our history.

I understand we have not solved every problem these past 10 years. I know that the advances we have made on so many fronts, and which are so visible around us, do not mean the end of the challenges we face. But I believe the best way ahead is to build on our progress, not turn our back on it. This election is about the future.

I am excited about the possibilities. There is so much more that we can do, now
that we have built the foundation of sustained prosperity. Fianna Fáil has a specific, costed and ambitious plan for Ireland's future. It's the Next Steps Forward. This is a plan that has been costed, and thought through."
After reeling off the campaign promises we have heard repeatedly over the last few weeks, Mr Ahern repeats claims he made in the debate last Thursday night, such as that the Fine Gael/Labour tax proposal amounts to "[t]ax cuts directed towards the wealthiest few", in particular top 3 per cent of earners, and that no child born today would benefit from the Fine Gael/Labour plan for free GP visits for children aged under five. (Enda Kenny fluffed the point last Thursday night, but explained to Pat Kenny on Radio 1 Monday morning that the plan is to negotiate the proposal in the first 100 days of the new administration and put it into effect in one fell swoop. The effect of that would be that, contrary to Fianna Fail's allegation, plenty of children born today would stand to benefit.) The Taoiseach concludes his Irish Times article by saying that:
"Enda Kenny's contract with Ireland is a fraud. It isn't worth the billboard it is written on."
...
"[H]ere is the choice: should we build on the progress of the last 10 years, or take a risk, with unproven leadership and uncosted promises?
I ask for the chance to work with you to keep building an Ireland that our children and grandchildren can live and prosper in, an Ireland of pride and great purpose. It's up to all of us to get out to the polls, so that the peace and prosperity of the last decade can be defended and developed.
Now is the time for Ireland to take the Next Steps Forward."

**

Enda Kenny's Irish Times piece (sub req'd) predictably attacks the Taoiseach's recent use of the word "peripheral" to describe the problems in healthcare and education. After that jibe, Kenny sets out his vision:
"I understand what needs to be done to tackle the challenges facing our country. I have an ambition for the country and a vision for where it should be in the next five and 10 years. Having a vision of a strong economy with public services to match is not enough.
To realise that vision you need an agenda for action. I have set out my agenda for action in my Contract for a Better Ireland, which lays out the fundamental building blocks of a new and better country."
The article tries to focus readers' attention on the health service (the Fine Gael/Labour Alliance for Change has called the election a referendum on the state of the health service):
"To change the health service for the better, you have to change the government.
The commitments in my contract on health will bring a transformation to our hospitals and our families. With more beds, we reduce waiting in A&Es and for critical life-saving operations. We also make our hospitals places of healing rather than infection. With properly equipped isolation units we can control the hospital-acquired infections that are plaguing our nation.
With better healthcare for our children, we will be rearing the healthiest generation our country has ever seen.
Investment now will pay immeasurable dividends in future years, both in health and the quality of their lives."

The Fine Gael leader then repeats his pledge to hold himslef accountable to his Contract, and to hold Ministers accountable for incompetence:
"After years of cynicism about politics and politicians, after years of deception and broken promises, I believe it's time a politician stepped up to the line and took responsibility for their actions in government.
Having fulfilled my contract, and only having fulfilled my contract, will I stand again, before you, the people of Ireland, and ask you to re-elect me as taoiseach. And if I have not, I will not.
...
If you want politicians to be as accountable as you are in your own life, then vote for the contract and vote for Fine Gael.
Tomorrow, for the first time ever in an Irish election, people will have the chance to vote for a politician who is willing to stand up and take responsibility for their actions in government.
I am that politician."

Polls show hung Dail on the cards

2007-05-20T14:50:00.000+01:00

After last Sunday's statement by the Taoiseach on his finances and the leaders' debates midweek, a ray of light for Fianna Fail in the shape of two new opinion polls. Today's Millward Brown IMS/Sunday Independent and Red C/Sunday Business Post polls show Fianna Fail gaining slightly against the FG/Labour alliance. The Sunday Independent poll was conducted on Monday and Tuesday - after the statement and before the debates, while the Sunday Business Post took the nation's temperature on Wednesday, Thursday and Friday.

The numbers are as follows. Sunday Independent: FF 37 (+2), FG 25 (-1), Labour 12 (-1), PD's 3 (no change), Greens 5 (no change), Sinn Fein 9 (-1), Independent/others 9 (-1). Sunday Business Post: FF 36 (+1), FG 27 (-2), Labour 11 (-1), Greens 8 (+2), SF 10 (+3), PD 2(-1) and Independent/others 6 (-2).

On these numbers, a hung Dail is a distinct possibility, with both alternatives coming up short of a majority. Fianna Fail will be happy the slide has ended, but a one-point gain in the only poll taken after the Bertie-Enda debate isn't much of a bounce. The Red C poll puts FG/Labour and the Greens on 46%, which (lest we forget) is more than the current Government managed in 2002. However, last time out both Fianna Fail and the PD's probably took more seats than expected on the number of first preferences they attracted. It seems to me that Fine Gael's target must be to reach or better its 1997 result of 27.9%. Working on the premise that the Millward Brown IMS underestimates Fine Gael support and the Red C poll is the more accurate, then FG is in the ballpark. The Red C poll also shows the Greens recovering well - they look a good bet for 8-9 seats. Therefore, FG/Labour's target is 74 or 75. Fine Gael needs to break the magic 50-seat barrier - a return to its 1997 level of 52 seats would do nicely. Enda Kenny would then get a majority.

But how likely is that? The first difficulty is that, like all general elections in Ireland, there is a degree to which Thursday will be 43 disconnected local battles. Many voters will look to whose is best for their area, rather for the nation. As Stephen Collins pointed out in yesterday's Irish Times, "as the strongest and most successful political organisation in the history of the State, [Fianna Fail] is better equipped than any other party to survive on an ebbing tide. There are a number of constituencies in which Fianna Fail could endure a significant vote loss but hold on to its seats." The second difficulty is that, whatever about how he came to own his house, Bertie Ahern remains the towering figure of modern Irish politics post-Lemass, both in terms of popularity and achievement. There will be people voting on Thursday (like Eoghan Harris, as he says in today's Sunday Independent), in order to get Bertie for a third term. Thursday night's debate reminded the voters that he remains a formidable operator. In comparison with Enda Kenny, he is the experienced choice for Taoiseach. The difficulty with that argument is that Fine Gael has only been in power for two of the last 20 years: There is hardly a non-FF politician in the land qualified for the job of Taoiseach, if one insists on significant recent ministerial experience.

Two final things of note. Firstly, Ivan Yates, former FG minister and now bookmaker, says the best odds currently favour the following outcome, as told to the Sunday Tribune: FF 64-66 or 66-69 (equal odds), FG 45-47, Labour 21-22, PD's 2, Sinn Fein, 9-10, Greens 9. The difference between those figures and a Rainbow majority is the difference between its projection for Fine Gael (45-47) and Fine Gael's target: 52.

Second, the front page of this morning's Sunday Tribune has the headline "Four days to go ... Fianna Fail's only option: Taoiseach Rabbitte or Taoiseach O'Caolain." The former has emphatically rejected Fianna Fail overtures, the latter's overtures have been emphatically rejected by Fianna Fail. The election could yet turn on a last-furlong shift on sentiment, as it did in 2002 due to Michael McDowell's capitalisation on the need to prevent one-party government. I wonder whether the spanner in the works this time might be public fear that a vote for Fianna Fail would be a vote for Sinn Fein in government. Personally I think that would be unfair on Bertie Ahern, who I believe is genuinely opposed to Sinn Fein participation in government. We'll see soon enough whether the FG/Labour alliance wants to make an issue of it. In an interview in today's Sunday Independent, Enda Kenny said: "Can you take the Taoiseach on his word on this matter? It's like this, power for Fianna Fail is the ultimate."

Latest betting on Election 2007

2007-05-18T20:57:00.000+01:00

At present, Paddy Power has Kenny at 4-5 to be the next Taoiseach, Ahern at 5-4 and Cowen 6-1. Pat Rabbitte is 8-15 to be Tanaiste, whereas Michael McDowell has no better odds than Brendan Howlin - both are at 7-1. As for number of seats in the 30th Dail, the shortest odds are on FF to return with 63-66 seats (6-4), FG 52+ seats (10-11), Labour 23+ seats (11-10), Green party 9-10 seats (7-4), PD's 1-3 seats (11-10) and Sinn Fein 9-10 seats (11-10). If the parties get (say) 63, 52, 23, 9, 3 and 9, that would only leave 7 seats for others. With Joe Higgins a near-certainty for the Socialist party and Clare Daly in with a shout, that would leave only 5 Independents. It would also put Fine Gael, Labour and the Greens in government, with 84 seats i.e. a one-seat majority.

For the changing betting picture, see Irish Election Betting.

The Bertie-Enda debate

2007-05-18T20:51:00.000+01:00

Last night's debate between the candidates for Taoiseach attracted almost a million viewers. But who won? All the contributors on Vincent Browne's radio show last night gave it to Bertie. By contrast, all three broadsheet newspapers scored it a draw. By contrast The headline in The Irish Times today was "Kenny scores on confidence and Ahern on detail." I must say that chimes with my view of the debate. As Stephen Collins puts it on page one of the Irish Times report, Enda impressed with the "confidence and the clarity of his message on services and accountability" and generally looked "confident and alert." The Irish Examiner headline was "No killer punchline means a messy draw" and the Irish Independent's verdict was "Ahern shades it but fails to land a knockout." RTE.ie said: "Most commentators agreed that Bertie Ahern won overall, despite a strong performance from Fine Gael leader Enda Kenny."

The challenger has a clear message (the Contract for a Better Ireland) and was intent on getting it across to those watching and listening. He stumbled a few times with figures, but I don't think that will have bothered many watching - the trench warfare over budgetary figures and projections probably went over the heads of most voters, including this one. Kenny also didn't deal properly with the Taoiseach's allegation that the top 3% of earners would gain most from the FG-Labour tax proposals. On the healthcare issue, which should have been his strongest area (by virtue of it being the Government's weakest flank), Kenny didn't score a clear victory. The speech as Gaeilge and the quote from Abraham Lincoln at the end were good touches.

Both began a little tensely, but got into their stride before long. Bertie gave a generally commanding performance and fought a tough, at times ferocious, rearguard action on the healthcare issue. I was also impressed by the easygoing way in which the Taoiseach emphasised his experience at the Cabinet table and that he answered well when Miriam O'Callaghan asked him to disagree with Tony Blair's statement that 10 years is long enough to be head of government. His opening breeziness evaporated when asked about his house and the loans he took from friends, but he had a free pass on that, since Kenny expressed no view on it. The Taoiseach shipped a few heavy blows, I thought, when Kenny pointed out that numerous Fianna Fail promises made in 2002 never came to pass, such as the Dublin Metro open by this year (building has yet to start), 2000 extra Gardai on the beat (admittedly that promise will be met in this fiscal year) and an end to waiting lists (albeit Bertie countered that lists have come down in many areas).

My own view? The debate ebbed and flowed. Probably the champion shaded it on points, but the challenger threw some good punches too.

Labour/PD/Green/SF leaders debate

2007-05-17T17:40:00.000+01:00

So who won last night's debate? Examiner columnist Harry McGee's initial reaction was that "Rabbitte (relaxed, almost too Cheshire Cat) pipped it from McDowell (over negative, too prone to personal insults) from Adams (relaxed but woolly on specifics espeically on the economy) and Trevor (made some very good points; defended himself well but the writing on the hands was a disaster)." Let me give my view on each of the four leaders' performances, for what it is worth.

Rabbitte, aside from the smirk that seemed constantly on his face when others (especially McDowell) were speaking, was composed and avoided the squabbling between Sargent and McDowell, in which the Green leader in particular seemed intent on reprising the Rumble in Ranelagh. His remark that McDowell was acting "like a menopausal Paris Hilton" was just plain odd. Rabbitte seemed a little uncomfortable when asked how cutting the baic rate of income tax was consistent with drastic improvements in public services, but I thought he answered the question well. On the plus side, however, he did best in the opening set piece individual speeches and avoided having any serious blows landed on him. John at Semper Idem is right to say: "He was calm and collected, defended himself well, and came across very competently on those moments when the issues were discussed." I noticed on a number of occasions that he interjected after Sargent had made a point to agree with him, thereby trying to show the compatibility of Labour and the Greens.

McDowell was in fighting form and seemed determined to present the PD's (and by extension the present Government) as the only safe option when it comes to the country's economic and fiscal prospects. So he repeated the Greens' plan to raise €1 billion over five years via a levy on the banks; he quoted Rabbitte's remark that as Minister for Finance he would "afflict the comfortable and comfort the afflicted". His hardest blows fell on the strangely hapless Adams, though. When the Sinn Fein leader claimed to live on the average industrial wage, McDowell reminded him of his (Adams') holiday home in Donegal; when Adams responded that it's owned by the bank, McDowell, quick as a flash, asked whether it was the Northern Bank. Similarly, when Adams lamented the state of national drugs policy, McDowell shot back that the Provos had sold their paramilitary know-how to FARC narco-terrorists in Colombia in exchange for $25 million. I have to agree with Harry McGee though, that too much of McDowell's content was negative. It would have been better for him to spend more time emphasising the economic success of the last 10 years and building on his convention speech pledge to take Ireland "from good to great".

Sargent's opening speech was decent and, then went toe-to-toe with McDowell and showed no lack of confidence. The cog notes on his hand looked a little silly, but I don't think that will exactly be a matter affecting how people vote. He made some good points and got in his customary reference to how well the Greens have apparently done in government in Germany, Finland and Sweden, but probably would have liked more of a chance to make the points his party has cogently made on signature Green issues.

As for Adams, I think Mark Hennessy is right that he got "a hiding". Hennessy adds accurately: "Adams’ oft-repeated nonsense that he lives on the average industrial wage was cruelly exposed by the PD leader" and "Adams weak command of economics, particularly when he accused Labour of wanting to privatise the health service, was brought into the light, though rarely as clearly as this." Certainly Hennessy's conclusion is right too: "While Adams will not have lost any of his party’s core support in last night’s debate, there is little doubt but that he will have done little to attract second, third and fourth preferences from uncommitted voters." (I am at a loss as to how it can United Irelander can say that Adams performed better than McDowell and equally as well as Rabbitte.)

Marks:
Rabbitte 6.5/10
McDowell 6.5/10
Sargent 5/10
Adams 2/10

Evening Herald poll suggests FG gaining at FF's expense

2007-05-17T16:56:00.001+01:00

As he prepares for tonight's Prime Time debate with Enda Kenny, an Evening Herald poll has bad news for Taoiseach Bertie Ahern. The poll shows that Fianna Fail is slipping in Dublin and that Fine Gael is gaining. The current Government lags a significant distance behind the possible alternative coalition. The figures in the Herald poll are as follows: Fianna Fail 29% (-8), Fine Gael 22% (+7), Labour 15% (no change), PDs 3%, Greens 8% and Sinn Fein 11%. That puts the FF/PD coalition on 32% and FG/Labour on 37%, rising to 45% when the Greens are included.

Irish Independent poll suggests Govt doing poorly, FG/Lab improving

2007-05-15T00:15:00.000+01:00

Today's Irish Independent/Millward Brown IMS poll is bad for the Government. The poll, taken last Wednesday and Thursday, shows: Fianna Fail 35% (-3), Fine Gael 26% (+3), Labour 13% (+1), PDs 3% (-1), the Greens 5% (-1), Sinn Féin 10% (+2) and Independent/others 8% (no change).

The 44% achieved by the FG/Labour/Green Rainbow would likely be insufficient to form a majority. But, as RTE notes, surveys from this firm "have in the past been said to overestimate Fianna Fáil and underestimate Fine Gael support." For example, in 2002, Millward Brown IMS gave Fianna Fail 50% just before the election. In the event, the party took 41.5% of first preferences. On that basis, if Fine Gael were to outperform its 26% result in today's poll on election day, it would move close to entering government. Surely though today's poll couldn't overestimate Fianna Fail support, could it?

Sunday poll suggests FF slipping, FG/Lab doing well

2007-05-13T19:30:00.000+01:00

Today's Sunday Business Post/Red C poll shows a drop in support for Fianna Fáil and a gain for Fine Gael since last Sunday. The PDs improve on their (dismal) showing of last week. The Greens' poor run of polls continues, while Sinn Féin received no bounce from the week's events in Belfast. The figures: FF 35% (-2), FG 29% (+3), Labour 12% (no change), PDs 3% (+1), SF 7% (-1), Greens 6% (-2), Independents/others 8% (+1). The number answering undecided is 18%.

I decided to see what the average of today's poll, plus four other polls to date (Irish Times May 11th, Sunday Business Post May 6th, Irish Examiner May 5th and Irish Times April 27th), would reveal. The average support for the parties, with the change from 2002 in brackets, is as follows: FF 35.8% (-5.7), FG 28% (+5.5), Labour 12% (+1.2), PDs 2.4% (-1.6), Green 6.2% (+2.4), SF 8.6% (+2.1), Independent/other 7.2% (-3.8).

A look back reminds us that, in 1997, Fine Gael won 27.9% and Labour 12.9%, which resulted 54 and 21* seats, respectively. That indicates that both parties will need to take at least the percentage of first preferences they did in 1997, if Fianna Fáil is to be ousted from government. (*Labour numbers include Democratic Left.)

One way to pick your party

2007-05-12T16:50:00.000+01:00

The Department of Political Science in Trinity has launched a webiste called pickyourparty.ie, which is intended to give users an indication of the political party closest to their own views. By means of a simple survey, the website calculates the party with which the user's expressed preferences tally most accurately. It might be more accurate, if the survey covered a greater range of questions, but it is an interesting innovation nonetheless.

The mechanism is based on an expert survey of the various party's on the political issues, but it the site notes that "the survey was administered in 2002-2003 any policy-shifts that have occurred since that point in time are not accounted for on this website." Any number of policy shifts have, of course, occurred in that timeframe last few months, e.g. Labour's and Sinn Fein's changed tax policies (albeit a far greater leap in the latter instance). The emphasis of Fianna Fáil's fiscal policy has changed since the 2002-2003 period too, to take another clear example.

The end of the Blair era

2007-05-11T12:45:00.000+01:00

Yesterday Tony Blair announced he will resign as U.K. prime minister on June 27th. This has been expected, ever since Mr Blair made clear before his third general election victory in 2005 that he would not run again as prime minister and leader of the Labour party. Indeed, it was "one of the most telegraphed resignations in political history."

Taoiseach Bertie Ahern said Mr Blair "never lost interest" in Northern Ireland, despite setbacks. For this he would have "an honoured place in Irish history". "Tony Blair has been a friend to Ireland. And I am proud also to count him as a friend of mine. " Other world leaders paid tribute too. U.S. president George W. Bush said: "I have found him to be a man who's kept his word, which sometimes is rare in the political circles I run in. When Tony Blair tells you something, as we say in Texas, you can take it to the bank. He is a remarkable person, and I consider him a good friend." White House spokesman Tony Snow described Blair as an "extraordinary leader of the United Kingdom." The president of the EU commission, José Manuel Barroso, said "Tony Blair has taken Britain from the fringes to the mainstream of the European Union.He leaves an impressive legacy including his commitment to enlargement, energy policy, action against climate change, and for fighting poverty in Africa." Dutch prime minister, Jan Peter Balkenende, said that with Mr Blair's departure "a prominent leader disappears from the European and world stage. During tense moments, Blair was the binding force. Blair did not shrink from rowing against the current if he thought it was necessary."

Blair leaves the stage, having endorsed his Chancellor of the Exchequer, Gordon Brown, the man who has presided over 10 years of uninterrupted economic growth and in some ways a different type of politician, as his successor. Proper analysis of the Blair premiership awaits the perspective of history, but a few things can be said with a degree of certainty. In 1997, New Labour tapped into Britain's collective psyche. To bring Labour from a position of defeatist opposition to three successive election victories (two of which were major landslides) was a great political acheivement. It is undoubtedly true that Blair was a prototype 21st century politician; as is has been correctly said, "his success hinged on his remarkably deft public touch. His rise coincided with that of 24-hour TV news channels, and early on he was expert at picking the national mood." A former barrister, Blair added formidable rhetorical strength to his personal charisma and public relations awareness. Any number of brilliant speeches could be cited: his 1999 Chicago speech in which he set out his views on the interdependence of the international community; his March 2003 speech arguing in favour of war in Iraq ("To show that we will confront the tyrannies and dictatorships and terrorists who put our way of life at risk. To show at the moment of decision, that we have the courage to do the right thing. I beg to move the motion."); his final convention speech as party leder last autumn.

Even now though, claims are being made that Blair's career was overshadowed (or ruined) by his decision (variously described as out of character, or in error) to support the U.S.-led coalition in Iraq. David Brooks in today's New York Times (sub. req'd) takes the following view:

"The conventional view of Tony Blair is that he was a talented New Labor leader whose career was sadly overshadowed by Iraq. But this is absurd. It’s like saying that an elephant is a talented animal whose virtues are sadly overshadowed by the fact that it’s big and has a trunk. Blair’s decision to support the invasion of Iraq grew out of the essence of who he is."

Brooks argues that, over the last decade, Blair has emerged as "the world’s leading anti-Huntingtonian." Brooks contrasts the view of Samuel Huntington (broadly speaking) that "humanity is riven by deep cultural divides and we should be careful about interfering in one another’s business" with what he calls Blair's communitarian view that "the process of globalization compels us to be interdependent, and that the world will flourish only if the international community enforces shared, universal values." (“Globalization begets interdependence, and interdependence begets the necessity of a common value system to make it work.”)

Brooks traces Blair's worldview back to Scottish theologian James McMurray. (“If you really want to understand what I’m all about, you have to take a look at a guy called John Macmurray,” Blair once said. “It’s all there.”), with whom Blair came into contact after his father suffered a debilitating stroke. Blair absorbed from Macmurray a strong communitarian faith, which has influenced him throughout his political life. Brooks argues that a belief in a universal human community was the impulse behind Blair's foreign policy, from Kosovo through Sierra Leone and Afghanistan to Iraq. Over the last three years or so, both left and right, recoiling from the violence in Iraq, have grasped for ideas more like those espoused by Huntington, rather than Blair. As Brooks writes:

"There has been a sharp rise in the number of people who think it’s insane to try to export our values into alien cultures. Instead of emphasizing our common community, people are more likely to emphasize the distances and conflicts between cultures. Whether the subject is immigration, trade or foreign affairs, there is a greater desire to build separation fences because differences in values seem deeply rooted and impossible to erase. If Huntington turns out to be right, then Blair will be seen as one of the most naïve communitarians of all time. But I wouldn’t count him out just yet. It could be that over the long term, and despite the disaster in Iraq that he co-authored, his vision of a human community will be vindicated. Or it could be that Blair’s vision of that community was right — except in the Middle East, the region where he most aggressively sought to apply it."

Update (Sat. May 12th, 4.40pm)
Brooks' piece has been posted online here.

FF gains, FG/Labour steady

2007-05-10T13:15:00.000+01:00

The TNS/mrbi poll in tomorrow's Irish Times shows a slight gain for Fianna Fail, a slight drop for Fine Gael, but Fine Gael's loss is balanced out by an increase in support for Labour; thus the alternative alliance's strength remains in the region of government, were the poll's result to be replicated in a fortnight's time, when one adds the Green party's support. The numbers are as follows: FF 36% (+3), FG 28 (-3), Lab. 13 (+3), PD 2 (-1), SF 10 (no change), Green 5 (-1), Independent/others 6 (no change), undecided 15 (-4). From Fianna Fáil's point of view, at least the poll gives cause for optimism that the party hasn't suffered over the last two weeks. From the point of view of Fine Gael and Labour, 41% between them represents a decent benchmark; it certainly suggests they are in with a shout.

Meanwhile, RTE's Election 2007 site is up and running.

Update (Fri, May 11th, 1.15pm)
Today's Irish Times poll also aksed voters: "Which of FF/PDs or FG/Labour (and possibly the Greens) would you like to see form the next Government?" 36% (+1) answered FF/PDs; 38% (+2) backed FG/Labour (and possibly the Greens); 13% (-2) wished for neither; 13% (-2) didn't know. The alternative also recorded a 35-34 lead when voters were asked which coalition was most likely to form the next Government. This perception finding may be the most important in the entire poll. The party leaders approval ratings were: Ahern 54% (+1), McDowell 34% (+2), Kenny 47% (+6), Rabbitte 50% (+2), Sargent 42% (-1) and Adams 51% (+5).

Damian Loscher of TNS/mrbi, analysing the poll, writes that:
"Arguably, the pledges from the main parties - more gardaí, better health service, lower taxes, stamp duty reform - are not sufficiently dfferentiated to suggest this campaign will be won or lost on the hard issues. Instead the softer issues of character, energy, ambition and confidence will define the campaign. In this context, the scheduled television debate between Ahern and Kenny may yet prove decisive."

Stephen Collins writes:
"A vote share of 28 per cent for Fine Gael and 13 per cent for Labour would give the alliance a better chance of winning the election than the the 31:10 proportions in the last poll. The Labour share of the vote in Dublin has increased dramatically since the last poll and it is now in joint second place with Fine Gael on 15 per cent. ... The further slide in the vote for the Greens will come as a disappointment, particularly as it is now in fifth place in Dublin on six per cent."

Ahern to debate Kenny

2007-05-10T00:05:00.000+01:00

The two candidates for Taoiseach are to have a head-to-head debate on May 17th, a week before polling day. It is reported that the debate will last just over an hour and will take place on a special extended edition of Prime Time. RTE also plans a debate between Green party leader Trevor Sargent, Gerry Adams and Michael McDowell, subject to agreement by the Tánaiste. How Pat Rabbittte views the latter development is not reported.

Text of Ian Paisley's speech at Stormont yesterday

2007-05-09T16:25:00.001+01:00

One can admire the prose without necessarily agreeing with every word of it:

How true are the words of Holy Scripture, 'We know not what a day may bring forth.'
If anyone had told me that I would be standing here today to take this office, I would have been totally unbelieving. I am here by the vote of the majority of the electorate of our beloved Province. During the past few days I have listened to many very well placed people from outside Northern Ireland seeking to emphasise the contribution they claim to have made in bringing it about.
However, the real truth of the matter is rather different. If those same people had only allowed the Ulster people to settle the matter without their interference and insistence upon their way and their way alone, we would all have come to this day a lot earlier.
I remember well the night the Belfast Agreement was signed, I was wrongfully arrested and locked up on the orders of the then Secretary of State for Northern Ireland. It was only after the Assistant Chief of Police intervened that I was released. On my release I was kicked and cursed by certain loyalists who supported the Belfast Agreement. But that was yesterday, this is today, and tomorrow is tomorrow.
Today at long last we are starting upon the road - I emphasise starting - which I believe will take us to lasting peace in our Province.
I have not changed my unionism, the union of Northern Ireland within the United Kingdom, which I believe is today stronger than ever. We are making this declaration, we are all aiming to build a Northern Ireland in which all can live together in peace, being equal under the law and equally subject to the law. I welcome the pledge we have all taken to that effect today. That is the rock foundation upon which we must build.
Today we salute Ulster's honoured and unaging dead - the innocent victims, that gallant band, members of both religions, Protestant and Roman Catholic, strong in their allegiance to their differing political beliefs, Unionist and Nationalist, male and female, children and adults, all innocent victims of the terrible conflict.
In the shadows of the evenings and in the sunrise of the mornings we hail their gallantry and heroism. It cannot and will not be erased from our memories. Nor can we forget those who continue to bear the scars of suffering and whose bodies have been robbed of sight, robbed of hearing, robbed of limbs. Yes, and we must all shed the silent and bitter tear for those whose loved one's bodies have not yet been returned. Let me read to you the words of Deirdre Speer who lost her Police officer father in the struggle:
'Remember me! Remember me! My sculptured glens where crystal rivers run, My purple mountains, misty in the sun, My coastlines, little changed since time begun, I gave you birth.
'Remember me! Remember me! Though battle-scarred and weary I abide. When you speak of history, say my name with pride. I am Ulster.'
In politics, as in life, it is a truism that no-one can ever have one hundred percent of what they desire. They must make a verdict when they believe they have achieved enough to move things forward. Unlike at any other time I believe we are now able to make progress. Winning support for all the institutions of policing has been a critical test that today has been met in pledged word and deed. Recognising the significance of that change from a community that for decades demonstrated hostility for policing, has been critical in Ulster turning the corner.
I have sensed a great sigh of relief amongst all our people who want the hostility to be replaced with neighbourliness.
The great king Solomon said, 'To everything there is a season, and a time to every purpose under heaven.
'A time to be born and a time to die. A time to plant and a time to pluck up that
which is planted.
'A time to kill and a time to heal. A time to break down and a time to build up.
'A time to get and a time to lose. A time to keep and a time to cast away.
'A time to love and a time to hate. A time of war and a time of peace.'
I believe that Northern Ireland has come to a time of peace, a time when hate will no longer rule. How good it will be to be part of a wonderful healing in our Province. Today we have begun to plant and we await the harvest.

