Human Rights in Ireland

François Hollande is the first left-winger to be elected French President since Mitterand’s second term in 1988. In a semi-presidentialist constitutional system, Hollande will wield considerable influence over domestic policy, particularly if, as expected, the forthcoming two-round parliamentary elections enable him to appoint a socialist Prime Minister and Government. While the current focus of international scrutiny is primarily on fiscal policy, here I discuss the manifesto and ideology of the Socialist Party with regard to human rights in the broad sense, as well as its past record in office in this respect. This is particularly interesting given the recent rightward drift of French politics – notwithstanding the Left’s victory – on matters such as immigration and security, as well as the cultural politics of halal meat, street prayers, and – bizarrely – foreign flags. I will outline how the emancipatory ambitions of French socialism have shifted from the economic to the social and cultural realms, over the course of an anguished and ambiguous reconciliation with liberal economics.

The prevailing perception of the PS (Parti Socialiste) is often that of a relatively “unreconstructed”, “unreformed” centre-left party, the antithesis of Blair’s New Labour. This is only partly true. While this image is borne of policies such as the 35-hour week introduced during the Jospin government of 1997-2002 – and of course, Hollande’s recent campaign promise of a 75% tax band – the broader historical reality has been a marked evolution away from traditional socialist tenets on public ownership and control of the economy.

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Controversy has erupted surrounding the Government’s use of public funds for an allegedly neutral “information” campaign for the forthcoming referendum on the “Stability Treaty” (aka the Fiscal Compact).

While the Referendum Act 1998 provides for an independent referendum commission to inform voters on proposed amendments, the Government has committed an additional €2million for a separate “information” campaign. This has been spent on a website, stabilitytreaty.ie, already live, as well as a booklet due to be sent to all households next week, along with a leaflet later in the Campaign.

Sinn Fein has declared it will seek legal advice on the constitutionality of this expenditure. Indeed, while the Government has responded that the campaign is “informative” only and therefore not unconstitutional, it is somewhat odd, to say the least, that it has decided to launch a separate publicly-funded campaign outside of the independent statutory framework that already exists for informing voters.

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CALL FOR CONTRIBUTIONS

2012 marks the 75^th anniversary of our Constitution. The present Government has committed to establishing a “constitutional convention” this year, as part of its political reform agenda and on foot of the Programme for Government. However, the convention will serve essentially as an advisory group, constituted of citizens and elected representatives. Moreover, its remit looks set to be surprisingly limited, focusing on a handful of issues including blasphemy law and the duration of the presidential term. Disappointingly, it appears that it will not address crucial issues such as executive dominance, or the codification and strengthening of constitutional rights in key areas. Insofar as the convention embraces the idea of citizen participation – and accordingly, of lending a degree of popular legitimacy to the reform process - the risk is that this participative dimension will be heavily managed and directed in advance by removing certain key issues from discussion.

To mark the Constitution’s anniversary, and to coincide with the constitutional convention which is set to be held later this year, Human Rights in Ireland will host a “shadow constitutional convention” – a series of short essays on ideas for constitutional reform. Beginning later this spring and running over the remainder of 2012, this series will also include reflections on the Constitution, and the process and challenge of constitutional reform more generally. We will run essays on ideas for constitutional reform in particular areas, as well as broader observations on constitutional revision as an instrument of social and political change.

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2012 marks the 300^th birthday of the great Swiss political philosopher, Jean-Jacques Rousseau. While a number of events and commemorations will mark this tercentenary, it is worth briefly noting his contribution to political and legal philosophy, and the ambiguous status of human rights in his theory of political right.

Rousseau is a colossus in the European history of thought. Our perception of his work oscillates between a quintessentially Enlightenment figure, a theorist of individual liberty and political freedom, and a darker image of a dangerous romanticist who set republican politics within the sinister frame of an organic, closed community of affect and patriotism.

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Another Labour presidency; yet another polemic on non-“neutral” political speech seen as transgressing constitutional limits. In the course of her attempt to expand the traditional political boundaries of the office, Mary Robinson provoked a good deal of controversy – for example, in her meeting with the Dalai Lama, and her infamous handshake with Gerry Adams. The perceived limits of the presidential office are often assumed to be derived from the Constitution, but are often simply the product, at least in part, of contingent political customs and expectations. Last week’s controversy as to whether President Higgins was constitutionally entitled to express political views on privatisation goes to the core of the broader question of whether the Presidency is, as sometimes assumed, a non-“political” (as opposed to non-partisan) institution – and indeed, what, if anything, it might mean for a President to be politically “neutral”, in conduct and speech. Indeed, in one of the Prime Time debates during the recent election campaign, one of the few revealing questions asked of the candidates was whether they saw the Presidency as a “political” office (Michael D Higgins was one of the few candidates who said it was).

