Ombudsman Emily O’Reilly, above, at the MacGill Summer School in the Glenties, Co. Donegal last night:
The Sutherland is mysteriously strong in this but…
“It is a great privilege, as I’ve just said, to have been asked to deliver this year’s lecture in honour of John Hume. While his life’s work is normally viewed through the prism of politics, north and south, I think, more rightly, his contribution should be seen through the prism of human rights. As he, to me, is the pre-eminent human rights defender of his generation. His struggle was a struggle for the assertion of basic humanity, of basic human dignity and we will betray that great legacy if we do not ground our own lives, our own politics through that same, clear-sighted vision. My remarks this evening will reflect on how we fail at times to do so. If they are critical of a country, that has achieved so much for its people and which continues to assert itself proudly in the world, they also reflect a belief that this still gifted and privileged place that we inhabit could do so much more for its own people with those gifts and with those privileges, and bring the human rights standards, championed by John Hume, to bear much more forcibly on a world that still struggles to meet the most minimal of those standards, for so many people.”
“The question posed in this year’s summer school is: How Stands The Republic? The answer to that, perhaps, like the apocryphal tale of Zhou Enlai in the French Revolution is that it’s too early to tell. Have we ever actually lived in a real one. In 1916, Padraig Pearse and his colleagues declared that the Republic they imagined, they were now ushering in, would guarantee religious and civil liberty, equal rights and equal opportunities for all, and would pursue the happiness and prosperity of the whole nation. When we did eventually achieve our independence, the successors of Mr Pearse and others of that vintage, promptly franchised the State to a private organisation called the Catholic Church, shedding in particular its responsibility for the education and health systems and thereby allowing little actual space for the elected leaders of this Republic to play their role in pursing the happiness and prosperity of the nation.”
“As recently as last week, the State and the Catholic Church were still squabbling over who should pick up the tab for the distinct non-cherishing of the nation’s children, that endured for much of the lifetime of this Republic. Meanwhile, our current Education Minister continues gamely to pursue his attempt to reclaim the State education system from the control of that organisation.”
“The Republic that was created from the ashes of the Rising was a perversion of the human rights ideals of 1916. To this day, we, as a people, are not yet fully cognisant of what a real, civic republic actually looks and feels like. Professor Gerard Quinn of NUIG, and another member of the Council of State, speaking at an Amnesty International event, in the wake of the publication of the reports and institutional abuse, stated:
‘The sheer weight of history would surely justify one in questioning whether there ever was a coherent, moral and political vision behind the origins of the State. Indeed it might be argued, with some plausibility, that the State had an explicit ethnic rather than an ethical base’
“He further argued that:
‘The failures of the fledging and adult state were not simply failures to vindicate rights to adhere to the rule of law, and to ensure democratic processes worked. Rather they undermined the very idea of the Republic.’
“I will base my comments tonight primarily on my experience as Ombudsman over the past 10 years and how I have observed the interplay as between citizen, administration, executive, parliament and judiciary in this country. As a general observation, I would say that it can be difficult at times for many people who live in this…inaudible… described, but not constitutionally named as a Republic, to remind ourselves that, theoretically, we are the ones in charge. It is even at times hard for parliament to realise what its actual constitutional role is. And, at times, the executive itself and the judiciary even struggle.”
“This latter point was made quite starkly by former Attorney General Peter Sutherland in a lecture delivered earlier this year when he publically fretted about the courts being forced, in his view, to involved themselves in the kind of fundamental decision making that the constitution never intended for them. He said:
‘The respect among branches of Government is undermined, for example, where measures are adopted by the legislature, where the Oireachtas knows or ought to know, will, through their ambiguity or lack of clarity, require the judiciary to determine what they actually mean. Effectively delegating to the courts, decisions which legislators would rather not address themselves, particularly when the issue is one which is controversial, politically or morally, is quite wrong. It may bring the judiciary into the centre of debates which they have neither the competence nor the democratic legitimacy to determine and it is a denial of respect for the separation of powers.’
“On difficult, moral and ethical issues in particular, where attitudes are changing, the superior courts may be drawn into making decisions that may not merely have profound consequences but on which the courts are not particularly well qualified to make judgements. Where are judges to seek the essence of the values to be upheld in the determinations, related for example to the commencement of life or the right to terminate one’s own life. Is the Christian and democratic nature of the State to be the benchmark and to be defined by the courts or by the legislature also. We are also living, he added, in a time of fundamental values, of the dignity of man, and the equality of man are defined in widely different ways. And the courts should not be left alone to make these determinations, particularly at a time of profound change and debate about moral issues. In the end of the day, one is left with the impression that the courts simply find and define these rights on the basis of broad concepts of justice and fairness and which differences may exist, even between the judiciary themselves.’
“Sutherland’s core assertion is that the courts are inappropriately forced to decide not alone what our values in this Republic are, or should be, but also in the absence frequently of any clues to divine what the elected representatives of the people think about those values and what their intentions are when they cobble together, not just deliberately ambiguous laws but, at times, deliberately ambiguous constitutional amendments.”
“I would submit that while the courts, in Sutherland’s view, feel that they have too much unwanted power, parliament itself spends much of its time ducking and diving and pretending that it has no power whatsoever.
