Skip navigation

Tag Archives: constitution

The Dáil cannot sack the Garda Commissioner. That’s the prerogative of the Government. Now, if we want to change that – i.e. to make it that a Commissioner’s job is at the pleasure of the Dáil – let’s discuss it and if it’s desirable, make the change.

Let’s not, however, mess about asking the Dáil to vote no confidence, calling on the Government to act, and pretend that this doesn’t usurp the power of Government.

Assuming that the backers of the Dáil motion are not fools, unable to appreciate the significance of their move, then their motive must be to put two institutions of the state at loggerheads. There is a pattern here of trying to damage the wider (small ‘c’) constitution. Remember that there was an attempt to legislate for abortion in case of fatal foetal abnormalities, knowing that the move would be unconstitutional. Moreover, on water charges the Dáil is moving towards instructing the Government to act illegally.

Anti-establishment is no longer a matter of opposing the entrenched position of the rich or the structure of inequality. It has more or less changed sides. It is now a matter of opposing the established way of doing things, the slow processes built up over many years on which reform and progress, depend. This anti-establishment is no place for a socialist. Indeed, socialists must resist the temptation to strike a faux-revolutionary pose and oppose the thoughtless barbarism of the new anti-establishment.

In the matter of the Dáil motion aimed at removing the Garda Commissioner the best outcome would be a decision that it is not a matter for the Dáil, second best would be a majority abstention, leaving the “anti-establishment” with a ridiculous victory, and third would be to defeat their motion.

Most of the debate on repealing the eighth amendment accepts the pro-life position. The difference between the two sides is this:

Pro-life – There is a person present from conception with a person’s right to life for however long that might be and regardless of the circumstances of conception, i.e. there are no exceptions.

Repeal – The circumstances of rape and fatal foetal abnormality are exceptional.

The two positions are engaged in debate over exceptions and are not essentially different. This is because the repeal side refuses to engage with the core pro-life argument, that a person is present from conception, and the media on whom public discourse depends are content to let this happen.

The pro-life argument is meta-physical but shouldn’t be dismissed for that. It is easily dealt with because it is a poor argument. Now, at least some of those who make the argument are used to being treated with an inordinate amount of respect because it is assumed that arguing metaphysics requires great expertise and is hard work. This is a carefully cultivated impression. It is also uniquely accepted, while every other branch of philosophy is expected when necessary to engage with citizens who have no particular expertise.

Once we address and consider the argument that a person is present from conception, and assuming we find it implausible (There won’t be universal agreement that it is.) we can begin to examine abortion from a moral perspective.

Here are two facts:

i) No one wants to permit abortion right up to birth.

ii) No one strives officiously to find and protect the lives of all fertilised human eggs (zygots).

The moral decision lies between i and ii. It involves both banning and allowing abortion in the public interest. It is a hard decision because it necessarily means a time limit. It is a debate that can and should go on and on as we struggle to do right, to fix a time limit that, all things considered, is moral.

There is no escaping this awful decision; it is part of the human condition. Well, there is one way of escaping: accept the pro-life argument. This is not to say that those who accept the argument are evading responsibility but it is to say that acceptance rules out having to consider what should be done about unwanted pregnancies.

Addressing the pro-life (ensoulment) argument moves pregnancy by rape and viability down the public agenda. It removes much of the heat from public discourse, and there are many – not all of them working in the media – who thrive on heat.

If activists and media are unwilling or if they feel themselves incompetent to debate metaphysics, let us hope that those who will make up the forthcoming citizen assembly are treated as thinking adults capable of going to the core of the issue.

Mary Lou McDonald of Sinn Fein posted the following on Facebook and in a few hours, i.e. by midday on April 1st 2015, it had been shared over a thousand times.

“There was some mention earlier on that the Taoiseach and the Fine Gael/Labour government want to rewrite the Proclamation as we head towards 2016.

