Seanad Referendum 2013: The Day After

Foreword: A lot has been said and written  about the Seanad over the last five years. Although some ideas seem consistently repetitive, arguments vary from ‘it is a waste of funds’ to ‘it is a pillar on the way to progress’ and  ‘I do not do politics’; we have heard it all.

As someone who has spent their life divided between two countries, and equally affected by the laws of both, I would like to voice my concern. The similarities in the political field of both Greece and Ireland are quite disturbing, and seeing the path the former is on, it is worth exploring what is keeping the latter from following. Albeit similar, though, there is one substantial difference; Greece has a unicameral assembly.

Constructive Notice: Where to point the finger?

Our entire national Economy collapsed and we still don’t get it; banks are at the heart of our wealth. Mere punitive legislation, mergers and recapitalisation will do nothing for our patient; we are applying a plaster on an infected wound.

In Ireland we make law two ways: either judicially or through the Oireachtas (although many, in an attempted support of the express provision of our Constitution in Article 15, namely that only the Oireachtas has the power to legislate, will disagree – therefore I would have to quote God McCarthy in Rooney v Connolly (1987), law made by judges can only be undone by judges). The Oireachtas has failed in healing the wound and, apparently, so has our judiciary. The question to be asked is, where did we go wrong?

Paul Begley: The Emperor’s old clothes smelled of garlic …

Edit 26/06/2013: The judgment of the CCA is finally online on Courts.ie. You can read it here. DPP v Murray (2012), as suggested below, was indeed thoroughly evaluated.

… and so the Power promised him new ones, the kind the world cannot see; the kind one will only wear confined, behind bars. Of course though, just like the tale, they did not let him know what they were made of, for it was inconvenient and it would require extensive discovery, tracing, cross-examination over cross-examination, and a very lengthy trial resulting in heavy costs.

Instead, they promised him new clothes if he could mitigate the damages on a side deal with the Revenue and provide full disclosure of any acts revolving around tax evasion and fraud. Little did he know that five years later the Power’s sibling would wake up one day with a mind of its own and impose on him the maximum sentence possible, turning all of his good faith and co-operation against him. That is unconscionable in its own; a judge does not need to be in a court of Chancery to remember fairness and equity, values that spring from common sense and the law of nature. If monkeys will share a banana, surely we can split a sentence.

Is trom Seanad i bhfad

*1

Parliaments with two Houses are a historical consequence that did not bear much political thought. Initially the parliament was the establishment where the king or queen would meet the powerful (ie the creme of the social hierarchy -ecclesiastics, title bearers etc) and, through negotiation and adequate scheming, share the wealth and powers of the State. As time went by though, lower social layers penetrated the parliament – tenants such as merchants, tradesmen or established farmers, and this of course was to no one’s liking. It was not long before the parliamentary assembly was torn in two houses, one for the ‘Lords’ and another for the ‘Commoners’.

In other European countries, with the passage of time, monarchies were either retained to a symbolic role or abolished. Due to their allegedly non-democratic origins the upper houses followed suit and were swiftly replaced by unicameral legislatures.

IRISH FREE STATE

Surprisingly Ireland, in the current absence of royal rule, has a bicameral assembly; for Ireland this was not some sort of inheritance from the former occupier, instead it was a deliberate and conscious choice, introduced with its first official Constitution of Saorstat Eireann in 1922. Article 82 was constructed to ensure ‘representation for groups and parties not the adequately represented in Dail Eireann’. What this actually meant was that the nation was provided with a Seanad made primarily of non-Catholics and ex-unionists, attempting to balance off the formation of the Dail.

That Seanad is a great point of reference for two reasons:

Be afraid of Juliet …

 

I had such high expectations from the case of MD v Ireland and I feel as though they were crushed. I’m no expert (obviously), but I don’t find Mrs Justice Denham’s judgement very convincing – my apologies in advance for what I have to say, I mean no disrespect.

I will quote part of the judgement:

46. Nonetheless, the natural physiological differences between males and females cannot be entirely assimilated. Rape under s. 4(1)(a) of the Criminal Law (Rape) (Amendment Act), 1990 is defined as a sexual assault including “penetration (however slight) of the anus or mouth by the penis…” can, by definition, be committed only by the male. The crime of rape defined in section 4(1(b) of the Criminal Law (Rape) Amendment Act, 1990 (penetration of the vagina by any object) could be committed by a female.
47. The act of sexual intercourse itself is engaged in by a male and a female. However, each performs a distinct physiological function. The male’s penis penetrates the female’s vagina and may emit the sperm which, relevantly for this appeal, is capable of rendering the female pregnant. Thus some natural and inevitable differentiation of treatment is inherent in the statutory scheme.

48. The appellant challenges, as infringing Article 40.1 of the Constitution, s. 5 of the Act of 2006, which expressly differentiates between the male and the female, but only in the case of the act of sexual intercourse, and only when the female is herself under the age of seventeen. The female under seventeen is not exempted from criminal liability in respect of any of the other sexual acts criminalised by the section, when committed with a person under the age of seventeen.

