Michael D Higgins, our esteemed President, is about to convene a meeting of the Council of State to help him decide whether of not he should refer the Protection of Life During Pregnancy Act to the Supreme Court for a test of its constitutionality. If the court judges that the Act is constitutional, it becomes bullet-proof and can never again be challenged on those grounds. On the other hand, the court might strike the Act down in its entirety and then we’re all back on the same merry-go-round yet again – the government’s nightmare outcome, and mine too, if I must be honest. Another six months of listening to the Iona Institute people would just about finish me off.
The President isn’t obliged to take whatever advice the Council offers him, but he must consult them before he sends an Act to the Supreme Court, so I thought it might be useful to explain how this Council is made up. According to Article 31 of the constitution, it consists of the current Taoiseach and Tánaiste, or, for those unfamiliar with ludicrously pompous feudal Gaelic terms, the prime minister and deputy prime minister. Likewise, the Chief Justice, the President of the High Court, the Chairmen of the Dáil and the Senate (soon to be abolished if Enda gets his way) and the Attorney General. All former prime ministers are automatically members, though they must be willing and able, which brings up a difficulty I’ll come back to in a minute. In addition, the President can appoint seven nominees at his absolute discretion. The current members are as follows.
|Éamon Gilmore||Deputy taoiseach|
|Sean Barrett||Chairman of the Dail|
|Paddy Burke||Chairman of the Senate|
|Susan Denham||Chief Justice|
|Nicholas Kearns||President of the High Court|
|Maire Whelan||Attorney General|
|Mary Robinson||Former President|
|Mary McAleese||Former President|
|Liam Cosgrave||Former Taoiseach|
|Albert Reynolds||Former Taoiseach|
|John Bruton||Former Taoiseach|
|Bertie Ahern||Former Taoiseach|
|Brian Cowen||Former Taoiseach|
|John Murray||Former Chief Justice|
|Thomas Finlay||Former Chief Justice|
|Ronan Keane||Former Chief Justice|
|Michael Farrell,||Presidential Nominee|
|Deirdre Heenan,||Presidential Nominee|
|Catherine McGuinness,||Presidential Nominee|
|Gearóid Ó Tuathaigh,||Presidential Nominee|
|Ruairí McKiernan,||Presidential Nominee|
|Sally Mulready,||Presidential Nominee|
|Gerard Quinn||Presidential Nominee|
The first hurdle occurs with our beloved deputy Prime Minister, Éamon Gilmore. Éamon, you see, describes himself as an agnostic, but because our constitution is so deeply mired in the confessional swamp that was the Ireland of 1937, every member of the Council must swear an oath, as follows:
In the presence of Almighty God I, Joe Soap, do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfil my duties as a member of the Council of State.
As a non-believer, Éamon found himself conflicted by this and took legal advice, but it seems he’s happy enough to swear in the presence of a deity he doesn’t believe in, and I suppose he’s right. After all, the wording seems carefully constructed to give atheists a way out, since it doesn’t require him to swear to Almighty God, as happens in the courts, unless a witness chooses the option toaffirm. It simply requires him to promise and declare in the presence of the non-existent deity. Look, he’s a politician, well-used to believing two different things at the same time. Besides, the preamble to the Constitution is far worse. How’s this for inclusivity?
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,Do hereby adopt, enact, and give to ourselves this Constitution.
Nice. How does that work with Jews, Muslims, Hindus and people of no religion who also happen to be Irish citizens? The most holy trinity from whom all authority derives. That’s a theocracy, last time I checked. How does our Justice Minister, Alan Shatter, who happens to be a Jew, feel about his constitution acknowledging his obligations to our divine lord, Jesus Christ?
That’s Ireland for you, and Britain too, where the Queen is the head of the established church, lest anyone be too quick to sneer, but let’s get on with the Council of State.
Besides the atheist who’s happy to swear in the presence of a god he doesn’t believe in, we have five former prime ministers, four of whom assiduously dodged the problem of the X Case judgement. One of them, John Bruton, is already on record as opposing the current Act on religious grounds. Two others — Brian Cowen and the man in the cupboard, Bertie Ahern — are responsible for crashing our country into a gigantic brick wall while another, Albert Reynolds, declined to give evidence to a tribunal of inquiry into planning corruption on the grounds of cognitive impairment. In other words, he couldn’t remember an Irish military helicopter ferrying him to a secret meeting with a property developer and he had no memory of the government Learjet diverting to an unscheduled rendezvous in Bermuda. Poor man’s mind is gone, sadly. And yet, here he is, sitting on the Council of State.