The Proclamation of the Irish Republic belongs to the people of Ireland. No government, not least the current government, has any right to alter or rewrite it.” – https://www.facebook.com/MaryLouMcDonaldTD/photos/a.498206116331.275763.58340031331/10152707553836332/?type=1&theater

Clearly it is ridiculous to suggest that a document produced a century ago could be rewritten. Three things, however, need to be said. Firstly, it is important that no document be elevated to the status of sacred text to be placed beyond examination and criticism. In the case of the 1916 proclamation its opening lines for example about Ireland summoning her children to her flag are incompatible with citizenship of a republic. Summoning children is more deeply daft and offensive than the UK monarchic tradition of referring to citizens as subjects.

Secondly, MLMcD is taking the familiar authoritarian line of speaking for the people. To say that the wording of a text belongs to the people of Ireland is meaningless other than in reference to the constitution where that ownership involves not stiffened preservation but vesting the power to change the text in a referendum. While the claim that the 1916 proclamation belongs to the people is meaningless, the devious intention behind the claim is not. This is an incident in a longer power play. It is a device that has been used many times. The trick is to put matters beyond discussion, to create blinding loyalty, respect and willing obedience. A person or group is to be insinuated as the true representative of the people and/or interpreter of special texts in opposition to an elected government, parliament or indeed the entire constitutional state. It is profoundly undemocratic relying on a perverse understanding of “the people”.

Thirdly, if the Taoiseach or anyone else wants to open a discussion on some sort of Proclamation for a New Republic, then let a debate begin. However, it must be emphasised that the discussion is essentially about choosing between contested political values. To be effective it will be a fraught discussion because Ireland is unused to contests over values, setting priorities and limits, and marking behaviour and beliefs as unacceptable – with the intention of change from time to time.

In day to day conversations and on Facebook I’ve been avoiding speculation and talking instead about a range of possibilities as to what could have gone so wrong in Galway University hospital which has an excellent record. It is however time now to speculate for a very good reason.

Speculation on the events leading to the death of Savita Halappanavar has for some time now been fuelling arguments for and against the enactment of legislation – as recommended by the Supreme Court a full two decades ago – to regulate and clarify the Irish constitutional position: that an abortion is permissible to protect the life of the mother. It needs to be emphasised that the only circumstance in which this young woman’s death has relevance to the debate on the need to move on such legislation is if there is any scenario in which the medical staff weighed the baby’s life against the mother’s and favoured the baby.

The reason I am about to speculate is that the most likely happenings in Galway are being ignored in favour of accounts which can be used to engage in the current debate. However, the most likely account has enormous significance for the abortion debate beyond the rare cases of risk to a mother’s life but a long way short of anything that could be described as liberal abortion law, never mind abortion on demand.

Incidentally, while I’m attracted in principle to the view that there should be no speculation and therefore no debate until an enquiry has established the facts of what happened, in practice holding such a line was never possible and is completely irrelevant now after weeks of comment.

The following is most likely what happened. I can only assume that it is ignored by media because it is irrelevant to the current spectacular row over the need for legislation to protect the life of a mother.

The death of Mrs. Halappanavar was the first maternal death at Galway University Hospital in 17 years. [i] We are not, therefore, talking about a hospital with a poor record. Moreover, despite all the allegations about “Catholic country” comments and missing notes – both of which need thorough investigation – it doesn’t seem remotely likely that the hospital staff were unaware of the legal or Catholic church position but for some unexplained reason decided to favour the baby’s life over the mother’s life. On the contrary it is, I think, safe to assume that the staff involved were caring, experienced and familiar with law and Catholic doctrine.

It is virtually certain that if at any moment from her first entering the hospital, it became clear that Mrs. Halappanavar’s life was in danger, these staff would have performed an abortion. So what happened? Here is the most likely explanation.

Mrs. Halappanavar was miscarrying, i.e. the baby at that age was doomed to die. However, Mrs. Halappanavar was not yet in mortal danger and there were no indications that she might die. Because, Catholic teaching and Irish law give an equal right to life to mother and to baby until the mother’s life is threatened, an unfortunate baby with just a short time to live would be monitored and allowed to die naturally. A mother’s distress, discomfort or illness would be irrelevant. Threat to life is the sole criterion for legal abortion in Ireland.

The truth that Irish media have been neglecting is that Mrs. Halappanavar’s treatment and death have very likely got nothing whatsoever to do with clarifying a mother’s superior right to life when her life is threatened but a great deal to do with the treatment/management of miscarriage. The position in Ireland is that abortion is not a permissible part of that treatment/management.