I would plainly like to ask what happens in the -not so rare- case where teenagers use another, admittedly quite effective, part of the body, other than their genitals; their hands? Is this a sexual act and if so what is it called? In the case that any judge would care to declare this a “non sexual” act because it does not fall into the sexual intercourse, buggery of an under-aged person or sexual assault, as per the definition of the term in the Criminal Law (sexual Offences) Act 2006 (in addition to the 1981, 1990 and 1993 Acts), does that mean that homosexual women have been misled into thinking they were sexually active since the beginning of mankind? What happens in the case of a male who enjoys anal penetration of the hand of a female, especially when he is under the age of 17?

It feels as though the hand is stealing the spotlight, I don’t think the penis will be very pleased.

Going back to the judgement, I agree that a girl under 17 can be held liable for the other acts criminalised by s.5, but it seems to me like she is still in a better position than any poor boy, for she can penetrate and still run free – I’m sure she can do more than that but this is just a mere example. I am convinced the Legislator had pregnancy in mind when enacting the provision (they probably envisioned steaming teenagers, pissed to their ears, recklessly giving into temptation), I won’t disagree with that, but, hold the boy liable if he doesn’t use protection, don’t ruin his life just because he obeyed mother nature’s orders. Coming back to hands, sperm can be successfully transferred in such a manner and result in impregnation; a sexual act does not necessarily occur between a fixed number of people.

Should we go further and touch the “gender-neutral” subject? They don’t follow that route in the US, agreed, but this is EU and we have a charter, not to mention the ECHR (putting it second because its margin of appreciation seem to have broadened substantially lately).

I’m sad, I understand they didn’t want to risk striking it down because it was merely supplementary and it probably wouldn’t cause the commotion CC did, meaning it would take some time until a new provision was added or a new Act surfaced and create a big legal gap – especially if one considers the current legislation on abortions.

If anyone has the answer, I’d like to know!

 

The House of the Rising “Son”

The pending paper is haunting me, but seeing how many words I will spend to merely explain the Criminal Law & Sexual Offences soap opera I have decided to write about it here instead, as it is, I reckon, very interesting to all sorts of readers, students or not.

Article 50 of the Irish Constitution provides for legislation drafted before its enactment and gives such laws the power to continue being of force “to the extent to which they are not inconsistent therewith”. A large number of statutes were not altered after the Constitution was drafted in 1937 and continued in force until declared repugnant by the courts. Most of the legislation that hasn’t been blocked by the judiciary, however, has been carried over by way of amendment. This has resulted in an enormous family tree, with parent, grandparent and distant relative laws, all interconnected.

The Criminal Law Act, 1935 is a brilliant example, child of the Criminal Law Amendment Act, 1885 – yet another amending Act drafted in the years of British rule. The former is well known for being questioned in the case of CC v Ireland. In this case the Supreme Court declared s.1(1) of the aforementioned act unconstitutional, on the grounds that it did not provide the defendant with mens rea, the benefit of the doubt regarding knowledge of the age of the person he had sexually engaged with. This act and its provisions, although drafted so close (only two years) before the enactment of Bunreacht na hÉireann, still should not have enjoyed the presumption of constitutionality for the simple reason that its drafters could not have foreseen the context of a future Constitution. Another argument against its compatibility would be the fact that a number of its provisions protected the rights of young female citizens, not including young males; this is grossly repugnant to Art. 40.1 of the Constitution, reading

“ All citizens shall, as human persons, be held equal before the law”.

Surprisingly, the Oireachtas chose to carry a number of its provisions over to the newer Criminal Law Act, 1997. Two facts should be noted here; S.2(1) of the Criminal Law Act, 1935 was identical to s.(1)1, the section declared unconstitutional in CC , all but for the age group stated (although in their defence they had no knowledge of the Supreme Court’s judgement, for CC was held many years later). The named provisions read:

“1. —(1) Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall be liable (…)

2. —(1) Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable (…)”

Secondly, the title of this act does not contain the word “amendment”, leading the reader to the conclusion that it was meant to be a re-enactment of the legislation. Re-enacted statutes are considered “fresh law” and fully enjoy the presumption of constitutionality, along with their post-constitutional counterparts. What the Oireachtas did, therefore, to re-enact this provision was to simply copy S.2(1) and remove the “ who is of or over the age of fifteen years and ” clause, thus obviously broadening the age group under the shield of the law. While one might argue that this is hardly a re-enactment, in the case of ZS v DPP , following that of CC , Murphy J. in the High Court concluded that the provision was indeed re-enacted and therefore, naturally, enjoyed the presumption of constitutionality.