Old Liam Cosgrave meanwhile, still hale and hearty at 92 years of age, will go down in history as the Taoiseach who voted against his own government on contraception legislation due to his strong Catholic beliefs.
There isn’t any set procedure laid down for how the meeting will be conducted, however, and Michael D is a wily old guy, so perhaps it will be closely circumscribed. He might decide simply to ask them a legal question: in your opinion, is this Act constitutional or not?
If we exclude Brian Cowen on the arbitrary grounds that he completed the crash started by Ahern, that he’s only a small-town solicitor who never practised much anyway and that I just don’t like him, we still have eight senior lawyers who should be able to advise Michael D dispassionately. What will the others advise him on? Who knows? I suppose Da Bert could give him a tip on ahorse and Cowen could offer his opinions on nude portraiture. Bruton could entertain everyone with his famous party laugh and Cosgrave could re-enact his world-renowned Crossing of the Floor, the original Riverdance but with added hypocrisy.
Let’s not forget the ferment of rage that must be taking place in this assembly of the great and the good. How does the chairman of the Senate feel about the current prime minister who supports this act and yet who wants to abolish the very House he presides over? I’m only speaking personally here, but I think I’d feel tempted to shaft Enda one last time before being abolished. Clearly, Mr Burke is a far more professional individual than I am and would never dream of sinking so low, but still, human nature is what it is. I’d knife him.
I’m fascinated by the process, since it’s not laid down anywhere that I can find. Where will they hold the meeting? What time will it happen? Will Michael D supply the drink or will they all turn up with slabs? Will they drive or come in taxis? Will they have a barbecue? Will someone make a CD mix? The weather is really great at the moment although you can’t be too careful. Lately there’s been a lot of thunderstorms but that’s to be expected with all the heat, so maybe they should set up a gazebo and everyone could huddle inside it together if there’s a sudden downpour. It would make for a cheerful atmosphere, and they’ll get along much better after getting to know each other. I’d say they’ll make burgers and maybe put out some nachos with a cheese dip. What do you think? Spare ribs? Red stuff all over your face? Send Bruton down to the off-licence for more ice. Michael D might even read them some of his poetry before leading them to the overwhelming question: what’ll we do? Ah, I don’t know. That’s why I’m not the president, the chief justice or even a spiv in a yellow suit hiding in a cupboard.
The woman died in January 2012. An inquest has not yet been held into the woman’s death as the police investigation is continuing.The husband said the couple was told that treatment of the condition could involve a procedure that would leave her infertile. “We were worried about what would happen when she became pregnant again,” he said.
“She was sick, but we were told that nothing could be done in Ireland. We were left on our own to deal with it. We didn’t get any help at all,” he said.
The judge has allowed time for the woman to take legal advice.
The woman’s boyfriend claims she is being forced to have an abortion by her parents.
The judge said she would not proceed until the woman had received legal advice.
The case was adjourned until Friday.
The boyfriend has applied for injunctions to prevent the woman from having an abortion or travelling outside the country.
He says his girlfriend’s family are unhappy with the fact she is in a relationship with someone of non-European origin.
The man’s lawyer said his client discovered that his girlfriend has been booked into a clinic in the UK and was due to have an abortion on Thursday.
In a sworn statement, the man told the court that his girlfriend was “happy to be pregnant” was looking forward to having a scan and had bought baby clothes.
The man said he had no desire to prevent her from travelling if it was of her own free will, and that a member of the girlfriend’s family had threatened to kill him if he tried to come near her.
Judge Colm Mac Eochaidh said he was “compelled” to reject the request, made by the US embassy in Dublin on Friday, because it did not state where Snowden’s alleged offences were committed.
“The question of where the offence took place is not a minor detail but is a matter which could have very serious consequences in any further stage that might be reached in an extradition process,” the judge wrote.