Supreme Court term 2006/07: Hayes v Minister for Finance

2007-05-09T16:15:00.000+01:00

On February 23rd last, the Supreme Court gave judgment in Hayes v Minister for Finance [2007] IESC 8. The facts were these: the plaintiff was injured after being thrown from a motorbike (driven by her then boyfriend) on which she was a pillion passenger, causing her serious injuries, after the motorbike collided with a car that had been travelling in the opposite direction. The driver of the other car had slowed to all but a stop. No action was brought against the driver of the other car. Proceedings were brought against the respondent, arising out of the actions of members of the Garda Siochana, who had followed the motorbike, after it had driven through a Garda checkpoint. The claim was that the Gardai were at least partly responsible for the crash (and hence the plaintiff's injuries): the motorcyclist panicked, due to the Garda pursuit of his vehicle. The High Court (Finlay Geoghegan J) accepted this argument, concluding, to quote the judgment of Kearns J for the Supreme Court, that "the cause of the speed at which the motorbike was being driven at the time of the accident was the pursuit of the bike by the garda vehicle."

The Supreme Court allowed the appeal and and dismissed the plaintiff's claim. Having been present during part of the argument in the Supreme Court, the result wasn't a major surprise. The State, represented by Brian Murray SC, argued that not only were the Gardaí entitled to investigate offences, their duty to uphold the law bound them to do so. The officers involved were perfectly justified in pursuing the motorcycle. There was no evidence that the Garda car gad at any stage exceeded 50 mph. While the driver of the motorcycle believed the Garda car was still in pursuit, he in fact never saw it again from the time he left Cashel until the accident occurred nearly 10 miles further down the road. In the alternative, even if the Gardaí's action had been negligent, the driving of the motorcyclist had been a novus actus interveniens - it was the proximate cause of the accident and absolved the Gardaí of any blame. Counsel for the plaintiff, Michael McMahon SC, submitted that, since the Gardaí had no hard information that any serious crime had been committed by the driver and thus had no right to engage in a chase at speed. Although it doesn't seem to be recorded in the judgment, I seem to remember the State arguing that the Gardaí could have been liable, in a case where the pillion passenger on a motorcycle was in fact a hostage and a serious crime followed shortly after the motorcyle drove through a checkpoint. If the Gardaí failed to pursue, why would the hostage not later be able to sue the State and argue that the Gardaí had been negligent in not pursuing?

The Supreme Court agreed that it was "part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury." Therefore, "if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so." (citing Director of Public Prosecutions (Stratford) v. Fagan [1994] 3 I.R. 265). These powers must be exercised "bona fide and not in a capricious or arbitrary manner." There was no allegation or evidence whatsoever of mala fides in the present case. Kearns then added the following:

"I think therefore that Mr Murray is correct in describing the relevant test to justify the commencement of a pursuit as being one whereby the gardaí should have reasonable grounds for doing so and not one whereby as a precondition they should first have a report on the car radio of the commission of a crime before taking action. It would be a very unsatisfactory state of affairs to hold that the gardaí should have refrained from tailing or pursuing the speeding motorcycle when they knew it was not going to stop and notably when the driver of the motorcycle, who was already travelling well in excess of the speed limit, accelerated away from the speed trap. To so hold would be to condone a state of affairs whereby a reckless driver might evade justice altogether by simply driving more erratically or dangerously than when first observed."

The motorcyclist "was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever." Given that after Cashel the Garda car fell several (eventually almost 10) miles behind, did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? In short, the Supreme Court's anser was "No, it did not." To complete today's merry trip through the Latin phrases used in legal terminology, Kearns J discussed the distinction between a causa sine qua non and a causa causans. Since the Gardaí's action were not a causa causans of the plaintiff's injuries, the appeal must be allowed and the claim dismissed.

Miss D may not be prevented from travelling to U.K., says High Court

2007-05-09T15:32:00.000+01:00

The High Court today held that Miss D can travel outside of the country for an abortion. Mr Justice McKechnie was "firmly and unequivocally" of the view that that there is "no statutory or constitutional impediment" which would prevent her from going to the UK. (Last week I discussed the travel amendment and a previous case in this area, A and B. It's unclear at this stage whether any party to the current case cited A and B to the Court.)

Miss D judgment expected tomorrow

2007-05-09T00:24:00.000+01:00

Mr Justice McKechnie will decide Miss D v HSE today at 2pm.

Paddy Power poll

2007-05-06T15:12:00.000+01:00

Over at Irish Election, Adam takes us through how the 30th Dáil will look, if Paddy Powers' odds are right in every constituency. Thus, in a five-seater the five candidates with the best odds are counted as elected. To be exact, Adam's exercise covers 39 out of the 43 constituencies; Paddy Powers seem not to offer odds on the other four. In this simulated poll, then, 78 seats would represent a Dáil majority. The results as calculated by Adam give: FF 64 seats (-11), FG 42 (+14), Lab. 19 (-1), SF 10 (+5), Green 8 (+3), PDs 3 (-5), Socialist 2 (+1), Independent 6 (-6).

By this reckoning FF/PDs would take 67 seats and FG/Lab./Green 69 seats. Other hypothetical combinations include FF/Green 72 seats and FF/Labour 83 seats. The latter is the only viable majority by this measure.

Two polls show alternative edging ahead

2007-05-06T14:50:00.000+01:00

The Irish Examiner says Saturday's opinion poll leaves the alternative alliances on "a knife-edge". The state of the parties is as follows: FF 37% (-2), FG 26% (+2), Lab. 13 (+3), PDs 2% (-4), Green 6% (unchanged), SF 8% (-1), Independent/other 9% (+3). The Examiner poll was conducted last Monday and Tuesday, before the Taoiseach's explanation on Thursday of his financial affairs in 1993/4. The affair took another turn this afternoon when the Tanaiste asked for a "a credible and comprehensive public statement." McDowell added that "no purpose would be served by them leaving Government and handing over the Justice and Health portfolios to people who are unfamiliar with the issues" and that he would go back into Government with Fianna Fáil if a credible account was given by the Taoiseach and accepted by the Irish people.

Today's Sunday Business Post/Red C poll shows a similar picture, but in fact shows Fianna Fáil gaining over the two weeks since the last such poll, despite what the media has been describing as a disastrous opening week of campaigning for the party. The results: FF 37% (+2), FG 26% (-1), Lab. 12% (+1), PDs 2% (-1), Green 8% (-1), SF 8% (unchanged), Independents/others 7% (unchanged).

In other words the Examiner gives the FG/Labour/Green alternative a 45-39 lead over the FF/PD incumbents, while the Business Post scores it 46-39 to the alternative. Last time, 45.5% gave FF and the PDs 89 seats.

The Green party manifesto

2007-05-05T19:25:00.000+01:00

The Green party launched its manifesto yesterday. At 36 pages it is half the length of the PD's manifesto, less than a third as long as Labour's 128 page offering, and less than a quarter as long as the Fianna Fail document's 153 pages. The Greens are possible kingmakers, as the April issue of Magill declared. Fine Gael and Labour are working on the assumption that the Greens, though campaigning as an independent party, will join them in government, if the numbers add up. That is probably a fair assumption. The picture becomes more complicated, in the event that the Fine Gael-Labour coalition fails to take about 75 seats. If that is the case, the Greens are unlikely to be able to make up the numbers. If Fianna Fáil loses (say) 15 or 18 seats, the possibility would emerge of a FF-PD-Green Government, but internal opposition within the Green party would seem to render it unlikely. The manifesto's title is "It's time".

So what's in the manifesto? It is a thoughtful document; mercifully concise, it's an improvement from what Mark Hennessy in The Irish Times calls "[t]he days of sandals, and woolly jumpers, and occasionally hare-brained ideas". Having said that, the hare-brained schemes are not all gone, e.g. the proposal to increase capital gains tax to 25%. As might be expected, the first topic is energy. The Greens would "change the Social Partnership process to include a third sustainability pillar putting energy targets at the centre of the national economic planning process." There is a good argument for saying that the partnership system needs to be, if anything, downgraded. 20 years ago, the country was in dire economic straits and all hands were needed on deck to get us out of the catastrophe. One wonders now whether the idea has outlived (and outgrown) its usefulness. On the great global warming controversy, the Greens promise to seek "an all-party approach to cut Ireland’s carbon emissions by 3% annually". How this would tie in with negotiating policy in this area with unelected trade union leaders and others is somewhat unclear. Other policies aim at improving building standards and boosting renewable energy sources. The latter in particular has support from most, if not all, parties.

Rural communities have long been hostile to the Greens. This time they might make some progress. In Carlow/Kilkenny, for example, Mary White won't be a million miles from taking a seat. The Greens' manifesto says "Irish agriculture is at a crossroads." The party proposes to "lobby for changes in the World Trade Organisation to protect domestic agriculture from being undercut by imports that are not subject to the same quality, health and environmental standards", as well as banning animal cloning and ensuring Ireland becomes a "GM-free zone". The party also wants 5% of national acreage to be organically converted by 2012.

In relation to employment law, the party promises to consolidate the 40 existing pieces of legislation into a single statute. More problematically, and vaguely, the manifesto pledges to "strengthen our redundancy and unfair dismissal laws to prevent job displacement and a ‘race to the bottom’ in wages and working conditions".

On taxation, no Green manifesto would be quite complete without a paean to the wonders of the Scandavian system: "The Scandinavian countries continue to demonstrate that high levels of public social expenditure retain the support of taxpayers and employers and do not impede economic performance." The Swedish government consistently taxes and spends over 50% of GDP. Not entirely coincidentally, the Swedish economy has created "not a single net job ... in the private sector" since 1950. Likewise, "Swedish doctors spend more than half their time on administration, so they see fewer patients than doctors in any other developed country." Sweden's relative economic decline over the last 20 years has occured while the State spent over half of GDP. (In 1988, the figure was 55.3%.) Is this what the Greens want to see happen in Ireland? The manifesto's statement (or is it a complaint?) that "Ireland spends a modest share of its wealth on social protection in comparison with most other EU countries" is an indicator of Green party budgetary policy. It is lazy to simply complain that we should be like the Scandavanian states (of which Sweden is usually held up as the exemplar), without addressing such questions. (By the way, I don't mean to suggest that Sweden has not set positive examples in some areas, such as its liberal vouncher-based school system.)

On the substance of the Greens' proposals, while there is a promise to leave the rate of corporation tax unchanged, the manifesto adds a caveat that the Greens would try to restructure corporate tax reliefs, thereby probably increasing the corporate tax burden. The manifesto claims that Ireland is over-reliant on foreign direct investment (FDI), without ever persuading this reader that the Greens know how to steer the Irish economic ship away from FDI without it going onto the rocks. We've done well form FDI to date; caution is advisable. Some of the tax proposals are unambiguously positive, however. The idea of "a system for regularly and rigorously assessing, auditing and reviewing tax expenditures including cost/benefit analysis for all tax reliefs" is a sound one, as is (even more so) the proposal to "index-link tax credits and bands to provide workers with protection from the effects of inflation and to avoid taxation by stealth". The latter should have been on the books long ago, but well done to the Greens for committing to it. The changes to VAT and PRSI are positive too.

There is much else in the document; it is worth a read.

Great orators of modern times

2007-05-05T19:17:00.000+01:00

“Dream the impossible dream. Dream of the four seats. You can do it. You can deliver the four seats. If you achieve your dream, that dream will become a reality.”
Dick Roche, Minister for the Environment, Portlaoise, April 18, 2007

"I say to you today, my friends, so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident: that all men are created equal." I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood. I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

...

This is our hope. This is the faith that I go back to the South with. With this faith we will be able to hew out of the mountain of despair a stone of hope. With this faith we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
This will be the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring.""
Martin Luther King, Washington, DC, August 28, 1963

Is stamp duty all that important?

2007-05-05T18:10:00.000+01:00

The biggest issue of the election campaign to date, stamp duty, has received too much attention, said NUI Maynooth economics lecturer Jim O'Leary in yesterday's Irish Times (sub. req'd.):

"The attention devoted to stamp duty is a measure of how preoccupied we have become with property and seems entirely out of proportion to the objective magnitude of the matter. Last year the total yield from the tax was €3.7 billion, of which €1.3 billion came from residential property. The latter figure amounts to less than 1 per cent of GNP and compares with receipts of over €13 billion from VAT, €12 billion from income tax and a total tax take of €45.5 billion.
Another way of contextualising the discussion is to compare the coverage afforded to the stamp duty issue with the amount of time that has been devoted to debating the future of our education system. Spending on education amounted to €7.6 billion (5 per cent of GNP) last year, and the quality of that education will be a key determinant of our economic and social well-being for many years after election 2007 has become a distant memory."

More interestingly, perhaps, he thinks that not much of the recent "softness" in the housing market is due to uncertainty over the fate of stamp duty. First the statistics:

"House price growth has clearly run out of steam in recent months. According to the Permanent TSB/ESRI index, prices nationwide fell by 0.6 per cent on average in March, after being flat in February and rising by just 0.1 per cent in the months November through January."

Rather than suggest this is due to the stamp duty debate, O'Leary sees "other potentially powerful negative factors at work, including a sizeable hike in interest rates and a shift in sentiment." Indeed, "the softening of prices has been as pronounced in the first-time buyer market where stamp duty is effectively a non-issue (first-time buyers accounted for 5 per cent of the total raised in residential stamp duty last year) as it has been elsewhere." O'Leary's conclusion is that "uncertainty about stamp duty has had little or no impact on house prices and probably no more than a modest effect on volumes."As an interesting footnote, he suggests cost projections of reform put forward by Fine Gael-Labour (€460m) and the PD's (€355m), which are "based on the constellation of house prices and sales volumes that obtained in 2006 ... are likely to exaggerate the cost, perhaps by a very large margin."

Irrespective of the importance of stampt duty, the reform proposals put forward by the PD's. then Labour and then Fianna Fail are all commendable. Fine Gael's proposed three-year timeframe seems to have gone by the wayside - and justifiably so.

Fine Gael and Labour's Alliance for Change

2007-05-05T00:02:00.001+01:00

Following the launch yesterday Labour's manifesto A Fair Society, which I look forward to reading at more leisure (after all, there seems a good chance that they will be in Government by next month), Fine Gael and Labour today announced an "Alliance for Change". In a joint statement, Enda Kenny and Pat Rabbitte said:

"Since September 2004, our two parties have worked together to present the Irish people, not alone with a choice of Governments, but with a choice of futures for our country. Voting for the Alliance for Change will set our country on a new path towards a Fair Society and a Better Ireland. A vote for Fine Gael and Labour is a vote for change.
Never before in the history of the State have two parties come together in advance of a general election to present detailed agreed policies to the people. At our meeting in Mullingar in 2006, we committed ourselves to developing joint policies on health, policing and on economic management. As the election campaign begins, the Irish people now have before them our comprehensive proposals on these vital issues."

The statement then outlines agreed proposals on taxation, healthcare, policing, development aid and (an issue I believe needs much more debate than it has received) public sector reform.

FF manifesto

2007-05-04T11:30:00.000+01:00

Fianna Fáil launched its manifesto (pdf.) yesterday. This post is nothing like a full analysis; it's just some excerpts I came across in glancing through it. On foreign affairs, the manifesto says:

"Neutrality is central to our vision of Ireland as the bridge between the developed and developing world, the intermediary and facilitator in peace processes, the first on the ground in a major humanitarian crisis – the model UN State for the 21st century. Our policy for the next five years is to Make Neutrality Count. We believe neutrality enhances our standing internationally. Our goal is to use that standing to build peace and deliver development." p12/153 (pdf.)

The document also states an intention to place Ireland "at the heart of UN efforts to respond rapidly to humanitarian and human right crises in the developing world." ibid. The manifesto also promises not to establish diplomatic relations with Burma until Aung San Suu Kyi is released and to press for a complete ban on the use of cluster bombs. p 13/153 The word "terrorism" is nowhere to be found in the document; the only reference to nuclear power is in relation to Sellafield. p 65/153. There is no mention of what should be the E.U.'s policy towards Iran.

The FF manifesto reiterates the Government's commitment to a constitutional amendment on the rights of the child, one of the goals of which is to "put an end to the tragic position which forbids children in long-term care or the children of a marriage from being adopted by loving parents." p 133/153 Another stated goal is to "ensure that the best interests of the child are put centre stage in the adoption and care systems and in all custody disputes." I was under the impression that the latter was already the law. (See Guardianship of Infants Act 1964, s 4)

In relation to the criminal justice system, the manifesto proposes setting up "a Judicial Sentencing Commission under the auspices of the Courts Service ... comprised only of serving judges from each of the State’s courts and its powers will include the power to establish sentencing guidelines." p 103/153. It says these guidelines will "improve the consistency of judicial sentencing without impairing the independence of trial judges in specific cases", but that trial judges will be "required to follow the Commission’s guidelines or to explain why the guidelines are not being followed in any particular case." ibid. Formal annual reviews will be instigated to monitor implementation of the new sentencing and bail regimes mandated under the Criminal Justice Act 2007. p 104/153. There would also be a new provision allowing the D.P.P. to appeal District Court sentences on the grounds of undue leniency. In addition, the "two strikes and you're out" mandatory sentencing regime recently introduced for drug crime by introducing similar proposals in respect of violent crime and sexual offences. ibid. Interestingly, but somewhat vaguely, the FF manifesto pledges to "[i]ntroduce means to ensure that criminal trials can no longer be collapsed because of legal technicalities. This will include legislation and, if necessary, appropriate amendment to the Constitution."

Murphy and McGrath v Minister for the Environment

2007-05-04T08:59:00.000+01:00

Independent TD's Catherine Murphy and Finian McGrath have brought a High Court action challenging the constituency boundaries to be used in the May 24th general election. The applicants' argue that "an analysis of Census figures released last month shows a number of constituencies where people will be under represented and others where they will be over represented." They say that "11 out of 43 constituencies are in clear breach of Article 16 of the Constitution." As the Irish Times reported yesterday, Donal O'Donnell SC said both TDs "accepted the validity of the general election that had been called and the timing of their action would have no bearing on its validity. The urgency consequently disappeared and there were expert witnesses on either side to be called in the case which would last at least four days." Frank Callanan SC, for the TDs, in reply said that the applicants did not seek to restrain the dissolution of the Dáil or to impugn the legitimacy of the election. In addition, a man living the Dublin West constituency, Feargal Molloy, has attempted to join the constitutional challenge.

Edward McGarr of McGarr solicitors has posted the applicants' legal submissions online. They make interesting reading. The matter has been adjourned and put in for mention on May 8th.

Arguments in Miss D case

2007-05-03T23:59:00.000+01:00

The High Court heard argument today in the Miss D case. Eoghan Fitzsimmons SC, for Miss D, argued that the State was entitled under the Healthcare Act 2004 to direct the HSE to permit the girl to travel. Mr Fitzsimons said the HSE wrote to gardaí on 26 April to ask them to prevent the girl from travelling. He said the HSE had no power under the Childcare Act to prevent the girl from travelling. In her affidavit, Miss D, who has been the subject of an interim care order since March due to the conduct of her mother, has said though she is deeply distressed at the thought of carrying her child to full term knowing it will die, she is not suicidal. Counsel also represent for the HSE, her mother, the Attorney General and the unborn. RTE radio suggested this evening that argument is unlikely to be completed tomorrow, given the number of parties represented. (The prospect then arises of an appeal to the Supreme Court.)

Mr Fitzsimons said the HSE’s claim that under law she cannot travel would require Miss D to carry the baby full term only for it to die. He said that would subject her to degrading treatment. It would be "most inhumane" and that Miss D would suffer mental and physical trauma and great discomfort. He then "document[ed] medical studies which showed complications from anencephaly and a risk to the life of mothers in these circumstances." The last point is important. If it is shown that an abortion is necessary to protect Miss D's life, then the procedure would be lawful in Ireland, under the law as stated in the X case. Given the number of parties represented at the hearing (five), Mr Justice McKechnie's original plan to hear all argument today and give judgment early next week has fallen through. The case resumes tomorrow. It is possible that the Court might sit on Monday, if necessary, even though it is a Bank Holiday.

Update (Friday May 4th, 11.45 pm)
Today's Irish Times reported another argument made by Mr Fitzsimons on behalf of Miss D, namely that the unborn child in this case is not entitled to constitutional protection, because it has little or no viability, due to suffering from anencephaly. This argument, which it seems was conceded by State lawyers in a separate case brought by an Irish woman to the European Court of Human Rights. (That case was dismissed last July without reaching the substantive arguments regarding abortion.) If accepted by the court, it would add another ground - genetic abnormality rendering the unborn child non-viable - on which abortion would be lawful in Ireland.

It appears tonight, that the view of the HSE has changed. The Irish Times reports that:
"The Health Service Executive (HSE) today said it would not stand in the way of a teenage girl who wants to go to the United Kingdom for an abortion. Even though they moved quickly to stop the 17-year-old last month, lawyers told the High Court they were now prepared to let her travel under certain conditions. No indication was given if and when the teenager, known only as Miss D, will apply to leave. The change of heart came as a third day of hearings in the dispute drew to a close, with the case set to resume on Monday. The HSE will agree to let Miss D leave for the UK on the grounds she has consent from her mother and a judge."
Gerard Durkan SC, for the HSE, set out conditions on which the HSE would consent to allowing the girl to travel. (The extent to which the HSE has any power over her travelling anywhere is unclear.) Mr Durkan said that, if certain criteria were met, "the HSE's view would be that it would not be in her best interests to stop her". Mr Durkan added that "the HSE had been placed in an awkward situation and hindsight was a wonderful thing." It is reported that counsel for the State and for the unborn child are still to make submissions.

New judicial appointments

2007-05-03T13:23:00.000+01:00

The Government nominated 17 new judges on Wednesday. The appointments involve six new High Court judges, five new Circuit Court judges and six new District Court judges. The Irish Times suggests it is the largest number of judicial appointments at one time ever. (This makes sense. After all, as recently as the 1960’s, there were only five or six High Court judges.)

The High Court appointees include some interesting choices. George M Birmingham SC practices in judicial review and criminal law; he often prosecutes criminal cases on behalf of the State. Born in 1954, he is a graduate of Trinity and King's Inns. After serving on Dublin City Council, Birmingham was elected TD for Dublin North Central in 1981 for the Fine Gael party and served until his defeat in the 1989 general election. In the 1980's, he was at various times Fine Gael junior minister in the Departments of Education, Labour and Foreign Affairs, during Garrett Fitzgerald's time as Taoiseach. More recently, Mr Birmingham was the sole member of the Commission of Inquiry into the death while in Garda custody of Dean Lyons. (The report is available here.) Google "George Birmingham SC prosecuting" and you will find some of the many cases in which he has acted. (The Courts Service, likewise.) Also perhaps of interest is that he is listed as a supporter of Ivana Bacik's campaign for the Seanad.

Garrett Sheehan, solicitor, is described by The Irish Times as having “one of the biggest criminal law defence practices in the country.” A graduate of Michael McDowell's alma mater Gonzaga Colege in 1964, where he was a classmate of Peter Sutherland, Mr Sheehan has been a qualified solicitor for 38 years. Sutherland, a friend of 50 years' standing describes him as "a real champion for justice and the less fortunate." Fr Peter McVerry has been equally complimentary. His firm, Garrett Sheehan & Co. solicitors, has been described as "a leading firm of solicitors in the area of Criminal Law". Following a trail blazed by Mr Justice Michael Peart, Mr Sheehan is only the second solicitor to be directly appointed to the High Court.

Circuit judge Bryan McMahon (well known to law students of the last quarter-century as author of the leading textbook on the law of torts) is promoted to the High Court. A Listowel man and the son of the writer of the same name, Judge McMahon is also chairman of the Abbey Theatre and of the National Archives Advisory Council, as well as holding an adjunct professorship at University College Cork. Indeed, as he recalled in a 2000 speech to law and commerce graduates, Judge McMahon has a long connecton with UCC. An Irish Independent article described him as "an eminent jurist" and "clearly material that deserves a position on the Supreme Court." Before being a judge, he was a solicitor.

In addition, John Edwards SC, who (like George Birmingham) specialises in judicial review and criminal law (as well as arbitration and dispute resolution), joins the High Court bench. Cork-based senior counsel Patrick McCarthy and, last but by no means least, Mary Irvine SC (who becomes by my count the sixth female High Court judge in the history of the State), make up the High Court appointees. Mr McCarthy, who specialises in judicial review and criminal law (a pattern seems to be emerging), currently serves on the Bar Council. Ms Irvine has been a legal assessor for the Dail Public Accounts Committee. (In an interesting coincidence, the three senior counsel named as legal assessors at that link have all since been appointed to the High Court.)

The new appointments increase the number of High Court judges from 32 to 38.

Miss D v HSE, District Judge, Attorney General and Ireland and

2007-05-01T12:27:00.000+01:00

The Irish Times reports that a 17 year-old girl has brought judicial review proceedings challenging a decision preventing her from travelling to England, where she intends to have an abortion. Counsel for the girl (who the court directed could be referred to as Miss D), told the court the case was very urgent. The "foetus suffers from anencephaly", which is "a head disorder resulting from a neural tube defect resulting in the absence of a major portion of the brain, skull and scalp." The child, when born, is not expected to live for more than three days. It appears that the HSE secured a care order over the child, and then decided that she should not be allowed leave the jurisdiction for the purpose of an abortion. The case was adjourned until today.

According to today's Irish Examiner, the case being made is that the travel restriction imposed by the HSE violates Miss D's constitutional rights to personal autonomy, bodily integrity and travel. The latter seems the most relevant ground. The 'right to travel' referred to was inserted into the Constitution on December 23rd 1992 by the Thirteenth Amendment, in the aftermath if Attorney General v X [1992] 1 I.R. 1, the X case. Article 40.3 provides as follows:

"1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state." (emphasis added to text of Thirteenth Amendment)

The so-called travel amendment was interpreted a decade ago in A. and B. v Eastern Health Board [1998] 1 I.L.R.M. 460. Like the X case, this involved a 13 year-old girl, C., who became pregnant as a result of rape. The District Court granted a temporary care order and then, on the application of the Health Board and having heard evidence from a psychiatrist that C would kill herself if she had the child, ordered that C be permitted travel outside the jurisdiction, in order to obtain an abortion. The child's parents challenged the latter order. This is what the High Court (Geoghegan J) had to say, as regards the application of the Thirteenth Amendment:

"25. This amendment is framed in negative terms and must, in my view, be interpreted in the historical context in which it was inserted. There was, I think, a widespread feeling in the country that a repetition of The Attorney General v. X [1992] 1 I.R. 1, should not occur in that nobody should be injuncted from actually travelling out of the country for the purpose of an abortion. It must be remembered that three out of the five judges of the Supreme Court took the view that in an appropriate case a travel injunction could be granted. It was in that context, therefore that the amendment was made and I do not think it was ever intended to give some new substantial right. Rather, it was intended to prevent injunctions against travel or having an abortion abroad. A court of law, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must, I believe, be confined to considering the grounds for termination which would be lawful under the Irish Constitution and cannot make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution does not now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose. I think that the view which I have taken conforms with the view of the Supreme Court in the Article 26 reference relating to the Information (Termination of Pregnancies) Bill, 1995 [1995] 1 I.R. 1 and as expressed in the judgment of the Court at p. 47. The Court says the following:-
“As already stated, the effect of the decision of this Court and the judgments of the majority of the Court in The Attorney General v. X [1992] 1 I.R. 1 was that where there is a real and substantial risk to the life, as distinct from the health, of the mother and that risk can only be avoided by the termination of the mother’s pregnancy, then such termination is permissible and not unlawful having regard to the provisions of Article 40.3.3° of the Constitution. The position as therein set forth is unaltered by either the provisions of the Thirteenth or Fourteenth Amendment to the Constitution or of the Bill.”"

Geoghegan J thus denied the relief sought by the parents, only because the abortion would be permissible under the Irish Constitution. He made clear, however, that he "would have taken a different view and would have granted the order if contrary to my view on a true analysis the effect of the order is to authorise an abortion outside Ireland of a kind which would not be in conformity with the Irish Constitution."

The High Court usually follows its own precedents, so, on the assumption that the judge hearing today's case view A and B as controlling his decision, then it would seem that counsel for Miss D will have to argue that the Constitution permits abortion in the circumstances of her case. The X and A and B cases both involved girls presenting as suicide risks. It was held in X that abortion was permissible under Article 40.3.3 where the life, as opposed to the health, of the mother is threatened by the pregnancy being allowed to continue. There is no such evidence (from what I can gather so far) in the present case. If an appeal were to be brought to the Supreme Court (of which Geoghegan J is incidentally now a member), then the decision in A and B, interpreting the Constitution as only permitting a court to order that a child be allowed to travel for the purpose of an abortion where that same abortion would be lawful in this State too, would have less certain application. The Supreme Court would have the option of saying that A and B was wrongly decided and that Article 40.3.3 should not be read in that way. It is interesting that, even if A and B were overruled in the present case, the result in each case would be the same: Let her go to England. In A and B the court refused to quash an order that the girl be allowed travel abroad for an abortion; in Miss D, the Supreme Court (if an appeal is brought and if it were to so decide) would quash an order refusing to allow the girl to travel abroad for a jurisdiction.