Three years later Murphy J.’s judgement was overturned by the Supreme Court and, in addition, the provision was declared unconstitutional, for the same reason that it was held so in CC : it did not provide for mens rea. It is beyond obvious that such a decision created a gap in the legislative structure, as well as the fact that such a gap could have easily been prevented. In the field of powers the Legislator drew 3 lines; he gave each of his children, the Powers, a piece and installed a sign: “thou shall not cross”. The case of ZS is yet another reminder that it must have been misread for “thou shall not see”.

After the finding of s.1(1) of the Criminal Law Amendment Act, 1935 unconstitutional by the Supreme Court, the Oireachtas swiftly enacted new legislation to prevent for an even bigger legislative gap to emerge. And thus, the Criminal Law (Sexual Offences) Act, 2006 was born, a distant relative of the previous Criminal law Acts and with a family tree of its own.

They amended the gender to apply to both males and females by substituting the word “girl” for “child” and added wording that expressly allowed for the defendant to escape absolute liability. All is well in heaven until fear strikes; nervous that such an amendment might in some cases result in criminal liability of the under-aged girl, the drafters added a clause stating that no female child under the age of 17 shall be guilty of an offence solely for engaging in an act of sexual intercourse. Was that necessary? No. Did it single-handedly annul the gender neutrality in the re-enactment of the provision? Most definitely. Contrary to the fundamental right of equality as provided by the Constitution, it is highly discriminatory and unreasonably presumes that the injured party can only be a female. A boy under the age of 17 is in no way protected by law against a girl under the same age group, nor can a girl under 17 build a solid case against a kindred (should we take this, once more, as a hint that Ireland is inhabited by superhumen that are only attracted to the opposite sex?). The tip of the ice-berg: it is left open to challenge from any male under 17 wishing to argue that it denies him of a defence which would have been available to him had he actually been a female.

Note: This type of “unjustified” presumption was dealt with by the Supreme Court in DPP v Walsh in 1981, in response to the common law defence of the wife being presumed to be coerced by her husband when she committed a criminal offence in his presence; but not vice-versa, as much as one would think it is fairly easier for a woman to push a man into sin.

It did not take long for the ice-berg to be hit. In 2009 a 16 year-old boy was under trial in Letterkenny for engaging in sexual deeds with an under-aged girl (we shall discuss buggery in a following post). Two senior counsels represented him in the High Court (MD v Ireland) successfully obtaining an order for a stay of the proceedings, until its validity could be argued in the Supreme Court. The hearing took place on April 14th, 2011 under a 5 judge formation, two of which ladies: Mrs Chief Justice Denham, incredibly sympathetic to children – no doubt, she has quite a few of her own- and a history of leaning the interpretation of the law to their side (see for example Sinnott v Minister for Education and TD v Minister of Education), and Justice Macken who can seem quite intimidating with her penetrating stare and solid status quo, yet quite fair and sensitive in her judgements.

Impatiently awaiting the judgement.

The King is dead …

… long live the King! Question is, what will the extent of his powers be?

Some souls wish for the abolition of the Seanad, it is convenient no doubt, but please don’t claim recession and budget cuts to justify your purpose.

If anybody knows who brought Greece to the financial and political state of today, please raise your hands; it’s the uncensored, unscrutinised, uncontrolled Parliament. One would be a fool to think that the Irish apple would fall far, should the Seanad be abolished. I will put it bluntly, the Seanad keeps any half-wits on a leash, if the lower house wakes up one day with the desire to play poker, the upper house shakes the finger and says “no Tommy, you shouldn’t do that Tommy”. Of course the Oireachtas, as the untamed teenager that it is, will probably jump off the window as soon as mammy Seanad closes the door behind her, but at least there is the probability of making the immature child reconsider.

It doesn’t constitute a barrier, but at least it’s a filter, a well educated one for the matter. And do we need filters!

John Coakley (UCD) and Michael Laver (Trinity) provided the All-Party Oireachtas Committee with a brilliant report back in 1996 with reform suggestions and historical information in favour of the importance of its role,  which could easily be the foundation for an actual reform.

Per the Committee,  the hazards of today can be bypassed following simple steps, the first being the legislative procedure; should bills reach the Seanad first and go through their first three stages inhouse, then it will make matters much simpler for the Dáil, especially if one takes into account the abundancy of social layers and educational backgrounds that form the lower house. The Seanad could greatly assist the Dáil in drawing up reports for statutory instruments, carrying out reviews of proposed programmes, in other words, take a huge burden off the shoulders of the TDs, giving them more time to deal with the everyday problems of their constituencies.

I am amazed that this might sound unreasonable to some. I’d like to point out that part of the Seanad is indirectly elected. I would also like to quote the Constitution Review Group some 15 years ago, especially since many claim Ireland is now reliving the 90s:

“The rationale for having two houses of parliament in a unitary state is based on two important features of any mature democracy. The first is the need to take account of political interests that may not be adequately represented in the main house; the second is the need for some final review of legislative proposals before they become binding on all.”

I rest my case.