Snowden began his third week in limbo at a Moscow airport on Monday, hoping to reach an asylum deal so he can escape charges in the US for leaking explosive details about a massive electronic surveillance program.
Snowden, 30, has applied for asylum in 27 countries including Ireland, which said it could not consider the request unless it was made on Irish soil.
Irish justice minister Alan Shatter said US authorities were welcome to reapply for an arrest warrant stating where Snowden committed his alleged crimes.
“The determination of the court does not in any way prevent a fresh application being made for a provisional arrest warrant,” he said.
“The Irish and US authorities have remained in close contact about this matter and, for its part, the government will take any action open to it to ensure that the state’s obligations in relation to extradition arrangements are met.”
The High Court judgment said US authorities did not made clear in the request whether they believed Snowden leaked the information to journalists from US territory, or after he fled.
This morning in the High Court in Dublin, after Miriam Freeman had spoken for 4 days on her motion against Bank of Scotland (Ireland), she has finally been vindicated in her long running case. She has been ably supported by two of the founder members of DDI Ben Gilroy and John Squires, and by Awaken Longford and others (unnamed) who have all collaborated with the Freeman family to defeat all motions of Bank of Scotland (Ireland) in case of P FREEMAN & ANOR V BANK OF SCOTLAND (IRELAND) LTD & ORS.
Ben and John have been helping fight this case in their role with People For Economic Justice since it started 2 years ago, and in Court 16 this morning Mr Justice Gilligan dismissed the motions put by Bank of Scotland, and finally sent the case forward for full trial on the issue of securitisation. The team has been seeking a full trial without success for some time and have been stymied by counter motions by Bank of Scotland. So critical is this case that the Chief Executive Officer of Bank of Scotland had been required to fly from Scotland to be present in Court.
Now for the first time in Ireland the issue of securitisation of mortgages is going to be heard in court. The ramifications of this will affect almost every mortgage in the state, as the vast majority of mortgages have been combined into financial instruments and sold off as securities to other investors. It was this kind of securitisation that inflated the banking system to a state of bankruptcy and caused the financial bubble that sees us now forced into living under austerity.
In a separate case this week another motion supported by People for Economic Justice against an Irish based bank resulted in the bank settling out of court for a seven figure sum. For legal reasons because of the settlement the case cannot be quoted.
Ben spoke after the case saying that he hoped that those detractors who have been spreading misinformation about how he, and other lay litigants who take on the banks, operate in court, either in the media, printed press and in cyberspace, will be honourable and correct the imbalance they have caused to so many people.
There is now around 12 weeks for full discovery and responses before the case moves on and it may affect any current repossession cases. What we must look at now is what will be the financial fallout. We know the banks are bankrupt and we know the finance ministers have legalised bail-ins, we also know the heads of Ireland’s banks have just met at the Central Bank, a bank who’s legal position was described in court today as a grey area. So now is a time that people must be aware and wary of what the government’s next move may be to protect their system
A bit like democracy, motherhood and apple pie, everyone is in favour of the separation of powers. But how does it work in Ireland and what happens when there’s a conflict between the branches of state power? What should happen?
Though constitutional lawyers will claim that it is enshrined in the constitution, and certainly judges refer to it frequently, the design of the separation between the executive and legislative branches in Ireland is such that we can only assume the drafters of the constitution wanted a strong executive unencumbered by a legislature. The legislature is one in name only as effectively all legislation comes from the executive. The legislature’s powers are neither separate nor significant. The independence of the judiciary is more secure, because even though the executive chooses the members of the judiciary the executive has no real way to influence judges once appointed.
The idea of a separation of powers comes from a presidential system where the legislature makes laws that the executive enacts and the judiciary enforces. All this is usually under basic laws laws that are rigid and difficult to change – a constitution – which also sets out which institution can act. In parliamentary systems this is less pure – but thought to exist nonetheless.
Problems arise when there’s a disagreement about which branch is entitled to act in what way. Often we see the executive behaviour censured in the courts because the court says it was acted beyond its powers – ultra vires. The courts have been quick to assert what are judicial functions and what are executive or legislative ones. So the Oireachtas was upbraided for its inquiry to the killing of John Carty in Abbeylara. This decision led to the Houses of the Oireachtas abandoning inquiries, even though they are seen as an important tool of accountability in virtually every legislature in the world.