Update 1 (12.57 pm):
Dearbhail McDonald, legal affairs correspondent with The Irish Independent, notes that last year the European Court of Human Rights rejected an Irish woman's claim that her human rights were violated due to the non-availability in Ireland of abortion in circumstances of foetal abnormality, on the grounds that the issue had not been brought before the Irish courts.

Dr Muiris Houston writes in today's Irish Times that:

"Anencephaly, meaning the absence of the greater part of the brain and of the skull bones, is an example of a neural tube defect (NTD). Other NTDs include spina bifida, where part of the spinal cord protrudes through an unfused vertebrae and cephalocoele, the protrusion of part of the brain through a bony defect in the skull. Open neural tube defects occur in two to five babies per 1,000 pregnancies. ... The neural tube, which develops into the brain and spinal cord, is usually completely formed and closed by the end of the third week of intrauterine life.Neural tube defects are the commonest form of congenital central nervous system malformations. In anencephaly, the most severe form of NTD, there are no cerebral hemispheres and no development of the vault in which the brain resides. The condition is uniformly fatal; many children with the condition are stillborn, but if born alive the baby usually dies within hours."

Update 2 (1.25 pm)
The High Court (McKechnie J) has granted Miss D leave to bring judicial review proceedings. The case will be heard on Thursday. Counsel for the Attorney General appears to have submitted that the HSE does not have the legal power to direct Gardai to restrain a person who is the subject of an interim care order.

Supreme Court term 2006/07: The Baby Ann adoption case

2007-04-29T22:49:00.000+01:00

As has been kindly noted, this blog was dormant for several months. Before that, I wrote a bit about law. I'm studying for the Bar, so that was somewhat natural I suppose. Anyway, I propose to continue that trend by, over the course of a few articles, summarising some important Irish judgments handed down in the last six months or so. I will focus to begin with on the Supreme Court.

On November 13th, the Supreme Court unanimously reversed the High Court in N v Health Service Executive, referred to in the press as the 'Baby A' case. As readers may recall, a young couple had placed their child for adoption, but later (having married) decided that they wished to revoke their consent, as the law entitled them to do. The prospective adopters, who had custody of the child, brought legal proceedings, in order to have the High Court override the natural parents' decision. The High Court had granted them such an order, but this was overturned on appeal. Hardiman J held, reiterating what had been said in Re J. H. an Infant [1985] IR 375, that "such intervention may also be justified if it is established that there are compelling reasons why that the welfare of the child cannot be secured in the custody of the parents." Hardiman J's judgment also contained an interesting passage on notions of "children's rights" and a '"child-centred" approach to such matters:

"In the case of a young child, an approach to its welfare which is sometimes described as “child centred”, in a particular sense, in reality involves acting wholly or partly upon some third parties view of the interests of the child. It is, of course, difficult to criticise an approach denominated “child centred” or to fail to acknowledge imperatives denominated “the rights of the child”. But, especially in dealing with very young children who can express no meaningful views of their own, it is of great importance that terms such as those just mentioned should be thought through, should evoke an intellectual and not merely an emotional response, and that their actual content should be ascertained. A right conferred on or deemed to inhere in a very young child will in practice fall to be exercised by another on his or her behalf. In practice, therefore, though such a right may be ascribed to a child, it will actually empower whoever is in a position to assert it, and not the child himself or herself. The person actually asserting such a right may of course be a parent or guardian, but it might equally be a public authority, a stranger, or indeed the State itself."

Fennelly J said the following about the marital family, which is explicitly protected by Article 41 of the Constitution:

"The Byrnes constitute with Ann a family. This is no mere constitutional
shibboleth. Article 41 speaks of the rights of the family being “antecedent and superior to all positive law.” In my view, that is no more than the statement of the simple facts of life. People of opposite sexes meet, marry, procreate and raise children. Prevailing trends towards the recognition of non-marital and even same-sex relationships are invoked from time to time with a view to expanding the legal definition of the family. None of that arises in the present case. Even if it should become necessary to recognise the family relationships of the increasing number of couples who raise children outside marriage, such a development would be based in most cases on the natural blood bond. It would in no way undermine, but would tend to emphasise the centrality of the mutual rights and obligations of the natural parents and their children. One does not have to seek far to find that courts widely separated in time and place have accepted the need to recognise and give weight to what has been variously characterised as the blood, or natural or biological link between parent and child." (emphasis added)

Then, in a passage that probably summed up the entire case, and the view of the Supreme Court, Fennelly J said:

"The entire adoption process is postulated on the possibility that the mother of a child may withdraw her consent at any time up to the making of the adoption order. It is, naturally, a complex, sensitive process. It engages the deepest human motions. The law recognises in a very considered way that a mother may withdraw from the process. This recognises her natural right to the custody of her child and the Constitution protects that right. Therefore, the courts must consider these cases with great care. The implications of deciding in favour of the Doyles are potentially serious for the entire adoption process. Naturally, a child will be placed for adoption with suitable and carefully chosen parents. In the nature of things, bonds of atachment will be established over weeks and months. On the other hand, only the final adoption order terminates the rights of the natural mother. If the existence of established bonds is a sufficient reason for refusing to return a child to his or her natural parents, the rights of the natural mother may be undermined. This is, everyone will agree, fraught with difficulty for all concerned. It is impossible to ignore the enormous trauma involved. No decision of the court will satisfy everybody. Any decision will cause hurt. This is why it is imperative to adhere to clearly established principle. Uncertainty of jurisprudence may cause greater trauma. Clarity should enable problems or conflicts to be resolved quickly. In this case, there is a primordial constitutional principle that a child’s welfare is best served in the heart of its natural family. It is well-established and widely known. There must be compelling reasons to rebut that presumption. I do not believe that there was sufficient evidence to rebut the presumption in this case." (emphasis added)

McGuinness J, in what was one of her last judgments on the Court, said she remained "remain[ed] uncertain and apprehensive about the effects of a transfer of Ann’s custody, and about her future in general." She felt bound to conclude, however, that "the medical and other evidence before the High Court judge met the heavy burden of establishing that there were compelling reasons that her welfare could not be achieved in the custody and care of her natural parents." It is clear that McGuinness J was not entirely happy with the outcome she felt bound to reach:

"In his judgment, Geoghegan J. refers to the fact that in “some quarters” the decision taken by the Supreme Court in In Re J. has been subjected to criticism. The learned judge rightly expresses the view that unless and until the Constitution itself is amended there is no justification for that criticism. I am in agreement with this view. The judgment of this court, as expressed by Finlay C.J., reflects the unequivocal wording of Articles 41 and 42 of the Constitution, as does the judgment of the court in In re The Adoption Bill 1987 (already cited). It would be disingenuous not to admit that I am one of the “quarters” who have voiced criticism of the position of the child in the Constitution. I did so publicly in the report of the Kilkenny Incest Inquiry in 1993. The present case must, however, be decided under the Constitution and the law as it now stands.With reluctance and some regret I would allow this appeal."

The Chief Justice gave a brief concurring judgment, in which he set out the order to be made by the Court, and Geoghegan J, as with Fennelly and Hardiman JJ, gave a detailed discussion of the law and seemed in little doubt as to the correct resolution of the case.

OK Go - Here it goes again; and, Labour's missteps

2007-04-29T21:54:00.001+01:00

That's the name of a song with a rather cool video. It's also the thought of politics watchers, as today the election was called for May 24th.

"In the weeks ahead I pledge to give the Irish people the campaign they deserve: a campaign of issues and policies, not insults and attacks," said the Taoiseach."I am more interested in attacking problems than attacking people."

"Today marks the beginning of the end of ten years of Fianna Fáil/PD broken promises and complacency," said Enda Kenny. "The people of Ireland know that this Government won't do in 15 years what they haven't done in the last 10."

The Examiner notes that the P.D.'s were the first party to launch their election manifesto:

"The Progressive Democrats were the first party out of the traps in erecting election posters and also launching a manifesto which contained seven key pledges.Tánaiste Michael McDowell and his party vowed to abolish stamp duty for first-time house buyers, ensure patients were admitted to accident and emergency services within six hours and increase the number of Gardaí from 14,000 to 16,000."

Pat Rabbitte's response was to accuse the P.D.'s of "promoting selfishness". That is surely a mistake, for two reasons: Firstly, the electorate are well disposed to targeted tax cuts, and Labour has indeed only recently announced a cut in the lower tax rate to 18%, as well as popular stamp duty reform proposals - so ridiculing McDowell for pushing the tax-cutting agenda will not help establish Rabbitte's own bona fides on the subject with floating voters. Secondly, it will only give McDowell and the Government grounds for saying Rabbitte is not genuine in his conversion to tax cuts, and would drop them at the first sight of economic storm clouds.

Then Rabbitte "backed his colleague Ruairí Quinn's warning to the Taoiseach not to use the peace process for electoral gain by addressing peers and MPs at Westminster in the House of Commons and Lords during the campaign." Another mistake, surely: Whatever the public thinks of the healthcare system, public transport or any of the contentious issues, it credits Ahern with having overseen the birth and (eventually) the full implementation of the Good Friday agreement on his watch. The public won't begrudge him the chance to make history at Westminster and Labour won't do themselves any good to be sniping from the sidelines. It looks like Labour has made the first two mistakes of the campaign. After their poor showing in Friday's Irish Times opinion poll (both untimely, after Rabbitte's strong convention speech), Rabbitte and co. could do without any more.

Other (presidential) elections

2007-04-27T00:19:00.000+01:00

Another election campaign is underway, in addition to our general election - but it isn't scehduled to take place for 18 months. I refer to the U.S. presidential election. For anyone interested in keeping up with the polls over there, just Google "election 2008" and click the first result.

Nearer to home, France's presidential decider is now between Nicolas Sarkozy, the former Interior Minister and Segolene Royal of the Socialist party; for news, see here. Sarkozy seems on track for victory as matters stand. It will be interesting to see what impact Ms. Royal's debate with defeated third candidate Francois Bayrou, scheduled for Saturday, will have on the voters. Bayrou has criticised each remaining candidate since he was eliminated in the first round; as regards Royal, he opposes her extension of the 35 hour week. More useful coverage is available from CNN and the Financial Times.

Poll suggests opposition on course to win election

2007-04-26T23:59:00.000+01:00

The general election has yet to be called, but the electioneering is approaching full speed. Tomorrow's Irish Times/mrbi opinion poll (previewed here) represents a major boost for the (sometimes fragile) morale of Fine Gael. Conversely, Fianna Fail will be worried. The Irish Election blog notes: "The poll was conducted over last Monday and Tuesday from a representative sample of 1,000 voters at 100 sampling points across the country and in particular after the parties had all published the key economic aspects of their manifestos. Tomorrow’s Irish Times will have greater details on the adjustments made to the polling data so keep an eye open as this poll has been moved towards FG due to these adjustments."

The outline findings are that FF is on 34% (-3), Fine Gael 31 (+5), Labour 10 (-1), Greens 6 (-2), Progressive Democrats 3 (+2), Sinn Fein 10 (+1), Independents 6 (-2). RTE's website notes that: "These figures have been adjusted by the polling company, TNS/mrbi, to take account of the fact that opinion polls usually put Fianna Fáil too high, and Fine Gael too low, in comparison to their actual election vote." Be that as it may, there's no doubt that "the trend is unmistakeably toward Fine Gael and away from Fianna Fáil." On the figures presented in this poll, Fine Gael would stage a major recovery from its (admittedly dismal) 2002 result; it would almost certainly make Enda Kenny Taoiseach and Pat Rabbitte Tanaiste. Recent polls had suggested a competitive election, but this poll is the first to put the FG-Labour alternative (on 41% - 47% if the Greens are included) in a position to form a stable government, or at least come very close to doing so.

It is instructive to recall that, in the 2002 election, Fine Gael's vote share fell from 27.9% to 22.5% and its Dail seat count went from 54 to 31. Meanwhile, Fianna Fail in 2002 went from 39.3% to 41.5% and from 77 seats to 81. On the showing in tomorrow's poll, FG would in all likelihood return to its 1997-2002 strength (54 seats), or probably even make further gains. FF, which last time out won 48.8% seats on the basis 41.5% of first preferences would lose in the region of 20 seats. Bertie Ahern's career would meet the fate ordained for all politicians by Enoch Powell; Mayo would have the top two positions in government (provided Pat Rabbitte survives as Labour party leader after a disappointing 10% showing).

It's all to play for.

Update (Sat., 12.05 a.m.): The second part of the Irish Times/mrbi poll asked respondents whether they would prefer the current government, the possible Rainbow alternative. The findings: FF/PDs 35% (-7), FG/Labour and possibly the Greens 36% (+5); 14% answered they preferred neither; 15% did not know who they preferred.

Back again

2007-04-26T23:33:00.000+01:00

It's been a while since I posted here, so I expect that those few that used occasionally drop by this corner of the Internet have probably forgotten about it. What harm. I intend to write fairly regularly, at least between now and the general election. Not all of my posts will be about the election - as before I intend to write about legal matters too, and who knows what else. If you're reading this site for the first time, or have been here before, I hope you find something of interest. And, as the ad says, have a nice day.

Posner, war and humanitarian aims

2006-10-03T19:10:00.000+01:00

Eric A. Posner of Chicago law school (son of Judge Richard Posner) wrote in the Washington Post on Sunday that humanitarian intervention - in other words, using military force for ultimately humanitarian purposes, such as preventing or ending crimes against humanity or genocide - is an "oxymoron". It is not necessarily an original criticism. And his argument is not particularly watertight. For one thing, it's probably incorrect to say that humanitarian intervention as defined above was the motive or justification for the 2003 invasion of Iraq. Of course, the invasion was intended to have positive humanitarian consequences, but it was clearly dissimilar to the Kosovo campaign in 1999, or the U.N. force recently ratified for Darfur in western Sudan. This is true, notwithstanding Posner's statement that "one of the main justifications for the war was humanitarian: to rescue suffering Iraqis from a tyrant". Humanitarian intervention as usually construed - as far as I was aware anyway - referred to preventing, deterring or ending imminent or ongoing humanitarian atrocities. This was the case in Kosovo in 1999; it would be the case with a 2007 intervention in Darfur. Of course, such interventions are usually without the authority of the state carrying out the atrocities. (The U.N. resolution mandating the Darfur force does not meet this test.)

None of this is to deny that Posner is correct when he says that "[c]ivilians suffer in all wars". Also undeniable is the statement that: "Military weapons inevitably kill civilians, and smart tyrants foil smart bombs by using their own civilians as shields. Dictators understand that a war premised on humanitarianism fails if they can make the invader kill their citizens." Furthermore: "Removing the dictator risks civil war, which is almost always worse than the original abuses." This is a point many have made against the Iraq situation, although that war was not fought on the same ground as the Kosovo or Bosnian air campaign in the 1990's, which were humanitarian interventions in the narrow sense defined above, in so far as any state will ever commit its forces to any theatre for purely altruistic reasons.

The bottom line is that each military intervention by U.S.-led coalitions in the psot-Cold War era was based on a mixture of motivations and justifications. The missions in Bosnia and Kosovo have not produced perfect situations. If they had not been carried out, the situations may well have worsened and the costs of intervening later could have been much higher. Intervening at the times and in the manner they did, the coalitions preventing such deterioration. This Posner seems entirely to ignore. He also fails to factor in that the interventions in the Balkans had important security benefits for Europe. Had they not happened, the Balkans could have disintegrated in violence. This has so far been avoided. (The fact that the initial military operations were carried out almost solely United States forces should not cloud the fact that Europe was the principal outside beneficiary in terms of national security.) The state-sponsored campaigns against the Bosnian Muslims and Kosovar Albanians (also Muslims) were ended and have not re-started.

The question is not solely whether country A is better off before or after choice A (e.g. a decision to intervene militarily, but the logic applies to all decisions made by states - and, incidentally explains why Reagan's 1980 campaign speech, as parroted this decade by Angela Merkel was logically flawed), but whether it would have been better or worse off had choice B been made instead. When the choice involves a proposed military intervention against a regime harming its own population this test must read: whether the national security interests of the outsiders, as well as the humanitarian situation of the population being harmed by the state in question, would have been better or worse off had choice B been made instead. This is the complex calculus which faces any outside response to events such as the Serb campaign against Bosnian Muslims, the Sudanese campaign against the civilian population of Darfur, or to the Taliban or Saddam Hussein regimes. Eric Posner's premises do not justify his conclusion that interventions aimed at ending humanitarian abuses can never be justified, much less that it is an "oxymoron". He also makes no effort to put forward any preferrable course of action that should have been taken in one of the cases towards he which he directs sceptical comment: Kosovo.

Of course, the aftermath of any intervention in which the outside forces commit themselves to changing the state's constitutional framework is usually where most of the dangers lie. This has been seen in Iraq, and it must be remembered in the Balkans, in Afghanistan and in all such cases. But that does not mean that democratic states should simply turn a blind eye.

Borat responds

2006-10-01T21:50:00.000+01:00

Damien Mulley has the YouTube clips of Borat responding to "disgusting fabrications" put out about Kazakhstan.

A parallel of the year 2001 in 68 B.C.?

2006-09-30T23:45:00.000+01:00

In the New York Times of today (September 30th), Robert Harris, author most recently, of “Imperium: A Novel of Ancient Rome” has compared the response to 9/11 to the response of Rome to the attack on Ostia in 68 B.C. I'm always wary of historical parallels like this one; in this instance, I think it's a good bet American democracy is safe for now. That is not to say that the new detainee legislation should be a cause for celebration. In any event, here is what Mr. Harris wrote:

Pirates of the Mediterranean

IN the autumn of 68 B.C. the world’s only military superpower was dealt a profound psychological blow by a daring terrorist attack on its very heart. Rome’s port at Ostia was set on fire, the consular war fleet destroyed, and two prominent senators, together with their bodyguards and staff, kidnapped.

The incident, dramatic though it was, has not attracted much attention from modern historians. But history is mutable. An event that was merely a footnote five years ago has now, in our post-9/11 world, assumed a fresh and ominous significance. For in the panicky aftermath of the attack, the Roman people made decisions that set them on the path to the destruction of their Constitution, their democracy and their liberty. One cannot help wondering if history is repeating itself.

Consider the parallels. The perpetrators of this spectacular assault were not in the pay of any foreign power: no nation would have dared to attack Rome so provocatively. They were, rather, the disaffected of the earth: “The ruined men of all nations,” in the words of the great 19th-century German historian Theodor Mommsen, “a piratical state with a peculiar esprit de corps.”
Like Al Qaeda, these pirates were loosely organized, but able to spread a disproportionate amount of fear among citizens who had believed themselves immune from attack. To quote Mommsen again: “The Latin husbandman, the traveler on the Appian highway, the genteel bathing visitor at the terrestrial paradise of Baiae were no longer secure of their property or their life for a single
moment.”

What was to be done? Over the preceding centuries, the Constitution of ancient Rome had developed an intricate series of checks and balances intended to prevent the concentration of power in the hands of a single individual. The consulship, elected annually, was jointly held by two men. Military commands were of limited duration and subject to regular renewal. Ordinary citizens were accustomed to a remarkable degree of liberty: the cry of “Civis Romanus sum” — “I am a Roman citizen” — was a guarantee of safety throughout the world.

But such was the panic that ensued after Ostia that the people were willing to compromise these rights. The greatest soldier in Rome, the 38-year-old Gnaeus Pompeius Magnus (better known to posterity as Pompey the Great) arranged for a lieutenant of his, the tribune Aulus Gabinius, to rise in the Roman Forum and propose an astonishing new law.

“Pompey was to be given not only the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone,” the Greek historian Plutarch wrote. “There were not many places in the Roman world that were not included within these limits.”

Pompey eventually received almost the entire contents of the Roman Treasury — 144 million sesterces — to pay for his “war on terror,” which included building a fleet of 500 ships and raising an army of 120,000 infantry and 5,000 cavalry. Such an accumulation of power was unprecedented, and there was literally a riot in the Senate when the bill was debated.

Nevertheless, at a tumultuous mass meeting in the center of Rome, Pompey’s opponents were cowed into submission, the Lex Gabinia passed (illegally), and he was given his power. In the end, once he put to sea, it took less than three months to sweep the pirates from the entire Mediterranean. Even allowing for Pompey’s genius as a military strategist, the suspicion arises that if the pirates could be defeated so swiftly, they could hardly have been such a grievous threat in the first place.

But it was too late to raise such questions. By the oldest trick in the political book — the whipping up of a panic, in which any dissenting voice could be dismissed as “soft” or even “traitorous” — powers had been ceded by the people that would never be returned. Pompey stayed in the Middle East for six years, establishing puppet regimes throughout the region, and turning himself into the richest man in the empire.

(Page 2 of 2)

Those of us who are not Americans can only look on in wonder at the similar ease with which the ancient rights and liberties of the individual are being surrendered in the United States in the wake of 9/11. The vote by the Senate on Thursday to suspend the right of habeas corpus for terrorism detainees, denying them their right to challenge their detention in court; the careful wording about torture, which forbids only the inducement of “serious” physical and mental suffering to obtain information; the admissibility of evidence obtained in the United States without a search warrant; the licensing of the president to declare a legal resident of the United States an enemy combatant — all this represents an historic shift in the balance of power
between the citizen and the executive.

An intelligent, skeptical American would no doubt scoff at the thought that what has happened since 9/11 could presage the destruction of a centuries-old constitution; but then, I suppose, an intelligent, skeptical Roman in 68 B.C. might well have done the same.

In truth, however, the Lex Gabinia was the beginning of the end of the Roman Republic. It set a precedent. Less than a decade later, Julius Caesar — the only man, according to Plutarch, who spoke out in favor of Pompey’s special command during the Senate debate — was awarded similar, extended military sovereignty in Gaul. Previously, the state, through the Senate, largely had direction of its armed forces; now the armed forces began to assume direction of the state.

It also brought a flood of money into an electoral system that had been designed for a simpler, non-imperial era. Caesar, like Pompey, with all the resources of Gaul at his disposal, became immensely wealthy, and used his treasure to fund his own political faction. Henceforth, the result of elections was determined largely by which candidate had the most money to bribe the electorate. In 49 B.C., the system collapsed completely, Caesar crossed the Rubicon — and the rest, as they say, is ancient history.

It may be that the Roman republic was doomed in any case. But the disproportionate reaction to the raid on Ostia unquestionably hastened the process, weakening the restraints on military adventurism and corrupting the political process. It was to be more than 1,800 years before anything remotely comparable to Rome’s democracy — imperfect though it was — rose again.The Lex Gabinia was a classic illustration of the law of unintended consequences: it fatally subverted the institution it was supposed to protect. Let us hope that vote in the United States Senate does not have the same result.

N case appeal listed

2006-09-29T19:36:00.000+01:00

As I speculated, the Supreme Court has given an early appeal date to the aggrieved parents in N. & anor -v- H.S.E. Western Area & ors. As was also to be expected, the appeal will be heard before a five-judge panel, comprising Chief Justice Murray, and Justices McGuinness, Hardiman, Geoghegan and Fennelly JJ. The hearing begins on October 4th; that is, next Wednesday.

A brief thought: Does the strongly pro-parent line taken a few years back in the North Western Health Board case - which involved whether a PKU test could be given to a child over its parents' objections - not imply that the present Supreme Court will be slow to affirm McMenamin J.'s decision? Not necessarily is, of course, the answer. But we probably won't have to wait too long to see what transpires.

P.S. Since my recent posts on upcoming cases in the U.S. Supreme Court, I said I'd better put something together on appeals forthcoming before the Irish Supreme Court. That's what I was doing when I was spotted the list date for the N appeal. Stay tuned.

Journalists decline to assist tribunal

2006-09-29T13:12:00.000+01:00

Breaking news via RTE.ie:

"An Irish Times journalist has told the Mahon Tribunal that he will not assist the inquiry in identifying the source of a leak revealing payments to Taoiseach Bertie Ahern.
In evidence, the paper's Public Affairs Correspondent, Colm Keena, said he could not answer any questions about how he received information contained in a letter from the tribunal to businessman David McKenna last June.
Mr McKenna was one of 12 businessmen discovered to have made payments
totalling £38,500 to Mr Ahern in 1993 and 1994.

Earlier, tribunal chairman Judge Alan Mahon warned Mr Keena that failure to answer questions in evidence is an offence punishable with a fine of up to €300,000 and two years in jail.
Both Mr Keena and The Irish Times Editor Geraldine Kennedy have been summoned to give evidence to the tribunal, which is investigating the leak of confidential information.
At the beginning of the hearing, Mr Mahon said that he was particularly concerned by Ms Kennedy's admission in correspondence that she had destroyed a document on legal advice after receiving an order from the tribunal. The chairman also said The Irish Times had been aware of a Supreme Court injunction prohibiting the publishing of confidential tribunal information."

It has previously been decided (Re Kevin O'Kelly) that the Constitution's protection of freedom of expression does not require that journalists be allowed to decline to disclose to the courts the sources of their stories. Since then, however, we have had the European Convention on Human Rights Act 2003. This compels the courts to have due regard to decisions of the Court of Human Rights in Strasbourg. This is where it gets interesting: the Strasbourg court has held that Article 10 of the Convention necessitates that journalists should, indeed must, be allowed keep their sources secret: see Goodwin v U.K. (1996) 22 EHRR 123, and the subsequent English decision in John v Express Newspapers [2000] 3 All ER 257; [2000] 1 WLR 1931.

Keena and Kennedy (the latter having also pledged non-cooperation) have that development on their side, but breaking a court injunction is surely a different matter. According to the tv and radio news, Ms. Kennedy has claimed the newspaper was unaware of any such injunction, that the relevant documents have been destroyed and that it was effectively none of the tribunal's business, since the matters were not within its remit.

Oral arguments to be posted online in Doe challenge

2006-09-29T12:45:00.000+01:00

On February 22, 2005 the U.S. Supreme Court denied certiorari (in the sense in which that term is used in U.S. federal courts, rather than the public law relief denoted by the term in England and Ireland) in the case of McCorvey v Hill. Thus the Fifth Circuit's 2004 opinion, including Judge Edith Jones striking comments in her concurrence, stood. Basically, the Fifth Circuit held that procedural rules meant that McCorvey, the woman known as Roe in the seminal case of Roe v Wade, could not now seek to have that decision overturned. Judge Jones critical comments on the decision Roe were therefore entirely obiter.

On the same day in 1973 that Roe was decided, the Court also decided the less well known case of Doe v Bolton. The woman involved in that case applied in 2003 (32 years after she filed the original action) to have Doe set aside. Plaintiff Sandro Cano, like McCorvey, seems to have changed her mind. On January 11, 2006, in an appeal named Cano v Baker et al., the 11th Circuit held it couldn't touch Doe. Only the court of final resort, the Supreme Court, could do so. No surprise there. Her lawyers have now brought the case to Washington D.C.; on October 6th (a week today), the Supreme Court will decide whether to hear her case.

The oral arguments made before the Court - along with interjections from the bench - will be posted online "the same day they occur". This will be a general practice from now on apparently. There would seem to be little reason why the same could not be done in Ireland. Certainly it would be desirable when the Court sits with five or more members, in which instances the case is deemed of particular general importance.

Update (2.10pm.) SCOTUS blog was there well before me, with a more detailed note on Cano's case.

More on U.S. Supreme Court's October 2006 term

2006-09-29T12:15:00.000+01:00

By way of follow-up to last Sunday's post post on the topic, I would suggest that anyone interested in goings on at the U.S. Supreme Court, pop over to the American Constitution Society blog. There is a set of previews of various upcoming cases, on such subjects as the constitutional requirement that abortion statutes contain a health exception (Gonzales v. Carhart; Gonzales v. Planned Parenthood), employment discrimination (not mentioned in my post: Ledbetter v. Goodyear Tire & Rubber Co.), the Clean Air Act (Massachusetts v. Environmental Protection Agency), puntive damages (Philip Morris USA v Williams), and affirmative action, in the form of racially based school selection policies (Parents Involved in Community Schools v. Seattle School District; Meredith v. Jefferson County Public Schools).

