One of the first things a lawyer learns is that if you think judges have made a mistake, you address them "with respect". If you think they've got it totally wrong, the code is "with great respect". And if you think they've lost the plot, the appropriate phrase is "with the greatest respect". In that sense, Thursday's Supreme Court judgment in the Sinnott case deserves the greatest respect.
When it emerged that an unprecedented seven judges would hear the State's appeal against the Sinnotts' High Court victory, it seemed clear that a landmark judgment was on the way. The widespread assumption was that the court was moving to draw a line beyond which the State's neglect of its most vulnerable citizens could not go.
Here, after all, was a young man who had been deprived of almost the entire primary education to which he was constitutionally entitled. Of all the issues on which people with disabilities have suffered appalling neglect, education is the only one that has explicit roots in the Constitution, making it the key to a whole set of other rights.
By taking a clear and strong stance on Jamie Sinnott's human rights, the court could begin the process of restoring the State to its basic function of serving the needs, not just of the 350,000 citizens with disabilities, but of all of those whom the system has failed.
The court delivered a landmark judgment all right. It made it absolutely clear that the judicial arm of the State will join with the legislative arm in pushing away those who come looking for the right to the education they need.
No one doubts that the judges applied the law conscientiously. What is clearly open to question, however, is whether they applied it imaginatively, with a sense of moral purpose, or in a spirit of deep respect for the humanity of the people with intellectual disabilities whose fate they were deciding.
The most remarkable thing in the seven judgments is the absence of any real attempt to address the actual life of Jamie Sinnott, and of many others with autism. They are not like other litigants. They are not individuals dealing with the State. In a very real sense, the State itself determines their individuality.
Carers and teachers who work with autistic people will say that they become different people when they are getting proper schooling. With appropriate education, their individuality can function. Without it, they retreat into an unreachable private world.
Faced with the question of what rights these people have, the court itself retreated into a private world of narrow reasoning. Instead of asking what a primary education actually means for a person with autism, it largely confined itself to the question of what primary education meant to the framers of the Constitution. Even there, it came up with an incoherent and internally inconsistent set of answers.
The key reason for rejecting Mr Justice Barr's High Court ruling in favour of the Sinnotts was that the phrase "primary education" had a fixed meaning that didn't extend to meeting the basic educational needs of a citizen regardless of age. The individual judgments, however, completely undermine this reasoning. For the judges themselves could not agree on what the fixed meaning of the term is.
Both the Chief Justice and Mr Justice Geoghegan said that for a normal child primary education might be regarded as extending to the age of 12. Ms Justice Denham and Mr Justice Murphy put the age at 14. Mr Justice Murray put it at 12 or 14. And in any case all of them, with the exception of the Chief Justice, then went on to extend it - in the case of children with disabilities - to the age of 18 and no further.
What they actually came up with, therefore, was a right that applies up to either the age of 12 or the age of 14, and that can be extended in special circumstances by another four or six years. In other words, a right that is inherently flexible. The concept that seems to explain their ruling, the clear constitutional meaning of "primary education", turns out to explain nothing.
EQUALLY incoherent is the notion of normality that runs through the judgments. On the one hand, the judges all accepted that the situation of a child with intellectual disabilities was not normal. This is why, in their view, the right to primary education extends in their case to the age of 18, while for normal children it stops some years earlier.
On the other hand, however, they then go on to apply a rigid notion of normality to these same children. Their right to education stops at 18 because that is the normal age at which childhood ends. The result is an intellectual mess in which people with autism are partly normal and partly abnormal.
What is truly remarkable, however, is that in spite of all the contradictions within and between their judgments, six of the seven judges came up with a set of principles which happened to coincide precisely with what the State wanted.
This is remarkable because, as the Chief Justice pointed out in his largely dissenting opinion, the State's case was itself an utterly incoherent one. On the one hand, by not appealing the damages awarded to Jamie Sinnott for the breach of his constitutional rights up to the age of 22 (i.e. including four years beyond the age of 18), the State was implicitly accepting that the High Court was right to award those damages.
On the other hand, it was explicitly arguing that the High Court was wrong. This, as he put it, involved "a feat of mental legerdemain" of which he himself was incapable. Unfortunately, this sleight-of-mind proved well within the capacity of his fellow judges.
The unalterable fact, however, is that the Constitution means what the Supreme Court says it means. The belief that has been around since the High Court judgment in the O'Donoghue case in 1993 - that the judicial arm of the State would make up for the neglect of the legislative arm - has proved to be definitively wrong.
This leaves citizens with a clear choice: either accept that our collective values should remain stuck in the 1930s when the Constitution was drafted, or force the political system to introduce laws worthy of a civilised democracy.
fotoole@irish-times.ie
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