Ultimately if there is a disagreement on the separation of powers the judiciary has the job of deciding who is right. This is problematic for two reasons. One, the judiciary has shown itself to be unwilling to interfere in the relationship between the government and the Dáil to uphold the rights of the Dáil to hold the government to account (for instance O’Malley v. Ceann Comhairle). In the recent Doherty judgement, the High Court showed itself not to understand that there is a legal separation between the government and the Dáil. Second, it seems unfair that one institution has all the power to adjudicate over disputes between it and the others. So if the executive doesn’t agree that it cannot make a certain decision because this amounts to a judicial function, to whom can it appeal – to the judiciary.
In any redesign of the constitution that may take place in the coming years, this anomaly should be dealt with. Perhaps here the president and the council of state could be the ultimate arbiter of separation of powers disputes – where the other two branches, the executive or legislature feel that the judiciary has denied one or other its rights. To work there’d have to be only very few of them, so only the government or a certain number of TDs could ask the council of state to consider a dispute. It could also give the president something more useful to do than delay rugby matches.
The Appeal Commissioner, Ronan Kelly, found in 2003 that a house at 6 Raglan Road, Dublin 4, purchased by Denis O’Brien in 2000 was not a ‘permanent home’ under the Ireland/Portugal Double Taxation Convention.
Revenue then withdrew an assessment to capital gains tax of €57.8m in the tax year 2000/2001.
This arose from the sale by Mr O’Brien of shares in Esat Telecom.
Counsel for the Revenue, Anthony Collins SC, said the Appeal Commissioner had ‘erred in law’ in not recognising that someone could have two permanent homes under the Convention.
It said it had ‘conflated’ the concept of a permanently available home and a principal private residence.
Counsel for Denis O’Brien, Dermot Gleeson SC, said the property at Raglan Road was purchased as an investment.
He said Mr O’Brien’s family had moved to Portugal and did not have a home in Dublin during the tax year of 2000/2001.
He added that “no stick of O’Brien furniture ever went into this house.”
FOUR out of five Supreme Court judges today agreed the High Court was entitled to conclude there was “outrageous” contempt by Sean Quinn Jnr of court orders restraining stripping of assets form the Quinn’s international property group (IPG).
There was “ample” evidence to justify the High Court finding “beyond reasonable doubt” that Sean Quinn Jnr was involved in a US$500,000 payment to a Ukrainian woman, Larissa Puga, in contempt of those same orders, and it was entitled to jail him for three months concerning that transaction, Mr Justice Nial Fennelly said when giving the majority 4/1 judgment today.
Dissenting, Mr Justice Adrian Hardiman said there was no direct evidence to support the finding of contempt against Quinn Jnr and “no legally recognisable basis” for granting a request by Irish Bank Resolution Corporation to jail him so as to put pressure on his father to reverse asset-stripping measures.
The proceedings in the High Court leading to Quinn Jnr being jailed were in the nature of “a summary criminal trial conducted by a judge sitting alone”, he said.
The High Court failed to focus on the specific case made against Quinn Jnr, as opposed to his father and cousin and was not entitled, in the absence of direct evidence of the single charge against him, to lock him up on foot of evidence of a general nature he was “up to no good”.
The legal actions between IBRC, the former Anglo Irish Bank, and the Quinn family are being fought with “extraordinary bitterness” with each side considering the other had perpetrated grave injustices against it, the judge also observed. In those actions, both sides “have questions to answer”.
All five judges agreed the High Court was not entitled to jail Qunn Jnr indefinitely in an effort to procure his compliance with some 30 coercive orders aimed at reversing a wide range of asset-stripping measures when there was no finding against him concerning those other measures. The court has set aside almost all of the coercive orders insofar as they relate to Quinn Jnr.
The court today delivered judgments outlining the reasons for its 4/1 ruling last week dismissing the appeal by Quinn Jnr against the High Court finding he acted in contempt arising from the payment to Ms Puga, general director of Quinn Properties Ukraine, on the eve of the bank’s takeover of that company.