The headline to the latter piece rather gives the game away as to what the writer", Anurima Bhargava, thinks should happen in the affirmative action cases: "Threatening Brown’s Promise: Supreme Court Cases from Seattle and Louisville Could Undermine Local School Districts’ Voluntary Efforts to Combat Segregation". It might be said that it is a strange place the law has got to when striking down a school selection policy based explicitly on racial criteria would be to undermine the promise of Brown v Board of Education, the world famous 1954 desegregation case. Here is the core of Bhargava's argument about the upcoming cases:

"The battle to integrate the nation’s public schools and to secure a quality education for all students has been at the epicenter of the struggle for racial equality. These cases are significant for the effect they could have on the ability of school districts to fulfill the promise of Brown v. Board of Education, particularly against the backdrop of entrenched residential segregation. Yet there is an ironic twist to these cases that bears discussion, namely the possibility that the Court might prohibit school districts from voluntarily pursuing race-conscious measures to promote integration. The Court could bar school districts from pursuing that which it has previously ordered de jure systems to do. Understood in the context of this country’s long, tragic history of racial discrimination and the continuing, widespread persistence of segregation in public schools, a Court ruling to this effect would turn the command of the Equal Protection Clause on its head."

A lot depends on how one frames the question. Lawyers are experts at framing questions in a manner that suits them. These cases are either about preventing explicit racial discrimination (without strong justificatory diversity benefits), or about the Court not meddling in states' good faith efforts to combat racial inequality, the aim of which efforts is to ensure true equality between children of all races. Both sides claim to carry the anti-discrimination baton. Let us wait and see how the Court frames the issue.

One other point. I mentioned in the previous post that the question of stare decisis (respect for precedent) would loom especially large in the Gonzalez abortion cases. The same is true in the affirmative action cases. Especially important will be the views of the relatively new justices: Chief Justice Roberts and Justice Alito. One clue I have since found as to their possible approaches comes from a June 2006 decision (Randall v Sorrell) on the issue (not important for present purposes) of campaign finance. The Court (in an opinion by Justice Breyer) held that "departure from precedent is exceptional and requires special justification". (This was in the context of rejecting a challenge to a 30 year old precedent, Buckley v Valeo 424 U.S. 1) The Chief Justice joined this part of the opinion; Justice Alito did not, arguing that the issue wasn't directly presented in the case (see pp.36-37). Admittedly it's a small clue, given that Alito J.'s holding is tied to the particular case. He certainly did not set out any general aversion to applying stare decisis in the constitutional context. His objection to even hearing the plea to reconsider Buckley is thus not firm evidence as to the latitude he will in future allow himself.

Remember too that Stenberg will - assuming that the seven surviving justices maintain their position from six years ago - be upheld unless both Roberts and Alito say otherwise. Their approach will also be potentially decisive in the Philip Morris case, for this reason: "Three justices -- Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg --have never accepted the court's decade-old ruling that imposed the first constitutional limits on awards." Clearly, should the two new justices agree, change is afoot in that area of law.

Update (2.20 pm) The Court agreed on Tuesday to hear nine further cases, some of which may be heard in December. Also, for the interested, Term previews galore.

Update 2 (6 pm) Jack Balkin, law professor at Yale, has a very interesting take, which I have only just come across. In short, it is that Bush nominated Roberts and Alito in the hope that they would not overrule Roe. Were Roe to be overruled 33 or more years down the line, the Republican political coalition might well fracture and the Republicans might lose power for a generation. (I realise the post is a year old, but it is a thought-provoking - not to mention plausible - hypothesis, nonetheless.) If Balkin is right, then there was never any prospect of Bush nominating someone like Edith Jones, who has judicially criticised Roe itself.

Update 3 (Sat. 5.25 pm.) Briefs filed in all listed cases are available on the ABA site - here.

Waghorne appointed

2006-09-28T12:55:00.000+01:00

Well done to Richard Waghorne on his appointment as Chief Political Correspondent at the Irish Daily Mail and Ireland on Sunday. I hope he enjoys the new post; I might even now buy the Mail for the first time!

Adoption case - High Court judgment online

2006-09-28T00:25:00.000+01:00

A little under two weeks ago, the story emerged that the High Court had granted an order that the need for the consent of a natural mother to her child's adoption could - indeed, in the best interests of the child, should - be dispensed with. The case was in fact decided on June 23rd, but the judgment was not released until September. It is now online, on the Courts Service site. The case, N & Anor v Health Service Executive and An Bord Uchtala, in a sense justifies the media description of it as a "landmark". In another sense, it highlights the (necessarily) fact-oriented nature of family law cases. General principles can be set out, but their application is peculiarly related to the endlessly variable (and varying) facts of intensely personal relationships.

The reasons why the case represents an interesting legal development is, briefly, as follows. In order to have one's child adopted, a mother must consent to the child being placed for adoption. The child is removed from the mother's physical custody, and placed with prospective adopters. The mother retains her legal position; the move is comparable to a trial separation. Before the child may be legally adopted - and its legal relationship with its birth parents severed - the mother must, by a separate and later act (freely and voluntarily, having been fully advised) consent to this second step. At all times when a child's future - as dictated by legal matters such as adotion, guardianship, custody and so on - are at stake the child's welfare (in effect, its best interests) must be "the first and paramount consideration": see s. 3 of The Guardianship of Infants Act 1964.

As stated above, the natural mother must give two separate consents at different defined stages of the adoption process. However, and this is at the core of the recent case, since 1974, the High Court - and on appeal the Supreme Court - has had the power to (at the behest of the prospective adopters) override the mother's prerogative in the second instance. In other words, the mother may agree to place her child for adoption, later change her mind - only to discover that her decision is not final. (The possibility of this happening must legally be pointed out to the mother before she signs the first consent, but that was not at issue in the recent N case.)

This position must be interpreted in light of the Constitution, which as I noted in another context the other day, has clear and strong protections for the family based on marriage. The Supreme Court came to decide that the Constitution was premised on a presumption that the child's welfare will, absent strong evidence (such as a likelihood of severe psychological damage to the child) to the contrary, be best served by being with its (married) parents, and not unrelated prospective adopters. The most important case is Re JH (An Infant) [1983] IR 375. There a child had spent a considerable time with a set of prospective adopters. It barely knew its birth parents. After the child's birth, the natural parents married. The mother had placed the child for adoption, but now withheld the crucial second consent, as she was entitled to do. The intending adopters, as they were entitled to do, asked the court to dispense with the mother's objection. The High Court (Lynch J.) allowed this, but the Supreme Court overturned this decision, and set out the italicised rule in the second sentence of this paragraph. (In case anyone goes to look at the Supreme Court judgment, I paraphrase its holding, but reasonably accurately, if recent memory serves me correctly.)

The facts in this year's N case were very similar to those in Re JH (An Infant). The natural parents married after the child's birth; the mother changed her mind and refused the second consent. The couple with whom the baby had been with for over a year applied to the court to have the mother's consent dispensed, under the 1974 legislation. The High Court (McMenamin J.) held that the child's best interests lay in having the requirement that its mother consent to the final stage of the adoptin process set aside. As I pointed out at the outset, it may well be that the facts of N are different to JH and that the decision is very closely tied to the specific circumstances. (After all, the High Court is bound to proceed on the basis of the law as set out by the Supreme Court; it wouldn't have been valid for McMenamin J. to purport to vary or disagree with Supreme Court precedent.) I wasn't in the courtroom; I haven't done more than scan McMenamin J.'s (very detailed and lengthy) ruling. But if the Supreme Court appeal goes ahead, as was indicated in the newspapers after the ruling became public, we may genuinely come to a milestone in Irish family law. The hearing and decision will presumably be this side of Christmas, given the time-sensitive nature of the matter. After all, the longer the delay, the greater the prejudice to the natural parents' case.

Are you more cat or dog?

2006-09-26T23:30:00.000+01:00

I can't say this question ever occurred to me before, but now that it has I'm eager to know how I match up in the great feline-canine assessment.

I found this on a blog I came across while looking for something else, Betty the Sheep (see September 13th post). Legend. Other blogthings, which I found on none other than Blogthings, include:

What Modern US President Are You Most Like?
Are You Right or Left Brained?; and, of course, what we all wonder:
What Color Orange Are You?

In fact, why not just check out the entire list of blogthings, if you haven't done so before.

Update 1: I just did the "Are you more capitalist or socialist?" test and it came out "40% capitalist, 60 % socialist" and told me: "You tend to be quite wary of businesses, especially big business. While you know that corporations have their place, you tend to support small, locally owned shops. As far as the rich go, you think they're usually corrupt and immoral." None of those sentences are particulalry. I have no idea which question even suggested I'd think the last one. Admittedly I didn't tick the box saying the wealthy already pay ""more than their fair share" of tax; but that's because I don't really have any settled view on that question. For one thing I don't have any relevant figures to hand. And I'm not sure what anyone's "fair" share of tax amounts to.

I think I'll stick to the ones asking what colour orange I am, and, crucially, the answer to which I eagerly await: am I more cat or dog?

Update 2: The result is in: I am 60% dog, 40% cat. Here is what the test told me: "You are a nice blend of cat and dog. You're playful but not too needy. And you're friendly but careful.And while you have your moody moments, you're too happy to stay upset for long."

Update 3 (11.45 pm.) Of modern U.S. presidents, I am most like George H. W. Bush, father of the current president. I was told: "You're considered boring by people that don't know you well. But like Bush senior, you do crazy things. Maybe you'll end up banning broccoli in your house, or puking on the Prime Minster of Japan!" I agree with the broccoli idea.

Update 4 (11.55 pm.) My Japanese name is Hoshi Gosetsuke; my Russian name is Jermija Dimitre Novikov.

Faith and Politics by John C. Danforth

2006-09-26T23:09:00.000+01:00

John Danforth, a former U.S. Senator for Missouri, who is also an ordained Episcopal priest (and a qualified attorney, and former diplomat - a U.N. representative and envoy to Sudan, brokering the 2005 agreement that stopped the civil war in the south of that country) has a new book out called Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together. There is a video on the Council for Foreign Relations site of an interview and Q&A session with him. The book, as Barnes and Noble puts it, comes from someone with "a lifetime of public service" who "has advocated for reason, moderation, and reconciliation in all matters political". Faith and Politics deplores the influence of the Christian right over politics, especially the Republican party. Danforth, as the interview makes clear, is very concerned at the collapse of the centre ground in American politics. The book makes suggestions as to how that centre might be reclaimed and become again the focus of politics. It looks like an interesting read, on a very topical issue.

Minister comments on Darfur situation

2006-09-26T22:10:00.000+01:00

The Minister for Foreign Affairs, Dermot Ahern, made a speech at the United Nations General Assembly in New York today. He said the following (my emphasis):

"The suffering of the people of Darfur shames the world. There has been human tragedy on a massive scale, with the intimidation, rape and murder of hundreds of thousands of innocents, and the displacement of vast numbers from their homes.

I have visited a displacement camp myself. I have seen the precariousness of the lives of the people there, but also their determination to return home to a better future for themselves and their children.

The people of Darfur have three essential needs. First, humanitarian aid must be delivered safely and without restrictions. Secondly, there must be an international peace-keeping force with a robust mandate. As set out by the Security Council, it should be a well-equipped and substantial UN force. I again appeal strongly to the Sudanese Government to agree to the deployment of such a force, and to all those with influence on it to persuade it to do so. I simply cannot emphasise enough the urgency of this. Pending the arrival of a UN force, the African Union force, whose continuation I welcome, should have the resources necessary to play a more effective role.

Thirdly, long-term security can only be guaranteed by the full implementation of the Darfur Peace Agreement. Last year the World Summit defined the international community's responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, should national authorities fail to do so. It would be a disgrace if this major advance became an exercise in empty rhetoric.

The Government of Sudan has fundamental responsibility for the safety of its own people. The international community must find ways to persuade it to live up to that responsibility, if need be including further measures against it. We cannot indefinitely stand by and watch with horror from the sidelines."

Darfur and east Asia; humanitarian intervention and grand strategy

2006-09-26T18:10:00.000+01:00

Two articles on very important topics in the Financial Times in recent days.

Tom Lantos, the the senior Democrat on the U.S. House of Representatives International Relations Committee and the founding co-chairman of the Congressional Human Rights Caucus, today addresses the situation in Darfur, and the inaction of the world in response. Lantos sets out the position:

"Khartoum still refuses to agree to let United Nations peacekeepers take over from the AU troops when they go home. The UN Security Council voted last month to deploy 20,000 peacekeepers to replace the AU troops; the Sudanese government immediately rejected that resolution and announced that the AU had no authority to transfer its mission to the UN. Then Sudan began to fan out more than 30,000 of its troops, allegedly to bring peace and stability to Darfur and to protect civilians. Imagine if Hitler had offered to "protect" Europe's Jews. As a Holocaust survivor, I cannot think of a more despicable act than to have Khartoum send soldiers who have raped and slaughtered thousands and displaced 2m people to "protect" civilians.Evidence is mounting that the Sudanese government is positioning air and ground forces to complete the genocide in Darfur that began three years ago. There is ample reason to fear a full-scale and imminent onslaught against civilians. The US government declaration calling the situation in Darfur genocide and a growing international civilian movement raised the expectations of the helpless. But we have failed to galvanise sufficient global commitment to protect victims of genocide. The May 5 signing of the Darfur peace agreement seemed to offer a ray of hope that the darkest days were behind the innocent men, women and children of Darfur. But that agreement is now on the verge of collapse because of resurgent violence."

It seems the May 5th agreement was not worth the paper it was written on. Should the rest of the world have expected anything else? Did Western governments, including our own (the Minister for Foreign Affairs was there a few months back) really believe the Sudanese governments' assurances? No answer to that question casts the inaction to date in a particularly good light. If they did, they look naive now; if they didn't, why settle for a sop in place of action involving a chance of success?

Lantos then continues:

"Whether to end genocide in Darfur is not a choice for Khartoum to make; it is a requirement to avoid not only international condemnation and isolation, but also an imposed civilian protection regime. I was proud to author a resolution calling on George W. Bush, the US president, to take immediate steps to help improve the security situation in Darfur, with a specific emphasis on civilian protection.If Khartoum continues to reject the deployment of UN peacekeepers, an imposed civilian protection regime in Darfur should be the priority of the AU, the UN, Nato, the European Union and the US government. I will continue to push for the immediate deployment of Nato assets as part of a transitional operation to stop the atrocitieswhile the UN forces are deployed. If Khartoum persists in pursuing genocide, I support military action to neutralise those military forces employed by Sudan to attack civilians or to inhibit peacekeepers from their deployment.Khartoum must be made to understand that there will be severe consequences for a further genocidal assault on the people of Darfur. Its reaction to the Security Council resolution authorising a peacekeeping operation is no surprise. Neither is its attempt to bully the AU into submission by issuing an ultimatum for the union to reject the UN resolution or leave Darfur.Evidently, the world needs reminding that the genocide in Darfur is not just an African crisis. It is a crisis for all humanity and obliges all of us to act with urgency. Words without deeds betray the people of Darfur."

The UN resolution to which Lantos refers in the second last sentence, 1706, must be acted on. It is problematic, however, because it seems to leave external action premised on the consent of the Sudanese government. That is patently absurd. Waiting for the regime there to voluntarily agree to an intervention force in Darfur makes no sense. The Secretary General of the Kofi Annan, recommended in a report published on July 28th that the UN mission in the country be expanded into Darfur as of January 1, 2007. The time is late; but better late than never. Where the approximately 17,000 troops (Sec-Gen July 28th report, pp. 17-18) will come from is an open question. The task is potentially enormous.

On a different topic, Daniel Twining, described as a former adviser to John McCain, the US senator, and a fellow of the German Marshall Fund of the US and the Fulbright/Oxford Scholar at Oxford University, addresses American grand strategy in East Asia. The future of Asia is crucially important for the rest of the world. According to Twining:

"Conventional wisdom holds that the US is a status quo power in Asia - and that a dissatisfied China seeks to undermine the US-centric regional order. But this assumption inverts both countries' roles in a period of dynamic change. China can rest content with the status quo: its rising wealth, power and influence naturally erode American preponderance. As one Chinese analyst put it: the US, not China, stands at a strategic crossroads as a consequence of China's rise. That is why Washington - not Beijing - is pursuing the revolutionary design in Asia, cultivating new centres of power that will shape the emerging international order as much as China's ascent."

So what is Washington's "revolutionary design" for Asia? Twining's answer:

"The centrepiece of President George W. Bush's Asia policy is encouraging Japan's normalisation as a great military power - a historic break from Japan's post-1945 tradition of pacifism. Similarly, Washington's intensifying partnership with New Delhi reflects America's determination to accelerate India's rise to world power - and India's aspirations for greatness. In India and Japan, the US is fuelling the strategic ascent of countries that intend to face China as equals.The US is also cultivating the emerging regional powers of Indonesia and Vietnam. Like India and Japan, they share a historical wariness of Chinese power and an interest in countering Chinese influence in south-east Asia. Lastly, the US is nurturing a strategic community of democracies in the shadow of Chinese autocracy. America and Japan have formalised trilateral defence co-ordination with both Australia and South Korea and are exploring a trilateral strategic dialogue with India. America wants Nato to develop military interoperability with leading Asian democracies. America's Asian design is more interesting than a crude effort to contain China. Rather than a neo-conservative plot to prolong US dominance, Washington is actually diffusing its preponderant power by encouraging the rise of friendly Asian partners to help manage a future multipolar order."

Of course, such a path, he notes will face problems of its own. Increased Japanese assertiveness - or nationalism - might alarm its neighbours, such as South Korea. Australia does not want to be caught between its American military ally and its Chinese trading partner. U.S. rapprochement with India's nuclear status risks a countervailing Chinese effort to strengthen Pakistan's deterrent. Will closer relations with Viet Nam risk solidifying its government's autocratic rule? Will increasing Chinese insecurity, in order to guard against a future Chinese threat, risk exacerbating - or bringing into being - just such a threat? Of questions Twining does not (get to) canvas in his article, what of the clear danger of North Korea's nuclear status? What is America's bottom line position on Taiwan, and how does that intersect with Washington's need for China to bring some pressure to bear on the regime in Pyongyang over the nuclear question? What about Burma, described by the Bush administration as an outpost of tyranny?

Twining recommends that the U.S. "abandon its scepticism and embrace Asian regional organisations led by the Association of South East Asian Nations, which promote pluralism, enhance Japanese and Indian leadership and socialise China as a responsible neighbour" and a U.S.-South Korea trade agreement. Such steps he says "would reassure the many Asian governments that, unlike countries in some other parts of the world, want more American leadership in their unsettled region - not less". Looking at the big picture, the first necessary step (admittedly at a time when Iraq, Iran, Lebanon and so many other matters command so much time) would be a reorientation of policy based on the realisation that - given that Asia has perhaps half the world's population and a growing impact on world economics - we can be said to be entering what Twining calls "the emerging Asian century". That goes just as much for Europe as it does for America.

Does the Irish Constitution require same-sex marriage laws?

2006-09-25T19:00:00.000+01:00

In an upcoming case, two plaintiffs, Katherine Zappone and Ann Louise Gilligan, will argue before the High Court that it is contrary to the Constitution of Ireland and the European Convention on Human Rights for the State not to recognise their Canadian marriage as valid for tax purposes. The question of same-sex marriage is controversial. Here - so far as are relevant - are the parts of the Constitution bearing on the State's role relating to marriage:

"Article 41
1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
...
3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.
2° A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that [...]"

It can thus be seen that Article 41.1 gives a pre-eminent position to "the Family", which it calls "the natural primary and fundamental unit group" of society. Article 41.3.1 pledges the State to "guard with special care the institution of Marriage, on which the Family is founded". The Irish courts have repeatedly held that these provisions of our Constitution, when speaking of marriage, envisaged only a legal union between one man and one woman. No court in this State has ever held to the contrary. So the claimants in Zappone and Gilligan v Revenue Commissiones et al. face the rather basic legal problem that the authroities are against. I would also suggest that the correct response by a court faced with this claim is to turn it down. The reasons are institutional: It is not for the court to pre-empt the legislative response (if any) to democratically made arguments for altering the long accepted understanding of the concept of marriage in our society. Long acceptance is not enough on its own to mean that a court must continue to apply a given interpretation of a constitutional provision but there is another point: In order to have the courts overturn previous decisions, a claimant must usually persuade the court in his or her case that the previous decision(s) are clearly erroneous, based on an outdated concept that offends an indisputable liberty, or something of that sort. Any judge would, it seems to me, be on somewhat tenuous ground to accept such an argument in relation to the problem currently under discussion. One avenue the court - and perhaps on appeal the Supreme Court - might take would be to adopt the approach taken in a similar case by the New York Court of Appeals just this past July in the case of Hernandez v Robles:

"We hold, in sum, that the Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side -- and we know, of course, that there are very powerful emotions on both sides of the question."

The High Court of England addressed a very similar claim in a decision handed down on July 31st, Wilkinson v Kitzinger. Since 2005, the Civil Partnership Act has provided for same-sex partners to enter into legally recognised relationships. In Wilkinson, the court was asked to hold that this legal arrangement - extending something approaching marriage, but not the protection of marriage laws per se - offended against the Convention on Human Rights, or should be held to be contrary to the common law. (The petitioner, it seems, invoked the phrase "separate but equal", which was how the effect of segregation laws were somewhat euphemistically referred to in America in the first half of the 19th century and before: see para. 5 of judgment) Sir Mark Potter rejected both arguments. He said (para. 118-121):

"It is apparent that the majority of people, or at least of governments, not only in England but Europe-wide, regard marriage as an age-old institution, valued and valuable, respectable and respected, as a means not only of encouraging monogamy but also the procreation of children and their development and nurture in a family unit (or "nuclear family") in which both maternal and paternal influences are available in respect of their nurture and upbringing.
The belief that this form of relationship is the one which best encourages stability in a well regulated society is not a disreputable or outmoded notion based upon ideas of exclusivity, marginalisation, disapproval or discrimination against homosexuals or any other persons who by reason of their sexual orientation or for other reasons prefer to form a same-sex union.
If marriage, is by longstanding definition and acceptance, a formal relationship between a man and a woman, primarily (though not exclusively) with the aim of producing and rearing children as I have described it, and if that is the institution contemplated and safeguarded by Article 12, then to accord a same-sex relationship the title and status of marriage would be to fly in the face of the Convention as well as to fail to recognise physical reality.
Abiding single sex relationships are in no way inferior, nor does English law suggest that they are by according them recognition under the name of civil partnership. By passage of the CPA, United Kingdom law has moved to recognise the rights of individuals who wish to make a same sex commitment to one another. Parliament has not called partnerships between persons of the same-sex marriage, not because they are considered inferior to the institution of marriage but because, as a matter of objective fact and common understanding, as well as under the present definition of
marriage in English law, and by recognition in European jurisprudence, they are
indeed different."

For an example of a court that recently acceded to the argument to be advanced in Zappone and Gilligan, one need only look to the decision of the Constitutional Court of South Africa in Fourie v Minister of Home Affairs (December 1st, 2005). An interesting aspect of the decision is that the Court suspended the effect of its decision, thereby granting the constitutionally appropriate branch a year to pass the neccesary reform. The question of the application of international law to such a case was discussed at the time at Opinio Juris, although one must bear in mind the particular wording of the South African Constitution, as observed in the comments following the post in question. There was also, of course, in 2004 the decision of the Supreme Court of Massachusetts in Goodridge v Department of Public Health. The Court was divided 4-3, so it provides an interesting internal debate. (Cordy J.'s dissent, with whom two of his colleagues agreed, covers pp.23-46 of the pdf.)

Book reviews

2006-09-25T00:30:00.000+01:00

In the August/September 2006 issue of Policy Review, Peter Berkowitz discussed With All Our Might: A Progressive Strategy for Defeating Jihadism and Defending Liberty (edited by Will Marshall, published by Rowman and Littlefield) and The Good Fight: Why Liberals — and Only Liberals — Can Win the War on Terror and Make America Great Again (written by Peter Beinart, published by Harper Collins). Not having read either book I can't comment in any detail, but Beinart comes across badly from Berkowitz's review. Marshall's book sounds slightly more useful.

In the Times Literary Supplement, Kenneth Anderson gives a sharp and thoughtful analysis of Francis Fukuyama's After the Neocons: America at the Crossroads. Also in TLS, although not in the current edition, Rosemary Righter (July 19th) has reviewed Paul Kennedy's The Parliament of Man.

In the New York Times Book Review, Michiko Kakutani excoriates Richard Posner's Not a Suicide Pact.

In the Boston Globe, Katherine A. Parker reviews The Zero, and Chris Cleave's Incendiary. Both in differing ways bring an element of black comedy to bear on the aftermath of terrorist attacks. The former is a novel centering on a man invovled in the rescue operations at the World Trade Centre who shoots himself in the head but survives suffers "gaps", which in Parker's words are "periods of time that are lost to him, or at least to the consciousness through which this story is told"; the latter a 234 page letter to Osama bin Laden from a woman whose husband and 4-year-old son were killed in the London transport bombings in 2005.

Upcoming U.S. Supreme Court cases

2006-09-24T23:30:00.000+01:00

A recent Cato Institute conference* discussed a number of interesting cases listed for hearing before the U.S. Supreme Court in its 2006/07 term, which begins on October 2nd. This piece does likewise. (I rely significantly on the talks given by Erik Jaffe and Randy Barnett - see link below.)

Two cases challenging the 2003 federal partial birth abortion (PBA) statute, Gonzalez v Planned Parenthood and Gonzalez v Carhart, will be heard together on November 8th. The petitioners claim that the absence in the legislation of an exception allowing the use of the procedure where there is a danger to the mother’s health renders the legislation unconstitutional. Of course, it is perfectly arguable that Congress had no jurisdiction to pass the Act in the first place. This is because the Act’s declared basis is in the Commerce Clause, which is patently absurd, since the Act does not regulate commerce, and, even if PBA’s were held to be “commerce”, the Act does not regulate commerce between the states, which is all Congress is constitutionally entitled to do. The Commerce Clause should end the matter, but it will not.

Of course, the U.S. Constitution has long been held, under the Ninth Amendment (the unenumerated rights clause) to protect a right to privacy, which extends to cover freedom of personal choice as to abortion. The case of Roe v Wade (1973) was confirmed in 1992 in Planned Parenthood v Casey. Notwithstanding the central freedom to choose protected by Roe and later decisions, various states have imposed certain restrictions on legal abortion. Nebraska passed a law banning PBA, with no maternal health exception. In 2000, the U.S. Supreme Court held that this rendered Nebraska’s statute unconstitutional, in Stenberg v Carhart.

In Gonzalez v Carhart, the Court of Appeals for the Eight Circuit upheld both the ruling that the statute was unconstitutional, and a permanent injunction against enforcement of the Act: , as did the Ninth Circuit in Planned Parenthood. In the latter case, the district court had upheld the challenge on three grounds:
1. The Act placed an “undue burden” on the woman’s right to choose to terminate her pregnancy before viability. (This test derives from Casey.)
2. The Act was unconstitutionally vague, because the term “partial birth abortion” was not a recognised medical term. Accordingly, doctors had insufficient guidance as to when they would be subject to the statutory penalties, which include criminal sanctions.
3. Even on the most deferential standard of review, Congress had acted unconstitutionally in failing to grant a health exception, as mandated by Casey.
The Ninth Circuit agreed with all three grounds.

So what will the Supreme Court do now? If it upholds Stenberg, it will be striking down a federal statute on the basis of an (unenumerated) constitutional right to health. Congress has considered the matter and decided that a health exception is not required in relation to the PBA procedure. The Court, by its decisions to date, has put itself in something of a bind. In Casey, the Court invoked the doctrine of stare decisis (letting precedents stand) in the interests of certainty in the legal system. But in that instance two decades had passed since Roe, and it was at least plausible to say that citizens had placed a great deal of reliance on Roe being the law. That is not to say that Roe was itself correct, or that a strong or inflexible doctrine of stare decisis is necessarily appropriate in constitutional matters, but those are different questions.

It will be very interesting to see, for example, the decision of Justice Kennedy. This is because he was with the majority in Casey in affirming Roe, but wrote a strong dissenting judgment in Stenberg. But the decision in Casey was justified on the basis of stare decisis. It is possible that he will maintain his position that Stenberg was wrongly decided, and argue that that was a much more recent decision (of much less stature indeed) than Roe. The final interesting point to note is that Justice O’Connor, part of the majority in Stenberg, has been replaced by Samuel Alito, and there is also now a new chief justice, John Roberts. Both come to the court as avowed conservatives. Their views, if any, on the appropriate role of stare decisis will be interesting. It is perhaps in that latter respect – the approach of the court’s two new members – that the greatest importance of the upcoming cases lies, given the influence both will have in future as lifetime appointees.

