Judiciary record ‘mixed’ over human rights protection, judge says

The record of the judiciary in relation to human rights protection has been “mixed” over recent decades, a senior judge has told a human rights conference in Dublin.

Mr Justice Gerard Hogan, a judge in the Court of Appeal and a leading expert on the constitution, also said that a form of "legal shoneenism" had led to the quality of the Irish Constitution not being properly recognised.

The committee that drafted the Free State Constitution sought to achieve a high standard of human rights protection and “pillaged” the widely-admired and influential constitution of the Weimar Republic, he said.

When the 1937 constitution was being drafted, more of the spirit of the Weimar constitution was put into the document.

Yet despite the fact that the Weimar constitution is admired across continental Europe and has served as an inspiration, the 1937 Constitution does not get anything like the appropriate acknowledgment.

There is a sort of “legal shoneenism; that we can’t be as good as the continental Europeans.”

Mr Justice Hogan was addressing a conference organised by the Law Society's Human Rights Committee and entitled: Human Rights in Health Advocacy and Domestic Violence: Time for a new Proclamation? He said the "legal shoneenism" he was referring to would come as a disappointment to the drafters of the 1916 Proclamation.

Mr Justice Hogan said that while there were mistakes in the 1937 constitution, such as the ban on divorce and the pietistic references in the preamble, the document sought to give full protection to civil and political liberties.

Looking at legal history since 1922, the Irish judiciary could congratulate itself in terms of the very important issue of procedural justice. However the record in terms of fundamental rights was more mixed.

He said the ruling by the Supreme Court in relation to the importation of contraceptives, in the McGee case (1974), was the Supreme Court's finest hour and came during the "golden era of human rights protection."

Since then the record had not been so good and part of the explanation was failings on the part of the judiciary.

He believed that the provisions of the Constitution could be relied on more without the courts here being prompted by findings by the courts in Europe.

One of the objectives in seeking independence in 1916 was so Ireland could go forth into the world holding its head high as an independent, self-governing nation aspiring to the highest standards. Ireland had done well over the past one hundred years and could do a lot better in the coming hundred, he said.