They dismissed Quinn Jnr’s appeal against the finding he was in contempt over the Puga payment and his appeal against the imposition of three months imprisonment for that but set aside her order jailing him indefinitely for failing to comply with the terms of some 30 coercive orders.
The coercive orders were sought by the bank with a view to procuring the reversal of a wide range of measures designed to strip up to $430m assets from the Quinn’s international property group so as to put them beyond the reach of IBRC, which is pursuing the Quinn family over some €2.8bn loans.
Mr Justice Hardiman disagreed and said he would have allowed the appeal in its entirety.
Next week, Ms Justice Dunne is due to review whether Mr Quinn, his father and cousin Peter Darragh Quinn have made adequate efforts to purge their contempt. Sean Quinn Jnr was freed from Mountjoy Prison training unit last Friday on expiry of the three-month detention period.
Ms Justice Elizabeth Dunne said she was concerned if Mr FitzPatrick was giving the same instructions to both sets of legal representatives.
She was assured by solicitor Michael Staines,�who is representing Mr FitzPatrick in criminal proceedings,�that he was.
Mr Staines told the bankruptcy court it should not proceed with questioning him on a particular issue until the outcome of the criminal case.
He said it was possible the�Director of Public Prosecutions�would also ask the court to adjourn the case.
The application by a court-appointed official to question Mr FitzPatrick in the High Court as part of bankruptcy proceedings had been adjourned to allow statements to be submitted to the court.
In July, the High Court was told the official assignee wanted to examine Mr FitzPatrick about the ownership of a large London office investment property.
Ms Justice Dunne adjourned the matter for two weeks and asked Mr FitzPatrick’s legal team to lodge sworn statements setting out their submissions on the issue of prejudice.
Today she noted that had still not been done.
The former Anglo Irish Bank chairman is estimated to have debts of €150m and assets of €47m.
He was declared bankrupt in July 2010.
The following evidence emerged from the high court yesterday.
Family members were to receive up to € 7. 5m each if injured or an assassination attempt happened whilst employed by the Russian Companies.
Employment contracts worth up to €36m each were signed.
In addition, substantial annual wages up to €560,000 each with a wide range of benefits
The above evidence was comes from the deliberately smashed computers in their Russian office.
The destruction of the computer happened just a day or so after the High Court made restraining orders against the Quins.
Other emails showed that Sean Quinn Jnr was still dealing with property management issues for these Russian companies, months after the Quinns told the High Court, they had lost control of those companies.
Counsel said the Quinns had given “utterly false” evidence in the High Court contempt proceedings about not being in control of the Russian compnies
THE PRACTICE of the Irish Government appointing senior judges must be ended if the public is to have any faith in a judiciary free from political or any other bias, Sinn Féin Justice spokesperson Pádraig Mac Lochlainn has said.
“The sheer number of politically affiliated judges adds to an already embedded public perception of the judiciary is an elite to whom the law of the land does not apply equally,” the Sinn Féin deputy said.
The Donegal North-East TD said this view has been strengthened by perceived inconsistencies and poor sentencing decisions in a range of areas, including drug-related crime, domestic and sexual violence in particular. He said:
“Judicial independence requires that the judiciary must be independent of other branches of government. It is high time that the Judicial Appointments Advisory Board should be required to publish an annual report to include information on candidates who are selected for appointment.
Sinn Féin is calling for the establishment of a fair and accountable appointment and removal process for the judiciary that involves meaningful lay participation representative of the public interest.
“Sinn Féin believes that judicial independence is undermined by the current appointment process in the 26 Counties,” Deputy Mac Lochlainn said.
“The Judicial Appointments Advisory Board (JAAB) was established in the wake of the controversial appointment of Harry Whelehan as President of the High Court in 1994 and was meant to have removed sole discretion for judicial appointments from Government.
“However, there is still political involvement in the appointment of the judiciary as the Judicial Appointments Advisory Board merely provides a list of seven qualified candidates to the Government who makes the appointments of judicial office holders.
“Sinn Féin believes that appointment procedures should be transparent to enhance public confidence in the process.
“This Fine Gael//Labour Government promised to be a reforming government and put an end to the ‘jobs for the boys’ culture but, looking at their judicial appointments so far, it is clear many of their political cronies have received jobs from them.”