Stenberg points to the Supreme Court not overturning the decisions of the Eighth and Ninth Circuit. If, however, Chief Justice Roberts and Justice Alito find themselves unable to agree with that decision, the 5-4 majority by which it was decided would vanish. The point pressed by Justices Thomas and Kennedy in Stenberg – that, even assuming that Casey should be adhered to, the decision in Stenberg was inconsistent with it – might appeal to the new justices. Or, it is possible that they could agree with Justice Scalia’s plea in Stenberg that Casey should be overruled. (Before Casey got to the Supreme Court, Judge Alito dissented from the Third Circuit's ruling: 947 F.2d 682 (3d Cir. 1991), and his reasoning was approved on appeal by the then Chief Justice William Rehnquist, who of course was in the minority in Casey.) There is, however, on past form (irrespective of what the new justices think) no majority on the Court in favour of the most sweeping move of all: overruling the bedrock decision in Roe, returning the matter to the States, and decommissioning the Supreme Court’s role as arbiter of what Justice O’Connor in Stenberg called “one of the most contentious and controversial issues in contemporary American society”.

Justice Ginsburg in Stenberg suggested, concurring with Chief Judge Posner of the Seventh Circuit that the aim of Nebraska’s legislation was “to chip away at the private choice shielded by Roe v Wade, even as modified by Casey”. Perhaps the 2003 statute was, perhaps it wasn't; I don’t know. We in Ireland are well aware of the contention attaching to the issue of abortion. We should probably be thankful that our courts never got themselves into the mess of reading a right to abortion into our Constitution. As Justice Scalia put in Stenberg:

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since”

The entire matter should be for elected legislators to decide, or for the people in a referendum. Our law is, however, somewhere in between, but that is another day’s debate.

There other interesting cases coming up, but since I know very little about the relevant law, I’ll just mention them, so anyone interested might be aware of them. The Court has agreed to hear two affirmative action cases, Parents Involved in Community Schools v. Seattle School District #1, et al. and Meredith v Jefferson County Board of Education, which concern the validity of explicit use of race as a criterion in schools' selection procedures. The argument over affirmative action is a contentious one, but the legal issue comes down to whether the increased diversity within schools provides sufficiently compelling justification to outweigh the prima facie breach of the Equal Protection Clause. The Meredith case involves an argument that the Court should overrule three of its own precedents, Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of University of California v. Bakke, 438 U.S. 268 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003). In the Seattle School District #1 case, the Ninth Circuit (by 7 votes to 4) upheld the selection plan. Judge Carlos Bea, with the concurrence of three of his colleagues, wrote a bracing dissent, which is worth reading on its own. (see pdf. pp.59-106), which quite powerfully marshals the arguments in favour of holdings such laws contrary to the Equal Protection Clause: see in particular the quote from Mosk J. of the California Supreme Court at p.105 of the pdf.

The issue of punitive damages will be debated in Philip Morris USA v Williams, which is listed for October 31st. The Court is to review a $79.5 million punitive damages award by a jury in a case brought by a widow of a smoker. The punitive damages exceed the compensatory damages awarded by a factor of 97. The Chamber of Commerce of the United States of America has described the case as an “ideal vehicle for bringing some measure of clarity to the chaos that continues to roil punitive damages jurisprudence in federal and state courts throughout the nation.” The various courts’ disparate opinions have followed (in time and in law) the Supreme Court decisions in of North America, Inc. v. Gore 517 U.S. 559 (1996) and, more recently, State Farm Mutual Automobile Insurance Co. v. Campbell 538 U.S. 408 (2003). The background against which the case comes before America’s highest court is discussed here.

Of the 31 cases so far accepted by the Court for the 2006/07 term, a few others with important subject matters may be referenced. Environmental Defense v. Duke Energy Corp. and Massachusetts v. Environmental Protection Agency concern the Clean Air Act, but will probably be more interesting for their discussion of the question of standing. (The former will be heard on November 1st, the latter is as yet unscheduled.)

Two other cases on the docket, Whorton (Nevada Dir. of Corrections) v. Bockting and Burton v. Waddington (November 1st and 7th respectively) raise the question of retroactive application of constitutional rules of criminal procedure. X is convicted and imprisoned today, but next week B persuades the same court or (perhaps more likely) an appellate court to apply, or announce, a constitutional rule of criminal procedure that would, or might, have applied in X’s case. After the decision in B’s case, may X bring a collateral application for review of conviction/sentence and have the benefit of the rule? Whorton involves an interesting question relating to the admissibility of testimonial hearsay evidence under the 6th Amendment, and centres on the Ninth Circuit’s interpretation of the Supreme Court’s 2004 decision in Crawford v Washington.

*The fifth annual Constitution Day Conference on September 14th , recordings of which are available online (see, for 2006/07 cases, panel 4). Also under discussion were 2005/06 cases on topics such as assisted suicide and Guantanamo Bay detainees. For another discussion of upcoming cases, see this Law.com article.

The long haul in Afghanistan

2006-09-24T23:25:00.000+01:00

Show me where the roads end, and I will show you where the Taliban begins
Lt. Gen Karl Eikenberry, U.S. commander in Afghanistan

In Sunday's Washington Post, Jim Hoagland makes a very important point: If the ordinary citizens of Afghanistan, wary after 25 years of war, dictatorship and unrest, don't believe that the NATO allies are there for the long haul, the post-Taliban project will fail. Hoagland writes:

"The biggest challenge that U.S. and NATO forces face is not on the battlefield. It lies in building confidence in the country's rural tribes and sparse urban population that Western governments will stay deeply involved in Afghanistan for a decade or longer. If Afghans do not believe that, they are unlikely to take the risks of vast social and political change being demanded of them today."

NATO capitals should therefore commit to "providing a long-term military presence and significant development funding to Afghanistan as a matter of routine and strategy, rather than as a temporary military emergency". The multinational coalition must show the Afghans that the changes (for example, its new Constitution and democratic government) brought about so far will be deepened and made durable. Let us hope this is the guiding imperative being impressed on those on the ground by those in power in Washington, London, Ottawa and Brussels. The signs, at least based on public comments, from Canadian prime minister Harper's visit there last week are hopeful. The "previous injustices, miseries innumerable disasters" (to quote from the Preamble to its Constituton) which have befallen Afghanistan, and the goal of, eventually, allowing it take its place among the nations of the world are sufficient reminders of the task at hand.

Update (Mon. Sep 25th): Although I don't agree with some of what he says, John Kerry at least makes the same broad point.

Ryder Cup: Three in a row

2006-09-24T23:00:00.000+01:00

What a victory! If a streaker and the good grace of Paul McGinley (he conceded a putt of 30 feet on the last) had not intervened, this could have been the biggest winning margin in the competition's 79 year history. In the event, Team Europe won by 18.5 points to 9.5. This equals the record the (largely similarly composed) European team set two years ago across the Atlantic at Oakland Hills. It was a pity the event wasn't on terrestrial television, but the tv highlights at night on RTE and BBC, the excellent radio coverage on RTE Radio 1 and BBC Radio Five Live and the closeness of a friendly pub with a big screen more than made up for that. I always find golf lends itself to radio, and even more so discussion and cheering in the small pub setting. The inanities of Sky's commentary can be ignored, or forgotten.

Coming into the match, I was a little worried by all the talking up of Europe's chances. We were favourites, we were going in with a much more experienced, more together side. I was a little concerned that a motivated, not to say individually talented, U.S. team could upset the apple cart. After all, Woods, Mickelson and Furyk are higher in the world rankings than any of the Europeans. I need not have worried. Sergio Garcia, Colin Montgomerie, Paul Casey, and the wildcards Lee Westwood and (the courageous and brilliant) Darren Clarke were all towers of strength, and beacons of skill. The Americans, used to target golf, and unused (and in the case of a few of them, including, it would seem, Tiger Woods, disinclined) to team golf, had no answers. That is not to say they played all that badly. Stewart Cink, JJ Henry, Zach Johnson and a few others played well, at least in parts. But as pairs over Friday and Saturday they consistently came up short. Europe won each of the first four sessions by 2.5 to 1.5 They then went into Sunday leading 10-6 and proceeded to sweep all (bar Cink, Woods and Verplank) before them. The strength went right down through the European side. Howell, Stenson, Olazabal, McGinley, to name but a few, stood tall in what a cricket team would call the middle order and prevented any hint of final day American revival on the scale required, namely the record turnaround achieved at Brookline in 1999.

One commentator said the atmosphere was like a soccer or rugby. The chants of "Europe! clap-clap-clap Europe!" were something I rarely recall hearing on a golf course. Not like today. But the crowd was never bawdy or heckling. The American players were received with courtesy, and fairly applauded when they played well. Credit was given where credit was due. There was the occasional cheer when an American putt was missed, but that is excusable.

We should be proud. The European team played superbly, and the Irish hosts did a great job too. Roll on 2008. And bring it back here soon!

Bob Dylan does it again

2006-08-31T16:36:00.001+01:00

Bob Dylan really seems to have pulled out a classic with Modern Times. I haven't bought it yet, but I certainly intend to, not least after reading the superb reviews it has been given. For example, Pitchfork gave it 8.3; AllMusic Guide and Rolling Stone have been similarly positive. I've heard some of the songs and it is not difficult to see why. The man has quite simply written the best songs he has in a long time. I enjoyed Love and Theft, but Modern Times really looks like being something quite special. To be still producing the goods 44 years after his debut album is some feat. We will not see his like again.

In looking for reviews of Modern Times, I came across the interesting Meta-Critic website, which gathers reviews of the particular album, book, game, dvd or film, as the case may be, from selected sources, calculates an appropriate rating out of 100 (whereas Pitchfork gives ratings to decimal places, many reviews only give a rating out of five, or ten) and then comes up with a weighted critics' average. The average is weighted by assigning more weight to publications of greater stature than to newer or lesser known ones. As examples of the results of this process, Thom Yorke has registered 75, Primal Scream 56, Outkast 65, and Dylan 95. Admittedly, the maximum number of reviews (30) has not yet been reached in Dylan's case (for Modern Times has only just been released), and more lukewarm reviews may surface, which would naturally reduce the collated average.

If you haven't done so already, check out Modern Times and Meta-Critic.

Calling a spade a spade

2006-08-31T14:25:00.000+01:00

Abdel Rahman al-Rashed, general manager of Al- Arabiya news channel, had an article recently in the pan-Arabic newspaper Al-Sharq Al-Awsat. Al-Rashed is the man who, two years ago, penned a sentence containing the kernel of one of the most difficult problems facing Europe today: "It is a certain fact that not all Muslims are terrorists, but it is equally certain, and exceptionally painful, that almost all terrorists are Muslims." If this is true, how do we engage with our growing Muslim minorities?

Well, democratic European minds would likely be more at ease, if they could know that most of their Muslim neighbours cleaved to the sort of "good authority" analysis al-Rashed's more recent article puts forward. A while president Bush described America (and the free world) as at war with "Islamofascism". In the Islamic Middle East, some sought to describe the statement, in the same way as some wilfully distort every comment by Western leaders on this subject, as suggesting a war with Islam per se. There is of course no such war, and the U.S. president certainly hasn't declared one. What Bush in fact had in mind, although one can quibble about the usefulness of his terminology, is correct. Al-Rashed takes up the point:

"When US President George W. Bush described those who plotted to kill thousands of passengers in ten airliners as Muslim fascists, protests from a number of Islamic societies in the west and the east were voiced against this description. What is wrong with using a bad adjective to describe a terrorist as long as he is willing to personally call himself an Islamist; declares his stance, schemes, and aims; while his supporters publicly call for killing of those whom they consider infidels, or disagree with them religiously or politically?"
...
"Bush did not say that the Muslims were fascists; he said that the Muslim fascists were the problem, i.e. he distinguished between an extremist group and the general innocent peaceful Muslims. Yes, fascism is a word that has bad connotations, and is used here to approximate the meaning to the listeners. The westerners know that fascism is an extremist nationalist movement, which emerged from the European society, and was responsible for destructive wars caused by its premises, which are based on discrimination, racism and hatred. This approximation is correct when you apply it to the literature of the Islamic extremists. The same as the Europeans fought fascism and the fascists by word and by gunpowder, the world will fight the extremist Islamists. This is what the good Muslims, who are at the forefront of those hunting down Al-Qaeda, do; the same as the Muslim who exposed the latest conspiracy to hijack the airliners,
when he hastened to inform the security authorities when he suspected what was happening in the neighborhood. This is why I do not understand what those people - who want to protect reputation and image from the westerners - want to call the Muslim extremists who resort to violence? Do they want to call them Khawarij (The earliest Islamic sect, which traces its beginning to a religious-political controversy over the Caliphate)? The problem is that no one (in the west) understands its historical meaning. Do they call them by their names only, such as Osama, Ayman, Muhammad, and Zamani? Do they call them according to the sarcastic Egyptian way: "people who should remain nameless?""
...
"At the end, describing rotten apples as rotten does not make the people hate eating good apples. The same applies to the Muslims; there are one billion Muslims in the world, and the world has no option other than dealing with them, and hunting down the evil minority among them. We have wasted a long time since the seventies in being preoccupied with protesting against nomenclatures and images. This is despite the fact that these people hijack civilian airliners, kill people in restaurants, and justify their actions by using pan-Arab or Islamic descriptions. To describe a Muslim as terrorist is natural if he is a terrorist, the same as you do with a Colombian drug smuggler, an Italian Mafioso, a Russian butcher, a British Nazi, or a US right-wing extremist."

Celsius 7/7 reviewed on Disillusioned Lefty

2006-08-29T18:48:00.000+01:00

One of my favourite Irish blogs is the award-winning Disillusioned Lefty, which is the brainchild of Kevin Breathnach and Michael Larkin. They have won many admirers for their always-engaging writing, which has ranged widely, from literature and music (whether pop culture or more artistic) to politics and history. Disillusioned Lefty went into virtual hibernation recently; the lads were doing the Leaving Cert. In recent weeks, the blog has seen regular posting once more.

A few days ago, Kevin described Michael Gove's new book Celsius 7/7 as "provoking and convincing". This evening he offers a more detailed introduction to the book, which is well worth a read. Kevin picks this passage of Gove's as broadly summing up the book's argument:

Haven’t we learnt that the failure to act does not just allow Islamists time and space to operate but also, crucially, reinforces their impression of our weakness? Once again, and not for the last time, our culture is incapable of asserting itself in defence of liberal values. Islamists draw strenght and take heart from what they see as our terminal irresolution.

Kevin concludes that, while agrees with much of Gove's general thesis: "Gove’s blueprint is not worth the €14.70, it’s rhetoric heavy and often source-light. What’s more, much of his argument has been made already and to a wider audience."

Steyn on 2006 v 2001

2006-08-29T13:30:00.000+01:00

It had been a long time since I read a piece penned by Mark Steyn - since his replacement as token North American right-winger in the Irish Times by Charles Krauthammer, if not beforehand. Steyn is a wittier writer than Krauthammer; on some occasions he can be superficial; other times, simplistic; others again, overly dismissive of other viewpoints. Today I checked out his website (www.steynonline.com) for the first time in a good while. And I found a piece published by him in the Chicago Sun-Times on August 20th. Steyn contrasts September 2001, when the U.S. twisted arms in Islamabad and Moscow in order to allow the Afghanistan operations to get under way, with the situation five years, on with unsuccessful negotiations with Iran and the month-long Israel-Hizbollah conflict ending without a decisive blow against Hizbollah. He makes one point that is worth thinking about, in typically combative style:
"At one level, the issue is the same as it was on Sept. 11: American will and national purpose. But the reality is that it's worse than that -- for (as Israel is also learning) to begin something and be unable to stick with it to the finish is far more damaging to your reputation than if you'd never begun it in the first place. Nitwit Democrats think anything that can be passed off as a failure in Iraq will somehow diminish only Bush and the neocons. In reality -- a concept with which Democrats seem only dimly acquainted -- it would diminish the nation, and all but certainly end the American moment."

Cameron's compassionate conservatism

2006-08-29T13:00:00.000+01:00

To encourage enterprise in all its forms; to fight social justice and help the most disadvantaged by building a strong society; to meet the great environmental threats of the age; to provide first-class healthcare, education and housing that responds to the needs of the individual (by trusting professionals, giving choice to parents, supporting vocation and local initiative); to take a lead in ending global poverty, as a moral obligation and a means of guaranteeing long-term security; to protect the country by being "hard-nosed defenders of freedom"; to give power to people and communities, and recognise the limitations of government - it is not through central government alone that we can change society for the better; to be an open, meritocratic and forward-looking Party.

Those, in summary form, are the eight goals set out in Built to Last: The Aims and Values of the Conservative Party. It is worth a read, even if it's set of proposals veer toward rhetoric rather than detail. The U.K. is after all at least three years - unless there is an unforeseen disruption to the usual timetable - out from its next general election. But 12 months after a third election defeat, this time to an unpopular prime minister, the Conservatives have started to turn their fortunes around. A recent poll put them ahead of Labour by nine points: 40-31. Given the unbalanced constituency system, the Conservatives need something of that order in election 2009 to take victory. And we must remember that the Blair government has been flailing around from PR disaster to PR disaster in recent months. Once the prime minister leaves, which is likely to be in the next 12 months or so, Labour may take on a more settled look. By then David Cameron's Conservatives will have to have embedded some of these ideas in the public conscience.

There are some interesting ideas, not least abolition of the national ID card scheme (should it be introduced) and the replacement of the Human Rights Act 1998 with a new Bill of Rights. Foreign policy is barely mentioned (the wars in Afghanistan and Iraq, or the debacle surrounding Cameron's intention to leave the EPP in the European Parliament, might as well never have happened); no clear positions are taken on questions such as the direction of policy on energy, or tax and welfare; areas such as transport and communications are left out.

There is a long road ahead for the Conservatives. Remember the old saying: Elections are not won by oppositions, they are losy by governments.

Prisoners released "unharmed"

2006-08-29T12:32:00.000+01:00

As readers are perhaps aware, the two American reporters, Steve Centanni and Olaf Wiig seized in Gaza and held captive for two weeks have been released. This is how the New York Times put it on Sunday:
"Two journalists kidnapped in Gaza were released unharmed on Sunday after being forced at gunpoint to say on a videotape that they had converted to Islam."

Now, one wonders, if two al-Qaeda prisoners were released from Guantanamo Bay after having been forced (at gun point) to declare conversion to Christianity, would the New York Times describe them as "unharmed"? I'd say it might criticise the captors for unjustifiably and unnecessarily acting in a manner tending to undermine the prisoners' dignity. And one could only agree.

Roy Keane on Wearside

2006-08-29T12:22:00.000+01:00

And then it happened. I heard on the radio one morning last week that Roy Keane was in "advanced negotiations" with Niall Quinn, chairman of Sunderland football club, with a view to taking over as manager. I thought a first I must have imagined what I thought I had heard: a product of exam stress and insufficient sleep/caffeine perhaps. But it was correct. And now it is a done deal. Last night the Sunderland players even managed to pull off a surprising 2-0 win over West Brom. Why has Keane taken on the job? After all, Sunderland has seemed in freefall since being relegated from the Premiership. The players seem a dispirited, scarcely functional bunch. They lost their four opening matches in the Championship; then they were knocked out of the League Cup by Bury, a side languishing at the bottom of the Football League.

A contract worth a reported 6 million punds sterling (reports vary; some suggest 10 million) might be pointed to as a reason. But Keane is by any standard a wealthy man; over his final years at United he took home a six-figure sum weekly. He need not work again for many years, should he so wish. Unlike some other professional footballers, he has never shown conspicuous attachment to monetary reward as an end in itself; it has simply been a by-product of his career in the game. For example, we know he was willing to take a large pay cut to turn out for Celtic. He is a man who would not let money get in the way of something he thinks he should do. That is not to say he does not know his value; Michael Kennedy, solicitor, has rendered him consistently outstanding service in that regard, as Tom Humphries noted yesterday in the Irish Times. So it wasn't for the money. I think the basic answer is that Keane, as he showed in his playing career, is a competitive spirit to his very core. It has given his life its very meaning, apart from his family, since he contemplated what to do with his life and got the call from first Cobh Ramblers, then Nottingham Forest, then Manchester United, and, latterly, Celtic. He seems to have found the prospect of months, even years, away from the cut-and-thrust of footballing competition too much.

So if he desired a way back into the game, why Sunderland and Niall Quinn? The question would perhaps surprise a hypothetical observer unaware of what occurred in Saipan four summers ago. Look at it this way: the club has an ambitious chairman and board, has just been taken over by a wealthy consortium willing to invest significant sums, a fine stadium and a large fanbase - at least by Championship standards. Keane and Quinn are men enough to leave behind what happened. Keane certainly seems to have shed to bitterest leading edge of his view of the events of 2002; or so one would infer, for he has not said as much in public and may not do so for a long time to come. He has quite a task on his hands. But the old saying is appropriate: No better man.

What a Hamas spokesman thinks of conditions in Gaza

2006-08-29T12:00:00.000+01:00

Palestinian Authority Government Spokesman Dr. Ghazi Hamad has published, in the PA daily Al-Ayyam, a critique of current events in the Gaza Strip, including scathing criticism of the Hamas government itself and the Palestinian resistance. Here are some selected excerpts from the Jerusalem Post:
"When you walk in the streets of Gaza City, you cannot but close your eyes because of what you see there: unimaginable chaos, careless policemen, young men carrying guns and strutting with pride and families receiving condolences for their dead in the middle of the street."

"Gaza is suffering under the yoke of anarchy and the swords of thugs," Hamad wrote. "I remember the day when Israel withdrew from the Gaza Strip and closed the gates behind. Then, Palestinians across the political spectrum took to the streets to celebrate what many of us regarded as the Israeli defeat or retreat. We heard a lot about a promising future in the Gaza Strip and about turning the area into a trade and industrial zone."

Hamad does not place the blame for the lawlessness in Gaza on Israel:
"We're always afraid to talk about our mistakes. We're used to blaming our mistakes on others. What is the relationship between the chaos, anarchy, lawlessness, indiscriminate murders, theft of land, family rivalries, transgression on public lands and unorganized traffic and the occupation? We are still trapped by the mentality of conspiracy theories - one that has limited our capability to think."

"We have all been attacked by the bacteria of stupidity. We have lost our sense of direction and we don't know where we're headed."

And there is this plea to the armed men inflicting chaos on Gaza:
"Please have mercy on Gaza. Have mercy on us from your demagogy, chaos, guns, thugs, infighting. Let Gaza breathe a bit. Let it live."

Longer extracts may be found at the Middle East Media Research Institute (MEMRI).
They say admitting a problem is the first step to solving it. Perhaps admitting that not everything that's wrong for the Palestinian Arabs is the fault of Israel is a step forward.

Immigration and reactions

2006-08-27T14:00:00.000+01:00

In May 2004, when the EU expanded from 15 to 25 member states, only Ireland, Sweden and the U.K. declined to impose restrictions on the free movement of workers from the 10 new member states. In the 28 months or so since, there has been a remarkable influx of Eastern European workers into this country. The majority seem to be Poles, but there are also Lithuanians, Latvians, Slovaks and workers from each of the new states.

According to the OECD in June 2006:
"Since [May 2004], the UK and Ireland have received a significant number of immigrants from these countries, Sweden to a lesser extent. From May 2004 to the end of December 2005, 345 000 workers from the new member states were registered in the United Kingdom. In Ireland, from May 2004 to May 2005, 83 000 nationals of the new EU member states were registered, equal to 4% of the Irish labour force. "

According to Dr. Mary Gilmartin of UCD, working with figures accurate to the end of April 2006:
"Since May 2004, over 200,000 new PPS numbers have been issued. Of these, over 110,000 were issued to people from Poland, over 30,000 were issued to people from Lithuania, and over 15,000 to people from Latvia."

Even if the figure of 200,000, one must factor in the percentage of workers who came to Ireland for a number of months and went home again. But even working with a figure 150,000, this represents 7% of the Irish labour force. And in all of this there has been relatively little political dissent or objection. Pat Rabbitte made a comment about there being plenty more Poles where they came from, or words to that effect. But no considered analysis, or temperate raising of questions. By contrast, something of a political furore has erupted across the Irish Sea. Moves are afoot to reverse the open door police adopted in May 2004, as regards workers from Romania and Bulgaria, as and when the latter countries join the Union, which is scheduled for January 2007. Recent U.K. figures show, according to The Economist, that:
"427,000 migrants from eastern Europe had registered for work between May 2004 and June 2006. These figures do not include the self-employed, such as the supposedly ubiquitous Polish plumber. Allowing for that, the true figure was nearly 600,000 according to Tony McNulty, a Home Office minister."

To quote again from the same source:
"John Salt, director of the migration research unit at University College London, says that the population movement since May 2004 is the biggest single wave of migration in British history. Certainly this is the case in absolute terms, although he adds that the arrival of Huguenots from France in the late 17th century may have been bigger as a share of the population."

Taking a figure of 30 million for the U.K. labour force, 600,000 amounts to 2%. Now, surely the last two years must constitute "the biggest single wave of migration in [Irish] history". What accounts for the different political response to such figures between Ireland and the U.K.? After all, we have taken in abour three times more from the new member states. One point to make is that the U.K. has a much longer history of immigration. London is the most "multicultural" city in the world. Another is that significant parts of the British press seem to take any opportunity to blame the EU, for whatever current topic is in the headlines. On top of that, immigration as a topic seems to resonate in a negative sense with certain portions of the British public. Of course, one must differentiate between (say) the shambles that the U.K.'s asylum system has become (it only seems to have worsened over the last 10 years), and the relatively orderly system of economic migration from the new member states. By contrast to the position across the water, large-scale immigration is a phenomenon new to modern Ireland. We simply have never seen anything like this before, and are feeling our way slowly to a view of the best way forward.

One cannot doubt the benefits to our expanding economy of the new member state workers (not to mention the approximately 60,000 Chinese: see Dr. Gilmartin's piece). I certainly fully appreciate those benefits. They seem to be very hard-working. They are willing to take jobs that fewer and fewer Irish would take. I've yet to encounter a disobliging or discourteous immigrant waiter or shop assistant. And it is probably a positive experience for us to have persons of other cultures and backgrounds mingling through our society. It broadens horizons I suppose. But there are other factors. Low-wage workers, at least in some areas, have seen their incomes stagnate. Integration should be a priority. Thankfully, this seems to be proceeding relatively well. Polish shops and masses are fine by me, provided that our new countrymen do not keep entirely to themselves, as has happened with immigrant populations elsewhere. On that score, I think (and this is just a personal suggestion) we're doing ok. But it will be fascinating to see whether the Government is swayed by the U.K. u-turn and considers imposing restrictions on the issue of the rate of immigration becomes an issue in the 2007 general election.

Update (Aug. 29th; 1.10pm)
When writing this post, I was unaware of an August 26th report in the Irish Independent, claiming that the Government is indeed to introduce a work permit system for migrants from Bulgaria and Romania. It was adverted to that day by Simon over at Irish Election. A very perceptive comment was left by "Adam", which I quote in full:
"There’s a debate going on on the Politics forum of Boards.ie about imposing work restrictions on EU citizens; the problem is that all the work restrictions in the world can’t stop people traveling to other EU countries; there is still a freedom of movement that is central to the European project.What that essentially means is that people will travel here and join the black-market work force; it’s already happened in the 12 other “old EU” countries that imposed restrictions on the 10 new states in 2004. Indeed the actual effect has been that the likes of Ireland, the UK and Sweden have gotten the educated Polish workers who have something to offer while the less educated masses went for the labour-intensive jobs in the EU black market. Apparently even if someone from Poland was caught working in, say Germany illegally they can only be deported; at which point they can return freely as “tourists” and start all over again.At least with the freedom to work we have documented immigrants who pay taxes and contribute to the economy."

Ah, the '60's

2006-08-26T02:40:00.000+01:00

Pitchfork Media's list of the 200 greatest songs of the 1960's is recommended.

Returns and leavings

2006-08-26T02:10:00.000+01:00

With one bound our hero was free

I finished the entrance exams in King's Inns today. They took place over the last five days. I did mine in the Dining Hall, a great high-roofed place replete with dome-shaped aspect and four chandeliers. All present were under the watchful gaze (via portrait) of many judges who over the years, nay the centuries, have made a mark on the law and society - and doubtless sat in that very same hall. Where I was positioned, Cecil Lavery (1894-1973), politician, Attorney General and Supreme Court judge, looked down upon me somewhat quizically. I wonder if he knew more about Rylands v Fletcher when he was my age. (Of course, the exams are a recent innovation, so he may never have been tested on it.) Five exams in as many days were tough, but they're done now.

I write from Cork, where I arrived six and a half hours after leaving my rented house in Dublin. Let's confine the story to saying that just as I arrived at the Luas at Connolly station, I heard to my dismay that there was no service to Heuston. The number 90 bus, I was told, went there. It did, in 70 minutes. Thus the five o'clock train was already history before I even made the station. The seven o'clock proceeded to be held up in Mallow because a track fault. I rely heavily on public transport, but it owes me after today.

