Give Me Freedom And Yours Too

While the Government lockdown continues the abrogation of fundamental rights follows en suite, like an obedient dog leashed and two steps charging ahead but always under the control of his master.

This latest undermining of fundamental rights such as freedom of movement and association comes on the back of another freedom that was threatened with constraint, the freedom of expression. I would argue that these fundamental rights, guaranteed to the people under the constitution have never been absolute. This is not an apologia for the actions of a morally bankrupt governing elite but to demonstrate that the key to governance is not providing unrestrained liberty but rather who wields the power behind that or any provision of fundamental rights.

Take the freedom of expression. This right, as with all other rights has never been absolute. Freedom of expression is not confined to speech but the broader concept of manifestation of belief or creation, be it waving a flag to writing a book. It also includes painting and photography. If freedom of expression were considered an absolute right, where there are no impediments imposed on it, then what is to stop a degenerate pedophile from creating and distributing child pornography? The right after all in the minds of some is absolute? Fortunately, we have laws in situ that curtail the evil "rights" of child pornographer. Or what is to stop a person who wrongfully yet intentionally spreads a most malicious rumour that causes the victim immeasurable damage to his reputation and all that stems from it ( e.g his business). Thankfully, the law recognises our right to a good name and penalises ( through civil action) those who perpetrate and perpetuate lies intent on causing damage to others. Anther prime example is the issue of assault. Previously the law distinguised between battery (or the unlawful touching of another without their consent) and assault ( or the apprehension of an immediate battery). If Tom went up to Joe and aggressively stated " I am going to knock you out now", this could be, strictly speaking, considered an assault. Why? because Joe is in a state of immediate fear that he is going to receive a violent blow from Tom yet there was no physical touching, only the expression of a threat. The injury received is a physic one. If there was no law in place to penalise such actions what would be the result of a threatening phone call into an airport telling officials that " a bomb is on a plane". It would cause immense fear, panic and disruption to business.

Similar impediments exist with other fundamental rights and some of those rights even collide when one person seeks to exercise his right over the right of another? e.g, a right to life of Tom to walk home at night after a trip to the cinema is considered higher, in a hierarchy of rights, than Joe's right to freedom of movement in the context of means, i.e, him driving while intoxicated ( he has the option of getting a taxi for example so his right is not entirely supressed). 

What so of the restrictions imposed by the COVID19 pandemic. The government will no doubt argue that these measures were imposed on the basis of the "common good" in accordance with the' emergency provisions' of the constitution. Opponents will argue, justifiably, that these 'emergency provisions' are narrowly tailored to "war" as warranted by the constitution. The government will no doubt argue that these emergency restrictions were brought into force because a war is being waged, not on a human foe but on a near invisible enemy, a virus and that the original drafters of the constitution didn't perceive the emergency provisions limited to conventionally understood "war".

Personally, I think the latter is a poor argument but organic interpretations, i.e, perceiving the constitution as a sort of living instrument that evolves over time is a common intrepretative method employed by the courts. In fact, the source of many rights we know today, e.g, bodily integrity, emerged from the "discovery" of unenumerated rights in the constitution. In plain terms, a judge decided that the drafters of the constitution intended to insert by implication, into the constitution, rights that were not explicitly expressed. Some call this a sort of "judicial activism" or when a judge imposes his views and reverse engineers an outcome. This explains why the Supreme Court of the USA is so highly prized. If the law was certain and consistent it shouldn't matter whether a liberal or conservative sits on the bench, they just pronounce on the law as is, but this isnt the case.  Although the Irish constitution states that the only entity that can make law is the legislature, the judiciary have and will continue to make law under the pretext that their role is to interpret the law. Judges, especially in the higher courts routinely "make law", and although they profess to do so with objectivity, this is not only untrue but impossible to achieve. Why? because, despite the egos of some judges, they remain distinctly fallible human beings with the same subconscious or conscious biases that we all possess. 

The key issue therefore is not that laws are absolute or even certain. The key for nationalists is ensure they are the ones in control of the law making whether it be at the legislative or judicial ( judicial activism) level. There should be impositions on freedoms when such rights collide or in the interests of the common good, however who decides what the common good is? those in power do. The essential factor therefore is power and how it is wielded. A tyrant can use a seemingly just law to engage in great evil. The province of the evil child killing abortion laws lay in a distorted interpretation of the unenumerated fundamental right to privacy ( the fact the hierarchy of rights that ought to protect the life of an innocent human baby was sidestepped by simply deceptively eliminating the scientific fact of "humanity" of the unborn child and therefore all protections with it). 

What every citizen ought to remember is that the judiciary is not some kind of avuncular entity that we can go to readdress a wrong committed by the executive or legislature but rather is a third limb of government. The judiciary albeit prima facie independent, still resides within a system occupied by a cabal of similar thinking persons. French political philospher Monstequieu identified good governance to be composed of three limbs or branches: executive ( government), legislature ( houses or chambers who make law) and the judiciary ( the courts). Montesquieu had posited a  concept of 'seperation of powers 'between all three branches of government so that each branch acts as an impediment to the abuse of power, captured in the quotation,

" power ought to serve as a check to power" .

However, to look towards a mechanism of checks and balances within the one system is like asking each thief among three thieves to act as custodian of their loot over the other two.

One could argue that although an appeal to the courts to seek reaffirmation of fundamental rights acts as good public exposure by demonstrating the curtailment of those rights, such an appeal is illusory. It would similar to asking one of ; John Wayne Gacy, Jeffrey Dahmer or Dennis Nielson to drop your teenager home from the disco.


By Padraig P.

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