A chara, - Kevin Myers (An Irishman's Diary, February 5th) accuses the Supreme Court of having embraced a legal definition which was "barbarous, depraved and wicked." So wicked was the decision in question that Mr Myers believes that we in Ireland should be silent on the issue of Herr Haider's rise to power in Austria.
In so far as I can tell from his column, he appears to be referring to the decision in the Finucane v McMahon case in 1990. Mr Finucane had participated in a mass break-out from the Maze prison, in which a number of prison officers were injured. One of these officers was stabbed and died from a heart attack. The case helped to clarify the political exception to extradition following a number of cases which had seemed to redefine it.
The Supreme Court did not create the political offence exception. The credit (or blame) for that must be given to the Oireachtas, which adopted the Extradition Act, 1965. This facilitated Ireland's accession to the European Convention on Extradition, 1957. Sections 11 and 50 of the 1965 reflect the political exception clause contained in Article 3(1) of the Convention.
Mr Justice Walsh delivered the leading judgement in the case. He pointed out that on September 1st, 1976, Dail Eireann resolved, pursuant to Article 28 of the Constitution, that "arising out of the armed conflict now taking place" a national emergency existed affecting the vital interests of the State. The resolution referred to "an armed conflict in which the State is not a participant."
He went on to say: "The fact that the policy or activities followed by a group of persons acting outside the jurisdiction of the State is opposed to or contrary to the policy adopted by the Government of Ireland in relation to the unity of the country, is not in my view sufficient to equate it with a policy to overthrow the State or to subvert the Constitution of this State."
Not surprisingly, the court concluded that the political exemption provision was still the law of the State and as a principle had remained unrepealed.
The responsibility for repealing Sections 50 or 11 of the 1965 Act lay with the Oireachtas.
S 3 (3) (a) (v) the Extradition (European Convention on the Suppression of Terrorism) Act, 1987 excluded any "offence involving the use of an explosive or an automatic firearm, if such use endangers persons."
Mr Myers has correctly identified the distinction between automatic and non-automatic firearms as one of the reasons behind the decision, but has castigated the wrong organ of State. Again responsibility for the dubious distinction must lie with the Oireachtas, and ultimately with those who drafted the European Convention on the Suppression of Terrorism.
It is worth noting that the five Supreme Court judges were unanimous in upholding Mr Finucane's appeal because they believed that there was a probable risk that upon his extradition he would be assaulted or injured by the illegal actions of the prison staff. Following the mass breakout from the Maze Prison, prisoners were assaulted, set upon by guard dogs and wilfully denied medical attention for days. Based on the findings of the High Court in Belfast, the Supreme Court held that the prison officers had successfully obstructed official enquiries into allegations against them of assault and had engaged in a concerted campaign of perjury in various civil actions by the prisoners for damages for assault. The Supreme Court was particularly concerned at the failure by the authorities to institute any criminal or even disciplinary proceedings for such assaults.
Mr Justice Walsh felt compelled to say that the courts "must remain completely impartial and detached and free from all political or diplomatic pressure." A strong, independent, judiciary in the context of a written constitution is our guarantee that the Government - no matter how unsavoury its composition - cannot casually disregard the rights of its citizens. The Austrian people may, after all, have much to learn from the Irish experience. - Is mise,
Proinsias O Maolchalain, Sean Bhothar Fhionnghlaise, Glas Naion, Baile Atha Cliath 11.