As some readers may know, Brian McCracken retired from the Supreme Court bench in July. Fortunately, our highest court is the polar opposite of the unhappy U.S. situation of rancour and political division surrounding judicial appointments, which only seems to have worsened over the last decade or two. For better or worse, Irish people neither know nor discuss who populates such a powerful post. But the topic of oversight of judicial appointments is for another day. Rather I will make a different point. When Mr. Justice McCracken retired, I read a somewhat cursory piece in the Irish Times, in which comments made by the Chief Justice and others were briefly recorded. Then I happened upon an online transcription of the valedictory address for Lord Justice Henry Brooke of the Court of Appeal of England and Wales. It records the address given by the Lord Chief Justice, and the tributes of others, including the Attorney General. One comment I noticed in particular. It was made by David Railton QC, who was the last pupil barrister taken on by Henry Brooke in 1980:

"As a pupil master, though, he was a living example of what a barrister should be, exuding all those qualities about which my Lord has already heard today: a ferocious intellect, unshakable integrity, very hard-working, thorough, invariably courteous (including to his pupil) and with an eccentric sense of humour – indeed, everything we have come to expect in our leading judges. But as a pupil master perhaps his greatest attribute, and what made pupillage with him so special, was the extraordinary enthusiasm and sense of fun which he brought to everything he did. As he told me on my first day with him, he never could quite believe how he came to be paid for something he enjoyed doing so much. That energy and enthusiasm has never waned."

The idea of such a transcription strikes as very worthwhile, and a way of recognising and recording for the interested reader, something of the people who hold such positions of great responsibility.

John Pilger, Hizbollah and Israel

2006-08-02T11:00:00.000+01:00

The resistance to rapacious power, to epic crimes of invasion (which the Nuremberg judges called the "paramount" crime) is humanity at its noblest; yet the paradox warns us that no resistance is pretty; that each adds its own form of violence in order to expel an invader (such as the civilians killed by Hizbollah rockets); and this has applied to heroic partisans in Europe and heroic Kurds and those faceless, despised Iraqis who have succeeded in pinning down the American homicidal machine in their country.

So wrote John Pilger recently. The Arab-Israeli conflict is an agonising, bitter, protracted conflict, hope resolution of which has teetered and flickered for a long time. Deep and bitter wounds have gashed both sides. The Palestinian Arabs of Gaza and the West Bank live in often pitiful, dangerous conditions; they have no state of their own, they have little economic prospects or opportunity. Israel is a small democracy which has several times in its short existence come close to destruction upon being invaded with that express purpose by neghbouring states. There are no easy solutions to the conflict, despite the argument heard in many quarters: If only Israel would turn over the West Bank and Gaza and southern Lebanon to their rightful owners, then peace would be declared; its neighbours would lose their reasons for hostility. Well this decade has seen Israel depart from the last two areas, only to see its enemies (this time non-state terrorist groups) Hamas and Hizbollah use these areas as (quite literally) launching pads for further assaults upon it. Both groups operate in the governments of their countries, yet both operate private militias and have remained intent on attacking Israel. They declare their intent to destroy Israel. Fortunately they do not today have the means to carry out that threat. However, the Islamic Republic of Iran, which is building a uranium cycle that would give it the capability to produce nuclear weapons, is a patron of both.

Against that background, Hizbollah (with, porbably, as I pointed out here, Iranian assistance) planned and launched a cross-border raid, killing eight Israeli soldiers, and returning across the border with their two companions as hostages. Southern Lebanon, as has often been remarked in recent days, is something of a "state within a state". It is run by Hizbollah, not the sovereign democratic government of Lebanon. The world has witnessed one major example recently of the same phenomenon. This was Afghanistan, where Osama bin Laden's terrorist network trained its operatives and planned the events of September 11, 2001. The government there, the Taliban, could not and/or would not restrain or remove them. Quite the contrary. Now there is no evidence that the Lebanese government sanctioned or approved of Hizbollah's raid into Israel. There is no reason to believe they would have given approval, should Hizbollah have sought it.

The dilemma facing the attacked state is largely the same in both instances though. America's coalition simply swept the Taliban from power (although the country is not stable yet in significant places); Israel does not have the same option. It sought rather to remove the virus but leave the host intact. This was probably never likely to be accomplished without severe destruction of Lebanon's infrastructure and very large loss of life, to a larger degree than seen so far. That is assuming it was ever a viable proposition. I'm not convinced it was ever doable; Israel's generals seem to have quite hubristically in planning their offensive.

I don't deny Israel's right to defend itself. Quite the opposite; that right must be affirmed and the world bears historic responsibility to see that it is upheld. I simply seek to point that the problems it faces are deeply complex.

That is why I find articles like Pilger's so unhelpful, not to say repulsive. Unhelpful, because,a mong other things, he brushes over (indeed seems to praise) Hizbollah's complicity, and entirely ignores Iran's. Repulsive because he twice uses metaphors associated with the Nazis (Ribbentropp and Nuremberg) in his condemnation of America and Israel. I would have no thoughtful commentator would use such expressions in reference Israel. His quote above also fails to make any moral distinctions between insurgent/resistant movements. He fails to distinguish between Hizbollah, the Iraqi insurgency (with all its own strands and motivations), Eastern Europe's resistane to Communism and the Kurds' resistance to Saddam Hussein. I don't mean to defend everything Israel has done in the last few weeks. Indeed its targeting of the U.N. compound is very difficult to see as anything other than callous and disgraceful. (The evidence is stacked against that incident having been unintentional.) But painting Hizbollah like heroes and Israel as the opposite, as Pilger does, is a grotesque warping of reality.

Vincent Browne and the A case

2006-07-31T15:30:00.000+01:00

Once again, in yesterday's Sunday Business Post, Vincent Browne attacked the Supreme Court's reasoning in A v Governor of Arbour Hill. He had done so at least once previously, in his Village magazine, and in his Business Post column. I see to remember an Irish Times piece as well. I'm sure Vincent Browne is a busy man, so I won't comment on his re-cycling of one piece into (at least) three.

The background, briefly, is as follows. In May, in CC, the Supreme Court decided that s.1(1) of the 1935 Act was unconstitutional. In A, the Court had to decide whether the CC ruling meant Mr. A should have been released by the High Court. The five judges all agreed that such a result did not necessarily follow, and ought not in this case. (I summarised the sequence of events here after the Supreme Court announced its decision, but before the written judgments were handed down.)

Here from the July 16th Business Post column is what I take to be the crux of Browne's objection to the judgments in the A case:

"what Murray and the other judges established was that the previous findings of the Supreme Court were correct in declaring that a finding that a law was unconstitutional did not necessarily mean that everything done under that invalid law was itself invalid.There are transcendent considerations to be taken into account. If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that.Most of us would agree with that proposition. But the judges went beyond that, for reasons that I could not detect in their judgments. They leapt from the position that a finding of unconstitutionality does not necessarily invalidate everything done under the invalid law to a finding that virtually everything done under the invalid law was OK. That seems absurd to me.If this is so, what is the force of a finding that a law is unconstitutional?If everything done under that unconstitutional law until then stands, the only effect of a finding of unconstitutionality is that what is done henceforth under such a law would be unconstitutional - and that doesn’t amount to a lot.Surely, the reasonable position is as it was until the Supreme Court devised its judgments in the A case: that, apart from exceptional circumstances where the constitutional or societal order would be at risk, everything done under an invalid law would be invalid.But it is what the Supreme Court ordered on June 2 that I find incomprehensible. It issued a warrant for the arrest of Mr A on the basis of his conviction for an offence that it had found ten days earlier did not exist.I can anticipate the argument that will be advanced in favour of this: the Supreme Court had found that, although Section 1 (1) of the 1935 act was unconstitutional, it was not prepared to give this finding retrospective effect - that a conviction under this invalid law was unlawful - and that, since this man - according to the court - was lawfully convicted and imprisoned, it was proper that he would serve out the rest of his sentence.But, but, but . . .the man had been freed and here was the Supreme Court intervening to have him imprisoned on the basis of a law it had found was invalid - in other words, a law that did not exist."

A few brief comments. Browne has repeatedly said Mr A was re-arrested and detained under a law that "did not exist". In what sense does a law exist? It exists once promulgated according to the Constituion. It can be repealed by the legislature. Or it can be held unconstitutional by the High Court, or on appeal the Supreme Court. In the former case, where the legislature repeals a statute, the law in question no longer henceforth has the force of law. It cannot be enforced or applied because an appropriate body has said so. The High and Supreme Courts have the right, indeed the duty, to interpret the Constitution. They have explicit power to review legislation when called upon by litigants. If such legislation is inconsistent with the Constitution, the Court can (indeed, must) so declare. The legislation, approved by the people's representatives, may no longer be enforced or applied, because the Court has said so. This is a great power in a democratic state for unelected judicial officers to exercise. According to the Constitution, only laws consistent with it carried over past its enactment in 1937. Thus Browne would argue that since s.1(1) of the 1935 Act has been held (in 2006) to be constitutionally invalid, it can never have existed. Therefore, everything done under it must be void and of no effect.

Browne admits (not that it could be denied) that the facts of Mr. A's offence disclosed "an odious, repellent person who did an unconscionable act: having sexual intercourse with the 12-year-old friend of his daughter, whom he got intoxicated before raping." Though Browne might not like the comparison, there is not a hair's breadth between that comment and Hardiman J.'s remark that Mr. A was a "singularly undeserving candidate" for release. Be that as it may, Browne is troubled by the Supreme Court's decision and reasons: He says that "one of the safeguards we supposedly have of our liberties is that the Supreme Court will always stand by the law, at all times, irrespective of how unpopular or how difficult." (Fiat justitia, ruat coelum. "Let justice be done, though the heavens fall.") Before going on, I may well be guilty of referring to different of the several pieces cited at the beginning. I won't claim he has said anything I don't honestly and fairly think he has argued.

First of all, his argument that it is incongruous to re-arrest a man on the basis of a law that has been struck down approaches the issue backwards. The High Court (in the person of Laffoy J.) ordered Mr. A's release. The State appealed, as it was perfectly entitled to do. The Supreme Court said Laffoy J. had been wrong to do so. It said that Mr. A should never have been released, for the lengthy reasons given in its written judgments. It would be one thing if Mr. A had been arrested for the first time after the CC decision. That could not have been done because the law no longer had any force. There is a difference between that and declining to order the release of a man who pleaded guilty to the substantive offence, did not attempt to bring (and could not have succeeded in) a constitutional challenge along the lines brought by CC, who received a fair trial and a just sentence. Mr. A's lawyers could in fact point to no right, substantive or procedural, constitutional or otherwise, which was being breached by his continued detention. That is, unless one believes in a right not to be tried and convicted under a provision which is later held unconstitutional. Even then, it would have been quite unjust for Mr. A to benefit collaterally from the ruling in CC, given the very different facts of his own case.

Browne's argument assumes, but does not justify, a concept of absolute and complete retrospective effect of findings of consitutional invalidity. Using his logic, would not acquittals under the old s.1(1) now be of no effect? He suggests that the Court's jurisprudence before now was based on the rule that: "If the entire constitutional order would be thrown into disarray by applying the strict logic of a finding of invalidity, for instance, then the court should recoil from that." He does not justify this distillation from the previous case law, principally because, I would argue, he cannot. How does he (I assume) accept the ruling in The State (Byrne) v. Frawley [1978] IR 326 and simultaneously reject the A ruling. In The State (Byrne) v. Frawley as Hardiman J.'s judgment noted:

Michael Byrne had been tried by a jury selected under the provisions of the Juries Act, 1927. He was convicted of receiving stolen goods and sentenced to seven years penal servitude. This occurred in December 1975, and by coincidence the decision of the Supreme Court in de Burca [in which part of the Juries Act 1927 was held unconstitutional]. was given during the course of the trial. But Mr. Byrne made no point based on this decision and went on with the jury that he had. He appealed to the Court of Criminal Appeal but again took no point about the unconstitutional composition of the jury. Some months after this appeal was unsuccessful he instituted proceedings under Article 40.4.2 of the Constitution on the grounds that he was not being detained in accordance with law. He thus asserted a right arising from the declaration of inconsistency made in de Burca.

In Hardiman J.'s words, Michael Byrne's argument "failed, and without any U turn on the fundamental issue of inconsistency". Admittedly Byrne knew (or ought to have known) of the de Burca ruling before the jury was empanelled in his trial, whereas Mr.A's trial took place before the relevant statute was struck down. But why, Mr. Browne, are the following remarks of Henchy J. in The State (Byrne) v. Frawley not sufficient to justify the decision that Mr. A ought not to have been released?:

While it is central to the due administration of justice in an ordered society that one of the concerns of the Court should be to see that prejudice suffered at the hand of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there maybe transcendent considerations which make such a course undesirable impractical or impossible. …. For a variety of reasons the law recognises that in certain circumstances… what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or
otherwise void, law into an acceptable part of the corpus juris. This trend
represents an inexorable process that is not peculiar to the law, for in a wide
variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to do or undo or reshape the facts of history: ‘the
statute taken its shape and can never go back to the quarry’.

In what way respect would the "the entire constitutional order ... be thrown into disarray " had Michael Byrne's case succeeded, whereas it would not have had Mr. A's done so? That is what Vincent Browne must answer in order to justify his suggestion that the Supreme Court was wrong to decide Mr. A's case the way it did. And what about McDonnell v. Ireland [1998] 1 IR 134?

Better still, let him justify "an all inclusive statement of a principle of absolute retroactive invalidity" (Chicot County Drainage District v. Baxter State Bank [1940] 308 U.S. 371) save in circumstances where "the entire constitutional order would be thrown into disarray" on its merits. Perhaps he would also like to look at the jurisprudence from other countries, such as India, Canada and the United States, mentioned in the judgment of the Chief Justice (which, to be fair, Browne has praised as an intellectual tour de force) and explain why those countries' courts are wrong and he is right? Does he not agree with these words of Denham J.?:

"There is no express principle of retrospective application of unconstitutionality in the Constitution. I am satisfied that no such principle may be implied into the Constitution. Such a principle would bring disorder into society disproportionate to the benefit to be achieved. Such a principle would render the express power given to the Superior Courts a tool of chaos."

In the end, constitutional law is infused with matters of public policy. The right the superior courts have to review legislation for constitutionality must have a correlative duty to see that that power does not become "a tool of chaos". I have to say though, that while I seldom agree with Vincent Browne, I have begun to read him more frequently, rather than less, not only because reading commentators with I disagree forces me to refine and think through my own arguments, but also that it is good to see the law, particulatly constitutional law, being discussed outside specialist circles. There is much scope, of course, for improvement in regard to the tenor and frequency of such debate, but I think the Irish media would probably be worse off were the likes of Mr. Browne not raising the type of questions he raises about the Mr. A decision, however much I think the Supreme Court was correct, and Mr. Browne not so.

The political spectrum

2006-07-31T14:12:00.000+01:00

Tony Blair gave a speech in Pebble Beach, California yesterday on world leadership. He pointed out that "confusingly for modern politicians, many of the policy prescriptions, cross traditional left/right lines ... across a range of issues, there is no longer a neat filing of policy to the left or the right." That's correct; anyone paying attention can see the left/right dichotomy is largely empty and has frayed almost beyond recognition. Mr. Blair went on to say that:

"around the world, a division is opening up, almost as pivotal as the
traditional left and right, and that division is what I would characterise as: "open versus closed". Take the three isms that run throughout most political debates in Europe and the US today. They're not socialism or capitalism. They're: protectionism, isolationism, nativism, by which I mean, to do with migration and national identity.
In each case the issue is: "open or closed". The response to globalisation can be free trade, open markets, investment in the means of competition: education, science, technology. Or it can be protectionism, tariffs, tight labour market regulation, resistance to foreign takeovers. Countries can choose foreign policies that are engaged and activist, seeking to sort out the world's problems; or try to avoid their problems; refrain from controversy or picking sides, isolating a nation from the pain of the hurly-burly of the world's challenges, but also from the opportunity to shape their outcome. And not a major country anywhere is not riven by the debate on migration: do we welcome it as infusing new blood and ideas; or do we fear it as undermining our identity? Where leaders stand on these issues has little to do with being on the left or the right but everything to do with modern or traditional attitudes to a changing world."

This is in a sense a step towards a clearer framework for thought, although such two-part dichotomies are of limited value. Meta-narratives are perhaps best left behind in such complex, interdepedent and rapidly changing times. With that caveat in mind, here is a passage from the speech I thought worth noting. I note that the phrase he uses to describe the European welfare state ("hopelessly inadequate") echoes his description in May of the state of international institutions ("Increasingly, there is a hopeless mismatch between the global challenges we face and the global institutions to confront them. After the Second World War, people realised that there needed to be a new international institutional architecture. In this new era, in the early 21 st century, we need to renew it."). I presume he uses the word hopeless as an intensifier rather than a descriptive of such problems as intractable. In any event here is part of what he said yesterday:

"The truth is that if it is correct that the challenge of rapid change is
enormous; the response has to be fundamental also. But the implications of this are very hard to follow through. The traditional European welfare state and social model is hopelessly inadequate to meet the challenge of the modern competitive global market. Public services that are run by producer interests, indifferent to consumer preference will lose public consent for the funding of them. In the law and order debate, the nature of organised crime or social breakdown in parts of our communities, not to say the threat of global terrorism bent on mass slaughter, mean that traditional civil liberty arguments are not so much wrong, as just made for another age. Let me give one small example. I started a few years ago a DNA database for our criminal justice system and now all those convicted of certain categories of crime are put on it. Its concept was fiercely opposed. Its extension still is, and incidentally by a mixture of Conservatives, the left of the Labour Party and Lib Dems. Yet every month suspects are linked to 26 murders, 57 rapes and sexual offences and 3000 assorted more minor crimes through the database.
Mass migration requires rules. Biometric technology means that countries are increasingly insisting on biometric visas, which in turn mean biometric passports. A biometric ID card is a short step away. It is, to me at least, almost incredible that the proposal to introduce an identity register in the UK should be so extraordinarily controversial. But it is.
So the policy implications for leaders are huge; they confuse natural supporters; and, as a result, the resistance is strong. The most misunderstood speech I ever made was my Party Conference speech of 1999 about "the forces of conservatism". This was taken as an assault on Conservatives. Actually it was an assault on small "c" conservatism, resistance to change, which can be every bit as much from the left as from the right.
In this battle - "open versus closed" - those on the "open" side of the
argument will meet fierce opposition. Yet the "closed" side of the argument in truth has nothing to offer a nation except the delusion that the tide of change can be turned back; or alternatively a weaker version of the same delusion, namely that hard choices can just be evaded.
Faced with leading people through this process of change, the key to winning is to embed the policy in strong values. The reason why Europe has to change the social model is not because we no longer need social justice; but because today's world means that social justice can only be achieved through education, not regulation, through enterprise flourishing and creating wealth, not being constrained. Fairness, equality, opportunity for all - good, progressive values - can't be achieved by old fashioned welfare systems that breed dependency or public services creaking at the joins. The values are constant; their application has to be dynamic."

Iran's hand in Hizbollah's provocation

2006-07-22T11:33:00.000+01:00

The question that seems to most exercise most of those reporting on the Israel-Hizbollah conflict raging in Lebanon is: When will Israel stop the bombardment? Leaving aside whether one believes Israel should have launched such a counter-attack, the desire to see the bombing stop is understandable. No one wants Lebanon's government to collapse and Hizbollah to extend its de facto rule from the southern region to the entire country: in other words, for democracy in Lebanon to collapse. But another question has more or less slipped under the radar: Iran's involvement. Hizbollah's missiles, including ones of far longer range and more devastating power than have yet been deployed, come mostly (if not solely) from Iran. Its only ally in the region, apart from Syria, is Iran. The question that must be asked is: Why now? Why was this operation planned for now?

The answer may lie in a desire on Teheran's part to have the international spotlight move from its nuclear programme. Having Israel's air force shelling Lebanon and killing scores of civilians has had that effect. It had the effect, eminently desirable from Iran's point of view, of splitting the Europeans and Americans. Tony Blair is only European leader whose government has not denounced Israel. After all, the matter of Iran's nuclear programme was on the agenda of the U.N. Security Council in New York; it was to be discussed by the G8 at St.Petersburg. This year saw Iran's president Ahmadinejad unilaterally end the suspension of enriching uranium and it saw America's position draw closer to the Europeans', culminating in the offer of negotiations. Pressure was rising on the mullahs of Teheran. And then, as Con Coughlin wrote in yesterday's Telegraph:

"just as world leaders were steeling themselves to confront the threat that Iran's nuclear programme poses to international security (the subject was also due for discussion at last weekend's G8 summit in St Petersburg), two Israeli soldiers were kidnapped by Hizbollah, Iran's proxy militia in southern Lebanon, thereby lighting the current conflagration.
Just how much responsibility Teheran bears for initiating hostilities remains unclear, but certain facts are now emerging that indicate the timing of the Israeli soldiers' abduction was no coincidence. To start with, there is the visit Mr Larijani paid to Damascus last week after his discussions in Brussels with Javier Solana, the EU's foreign affairs representative, ended without agreement. Apart from fulfilling his
duties as chief nuclear negotiator, Mr Larijani, a former Revolutionary Guards
commander, is chairman of Iran's national security council and a close confidant
of Ayatollah Ali Khamenei, spiritual guardian of the Islamic revolution and the
driving force behind the attempts to acquire a nuclear weapons arsenal.
During his stay in the Syrian capital, Mr Larijani briefed Syrian intelligence officers about the nuclear talks and the latest developments in Iran's mutual defence co-operation with Damascus. Mr Larijani then met senior Hizbollah representatives.
The following day, Hizbollah launched its operation against Israel's northern border, kidnapping two soldiers and killing eight others. The operation had been more than a month in the planning, and Teheran dispatched a team of 20 Iranian Guard commanders to southern Lebanon in mid-June to oversee the preparations. There were also shipments of military equipment, including surface-to-surface and anti-ship missiles: the Iranians were well aware that Israel would not tolerate an attack on its northern border with impunity.
Apart from helping Hizbollah to carry out the initial attack, the Revolutionary Guard contingent has remained in Lebanon to operate the sophisticated Iranian-made weapons systems that are being used against Israeli military and civilian targets. They have worked with Hizbollah to direct the missile barrages that have caused havoc in the northern Israeli port of Haifa, and Revolutionary Guards fired the Chinese-made Noor anti-ship missile that hit an Israeli warship, killing four sailors."

Compassionate conservatism

2006-07-17T17:50:00.000+01:00

A new essay published by the U.K. think tank Policy Exchange, entitled "Compassionate Conservatism: what it is; why we need it" has set out the vision David Cameron will be presentin the electorate at the next U.K. general election. One of the authors, Janan Ganesh, the note at the end discloses is a writer and researcher for Zac Goldsmith, who in turn is what the newspapers would call a "close aide" of Cameron.

Bobbitt: 7/7 a year on

2006-07-17T17:38:00.000+01:00

On the first anniverary of last year's London bombings by al-Qaeda, Philip Bobbitt, author of The Shield of Achilles (2001) and of the forthcoming Wars Against Terror (due 2007) had an article in the Spectator, which is essential reading - as is everything the man writes on the subject - for anyone interested in understanding the current conflict.

Judgments online

2006-07-11T15:50:00.000+01:00

The five judgments of the Supreme Court in A v Governor of Arbour Hill were put up on courts.ie in double-quick time. They are available here, for anyone who wishes to read the detailed reasoning. The appeal centred on a very interesting legal question, namely the effect of a declaration that a statute is constitutionally invalid. The declaration of invalidity was made in CC on May 23rd. Worries about the effect of that declaration caused the political uproar that followed. The Court has now explained in full why it decided on June 2nd to order that Mr. A be re-arrested and returned to prison.

I haven't read them all yet. If you intend reading them, be warned - it'll be an hour and a half's work at least.

Irish Legal Affairs

2006-07-10T22:48:00.000+01:00

Anyone with a passing (or greater) interest in legal affairs should check out a new blog, Irish Legal Affairs. It is the brainchild of a friend of mine, Paul Daly. It was launched today. I highly recommend it. First up - after the Yeats-inspired introductory post, that is - is a post about the Privacy and Defamation Bills published by the Government last week. Rumour has it that the written judgments in A v Governor of Arbour Hill Prison, released today having been awaited with bated breath by constitutional lawyers across the land, are to be the subject of a soon-forthcoming post.

Roberts' record

2006-07-06T12:45:00.000+01:00

Found an interesting post on Slate this morning, albeit from last week about U.S. chief justice John Roberts' leadership since assuming office. It makes the interesting point that few U.S. supreme court justices have lately served their time arguing many cases before the same court. That, the writer suggests is why he was so well prepared for the job. The piece also notes that Roberts has many to agree with his colleagues on the "conservative" wing of the court more times than his late predecessor William Rehnquist, and agree more times with the "liberal" wing. That says something for his powers of persuasion I suppose.

EU foreign and security policy powers

2006-06-29T13:50:00.000+01:00

Via David Frum's blog, I note an interesting point made by Jeffrey Cimbalo on the National Interest blog: On his recent visit to Europe, should Bush have discussed foreign and security policy matters with our European leaders as heads of their own government or should the Americans discuss foreign and security policy with the EU itself? The danger in the latter approach is, as Cimbalo points out:

By dealing with the EU itself in high-profile foreign policy matters, the world’s only superpower is in effect bolstering the EU’s authority. The United States is being unnecessarily drawn to one side of a distinctly European conversation about the proper role of the EU in foreign and security policy—a conversation which is far from settled—thus bringing the EU’s longstanding problems of democratic legitimacy to America’s shores. ...
The United States must be wary of ascribing powers to the EU that its member states have not consented to. Until the current constitutional crisis passes and the EU’s powers over foreign policy become more clearly enunciated, the United States should limit itself to working with the strongest and most legitimate institutions the nations of Europe can offer

After all, the idea of a European foreign minister was part of the failed constitutional treaty, and a common security EU policy is still far from a reality, even if it were agreed to be desirable.

McCain tells it like it is

2006-06-28T17:45:00.000+01:00

So why has my party, the party of small government, lately adopted the practices of our opponents who believe the bigger the government the better? I'm afraid it's because at times we value our incumbency more than our principles. We came to office to reduce the size of government. Lately, we have increased the size of government in order to stay in office. The editors of National Review have argued -- and I agree with them -- that unless Republicans curb government spending by reforming the budget process, we may lose our majorities in the House and Senate. I will go one step further and say that if Republicans do not reform our budget process, we will deserve to lose our majorities.

John McCain

Omar and Mohammed carry the news

2006-06-28T17:30:00.000+01:00

Omar and Mohamemd, who blog at Iraq The Model, bring some interesting news in recent days. Today they report the arrest of Abu Qudama al-Tunisi, a Tunisian suspected of (who it seems has in fact confessed to) the bombing that destroyed the Askari Shrine in Samarra on February 22nd this year. Between reports on Sunday and today, they suggest that 10 insurgent groups have accepted prime minster Maliki's reconciliation plan. They also report today that no amnesty is to be offered to anyone who has killed either coalition or Iraqi government forces. This meets the condition rather eloquently set out by Mohammed on Sunday: "No legitimacy for outlaw militants, period. Who carries arms outside the official circle is an outlaw and should not be negotiated with before he drops his weapon and must first recognize the government that represents 11 million voters before he can ask for recognition from the government."

Iraq The Model is well worth dropping in on every so often for news that might not make the press in this part of the world.

The Wind that Shakes the Barley

2006-06-28T15:28:00.000+01:00

"This is a grand honour. Our film is a little step in the British confronting their imperialist history. Maybe if we tell the truth about the past we can tell the truth about the present."
Ken Loach, accepting the Palme D'Ór prize at the Cannes film festival 2006

"There is nothing like a Brit-bashing movie to angry up the blood but scratch the surface and you'll see that Loach's latest opus goes far deeper than your Michael Collins' or your Braveheart's as he makes a comment on every imperial country who invade smaller nations for their own ends."
entertainment.ie review, June 2nd 2006

"All films dealing with Irish republicans show them as tormented idealists who sometimes do things they shouldn't: the British
or unionists are portrayed as cynical, brutal and despicable (for example Loach's Hidden Agenda and Neil Jordan's Michael Collins). So Loach was doing nothing brave in taking a sympathetic look at republicans: he was being morally lazy."
Ruth Dudley Edwards, The Guardian, June 6th 2006

Ken Loach is not a man to keep his political views to himself. He used his Palme dÓr to acceptance speech to draw a parallel between events described in his film The Wind That Shakes The Barley and modern day Iraq. (George Monbiot has drawn a similar parallel.) In the link under the first quote above he is described as a supporter of George Galloway's Respect party. He has openly discussed Northern Ireland in terms even Sinn Fein spokespersons have more or less left behind.

Like Mick Fealty, I have severe doubts about whether any historically meritorious comparison can be drawn between Iraq today and Ireland in 1920-2. Indeed Niall Stanage is also correct to point out that the followers of the late al-Zarqawi in Iraq are, of course, expressly committed to destroying freedom and democracy, of the kind Ireland had pre- and post- the 1921 Treaty. In a sense, therefore, the goals of the two sets of insurgents are irreconcilable. My suspicion is that Monbiot's reasoning - and to the extent that it used such reasoning as a guide - Loach's film are more concerned with modern politics than anything else. As for Ruth Dudley Edwards' quote used above, there is no argument that Loach's film portrays the British officers and soldiers as monstrous individuals - all but irredeemable. At one point a British commander proclaims "My men fought in the Somme!" One feels a pang of sympathy for them in that moment, but any such sentiment is drowned out by what precedes and follows it in the film.

