Court treated the rule of law with contempt

Schuhart

Vincent Browne has been giving an amount of attention to the ‘A’ case in his Sunday Business Post column. I agree with his essential point. The Supreme Court do seem to have effectively suspended the Constitution to make a common sense decision that any of us might take.

I feel the decision in this case adds to the feeling that our public institutions are becoming hollow, insubstantial things.

Several judges of the High Court were amazed at the decision of the five senior judges of the Supreme Court to order the arrest and imprisonment of a person on the basis of a law that the Supreme Court itself had held didn’t exist.

…….. Mr ‘‘A’’ raped the 12-year-old friend of his daughter having plied her with alcohol. He didn’t contest the charges brought against him under the 1935 Act and, almost certainly, initially, he was charged with other sexual offences and probably rape but these charges were dropped (assuming they were brought in the first instance) on his agreeing to plead guilty to the charge of unlawful carnal knowledge.

But once this section of the 1935 Act was found to be unconstitutional, Mr ‘‘A’’ was in jail on the basis of no law and that itself was/is unconstitutional. He applied to the High Court and a very capable, impressive judge, Mary Laffoy, did the obvious thing legally and released him.

There was a hue and cry over this, a political crisis, outrage on the airwaves and in a few hours the Supreme Court ordered his re-arrest and incarceration on the basis of a law they said was null and void. ... Everyone was delighted; well, nearly everyone. An evil paedophile was back in jail, all was right with the world again. The government’s embarrassment was eased, Michael McDowell was off the hook and, according to himself, this proved him to have been right all along; public anger was assuaged.

But the law or the rule of law, where was that? Where was the credibility of the Supreme Court, whose primary function is to act on the basis of law, not on the basis of popular sentiment or political calculation - and, incidentally, I am not asserting that they acted for reasons of political calculation.

But all five of them agreed that it was all right to imprison a man for an offence that they said doesn’t exist. Where does that leave us?.........

InFront

What I understand their ruling to say, is that even if a law is deemed unconstitutional at any moment in time, any actions which were taken under that law prior to it being recognized as being unconstitutional can still be upheld. Where exactly this is written in law, I have no idea.

In fact I would have thought this was pretty clear:

Article 15-4-2
Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.

I think that it must be quite an unsteady judgement, and cannot imagine it would stand up to an appeal or serious analysis. I for one would not like to think that common sense or public opinion were factors in their coming to this judgement. Let the law decide what is right and let that be it.

Time Magazine

I think we'd get a better analysis of this in Legal Discussion, because I'm fairly certain we're missing something. When I heard of the re-arrest (I was doing exams at the time of the whole debacle so didn't really follow it) I presumed there was some logical reasoning.

If we're not missing something, well then my faith in the judicial system has dropped considerably.

oscarBravo

There was logical reasoning, which was clearly explained by the judges in their ruling. Remember, it falls to the Supreme Court to interpret the Constitution, which they did.

But yes, I'd imagine the analysis would be more insightful in LD. That said, I'll leave this thread here and let the OP start a parallel thread over there if s/he sees fit.

Schuhart

I posted an earlier article by Browne on a thread about the A case on the legal forum here, but tumbleweed has been blowing over it since. When Browne returned to the topic I thought I’d float it here to see if there was more interest.

I agree the issue turns on whether the legal argument provided by the Court holds water. If it does, we can all go back to sleep. However, such comments as were made on the legal forum do not contradict Browne’s view that effectively the Court decided someone who rapes their twelve year old daughter’s friend cannot expect the protection of the Constitution.

At one level, that’s an idea none of us has a problem with. At another level, it leaves us wondering exactly when constitutional protection kicks in. It’s a damn difficult issue, which really puts our commitment to impartial application of the law to the test.