The catch-cry of the past week has been the accusation that the Government is "out of touch with the people". It strikes me that, if politicians are serious about enacting good laws, it is probably essential for them to be so, writes John Waters
Since the Government began belatedly to respond to the statutory rape crisis, it has been possible to observe the most plausible explanation for our legislators' failure to reform the law struck down by the Supreme Court: fear of public opinion. Outlining the bones of his emergency legislation, the Minister for Justice initially indicated his intention to significantly reduce the age of consent to reflect the reality of sexual activity among the young, and therefore, presumably, to minimise the risk of further absurdities emerging to disable the new law. This was met by howls of outrage from the opposition benches, echoing the howls on the street and the phone-in hotlines.
The Minister caved in. In response to another strand of public sentiment, the new law will criminalise boys under 17 who have sex, but not girls, because to legislate for equality would "stigmatise" under-age mothers. Even though an analogous inequity in the old law has recently resulted in a pervert being prematurely put back on the streets, good sense is again sacrificed to populist prejudice, even in the almost certain knowledge that, sooner or later, some middle-aged pederast will walk free because a 16 year-old boy will have persuaded the European Court that the Irish law has breached his right to equal treatment.
Law created in direct response to public sentiment is almost bound to be bad, because public sentiment, being vulnerable to crude and emotive pleading, is by definition unbalanced. The populace, as can be gathered from any radio phone-in, is not to be trusted. If it could, we would leave justice to the mob. On the issue of rape, the will of the people may be condensed as follows: why bother with rights for rapists? Since a deficit in the rights of the accused is what brought about the present crisis, and momentarily contributed to the endangerment of under-age girls, it should be obvious that a response based on popular sentiment will bring us sooner or later to a similar mess.
We live in a representative democracy in which we elect legislators to make laws not in accordance with the caprice of public opinion but on the basis of reason and good sense. The present crisis was provoked by an individual challenging what he believed was a bad law. The Supreme Court agreed. Politicians had done nothing to mend this bad law because, far from being "out of touch", they were only too conscious of how public opinion would respond to any attempt to do what was necessary.
The only effective remedy to the difficulty in the old law would have involved extending to men accused of statutory rape the right to defend themselves on the basis that they did not know the female they'd had sex with was under age. In the absence of a crisis, there would have been little to gain in pursuing such a remedy. On the contrary, it would have provoked howls of outrage from those who have been howling this past week, rendering the industrious Minister and his Government struggling to defend themselves against the charge of siding with child rapists. The politicians, quite comprehensibly, did nothing.
Democracies tend to work best when the process of law-making is buffered from the "will of the people". And the citizen contributes far more that is constructive when he remains separate from the mob.
Indeed, the reform of legislation results far more often from the efforts of individuals than from official responses to expressions of the popular will. Most law reform, certainly most effective reform of laws with potential for controversy, results not from the proactive interventions of politicians but the interaction of the courts and the individual citizen, usually at great risk to the latter.
For all we know, there may be countless laws on the statute books which, by virtue of predating the Constitution, remain at risk of being struck down. At no time since the adoption of the Constitution has any government sought to cross-check existing legislation against its principles. The policing of legislation is instead left to the motivated litigant and the courts. And invariably such a citizen finds himself in an unequal conflict with the State, which, ostensibly seeking to ensure that rigorous tests are applied to any challenge to the law, defends the most archaic and absurd legislation against, in effect, the logic of the Constitution. Time and again, the State has pursued litigants in such cases far beyond what might reasonably be deemed the reach of the public interest, pursuing them for costs if they lose and dragging out payment if they win.
All but invariably, the State exhibits something akin to vengefulness towards citizens who dare to disrupt the smooth running of things by invoking the principle of a Constitution that supposedly exists to hold the State together. The wonder is there isn't a crisis every week.