I found the narrative of The Wind That Shakes The Barley simplistic and predictable. I think Loach's political views informed and caused this. And I think the political narrative presented (expressly and implicitly) by the film is what won it the Palme dÓr. The reason I think that is because the film itself, taken on its merits as a cinematic production, is not an outstanding piece of work. It's not dreadful either. It has poignant moments, disturbing moments and some nice camerwork of the beautiful west Cork scenery. Cillian Murphy gives a decent performance. But in places the dialogue is painfully leaden (for example the dialoguea among the young men in the yard after Micheal is murdered by British soldiers), in others the turn of events is utterly predictable. Brother killing brother is too close to cliche as a description of civil war. Also, the entire film seems to drift in and out of acknowledging context.

In the end, my essential complaint about the film is expressed well in Darren Waters' review for the BBC, as follows:

"Paul Laverty's script is one-eyed, and unashamedly so. Loach and Laverty's aim is determinedly political - to show an occupied country which rises up to throw off the yoke of an invading army. It is a clear attempt to find resonance with events in Iraq, with the US in the role of the Empire clinging on to the past.
Such lack of balance, however, results in a one-dimensional script. The British are depicted as cardboard cut-out thugs and the motivation for the protagonists is delivered with a heavy hand when a lighter touch is needed."

Will Marshall's new book

2006-06-28T12:25:00.000+01:00

Will Marshall of the U.S. Democrats' Leadership Council has put together a book that might form the core of Democrats' arguments over the war against terrorism. It is called With All Our Might: A Progressive Strategy for Defeating Jihadism and Defending Liberty. (A brief summary of the essays is here.) The blurb says:

"With President Bush's approval ratings in a swan dive, progressives -- for the first time since 9/11 changed U.S. politics -- finally have a chance to be heard on national security. What will they say? Instead of falling back on easy criticisms of the administration's blunders in Iraq, a new Progressive Policy Institute (PPI) book argues that progressives should seize the moment by proposing a comprehensive
agenda for winning the war against jihadist terrorism -- an agenda rooted in the tough-minded, internationalist tradition of Roosevelt, Truman and Kennedy. "

One would hope so. It wouldn't be a moment too soon. The review on Democratiya, a site I only discovered thanks to Disillusioned Lefty, describes it as a manifesto for a return to the Cold War "muscular liberalism" of the Truman Democrats. The review itself is well worth a read - it also discusses recent books by Peter Beinart, Francis Fukuyama and Oliver Kamm.

Chomsky in detail

2006-06-23T15:58:00.000+01:00

Noam Chomsky is, ahem, a controversial figure. Last year he was voted (in an online poll) the world's leading intellectual. In some political spheres he is revered. Others, while not publicly embracing his message, appear to view him as a genuine scholar, and courageous in his choice of rhetorical targets - usually the United States and its allies. Allegations have surrounded him for years that he has been at times less than completely honest with regard to interpretations and source material. Those who make such allegations conclude he must either be misinformed or disingenuous when he comes to comment on international relations and the history thereof. He has made numerous infammatory statements, to say the least.

However, clearcut facts and (comprehensive) direct quotations derived from sources are sometimes in short supply in debates about the man conduct in the world of blogs, the blogosphere. Here, on the other hand, is a document provocatively entitled "The Top 100 Chomsky Lies". It contains 100 statements made by Chomsky, and 100 rebuttals, attributed to source material of one form or another. I haven't read it all and so don't comment on the veracity of all the various claims and counter-claims, but, for example, his well-known statements about Afghanistan are to be found on page 17. Likewise the early pages disclose some very bizarre statements about Cambodia.

I should acknowledge where I spotted this document, namely on Oliver Kamm's blog.

Hope from the Middle East?

2006-06-23T15:15:00.000+01:00

Two big stories from the Middle East - one frontpaged in The Times of London, the other relatively unheralded.

The Times reports that, perhaps as early as this weekend, the Iraqi government is to present a peace plan to several Sunni nationalist insurgent groups with whom it has been negotiating. For the first time, the official Iraqi position now seems to countenance a timeline for the removal of all coalition troops. It will also propose an amnesty and try to mitigate the effects of Paul Bremer's sweeping removal of all Baath party functionaries from civil service and military positions:

The Government will promise a finite, UN-approved timeline for the withdrawal of all foreign troops from Iraq; a halt to US operations against insurgent strongholds; an end to human rights violations, including those by coalition troops; and compensation for victims of attacks by terrorists or Iraqi and coalition forces. It will pledge to take action against Shia militias and death squads. It will also offer to review the process of “de-Baathification” and financial compensation for the thousands of Sunnis who were purged from senior jobs in the Armed Forces and Civil Service after the fall of Saddam Hussein.

The amnesty and withdrawal clauses might in one sense be seen as bitter pills for George Bush to swallow, and rather damaging Republican candidates and confuse their supporters coming up to the congressional elections. (Indeed it is unclear whether the Bush administration will sanction an amnesty for those who have killed U.S. personnel.) But a semblance of order on thr ground in Iraq must come before any such considerations. And the dynamic regarding Iraq in American politics, and among the American public (the latter causing the former, largely) is in the opposite direction: Few votes or seats will be gained by promoting a continuation of the status quo. It looks an ambitious deal, but if it were to come off, it might leave al-Qaeda and its followers rather isolated. That's the stated goal anyway. It would effectively end one front of the insurgency/civil war going on at the moment. There would still be the radicals of al-Qaeda, and the simmering violence in the southern British-controlled sphere. (Remember a state of emergency was only recently declared in Basra.) But it offers some hope. As a U.S. official quoted by The Times put it:
“This is what we did after the Second World War, after the Civil War, after the War of Independence. It may be unpalatable and unsavoury but it is how wars end.”

I suppose it's the same approach we took as regards the I.R.A. in the late 1980's and 1990's - the process began by the late Charles Haughey, and which trundles on today under his successor but one in Fianna Fail, Bertie Ahern.

Next door to Iraq, history will be made next week in Kuwait. As Amir Taheri reports in the Jerusalem Post:

Kuwaitis will go to the polls to elect a new National Assembly which will, in turn, approve a new prime minister and cabinet. The Kuwaitis will be making history for a number of reasons. This is the first election in which women are allowed to vote, which means the size of the electorate has more than doubled. More importantly, and much to the chagrin of Islamists who insist that women are unfit to play any role in politics, a number of women are standing, often on a platform of radial social and economic reform.

After Iraq, it is the second Arab state to hold such fully free elections. In recent days, the United Arab Emirates has also announced that it too will hold parliamentary elections, of one form or another. In the recent past, Saudi Arabia had (limited, municipal level only) elections. (Egypt's election, although nominally broader was perhaps less encouraging.) I won't say that all of this has been caused by events in Iraq. I'm not about to say post hoc ergo propter hoc. The weighing of factors like that probably requires the vantage point of historical hindsight. But it is encouraging in any event.

Either with Kos or against him

2006-06-23T14:44:00.000+01:00

Markos Moulitsas, of The Daily Kos, is something of a high priest of left-wing blogging in the States. I don't read his blog, but I'm aware of the readership he attracts from a recent poll on his sight, which overwhelmingly favoured Russ Feingold as candidate for the Democrats in 2008. Senator Feingold is one of the most unreconstructed left-wing members of the Senate, probably of the entire Congress. Moulitsas is similar in outlook. All of which would lead one to guess that the latter might be a keen reader of the The New Republic. Well, perhaps he was, but not anymore. In a remarkable outburst yesterday, he lashed out at the magazine for, basically, investigating the dealings (mostly the financial dealings) of left-wing politicians and bloggers:

"The New Republic betrayed, once again, that it seeks to destroy the new people-powered movement for the sake of its Lieberman-worshipping neocon owners; that it stands with the National Review and wingnutoshpere in their opposition to grassroots Democrats. . . .TNR and its enablers are feeling the heat of their own irrelevance and this is how they fight it--by undermining the progressive movement. [TNR's Jason] Zengerle has made common cause with the wingnutosphere, using the laughable "kosola" frame they created and emailing his "scoops" to them for links. This is what the once-proud New Republic has evolved into--just another cog of the Vast RIGHT Wing Conspiracy. If you still hold a subscription to that magazine, it really is time to call it quits. If you see it
in a magazine rack, you might as well move it behind the National Review or even NewsMax, since that's who they want to be associated with these days."

As a general rule, anyone who uses the phrase "vast right (or left) wing conspiracy" sans irony is to be avoided. For people like Moulitsas, it seems, if you're not (all the time, unquestionably) with us, you're against us.

If Necessary, Strike and Destroy, say Carter and Perry

2006-06-22T14:32:00.000+01:00

Two Clinton-era U.S. officials, namely Ashton B. Carter and William Perry have "called on President Bush to strike the North Korean missile on its launchpad should Pyongyang persist in its determination to fire the device". (The original Washington Post article is here.) They ask:

"Should the United States allow a country openly hostile to it and armed with nuclear weapons to perfect an intercontinental ballistic missile capable of delivering nuclear weapons to U.S. soil?"

They then answer their own question in the negative, and go on to say:
"Therefore, if North Korea persists in its launch preparations, the United States should immediately make clear its intention to strike and destroy the North Korean Taepodong missile before it can be launched. This could be accomplished, for example, by a cruise missile launched from a submarine carrying a high-explosive warhead. The blast would be similar to the one that killed terrorist leader Abu Musab al-Zarqawi in Iraq. But the effect on the Taepodong would be devastating. The multi-story, thin-skinned missile filled with high-energy fuel is itself explosive -- the U.S. airstrike would puncture the missile and probably cause it to explode. The carefully engineered test bed for North Korea's nascent nuclear missile force would be destroyed, and its attempt to retrogress to Cold War threats thwarted. There would be no damage to North Korea outside the immediate vicinity of the missile gantry."

Update (3 p.m.): Thankfully, it now seems less likely that any such test will happen: China, the state that holds most leverage over the North Korean regime has spoken out publicly against any missile test. (See here.)

"Hundreds of WMDs Found in Iraq"

2006-06-22T10:03:00.000+01:00

So reads the headline to a story on Fox News' website yesterday. Apparently a "a declassified portion of a report by the National Ground Intelligence Center, a Defense Department intelligence unit" says that, since 2003, "coalition forces have recovered approximately 500 weapons munitions which contain degraded mustard or sarin nerve agent. Despite many efforts to locate and destroy Iraq's pre-Gulf War chemical munitions, filled and unfilled pre-Gulf War chemical munitions are assessed to still exist."

But the news will not likely much alter arguments about the March 2003 invasion, principally because as Fox states:
"The weapons are thought to be manufactured before 1991 so they would not be proof of an ongoing WMD program in the 1990s. But they do show that Saddam Hussein was lying when he said all weapons had been destroyed, and it shows that years of on-again, off-again weapons inspections did not uncover these munitions."

And indeed an official in the Defense Department has pointed that the weapons found were not in a useable condition. But the revleations do raise questions about the pre-war weapons inspections and the post-invasion Iraq Survey Group report. The NGIC "took up where the ISG left off when it completed its report in November 2004, and in the process of collecting intelligence for the purpose of force protection for soldiers and sailors still on the ground in Iraq, has shown that the weapons inspections were incomplete".

Senator Rick Santorum said "This is an incredibly — in my mind — significant finding. The idea that, as my colleagues have repeatedly said in this debate on the other side of the aisle, that there are no weapons of mass destruction, is in fact false". The whole point of the Security Council resolutions, sanctions and inspections was to deprive Saddam's regime of the ability to make war on its neghbours, or aid and abet terrorists, with unconventional weapons. It seems that they were (putting it lightly) not as successful as was previously thought.

Update: This other declassified document, translated here, suggests the regime in late 2002 was hiding illegal chemical material. Oddly however, the following is written on the military homepage of published declassified Iraq documents:
"The US Government has made no determination regarding the authenticity of the documents, validity or factual accuracy of the information contained therein, or the quality of any translations, when available."

Ahern and Higgins

2006-06-22T09:50:00.000+01:00

"You have a failed ideology, you have the most hopeless policy that I ever heard pursued by any nitwit. You are a failed person, you were rejected and your political philosophy has been rejected and you're not going to pull people back into the failed old policies that you dreamt up in south Kerry when you were a young fella. Now go away."
Bertie Ahern to Joe Higgins, Dail Eireann, June 21st 2006. (free reg. req.)

Well, perhaps we'd expect a little better from the Taoiseach. I don't really disagree with anything he said, but it sounds like the sort of thing Joe Higgins would come out with (i.e. in words I read elsewhere this morning "compensating for a lack of articulation with vehemence".) And it can't be good to sound like that.

Murtha and Gohmert

2006-06-22T09:40:00.000+01:00

The following exchange took place on the floor of the U.S. House of Representatives between Rep. Louis Gohmert (R-TX) and Rep. John Murtha (D-PA):

Rep. Gohmert: Let me close by saying some have not had nice things to say about our colleague Mr. Murtha, and others wanting to pull out of Iraq quickly. I understand the faithful visitation that he does routinely. So i say thank god for his big heart. I say thank god for his compassion. Thank god for his visits to the wounded. Thank god for his ministering to grieving families. But thank god he was not here and prevailed after the bloodbaths at Normandy and in the Pacific or we would be here speaking Japanese or German. Thank you.

Rep. Murtha: Was the gentleman at any of those locations? Either at normandy or any of those locations?

Rep. Gohmert: You want to know which locations?

Rep. Murtha: Yeah. Normandy?

Rep. Murtha: I say were you there?

Rep. Gohmert: No, sir. I wasn't.

Rep. Murtha: Were you in Vietnam?

Rep. Gohmert: No, sir.

Rep. Murtha: Iraq?

Rep. Gohmert: No. I have been over there. I haven't been fighting.

Rep. Murtha: Boots on the ground?

Rep. Gohmert: I do admire the gentleman's compassion and all he has done for
our wounded. He has done a great service that would be you, Mr. Murtha.

This is taking the (specious) argument that in order to have a valid opinion on a war one must have fought in one to bizarre lengths. After all, Louis Gohmert was born in 1953 (nine years after Normandy) and, although he would have been (barely) old enough to fight in Viet Nam but did not, he was in the Army for a time, being a captain in the Judge Advocate General Corps. But he didn't join until 1978, after he finished law school, and also after conscription had ended. All of which is beside the point in a way, because the argument Murtha and others have been making is just nonsensical in itself.

Baghdad: Outside the Green Zone

2006-06-21T14:52:00.000+01:00

A memo from the U.S. embassy in Iraq has been leaked to, and published by, the Washington Post. It describes daily life for the embassy's Iraqi staff amid ethnic tension and physical insecurity. As Daniel Drezner says, it "makes for very sobering reading".

North Korea, missiles and America

2006-06-21T12:29:00.000+01:00

WASHINGTON (Reuters) - "The United States has moved its ground-based interceptor missile defense system from test mode to operational amid concerns over an expected North Korean missile launch, a U.S. defense official said on Tuesday."

The Wall Street Journal writes today that the U.S. should respond to any North Korean missile test by blowing it out of the sky. From the WSJ editorial:

Consider what's at stake. We've known for years that North Korea has several nuclear weapons at the very least and is developing the missile technology to threaten America. Pyongyang's test missile is believed to be a Taepodong-2. A two-stage version could reach Alaska, Hawaii or the West Coast, according to a study in March by the Center for Nonproliferation at the Monterey Institute of International Studies, while a three-stage model could reach all of the continental U.S.

CNN poll on U.S. 2008 election

2006-06-21T12:14:00.000+01:00

As a sort of follow-on to yesterday's post about John McCain and the U.S. presidency, there is very bad news for three prominent Democrats and even worse news for one Republican governor.

A poll for CNN asked voters, in relation to several potential candidates whether they would: definitely for him/her; consider voting for him; definitely not vote for him; or had no opinion. The candidate who received the most "definitely would not vote for" votes (63%) was Jeb Bush, governor of Florida and brother of George W. Bush. 48%, 47% and 47% respectively said the same for Al Gore, Hillary Clinton and John Kerry. Clearly Jeb would be advised to give running at miss this time around with numbers like that. The three Democrats perhaps stand a chance of reducing their figures - if they can't they might as well forget about running. But then again, no Democrat since Johnson has received more than 52 % of the vote, and Carter and Clinton (twice) have been elected.

Rudolph Giuiliani and John McCain had 30% and 34% respectively, which are pretty low figures, but they only had 19% and 12%, respectively, definitely in their camps. Hillary, by contrast, received the definite support of 22%.

Hayek lecture 2006

2006-06-20T14:28:00.000+01:00

Anyone in London tomorrow week (June 28th) might be interested in going along to this year's IEA annual Hayek lecture. It is to be given by U.S. interior seretary, Gale Norton, on the topic Hayek, the Market and the Environment: A US Perspective. More information can be found here. I won''t be there myself, but I look forward to reading her thoughts.

Samson v California

2006-06-20T14:19:00.000+01:00

Another Fourth Amendment case, another split in the U.S. Supreme Court. I haven't read the judgments delivered yesterday in Samson v California yet, but the case seems to have turned on what was a "reasonable search" of a parolee under the Fourth Amendment. Justice Thomas (with whom Roberts CJ. and Alito, Scalia, Kennedy and Ginsburg JJ. agreed) gave the decision of the Court. Justice Stevens (with whom Breyer and Souter JJ. concurred) gave a dissenting judgment. Stevens J. and co. accuse the Court of sanctioning "a regime of suspicionless searches, conducted pursuant to a blanket grant of discretion, untethered by any procedural safeguards" and "an unprecedented curtailment of liberty". I'll post some thoughts about whether Stevens J. might be correct once I get around to readng the Court's judgment.

Any excuse: I

2006-06-20T13:46:00.000+01:00

The other day, Richard noted how Shane Hegarty managed to get a dig at George W. Bush and the "so-called War on Terror" into a review of Harvey Mansfield's book Manliness published in the Irish Times - completely out of context, out of the blue, it made the writer look childish and facile.

A letter writer in today's Irish Indepedent (free reg. req.) does something similar:
"Like George W Bush's "War on Terror", Minister Cullen and Assistant Comissioner Rock's "Road Safety Plan" is a complete failure. The number of road deaths has actually increased this year over last year."

Of course, both road safety and U.S. foreign policy are serious matters. Accordingly they should be debated in a rational and grown-up. Some, however, seem to use any excuse to have a cut at the U.S., which they have the right to do. But they end up looking plain foolish.

John McCain in the 'paper

2006-06-20T13:44:00.000+01:00

There's a fascinating interview with John McCain in today's Finanical Times. (A transcript of the entire interview is available here.) The 2000 primaries were probably a little before my time, in terms of my interest in politics. But ever since, I've had very high regard for McCain. For one thing, he's a refreshing exception among Washington politicians, in that he has carved out a reputation as a principled and independent thinker, not unduly beholden to partisan point-scoring. Indeed as the FT writes, "he has ... bolstered his moral authority by taking up the cudgels over issues - notably campaign finance reform and anti-torture legislation - that have won him support far beyond his own party". This is the man who John Kerry wanted as his running mate in 2004. (Polls suggested at the time that that team would have handily defeated Bush.) A recent poll cited in the FT found that most Democrats would vote for a candidate backed by McCain in this November's Congressional elections.

McCain rejected Kerry's overtures, probably with at least one eye on making another attempt of his own for the presidency in 2008. And in the interview published today he does not hide behind the type of langauge Hilary Clinton has used when asked about 2008. Instead he openly discusses the factors weighing on his mind about whether to run. He is 69. A campaign would be draining. His wife is unsure; he has two teenage children. But he is also immensely popular and is seen by voters as trustworthy.

Read the transcript, or pick upa a copy of today's Financial Times. If you do, you could well be reading the thoughts of the next president of the world's most powerful country.

Like

2006-06-20T13:03:00.000+01:00

Via Damien Mulley's blog, I found this, a message from something called the Academy of Linguistic Awareness, saying in effect that people who say "like" as punctuation in their speech are, in effect, stupid. I'm from Cork and I say like all the time like, I'm insulted like. Well not really, but I would have thought people concerned with deteriorating standards of written and spoken English would be more concerned about the corrosive effect of txt speak on those whose English skills are still developing, rather than being plain condescending about is, in effect, a rather harmless habit, and a culturally ingrained one at that. I can't help it like.

New York subway plot revealed

2006-06-20T12:40:00.000+01:00

Former Pulitzer prize winner Ron Suskind has writen a new book, The One Percent Doctrine: Deep Inside America's Pursuit of Its Enemies Since 9/11*. It contains a startling revelation. According to the June 26th edition of Time magazine, al-Qaeda planned to attack the New York subway in early 2003. The plot involved hydrogen cyanide gas, a substance similar to that used by the Nazis during World War II in their concentration camps. And, strangely, al-Qaeda called off the attack. It wasn't intercepted: The U.S. administration didn't learn about it until after the planned date. Why al-Qaeda called off the attack remains unknown; speculation suggests that the plan lacked sufficient visual and psychological impact, since each wave of assault on America should be greater than the last.

The plot was intercepted due to collaboration between the U.S. and Saudi Arabia. From the Time piece:

One of the jihadists, Bassam Bokhowa, an educated fiftyish professional, with computer skills, had visited an apartment in Saudi Arabia. And there, a joint Saudi-U.S. counterterrorist unit, formed after the meeting with Bandar in his study, found a computer. The contents were dumped onto a separate hard drive, which was sent to the United States for imaging--a way to suck out digitalia, encrypted or not.
That's where they found it: plans for construction of a device called a mubtakkar. It is a fearful thing, and quite real. Precisely, the mubtakkar is a delivery system for a widely available combination of
chemicals--sodium cyanide, which is used as rat poison and metal cleanser, and hydrogen, which is everywhere. The combination of the two creates hydrogen cyanide, a colorless, highly volatile liquid that is soluble and stable in water. It has a faint odor, like peach kernels or bitter almonds. When it is turned into gas and inhaled, it is lethal. For years, figuring out how to deliver this combination of chemicals as a gas has been something of a holy grail for terrorists.
...
Mubtakkar means "invention" in Arabic, "the initiative" in Farsi. The device is a bit of both. It's a canister with two interior containers: sodium cyanide is in one; a hydrogen product, like hydrochloric acid, in the other; and a fuse breaks the seal between them. The fuse can be activated remotely--as bombs are triggered by cell phones--breaking
the seal, creating the gas, which is then released. Hydrogen cyanide gas is a blood agent, which means it poisons cells by preventing them from being able to utilize oxygen carried in the blood. Exposure leads to dizziness, nausea, weakness, loss of consciousness and convulsions. Breathing stops and death follows. (Since blood agents are carried through the respiratory system, a gas mask is the only protection needed. If one is exposed to blood agents, amyl nitrite provides an antidote, if administered quickly enough.)
In a confined environment, such as an office building's ventilation system or a subway car, hydrogen cyanide would cause many deaths. The most chilling illustration of what happens in a closed space comes from a 20th century monstrosity. The Nazis used a form of hydrogen cyanide called Zyklon B in the gas chambers of their concentration camps.

In fact, the context for the men and the mubtakkar only became clear several months later in 2003, when an al-Qaeda informant in Pakistan (see Time online piece, page 7) told the CIA that the plan had been to attack the New York subway. But then the informer ("Ali") left "intelligence officials speechless and vexed": Al-Zawahiri had called off the attack, even though the operatives were in New York and the plan was well past conception stage.

Ali also offered insights into the nature of the Islamist terrorist network:
The Saudi group in the United States was only loosely managed by al-Ayeri or al-Qaeda. They were part of a wider array of self-activated cells across Europe and the gulf, linked by an ideology of radicalism and violence, and by affection for bin Laden. They were affiliates, not tightly tied to a broader al-Qaeda structure, but still attentive to the wishes of bin Laden or al-Zawahiri.

Another interesting point to emerge from the Time piece is the crucial role played by NSA communications surveillance in the operations surrounding the subway plot. The members of the mubtakkar cell were in New York, all but ready to strike. With thta in mind, who then could argue against domestic surveillance in principle (although its legal basis should be clearer)? Other questions arise: Why did Ali co-operate with the Americans? Why did al-Zawahiri call off the operation? (Bush is quoted as saying the following: "I mean, this is bad enough. What does calling this off say about what else they're planning? What could be the bigger operation Zawahiri didn't want to mess up?")

In the context of revelations such as this, the Irish Times' editorial the other day, continuing to speak of the "so-called" war on terror, and freely admitting that Europeans don't consider themselves at war at all, looks rather naive, doesn't it?

*The name of the One Percent Doctrine comes from a quote Suskind attributes to Dick Cheney: "If there's a 1% chance that Pakistani scientists are helping al-Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response. It's not about our analysis ... It's about our response."
The entire Time article is well worth reading.

Krauthammer on Gaza, the Palestinians and Israel

2006-06-20T12:00:00.000+01:00

In an article carried in yesterday's Irish Times (Washington Post version: here), Charles Krauthammer wrote about the deaths of the Palestinian civilians on Gaza beach last Friday week. Media reports - and the Palestinian leadership - blamed an Israeli shell for the explosion. An Israeli military investigation found it was not its fault. But Krauthammer asks a broader question: Why on earth are the Israelis firing rockets into Gaza at all? Remember what Israel did just last August:

"It completely evacuated Gaza, dismantled all its military nstallations, removed its soldiers, destroyed all Israeli settlements and expelled all 7,000 Israeli settlers. Israel then declared the line that separates Israel from Gaza to be an international frontier. Gaza became the first independent Palestinian territory ever."

And now, writes Krauthammer, rockets are being fired into (pre-1967) Israel from Gaza, at a rate of perhaps a thousand since the start of this year. What happened to land for peace? And these rockets are often fired at Israeli civilian targets by persons - whether under the control of Fatah or Hamas or neither - who hide among civilian populations. Israel must respond; it must defend itself. If those who seek to attack its civilian population hide among civilians, incidents like last Friday week's are made all the more likely, if that incident was indeed Israel's fault.

Jones v Saudi Arabia

2006-06-19T14:57:00.000+01:00

As the House recently explained at some length in A v Secretary of State for the Home Department (No 2) [2005] UKHL 71, [2005] 3 WLR 1249, the extreme revulsion which the common law has long felt for the practice and fruits of torture has come in modern times to be the subject of express agreement by the nations of the world. This new and important consensus is expressed in the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (1990) (Cm 1775), which came into force in June 1987 and to which both the UK and the Kingdom (with the overwhelming majority of other states) are parties. It is common ground that the proscription of torture in the Torture Convention has, in international law, the special authority which the claimants ascribe to it. The facts pleaded by the claimants, taken at face value, like other accounts frequently published in the media, are sufficient reminder, if such be needed, of the evil which torture represents.

Last week the House of Lords decided Jones v Ministry of the Interior of Saudi Arabia. The claimants alleged that they were tortured by members of the Saudi Arabian police. Mr. Jones, for example, said that that in 2001 he was held in solitary confinement and systematically tortured for 67 days. The question for the House of Lords was whether (under the State Immunity Act 1978) the U.K. courts had any jurisdiction to hear any of their claims against the Saudi state. The Court of Appeal had held that they could sue the officers but that the Kingdom was protected by state immunity.

The House of Lords (the two main speeches being given by Lords Bingham and Hoffman) decision was to the effect that, in the words of Lord Hoffman, "both are so protected". The House in effect agreed with the decision of the European Court of Human Rights in Al-Adsani v United Kingdom (2001) 34 EHRR 273, where it was held that claims of torture were not a "peremptory norm" (or, even more obscurely, in legal Latin, a jus cogens) such as to take precedence over, and create an exception to, the usual rule of state immunity. The effect of the exception argued for by the claimants would be that the U.K. courts (and, by definition, the courts of every other state) were, in the words of Lord Hoffman again, "entitle[d] or perhaps require[d] states to assume civil jurisdiction over other states in cases in which torture is alleged." The House was not prepared to take such a step. Lord Hoffman's speech ends with a quotation from one of the great Irish judges of the 20th century, Kingsmill Moore J.: "safety lies only in universal rejection". In that case, the Irish Supreme Court had been concerned with revenue claims by foreign states*. But that aphorism perhaps sums up the impulse that led the House to decide as it did - why it was unwilling to tip the balance "between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other's jurisdiction" to the extent contended for by the claimants.

(*As an aside, the position in relation to that area of international law has moved on, as a result of developments at EU level, namely Council Regulation 1346/2000 on Insolvency Proceedings, in relation to which see
In the matter of Cedarlease Ltd. [2005] 1 I.R. 470; High Court, March 8th 2005.)

