Some of the rights enthusiasts hold politics in low regard
THE DEBATE on indirect incorporation of the European Convention on Human Rights (ECHR) into Irish law seven years ago revealed a strange defensiveness on the part of certain commentators about the relative merits of the Irish Constitution of 1937, but it also revealed a somewhat misplaced enthusiasm on the part of rights advocates about the added value, in terms of substantive rights protection, to be gained under the convention.
Undoubtedly, some human rights advocates see human rights as a source of proxy public morality or “new civic religion”, a code of conduct for a post-modern age. According to this view, instead of just raising awkward questions human rights provide a comprehensive set of answers. Human rights, like religion, are about certainty and not doubt.
This can, of course, limit our imagination causing us to see human rights-based solutions solely or mainly as judicialised solutions. Thus, the necessarily political dimension of the struggle for rights – and it usually is a struggle – is problematised to the point where political processes are bypassed in favour of transcendent judicial intervention. In this crudely cast dilemma, when politics is the problem the courts become the solution. Social movements and the mobilisation of people in the name of ideals seem like a relic of the past although, in less prosperous times like now, this may change.
The foregoing is, admittedly, a caricature of the rights enthusiast but one which is deployed to great effect by those who, depending on the occasion and the audience, embellish or mask their real objection to certain human rights. The human rights community must address these issues of substance and presentation even if they feel that criticisms levelled by their detractors are unfair. Too much time is spent on winning arguments about textual formulae that may or may not affect actual outcomes for actual human beings. Having one’s sense of virtue crystallised in a text – whether international or domestic – is not its own reward.
Perhaps it is more useful to see human rights instruments – whether constitutional or otherwise – as the beginning rather than the end of dialogue. The unfinished business of the Constitution is progressed, inter alia, by the legislature.
In the Irish context this raises a very real practical problem which partially explains the enthusiasm of some for recourse to judicial and quasi-judicial solutions. That is the problem of a weak legislature controlled in most vital respects by the executive with no serious capacity to hold the executive to account. This has recently been decried by the Ombudsman, Emily O’Reilly, for transforming the constitutional ideal of some balance as between branches of Government into a fiction. Undue judicial deference to the political branches of Government will inevitably entail a disproportionate deference to the executive.
The apparent disdain for politics on the part of some rights enthusiasts offends judges and others who are alive to the dangers of judicial trespass on the political domain. But it may well indicate an astute appreciation on the part of such enthusiasts of the dysfunction at the heart of the Irish polity. This dysfunction may, of course, be an intended consequence of the 1937 Constitution. More benignly, it may be something that remains uncorrected by operation of the constitutional mandate.
A lazy liberalism that replaces the discarded moral framework once provided by religion with a comprehensive manifesto for goodness and happy outcomes passed off as “human rights” is doomed. At a more conscious, strategic level we must not rely on the external imposition of “progressive” solutions for want of the energy required to convince fellow citizens of the objective merit of such solutions. This view of human rights as a holistic catalogue of trendy and progressive answers to troubling questions is utterly devoid of meaning and purpose.
In a common law jurisdiction domestic legal practice is never hermetically sealed from “external” or “foreign” influence but the influence of international human rights law could be greater. The recent restatement of dualism in classical and unreconstructed terms by Chief Justice Murray in the case of McD v L Another, the case involving a dispute between a lesbian couple and their gay male sperm donor, was unsurprising. But dualism is no more than an enabling mechanism in the Constitution that invites parliament to achieve a greater integration of municipal and international law by means of legislative or constitutional incorporation.
This understanding of dualism is consistent with a fair appreciation of the aptitude of the Constitution’s primary framer, de Valera, in the international domain. He was an avowed nationalist and a capable internationalist. When judges restate their understanding of the relevant provision of de Valera’s Constitution – article 29.6, which requires some act of legislative incorporation before an international instrument can be enforced by a court – they are not objecting to international law per se but, rather, describing the absence of a necessary political act required in a dualist system.
The real issue is, therefore, political. Unless and until the Oireachtas gives further effect to international human rights instruments in domestic law they will remain of no more than persuasive authority before the Irish courts. In the case of the ECHR this “problem” may well be solved by EU accession to the convention but that will only add to the confusion with other, arguably more important, international instruments.
This is an abridged version of the editorial for the inaugural issue of the new annual Irish Human Rights Law Reviewjust published by Clarus Press. Donncha O'Connell is its editor and a visiting senior fellow at the Centre for the Study of Human Rights, LSE and a lecturer in law at NUI Galway. The complete version can be read at: claruspress.ie