Meanwhile, the executive, when its not ducking and diving itself in relation to weighty matters of the sort noted by Sutherland, is planting its boot far too firmly on the neck of the parliament and wielding power in a manner never envisaged by the Constitution.
The Republican concerns of Michael D. Higgins, as a Dáil deputy are best known from what was his valedictory Dáil contribution on the 26th of January, 2011. Now that he is President, his views carry more weight considerably than previously. And I hope it is not disrespectful to comment that, as a TD, his contribution on this issue were sometimes regarded by colleagues, on all sides, as academic or esoteric or perhaps both. Leinster House at the time may not have been quite ready for Jurgen Habermas and his theories on communicative rationality and the public sphere. But there is an important point to be made here. And it is one Michael D.Higgins continues to make as President and that is that there is a deep-seated anti-intellectualism prevalent in Irish public life. He did not quote Isaac Asimov on that subject, as it relates to the United States. But let me do so instead:
“Anti-intellectualism, said Asimov, has been in a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge’.”
“And it is undoubtedly true that, despite our supposed love of learning and the historic echo of the island of scholars, ignorance or at least the absence of any visible high intelligence has been a much more prized virtue at times. The late Brian Lenihan was warned never to play Chopin at a party function. Garrett Fitzgerald was sneered at for being an intellectual. For many decades our thinking was also franchised out to the Catholic Church without the need for the sort of heavy lifting, engaged in by others who have struggled without the aid of an off-the-shelf bag of beliefs and absolute certainties. At least the aftermath of our economic collapse has allowed us to release our inner Jurgen Habermas as we struggle to make sense of what has happened and why.”
“In his January, 2011, Dáil speech, Michael D. Higgins concluded that we have failed to create a kind of society that could justifiably call itself a Republic. He said:
‘I was conscious in 1969 (that’s when he entered politics) of the great failure of a country that then called itself a Republic. I believe no real Republic has been created in Ireland. The failure has been of three kinds. There has been a failure in making political power republican, a failure in making republican any kind of administrative power and a failure with regard to communicative power. Without being technical about each of these, he said, I think those that wanted Ireland to be independent would have envisaged a country in which there would be far greater distribution of power, that it would not be confined solely to the exercise of parliamentary democracy.’
“But if we are, as the President suggested, stuck with the exercise of power in parliamentary democracy alone, how well does even that measure up. I propose now to offer my own assessment using a number of events that occurred during my tenure as Ombudsman, to illustrate my points. Some of these issues may seem relatively minor as compared with sort of weighty matters that Peter Sutherland talks about: the courts and happily having to wrestle with. But I think they can also serve to highlight, none the less, the fault lines in our Republic: the failure of parliament to assert itself; our poor grasp of the concept of the public good; and a sort of public indifference to matters of human rights until the latest Bill for the latest litany of abuse pops through our national letter box.”
“Speaking at a conference in March, 2010, I said some rather critical things about how our parliament works, or rather does not work. I asked of parliament, as I then observed it operating, was anything more than a charade. Whether its members have lost all sense of parliament being an independent entity, acting in the public interest. I suggested that parliament had been demonstrably sidelined by the executive and had become no more than a rubber stamp, agreeing to decisions already made elsewhere. These criticisms of parliament are now commonplace and feature in our current affairs media virtually every week. The views of some commentators, on the effects of impotence on our constitutionally-mandated legislatives, or recently-endorsed in a study of first-time TDs in the current Dáil undertaken by Dr Mary Murphy, of University College Cork, and published by the Hansard Society and I would like to thank Noel Whelan for bringing this to public attention in his Irish Times column.”
“From their own mouths, (Dr Murphy) noticed TDs’ frustration at government, unresponsiveness to Opposition amendments, their perception of a poor degree of accountability and openness, the spectacle of Question Time spent “taking lumps out of each other”. The TDs’ ability to contribute to influence, to oversee and to promote or inform is, she stated, ‘checked by the operational parameters of the institution, the dominance of the executive and the power of political parties’.
Yet, rather incredibly, given the apparent horror of their lives as they themselves described it, 84% of the new TDs see politics as a long-time career while 82%, touchingly, want to become a minister at some stage. On the latter point, Murphy noted, the desire to become a minister, despite the small number, whoever reaches that point, is symptomatic of a culture that places little value in a career as an ordinary parliamentarian, a legislator. And I would suggest that the swift exit of George Lee from the Dáil was not the act of a deluded, out-of-his-depth celebrity, as it was steeringly characterised at the time. But rather a perfectly rational response to what he encountered once the heavy joy of being elected wore off.”
“In some respects, the very fact of having these criticisms, of the actual workings of parliament reiterated week in and week out, has dulled our sense of discomfort and unease. The fact is that our parliament is functioning in a manner which, in all likelihood, subverts the Constitution. Article 28.4.1. says: ‘The Government shall be responsible to Dáil Éireann’.
And the Taoiseach alluded to that earlier. Quite clearly, this is not the case. Successive governments have generally taken the Dáil, and Seanad, for granted. As our parliament, as a matter of general practice, is not a forum which decisions are taken, there is no reason why Government should take it seriously. The nub of the problem perhaps is that parliament does not take itself seriously.”
And that’s just the first 15 minutes.