Break glass in time of war, High Court's lesson

national | miscellaneous | news report

Tuesday May 13, 2003 23:14

by Eoin Dubsky - Refueling Peace

info at refuelingpeace dot org

Mr Justice Kearns' judgement in Ed Horgan's High Court case against Ireland for assisting the Anglo-American attack against Iraq includes some real gems for an appeal, and for activists facing charges relating to anti-war direct actions. Below is one in particular about Article 29 of the Constitution (pages 60 - 66 of the judgement).

(Read it all at http://slack.redbrick.dcu.ie/rp/ed/judgement.doc 203k)

Article 29 of the Constitution begins with the following three points, which Ed Horgan relied on in his case to show that Ireland should not participate in war against Iraq, and that Ireland has to accept the internationally accepted meaning of participation and non-participation (neutrality):

"Article 29

1. Ireland affirms its devotion to the ideal of peace and friendly co-operation amongst nations founded on international
justice and morality.

2. Ireland affirms its adherence to the principle of the pacific settlement of international disputes by international
arbitration or judicial determination.

3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with
other States."

(http://www.taoiseach.gov.ie/upload/publications/297.htm)

It goes on to explain other matters for international relations, but this is how the Article starts.

In explaining part of his judgement (which went in the government's favour), J Kearns explored the possibilities of what horrors may occur if he would rule in Ed's favour instead:

"(e) interpretation of the Constitutional principles as argued for by the plaintiff would clearly permit a challenge to a war declared by the Executive even with the approval of the Dáil under Article 28.3, on the grounds that it was a war that did not comply with justice and morality, or the principle of pacific settlement of disputes, under Articles 29.1 and 29.2.

I accept and hold with the submission of the defendants that the provisions of Article 29.1 — 3 are to be seen therefore as statements of principle or guidelines rather than binding rules on the Executive."

...In other words, even if you know for a fact that the government have allowed part of the country be used for an aggression against Iraq (which itself is an act of aggression), there's nothing the courts will do about it. If a majority of TDs want war, irrespective of how grossly immoral and illegal it is, war is what Ireland will get.

...Or to put it another way... The only recourse to justice is to stop the injustice directly "by hand". Then explain it to a jury a few months later -- luckily they aren't appointed by the PDs!

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Comments (7 of 7)

My influence

by Lord Denning

Wed May 14, 2003 01:16

I see that my type of thinking has been of some influence among the judiciary in your little statelet.

Denning

by Avi H.

Wed May 14, 2003 02:27

I can't imagine what relevance Denning has to this. Equally, it was a no-brainer that the case would go this way: the statements cited from the constitution are clearly not justiciable, as they are way too vague.

ref: was to the Appalling Vista Judgement

by seedot

Wed May 14, 2003 09:53

I presume.

This was Dennings justification for refusing to accept evidence of innocent Irish people being framed by the British establishment - not because of a failing in the quality of evidence but because of the appaling vista it opened up for British Justice.

Article

by publo

Wed May 14, 2003 10:28

There's a good article on this. Collins, Lawrence
Foreign Relations and the Judiciary
ICLQ 51 (2002). 485

Its in an international law journal but is fairly straightforward. (ICLQ = International comparative law quaterly) This is available in most uni libraries or through several of the university library databases through eg lexis-nexis.

Expected no other judgement

by Acute observer

Wed May 14, 2003 10:54

I did not think for even one nano-second that the courts would come out against the State. After all issues
such as these are too important for maintaining and imposing the wishes of the establishment both at home
here in Ireland and to the higher elites in Washington DC. It is imperative that irritating issues such as
a sense of fairness or morality do not get in the way, and so this is exactly what we see and get.

Likewise with the ridiculous case of the protesters who have been fined and banned from Co. Clare for
several years! because they were objecting to the imminent mass slaughter of people in Iraq and contamination
of the same country with DU that will go on killing for generations. Yes this is absolutely perverse and
turns every moral notion on it's head.

It is only in minor issues which do not challenge or affect money and power, is it that you ever see anything
approaching what might be considered fairness or justice. Even the minor case of trying to preserve a few
sand-martins nests in Cork last week was no match for the influence of developers and in this case the courts
actually ruled in favour of the environment, but the ruling was promptly ignored and nothing was done about
it to impose this meager decision.

Judiciary demonstrate again that they are not impartial

by Phuq Hedd

Wed May 14, 2003 19:27

A competent and fully "sane" judge has demonstrated quite clearly how the judiciary is part of the government apparatus leaving no recourse to the citizens but to actively interpret the law.

Laws are supposed to be an expression of an agreement of the will of the people. Ambiguity will always exist in any logical statement and it's the function of the judiciary to interpret laws mostly fairly, but with a slight twist in favour of the powerful. That way we obtain stability, a lack of conflict and the rich profit while we fool ourselves that there's a system that looks after us.

Sometimes there comes a sticking point in which this bias becomes obvious and the fraud is exposed.

careful with appeals

by Joss-stick

Fri May 16, 2003 11:58

Remember that if you appeal that may affect negatively, other peoples cases in the future, and for that reason you might wana be careful about when you decide to appeal and discuss it with other people who may be affected by a decision that didnt go your way.

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Break glass in time of war, High Court's lesson

Comments (7 of 7)