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A Fianna Fáil senator, Averil Power, has published a bill which would prohibit discrimination against teachers on grounds of sexual orientation. Having enacted and maintained the current provisions in force during its years in office, the party seems to have performed an about-turn on this issue: leader Micheál Martin said: “As a republican party, a commitment to fighting discrimination in all forms is a core value for Fianna Fáil.”

The bill is conceived of as a partial corrective to the controversial, broad exemption currently provided for denominational schools in employment equality law.  Section 37 of the Employment Equality Act 1998 exempts denominational schools from the scope of the prohibition on employment discrimination where such discrimination is “reasonable” in relation to the need to “maintain the religious ethos of the institution. This is a vague formulation, to say the least, and its scope is unclear. The exemption is not explicitly confined to discrimination on religious grounds. At minimum, it is considered to allow schools to discriminate in favour of coreligionists. This is not, however, confined to teachers with a role in religious instruction, as there is no explicit requirement that the relevant form of discrimination should be necessary to an  “occupational” function, specifically. This may derive from the idea that a religious ethos is meant to pervade the whole of a school environment, and so can legitimately command deference from all school employees. It appeals to teachers’ role in in communicating, promoting and even personifying a school’s peculiar set of values: in John McGahern’s terms, teachers in Ireland were traditionally conceived of as the “second priesthood”.[i]

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The thorny issue of secularism and religious diversity has entered the (nascent) French presidential race. Eva Joly, a popular Franco-Norwegian public figure who became famous for tackling corruption and environmental abuse as an investigating magistrate, entered the fray this week with a suggestion that the feast days of Yom Kippour and Aïd-el-kebir should be recognised by the State. The candidate for the Europe Écologie-Les Verts party, decried how Sarkozy’s presidency had set back the cause of equality, citing educational “apartheid” and the “undignified” treatment of those living in the disadvantaged banlieues. She  advocated measures which would ensure “equal treatment for religions in the public sphere”, including the addition of the Muslim and Jewish public holidays. She argued that in treating religions equally, this would advance rather than offend the distinct French tradition of state secularism or laïcité, in ensuring that public holidays were not attuned exclusively to the Christian calendar.

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Last week, we posted details of the forthcoming theatre event hosted by the blog group, “Whoop it up for Liberty”. This will commemorate and creatively represent landmark struggles for civil rights and human rights in Ireland.

To meet the modest running costs of the event, we are appealing for small donations through the “Fund it” website. We welcome all donations from whoever can afford anything as little as €5 or €10. This is a great way of supporting the open, democratic arts at a community level. It will also go towards supporting a contemporary engagement with human rights issues through a creative and accessible format.

The “Fund It” link is here.

Increasing attention has focused, in recent years, on the role of religion in public education in Ireland, and on its implications for equality and human rights. Rather than providing public education directly, the Irish state has historically “provided for” free education, at primary and secondary levels, by recognising and funding schools under the ownership and management of religious denominations. Therefore, even today, more than 90% of primary schools in the Republic are operated according to a Roman Catholic ethos – the consequence of this being, for families in many areas of the State, that there may effectively me little choice but to attend a school committed to the inculcation of Catholic beliefs. This is problematic notwithstanding the explicit constitutional right to withdraw from formally-timetabled religious instruction classes.[1] Yet the paradox of this state of affairs lies in the fact that formally and constitutionally, the Ireland is (arguably, or at least for most purposes) a non-sectarian state; religious discrimination and the “endowment” of religion are constitutionally prohibited, and the democratic principle of freedom of parental choice in matters of religious education, although riven with ambiguity, is consensually regarded as the cardinal constitutional precept.

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The legal world, academic, professional and judicial, has worked itself into a minor kerfuffle over the next week’s referendum on the proposed 29^th amendment of the Constitution. If passed, it will allow for the pension levy and public sector pay cuts to be extended to the judiciary, who were exempted from these on the grounds of the existing constitutional provisions. The fear amongst some lawyers is that the wording of the proposed amendment is too vague and may allow for abusive, vindictive reductions to judicial pay essentially aimed at undermining judicial independence. This, it is argued, may ultimately undermine the rule of law and the safeguarding of constitutional rights against the political organs of the State. Yesterday, the former Chief Justice Ronan Keane observed that the wording of the proposed amendment was “quite remarkably vague”.  However, I think these concerns have been vastly overstated and on balance, I believe the amendment should be passed.

First, I will briefly explain the background to the amendment.

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