I’ve no information on how often abortion might be considered in the treatment of miscarriage but it does seem to be an issue for Catholic hospitals outside Ireland.

“The experiences of physicians in our study indicate that uterine evacuation may not be approved during miscarriage by the hospital ethics committee if foetal heart tones are present and the pregnant woman is not yet ill, in effect delaying care until foetal heart tones cease, the pregnant woman becomes ill, or the patient is transported to a non–Catholic-owned facility for the procedure.”[ii]

If in Ireland we are using the death of a young woman to inform or fuel an important public controversy, it is vital that the full controversy be aired or that the relevant controversy be aired or at the very least that the relevant controversy not be ignored.


[ii] Freedman, L.R. et al “When There’s a Heartbeat: Miscarriage Management in Catholic-Owned Hospitals” in American Journal of Public Health. 2008 October; 98(10): 1774–1778. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2636458/

There are some socialists and other progressives arguing for a rejection of the 30th amendment * but their opposition is based on one and/or two rickety foundations.

Firstly, there has always been an affinity between socialism and the better parts of liberalism, especially those parts which defend and seek to expand personal freedom. However, an overly rigorous defence of negative liberty (freedom from intrusion, compulsion etc.) can be at odds with the public good. This is one of those situations. No one seriously believes that ordinary citizens will be hauled before a committee of the Oireachtas and unjustly treated. However, some opponents of the amendment argue that because they fear that it MIGHT be possible, the amendment should be voted down.

Secondly, there is among socialists and some other progressives a strong and healthy anti-establishment culture. It is so strong, however, as to be quite easily manipulated by the establishment. On this issue it is happening. The constant derision of parliamentary democracy and elected politicians – the aim of which is to paint pseudo-radicals, who are often journalists, in a good light and to convince the general public that there is no hope of real change – has been effective. In this instance some socialists have been duped into thinking that because the proposal comes from government it should be opposed or that giving more power to politicians (the “establishment”) is anti-progressive. There is an old socialist test: Which side are you on? In this instance one way to BEGIN to clarify a true anti-establishment stance is to look at who favours and who opposes. However,   while doing so remember the attractions of being seen as “anti-establishment” or the depth of true anti-establishment culture on the left which makes it likely that some socialists will mistakenly take the establishment side and favour a rejection.

* 30th Amendment to the Constitution – Oireachtas inquiries

Existing text of section 15.10:

1. Each House shall make its own rules and standing orders, and shall have power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.

It is proposed to renumber this as 15.10.1 and insert:

2. Each House shall have the power to conduct an inquiry, or an inquiry with another House, in a manner provided by law, into any matter or matters stated by the House or Houses concerned to be of general public importance.

3. In the course of any such inquiry the conduct of any person (whether or not a member of either House) may be investigated, and the House or Houses concerned may make findings in respect of the conduct of that person concerning the matter to which the inquiry relates.

4. It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2 applies.

 

There is a report by Fiona Gartland in the Irish Times of Oct. 24th  that the Oireachtas Joint Committee on the Constitution intend to reconsider the question of balance in broadcast coverage of referendum debates. It is long past time that the privileged status of this communication value was questioned.

 

It is certainly not the case that balance is without merit but its limitations and the risk of exalting it above other values has become apparent.

 

When there is a clear choice between two courses of action and where there are sensible arguments on both sides, balance is a treasure. Unfortunately this is seldom the case and balance – crudely understood – becomes a problem.

 

Very often there are many points of view. Balance implies just two.

 

Crude attempts to quantify balance by – for example – linking it to the number of TDs supporting an argument makes sense only if one believes that broadcast debate should reflect the existing consensus in society or the most widely held views. Balance can be evaluated quite differently if one believes that broadcast debate should serve the engaged citizen, someone who wants a lively challenge. In this view balance might be between the majority view and a minority view, between opposites, between antagonistic views or between consensus and innovation.

 

Coverage of the Lisbon Treaty debate showed how balance could be the enemy of truth. Nonsense was repeated day after day to create balance and newsworthy conflict.

 

Balance is important and worth defending as part of a parcel of communication values which should include at least truth and the promotion of challenging viewpoints.