Hudson v Michigan

2006-06-19T13:53:00.000+01:00

For any lawyers or interested non-lawyers, the U.S. Supreme Court decided Hudson v Michigan (pdf.) last week. It concerns the Fourth Amendment's knock-and-announce rule, and the exclusionary rule for unconstitutionally obtained evidence.

The police entered Hudson's house, but failed to observe the knock-and-announce requirement. There they found guns and drugs, which became evidence used to convict Hudson of several offences. Hudson argued that the evidence was obtained in violation of his constitutional rights and therefore ought to have been supressed i.e. excluded from his trial. The Supreme Court decided that supression was not necessary in this case. The judgment of the Court was given by Scalia J., with whom Roberts CJ., Thomas, Alito and Kennedy J. concurred. Scalia J. relied on various instances over the last fewe decades when the Court has declined to order that evidence be supressed in every case where constitutional rights may have been infringed, speaking of the "substantial social costs" of such an absolute rule. (Of course, we in Ireland have a rather absolute rule, as is clear from the judgment of our own Supreme Court in People (D.P.P.) V Kenny.) In a brief concurring judgment, Kennedy J. emphasised that any breach of the Fourth Amendment was a serious matter, but that on the facts of this case supression was not required.

The case is interesting for a number of reasons. It represents a break from the pattern of unanimous rulings that Chief Justice Roberts has established since taking up his position last autumn. With cases on Guantanamo and other matters of high controversy still to come in this term, it will not be the last such break. Also, the make-up of the majority and minority in a constitutional case was unchanged from Garcetti v Ceballos (as to which see below). It seems that Justice Kennedy may have taken over Sandra Day O'Connor's mantle as the swing vote on the Court. The influence of Bush's two appointments is starting to take shape, but there is plenty more still to come in that regard. (They are lifetime appointments after all. And that is even before one considers which party will pick the replacement for Justice Stevens, who is 86 years old if I'm not mistaken.) Thirdly, there is a rather stinging dissent in Hudson from Breyer J., who all but accuses the majority of being indifferent to precedent and to the purposes of the Fourth Amendment.

The case is worth reading for anyone interested in the debate around whether unconstitutionally obtained evidence should ever be admissible in the Irish courts.

Garcetti v Ceballos

2006-06-06T01:40:00.000+01:00

Richard Ceballos was a deputy district attorney in Los Angeles. Ceballos believed that a police affidavit had made "serious misrepresentations" in order to obtain a critically important search warrant. He wrote an angry memo to his supervisors; he believed the prosecution should be dropped because (he said) the warrant was faulty. The criminal case to which the warrant related went ahead. Ceballos was subpoenaed by the defence, which benefited from his testimony. As a result, Ceballos says, he was punished by various retaliations, including "reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion." He took a legal action, claiming that his First Amendment (i.e. free speech) rights had thus been breached. His supervisors deny that decisions taken about Ceballos were retaliatory. They argued that several U.S. Supreme Court precedents were designed to prevent employer-employee relationships from becoming constitutional disputes. That Court handed down its decision last week.

To quote George Will:

The [U.S. Supreme Court] has [previously] held that the threshold question in such cases is whether the employee spoke as a private citizen and on a matter of public concern. If so, First Amendment protection is possible. But not mandatory, because the second question is whether restrictions on employees' speech are justified by the government's need, which any employer has, for substantial control over employees' words and actions.

In Ceballos' case, the Court reversed the Ninth Circuit Court of Appeals. The Ninth Circuit had sided with Ceballos, because the matter was one of public concern. Giving the judgment of the Supreme Court, Justice Kennedy (with whom Roberts CJ, Scalia, Thomas and Alito JJ. agreed) pointed out that, as Will notes:

the 9th Circuit did not consider whether Ceballos' speech was made in his "capacity as a citizen." And: "We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

Justice Kennedy wrote that by ignoring the question of whether the statements were made in the empoyee's category as a private citizen, the approach favoured by the Ninth Circuit would produce a huge "displacement of managerial discretion by judicial supervision." It would "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business," a flood of "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers."

This is an interesting question. Employers (including the government) need to control what employees do and say in order to run their operations effectively. As Justice Breyer (dissenting) put it, "the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public's democratically determined will." On the other hand, free speech is fundamental in a liberal democracy; a citizen employed by the government shouldn't have this freedom curtailed unless necessary. The relevant test is the Pickering balancing test, named after Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968).

Justice Kennedy set out the balancing act necessary as follows:

When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v. Churchill, 511 U. S. 661, 671 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign"). Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services. Cf. Connick, supra, at 143 ("[G]overnment offices could not function if every employment decision became a constitutional matter"). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972). So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e.g., Rankin, 483 U. S., at 384 (recognizing "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment"). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance." Connick, 461 U. S., at 154

The first emphasised phrase is the part of the analysis the Ninth Circuit had elided, the second concern is clearly a motivating concern for the Supreme Court majority.

For anyone interested in this sort of thing, the case is worth reading. Justice Breyer's dissent in particular is worth reading too; his approach is interesting and persuasive. But the majority's reasoning is also attractive. Anyone who believes in limited government should hesitate to see the courts insert themselves unnecessarily in employer-employee disputes. Whatever about the facts of Ceballos' case, Justice Breyer might be correct in saying that their doctrinal analysis is potentially too sweeping. Ideally, of course, the matter of whislte-blowing would be dealt with by legislatures as they see fit. In that regard, I would share the majority's hesitance to intervene and set constitutional requirements for all 50 states i.e. the federalist and separation of powers arguments.

Mr. A v Ireland

2006-06-04T03:20:00.000+01:00

“Splendid!” exclaimed Senator Norris. The Minister for Justice had just informed the Seanad that the Supreme Court had allowed the State’s appeal and ordered that Mr. A (as he was known) be re-arrested. Relief must have coursed through government veins; the political storm had abated – at least for now. Quite apart from the immediate context of the re-arrest of Mr. A (and indeed the political uproar of recent days), the Court’s decision has important and interesting legal implications.

The background to this episode will be known to most readers. On May 23rd the Supreme Court held that section 1(1) of the Criminal Law Amendment Act 1935 was constitutionally invalid. That case, CC v. Ireland, involved a man now aged 23. He was charged with four offences under s.1(1), which made it an offence for any person to have unlawful carnal knowledge of (i.e. sexual intercourse with) any girl under 15. This was the offence usually referred to as “statutory rape”. (Under section 2, which was not challenged by CC, a similar offence was created in relation to girls aged less than 17.) An offence under section 1 was punishable by a sentence of up to life imprisonment.

The consequence of the wording of the legislation was that the offence was committed where the fact of intercourse and the fact of the girl’s age at the particular time were proved. No mental guilt (in legal Latin, mens rea) needed to be proved; and it was irrelevant whether the girl had in fact consented. The clear and admirable aim of the law was to protect young girls from sexual predators. The question of consent should not arise, because they were not deemed capable of making such a decision. Given their youth, they should be protected “not alone against lustful men, but against themselves” (per Maguire CJ. Attorney General (Shaugnessy) v. Ryan [1960] IR 181).

The wider question of the age of consent did not arise in CC’s case. Rather it was claimed that s1(1) was inconsistent with Article 38.1 of our Constitution (which states that no person may be charged with a criminal offence “save in due course of law”) and with his personal rights under Article 40, because an accused person had no defence whatsoever, irrespective of the circumstances. When the incidents in relation to with CC was charged were said to have taken place, he was 18. The girl in question was under 15. He said she had told him she was 16, that he had believed her, and that she had consented to all that had taken place. The crux of his case was that he had no defence in law, even where he honestly believed that the girl was over 15, and had reasonable grounds for so believing. Counsel for CC cited American and Californian case law. In one Canadian case, Wilson J. stated as follows:

“Our commitment to the principle that those who did not intend to commit harm and who took all reasonable precautions to ensure that they did not commit an offence should not be imprisoned stems from an acute awareness that to imprison a mentally innocent person is to inflict a grave injury on that person’s dignity and sense of worth. Where that person’s beliefs and his actions leading up to the commission of the prohibited act are treated as completely irrelevant in the face of the State’s pronouncement that he must automatically incarcerated for having done the prohibited act, that person is treated as little more than a means to an end.”

CC said he had not intended to do any harm; the law, however, said that his state of mind at the time of the incident was always completely irrelevant. Because of this, CC argued that the law failed to protect his dignity and right to a good name; and that his trial would not be in “due course of law”, because he would be made a criminal despite not being mentally blameworthy. In July 2005, the Supreme Court gave judgment on another aspect of CC’s case, and seemed to hint that the sub-section was constitutionally frail. It wasn’t until last week that the Court handed down its decision holding the sub-section to constitutionally invalid. Mr. Justice Hardiman, giving the unanimous decision of the Court, said:

"It appears to us that to criminalise in a serious way a person who is mentally innocent is indeed “to inflict a grave injury on that person’s dignity and sense of worth” and to treat him as “little more than a means to an end”, in the words of Wilson J. quoted earlier in this judgment. It appears to us that this, in turn, constitutes a failure by the State in its laws to respect, defend and vindicate the rights to liberty and to good name of the person so treated, contrary to the State’s obligations under Article 40 of the Constitution."

Hardiman J. said that such a finding “cannot reasonably be regarded as surprising”.

A week later, Ms. Justice Laffoy was faced with an application by a man, identified only as Mr. A (in order to protect his victim), for release. This man had plied a 12 year old girl (a friend of his daughter) with alcohol and later had sexual intercourse with her. The man was convicted under s.1(1) and sentenced to three years imprisonment. He argued that, since the Supreme Court had held in CC v. Ireland that s.1(1) was constitutionally invalid, this invalidity must have existed since 1937, when the Constitution was enacted. Therefore, he said, s.1(1) had effectively perished in 1937 and his conviction was of no legal validity. On Tuesday May 30th Ms. Justice Laffoy accepted this argument and ordered his release. The Irish Times the next day argued she had “had no choice”, given the Supreme Court’s decision. My own reaction was similar. The prospect arose of several dangerous individuals who had committed heinous crimes being released prematurely. Not only that, but their names would likely be removed from the sex offenders’ registry.

The State asked the Supreme Court for an early appeal date, which was set for Friday June 2nd. Gerard Hogan SC, the doyen of Irish constitutional lawyers, represented the State. He argued that, were the Court to sanction the release of Mr. A (and others like him), it would represent the triumph of abstract and absolute legal logic over justice. Although the Constitution was a “marvelous charter” of freedom, justice and liberty, it was also a charter of order and was concerned to protect victims of crime and the greater good. The decision in CC’s case should be held to have created a gap in the law through which individuals like Mr. A could march. The cases of CC and Mr. A were completely different: Mr. A had pleaded guilty; he had neither appealed his conviction nor challenged s.1(1) on constitutional grounds; and no one could claim he would have been able to make the “honest mistake” argument in any event. He knew the age of his victim. For the released prisoner, Conor Devally SC, argued that the liberty of the individual was fundamental to the Constitution. If the State could not show that a person was fairly convicted of an offence “in accordance with law” it had no right to imprison that person. The legislation had always since 1937 been invalid, even though it was only in 2006 that this had been judicially determined. The fact that most people might regard Mr. A’s incarceration as just did not change the fact that he had been convicted under legislation that was constitutionally invalid. (At the moment I’m reading Fareed Zakria’s The Future of Freedom: Illiberal Democracy at Home and Aboad. Zakaria describes the U.S. Bill of Rights as “a list of things that the government may not do, irrespective of the wishes of the majority.”) The effect of Mr. Devally’s argument seems to be that every individual convicted under s.1(1) could have their convictions quashed, and that anyone in prison solely for offences under s.1(1) could be released.

The Court rejected what Chief Justice John L. Murray, announcing the decision at around four o’clock on Friday afternoon, called Mr. Devally's "novel assertion", and ruled in favour of the State. Although we await the Court’s detailed reasons for its decision, we may speculate on the approach it may take. According to news reports, Mr. Hogan cited U.S. and Canadian authorities (i.e. case law), to the effect that it was open to the Supreme Court to limit the consequences of a declaration of invalidity. These may have included Linkletter v. Walker 381 U.S. 618 (1965), where the U.S. Supreme Court held that it had the power to withhold complete retroactive effect for its rulings, by looking, among other things at the “purpose and effect” of the constitutional decision. The courts were not restricted to either upholding legislation or holding every act under the legislation to be invalid. This third path seems to have been taken by our Supreme Court in Mr. A’s case.

In 1980, in Murphy v. Attorney General [1982] I.R. 241, the Supreme Court declared that certain parts of Income Tax Act 1967 were unconstitutional, because they had the effect of taxing a married couple more heavily than an unmarried couple. This opened the possibility that couples could reclaim tax payments made over the preceding 12 years. The Chief Justice of the time (Tom O’Higgins) held that the unconstitutionality should only have effect from the date of the Court’s declaration. His four colleagues, however, disagreed and held that “the date of enactment [was] the date from which invalidity is to attach to the measure which has been struck down [as unconstitutional]”. In passing, Henchy J. said (although the point did not directly arise in Murphy) that a declaration of invalidity in relation to a pre-1937 statute amounted to “a judicial death certificate [for the legislation], with the date of death stated as the date when the Constitution came into effect”.

CC’s case had involved a 1935 statute. If, as Henchy J. might have argued, s.1(1) was invalid ever since 1937, how could a conviction under it be lawful? After all, the central plank on which the State based its claimed right to imprison Mr. A seemed to have been kicked away by the decision in CC’s case. Not so, it now appears. The Supreme Court in Mr. A’s case seems to have turned away from the pure logic of such a position and tempered the law with pragmatic considerations and with a welcome concern for the rights of victims, as well as public order and the common good. The community has a legitimate right to have serious criminal offences punished accordingly. An accused person has the right to a fair trial and to his personal rights, including his right to a good name. After Friday, it seems that the courts will distinguish between the constitutionality of legislation per se and the validity of acts done under the same legislation. When the latter are challenged, the court will have to be open to countervailing considerations of the public good, while bearing in mind its duty to protect the personal rights due to each citizen and protected by out Constitution.

CC may not have been granted his due by the old law, but Mr. A's legitimate interests had not been prejudiced in any concrete manner. The scope of the statute’s constitutional invalidity did not extend to the facts of his case. Some legal philosophical purists might question the logic of the Court’s decision, but few have so far been in evidence. In the CC case, counsel for the State had asked the Court declare that s.1(1) was constitutionally invalid only to the extent that it failed to provide a defence of honest and reasonable mistake. The Court declined to do so. It held that it was not for the courts to re-write legislation. Section 1(1) was invalid, but there were various possible constitutionally permissible laws that could achieve the same goal. It seems from the news reports that the Court has now declared that the ruling in CC is to be interpreted as only allowing successful to challenges by applicants who could have made the same or similar arguments to CC. The distinction between the two cases seems to be as follows: In CC the Court was unwilling to be seen to dictate to the legislature the scope of amending legislation, but in Mr. A’s case it bit the bullet and dictated to the courts the manner in the constitutional decision was to be interpreted. The point might be a fine one; and indeed at this point it is speculation on my part.

The Court’s reasoning will become clearer when the written judgment(s) are handed down, but one suspects the Court had in mind some of the considerations mentioned by Henchy J. in Murphy’s case:

Once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any act done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.
...
While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognize that there may be transcendent considerations which make such a course undesirable, impractical, or impossible. Over the centuries the law has come to recognize, in one degree or another, that factors such as prescription (negative or positive), waiver, estoppel, laches, a statute of limitation, res judicata, or other matters (most of which may be grouped under the heading of public policy) may debar a person from obtaining redress in the courts for injury, pecuniary or otherwise, which would be justiciable and redressable if such considerations had not
intervened. (emphasis added)

The Supreme Court may simply reason that Mr. A suffered no prejudice by operation of the statute, even though the statute was constitutionally invalid. In rejecting the pure logic of the Mr. A's argument, the Court has accepted that in this instance "transcendent considerations which make such a course [namely releasing Mr. a and others like him] undesirable". Not the least of those considerations, it might be ventured, is the necessity that the law should retain at least some degree of public faith.

The Provos and British intelligence

2006-05-31T03:30:00.000+01:00

In recent days several reports have claimed that Martin McGuinness, Sinn Fein's lead negotiator and (according to several studies, including those by Ed Moloney and Peter Taylor) a central figure in the leadership of the Provisional IRA during its terrorist campaign, was in fact a spy for British intelligence. McGuinness yesterday stridently denied the suggestion; he said he was "a million per cent sure" that the stories were false. Whilst not suggesting that we should necessarily take his denial at face value, nothing has yet been proved.

But let's consider what is known. The claim seems to have emanated from a figure who calls himself Martin Ingram, a former British intelligence operative in Northern Ireland. The same ran other IRA spies, including Frank Hegarty and Freddie Scappaticci. As Ingram pointed out on the radio yesterday, McGuinness promoted Hegarty within the IRA over the suspicions of others; he personally vouched for Hegarty's trustworthiness at a time when the latter was an informant. Scappaticci was close to McGuinness in the organisation. At no time has any criminal or terrorist charge been brought against McGuinness in Northern Ireland, or Britain; several loyalist plots to kill him were foiled, it is claimed, by security forces. There has long been a fear in the highest levels of the Provisional organisation that a very senior member was an informer, dating back to the betrayal in 1987 of the Eksund, a boat from Libya laden with arms. Recalling this suspicion, I wrote recently, after Denis Donaldson (a Sinn Fein administrator) was murdered shortly after admitting publicly that he had been a spy for British intelligence:

One theory at the time was that he [Donaldson] was "outed" so as to prevent another British spy farther up in Sinn Fein/IRA from being exposed. If one reads
Ed Moloney's Secret History of the IRA, it becomes clear that during the IRA's armed campaign, there was a British agent in a high position in the Provisional organisation. That much has been suspected by the leadership since at least 1987 when the Eksund, a ship carrying weaponry from Libya, was betrayed and intercepted. What if that agent is still in place and sanctioned a unilateral operation (i.e. without the sanction of British intelligence or of the Provisional leadership) to get rid of Donaldson, in order to avoid himself being exposed. I admit this suggestion can be criticised as being a conspiracy theory. And I admit I'm only hypothesising. But there is, I bet, a lot we don't know - and may never know - about the extent and consequences of British intelligence successes against the Provisional IRA.

The recent claims may or may not be true, but I think it's safe to say that when it comes to the Provos and British intelligence, we don't know the half of it yet. Expect more revelations.

Munster and the holy grail

2006-05-31T03:00:00.000+01:00

I haven't posted in a while and although it's late, I thought I'd post a few thoughts on Munster's Heinken Cup triumph.

May 20th 2006, Munster 23 Biarritz 19. It was a long time coming. I was late up that day, having been up studying til two or three in the morning. (While I was studying for my finals I got into strange habits of sleep. By the end, I seemed not to function before midday.) I wanted to get a few hours in before the match. The house was pretty quiet. I had an exam in Jurisprudence on the Monday. So I settled down with The Problem of Social Cost by Ronald Coase and tried to focus. To little avail. I think I managed 20 minutes. It was pointless. All I could think of was this match; it loomed large as perhaps the last best hope of achieving what had so often been reached and strived for, and of fulfilling hopes so often dashed.

I've followed this team for about seven years now. I know that doesn't equip me with the tales of olden times regularly recited by George Hook on RTE's excellent coverage, but I didn't just jump on the final/victory bandwagon, unlike some perhaps. I played rugby for a few years in school. Not to any great level mind and not with anything approaching what commentators have taken to calling "physicality" - the heavyweight collisions that mark the union game in its professional era, particularly in the dour Zurich premiership in England. All I had was a turn of pace and some basic hand-eye co-ordination. But it was enough. I learned to appreciate the (often unspoken) code of civility and sportsmanship that trickles down from the practical example of the sport's greatest exemplars, and is enforced, quite apart from sharp referees, by a sort of social sanction. You don't talk back to the ref, or you stay and clap off your opponents if you have lost because this is rugby. That sort of spirit often feeds accusations that the game is elitist, that it is the preserve of the wealthy. Maybe historically it has been, but one must not forget that the dominant sporting organisation in this country banned its members from playing any other sport, including rugby league, until the 1970's.

I experienced some of rugby's spirit and history first hand at Musgrave Park, 20 minutes by car from my home without traffic, beyond Turner's Cross. My memories of that place are of wet Friday nights or Saturday afternoons (it seems always to be raining; like McCourt's Angela's Ashes) and seeing upclose red clad Southern legends like Clohessy, Galwey and Keith Wood. There were imports, like Langford and Mullins, and more latterly Payne and Cullen, but the beating heart of the team in red was from the province itself, disproportionately from Limerick and Cork, although the Kerryman they called Gaillimh was a prominent exception to that generalisation. French, Scottish, Welsh and English teams came, saw and were (usually, though not with the same legendary constancy as the 11 year Heineken Cup record at Thomond Park) conquered and sent on their way. Other times it was the rival provinces, or the occasional A international. (The inter-provincials have disappeared to be replaced by the Celtic League.)

Since the inception of the Heineken Cup in the mid 1990's, Munster have been perhaps the most consistent side. They reached the final in 2000, losing by a short head to Northampton. I remember like it was yesterday the reaction of RTE's Jim Sherwin when O'Gara kicked that fateful late penalty and the sense of deflation as it slid by the left hand upright by the metaphorical hair's breadth. Two years later, in Cardiff, Munster fell again at the final hurdle. Folk memory in this part of Ireland recalls only Neil Back's cheating (when he knocked the ball from Peter Stringer's hands as the latter prepared to put in to a late scrum in an attackking position), but, much as with England's defeat to Argentina in the 1986 football World Cup, when looked at objectively, Leicester's win that day probably had in the last analysis more to do with technical superiority - and to an extent selectorial errors - than one well-remembered braizen illegal manouevre. Then in 2003 there was the heartbreaking semi-final defeat to Toulouse in the south of France, when O'Gara three times in stoppage time attempted drop goals that would not go over. In 2004, a teak tough London Wasps side (with Lawrence Dallaglio to the fore) had overturned a two-score deficit in the final ten minutes at Landsdowne Road and last year the Munster challenge had met another immovable object, this time Les Basques of Biarritz. In between there had been some of the great victories of modern Irish sport, not least an unexpected triumph away to Toulouse, and, of course, the Miracle Match at Thomond Park in 2003, when Munster needed to win and score four tries against Gloucester, who at the time were flying high in England. This was achieved in a style next to which Roy of the Rovers paled and displaying a courage, professionalism and determination that seemed to mark out these men as champions whose time would come.

But it was not to be that year, not just yet. The 2005 defeat against Biarritz seemed to show that when Munster faced a pack of forwards formidable to match their own, they lacked the guile and pace to switch the point of attack; in short, their backs were inferior to all other top teams when forced to play a running offensive game. The 10 man game plan seemed tired; the Holy Grail seemed further out of sight that for a number of years. Heroic failure might have suited earlier generations of Irish sportsmen, but neither professional rugby nor confident post-Tiger Ireland thought this was not enough.

Sure enough the 2006 campaign got off to a bad start. Sale Sharks saw off Munster with something bordering on ease. The doubts grew. But not where it mattered most. The maestro who had overseen their previous greatest exploits in Europe, Declan Kidney, had returned and set about overseeing what became almost from the off a rescue operation. The rescue boiled down to another January meeting at Thomond Park with a faniced English team. From O'Gara's kick-off, Paul O'Connell and Donncha O'Callaghan led a charged of men possessed and O'Connell clattered Sebastian Chabal and drove the French number 8 back. The shaken Sharks talisman seemed not to recover and Munster drove themselves on to another epic victory. Just as in '03 a bonus point for four tries was needed. And again it took until near the end for the final act. This time David Wallace picked from a ruck and went the few steps over the line, to rapturous applause. Relief and elation in equal measures. The dream was back on.

Too many times we had asked rhetorically Will this be there year? It didn't seem to work that way. In the quarter-final, Perpignan (with a set of forwards about as physically intimidating as could be rememebered) came very close to repeating the trick of dumping an Irish side out of the Cup at Landsdowne Road, but Paul O'Connell seemed to drag a disoriented Munster side through by the force of his will, his relentless driving determination. The red haired colossus was immense. The semi-final was against Leinster. Munster had usually provided the bulk of the Irish team from 1-10, while Leinster provided most of the outside backs. Certainly there can scarcely have been an occasion like it in modern Irish sporting history, let alone rugby. It was like an All-Ireland, except far more than two counties were engaged in the excitement, the build-up, the expectation. The match day was a beautiful spring day. The president met the players and the old Dublin 4 ground (which, apart from internationals in the autumn) was hosting its last match before its redevelopmemt, was bathed in sunshine. The crowd predominantly roared on the men of Munster. Leinster's eclipse was all but total. Their forwards had no answer to the zeal, the ferocious thunder and the burning tenacity of O'Connell, Flannery, Foley, Leamy and the rest. The old adage that forwards win games and backs decide by how much came true, but it wasn't until O'Gara's late line-breaking try that the result was secured. A third final was on the horizon.

And so we came to the final in Cardiff 11 days ago. Biarritz were a fearsome side, who had beaten Munster before. Key Munster players, including Horan, O'Connell and Kelly, were carrying injuries. The crowd was predominantly made up, once more, of Munster followers - French insouciance and the zeal of Munster's fans accounted for this fact. The match itself was every inch the classic encounter it had been thought might unfold, even if the quality of play inevitably eteriorated as energy sapped. Munster gave perhaps the greatest performance of all in their long history of defiance and passion on the rugby pitch. One of the greatest stories of Irish sport came to the most thrilling conclusion imaginable. I had sat and watched the dreams ofprevious campaigns being broken. Now as I watched, scarcely believing that victory was at hand, grown men could hardly contain the joy, the tears, the utter release that came with achieving a goal so highly and dearly prized. The journey had had its special moments, but none sweeter than that May day in Cardiff.

Political lobbying and the growth of government

2006-05-15T17:11:00.000+01:00

Joe Klein of Time magazine has a new book out, called Politics Lost, with the striking subtitle "How politics was trivialised by people who think you're stupid." George Will today has a piece commenting on the book. I probably wouldn't do justice to Will's piece by summarising it, so I won't go into any detail here. Klein makes some familiar points about how (American) politics has become "dumbed down" and how a system of lobbying and influence-peddling has encrusted onto the mechanics of modern politics. That side of politics was illustrated with the allegations against Jack Abramoff recently. We saw it at work in this country when the cafe bar proposals went by the wayside. One thought I would leave you with is Will's argument that "big government begets bad politics". In other words, if government hadn't expanded so much since the 1960's there would have been no opportunity for the emergence of such widespread influence-peddling and lobbying. Of course a causal relationship doesn't excuse polticians acting in ways that benefit particular interest groups rather than the society in general. But it's a connection worth pondering nonetheless.

Economics of cows

2006-05-07T23:45:00.000+01:00

Two exams down, three to go. I can't justify spending time creating blog posts. This post, however, required virtually no effort, since I've just cut and pasted it from an e-mail I got today. I found it hilarious. The last one made me think of the 80 votes that Bertie Ahern recently said were cast by the residents of one house of which he was aware.

SOCIALISM:
You have 2 cows and you give one to your neighbour.

COMMUNISM:
You have 2 cows. The Government takes both and gives you some milk.

FASCISM:
You have 2 cows. The Government takes both and sells you some milk.

NAZISM:
You have 2 cows. The Government takes both and shoots you.

BUREAUCRATISM:
You have 2 cows. The Government takes both, shoots one, milks the other and throws the milk away.

TRADITIONAL CAPITALISM:
You have two cows. You sell one and buy a bull. Your herd multiplies, and the economy grows. You sell them and retire on the income.

AN AMERICAN CORPORATION:
You have two cows. You sell one, and force the other to produce the milk of four cows. Later, you hire a consultant to analyze why the cow dropped dead.

A FRENCH CORPORATION:
You have two cows. You go on strike because you want three cows.

A JAPANESE CORPORATION:
You have two cows. You redesign them so they are one-tenth the size of an ordinary cow and produce twenty times the milk. You then create a clever cow cartoon image called Cowkimon and market them World-Wide.

A GERMAN CORPORATION:
You have two cows. You re-engineer them so they live for 100 years, eat once a month, and milk themselves.

AN ITALIAN CORPORATION:
You have two cows. But you don't know where they are. You break for lunch.

A RUSSIAN CORPORATION:
You have two cows. You count them and learn you have five cows. You count them again and learn you have 42 cows. You count them again and learn you have 2 cows. You stop counting cows and open another bottle of vodka.

A SWISS CORPORATION:
You have 5000 cows. None of which belong to you. You charge others for storing them.

A CHINESE CORPORATION:
You have two cows. You have 300 people milking them. You claim full employment, high bovine productivity, and arrest the newsman who reported the numbers.

AN INDIAN CORPORATION:
You have two cows. You worship them.

A BRITISH CORPORATION:
You have two cows. Both are mad.

AN IRISH FARMER:
You have two cows. You claim government subsidies for eight cows.