Is Bunreacht Bogroll?

Does anything in the text of the Irish Constitution forbid the State from kidnapping the Irish people? That, faced with the lockdown tyranny, is the question that took us to court last April.

A number of odd things happened in the course of our hearing last Wednesday (20/01/2021) at the Court of Appeal in Dublin, but perhaps the oddest was the way the newly-added Senior Counsel for the State team, Michael Collins SC, went on for at least twenty minutes complaining about something that had not happened. The issue was that Gemma O’Doherty and I, ‘the Appellants in the within case’, as we now describe ourselves all the time, had two days before submitted an affidavit of fresh evidence, outlining up-to-date data and studies concerning multiple aspects of the Covid con, together with a doorstop booklet of exhibits containing, as we say, ‘said’ data and studies. Mr Collins, although responding to the affidavit, which Gemma had gone through for the benefit of the court just an hour before, seemed never to have laid eyes on the doorstop. 

For the guts of half an hour, he droned on about our failure to provide facts or cite studies, how thin, ‘unarguable’ and ‘unstatable’ our case was, how we had made ‘outrageous’ and even ‘appalling’ allegations without substantiating them with evidence, and suchlike huff and puff. 

I suppose it is remotely possible that the State would employ, using taxpayer’s money, a reputedly serious heavy-hitting senior — known for being parachuted in as a trouble-shooter in major and precarious cases — without showing him the evidence he is supposed to be tearing to strips. Given what we have witnessed in this adventure so far, I cannot rule it out. But I have to say that it struck me rather differently: I thought I recognised it immediately as the continuation of the campaign of gaslighting which has been directed by the State and Notice Parties (the Oireachtas and Ceann Comhairle) from the outset — not so much at the bench but at the public mind via the somnambulant and corrupt media, with the aim of putting it about that we just don’t know what we’re doing. 

The High Court judge, Mr Justice Charles Meenan, seemed all too happy to plough this furrow also — and not without success — but is himself the subject of another affidavit lately submitted to the Court of Appeal concerning the matter of his prior commercial entanglement with a member of the State team on behalf of — wait for it — the Houses of the Oireachtas, in the Banking Inquiry of 2015, a matter which in our submission he ought properly have disclosed to the Applicants (guess who?) but did not. This affidavit has now been admitted by the Court of Appeal and goes to supplement our written submissions, which mainly concern what we identify as defects in Meenan J.’s judgement of May 13th last. 

Those written submissions, which are to be considered in addition to the fresh evidence and oral elaboration of these new facts and data, are chiefly concerned with what we argue are egregious breaches of Bunreacht na hÉireann, the Constitution of Ireland, 1937, and amount to about half a dozen key points. 

The most important, in my view, relates to Article 28.3.3°, which is the sole article of the Constitution providing for the declaration of a State of Emergency. You will find this hard to believe, but, upon my solemn oath, the State case is that it did not declare a State of Emergency in March 2020. This, despite the word ‘emergency’ appearing multiple times in the new legislation introduced then, and, moreover, despite these measures having brought the country to a standstill on the basis of a contagious head cold for ten months, and counting.  The reason for what I would call the State’s wholesale casuistry in this matter is rooted, in the first instance, in the fact that Article 28.3.3°  presents it with a radical problem: Although this is the sole article in the Constitution that permits the declaration of an emergency — with or without a capital ‘E’ — it limits the scope of this provision to situations involving ‘war or armed rebellion’, though also extending immunity from judicial scrutiny to such declarations as fall within these criteria. The State claims it is not seeking such immunity, and yet seems most anxious to avoid judicial scrutiny, which — largely thanks to the cravenness and supplication of the legacy media, which have not merely failed to hold authority to account in accordance with their public trust, but have offered themselves as conduits of propaganda on behalf of the wrongdoers — it has thus far managed to do. 

The State, then, claims it is possible to derogate (all) the fundamental rights provisions of the Constitution without invoking Article 20.3.3°. In other words, it claims that the Constitution allows for the suspension of itself in situations not amounting to war or armed rebellion — in effect on an incremental, piecemeal, and yet synchronised basis — provided the Government was at the time sufficiently convinced that such an incursion was necessary. We say no. We say that Article 28.3.3° is not simply a charter of immunity from judicial scrutiny, but also a — dread word! — backstop on such incursions. We say that Article 28.3.3°, because of its documented origins and its interpretation by the courts right into the past decade, stands as a bulwark against anti-constitutional adventurism by State actors.  

To demonstrate this, we outlined the history of the drafting of the present form of that article, dating back to 1939, when the original wording was amended to cover eventualities and exigencies likely to arise in the context of the coming world war, which in Ireland came to be known as ‘The Emergency’. The concern was that the article as it stood was too narrow for the purposes of the emergency then imminent, not appearing to incorporate wars in which the State was not an active participant. Among the matters intensively deliberated upon was the possibility of extending the wording to incorporate forms of emergency other than war or armed rebellion. Despite an amendment to this end being tabled, the option was ruled out, and a minor tweak was effected instead. The idea that there was an unspoken permissive provision of the Constitution allowing for the declaration of other forms of emergency was implicitly rejected in and by that process. 

What is remarkable, studying the period, is the degree of punctiliousness, indeed reverence, that existed among politicians, civil servants, lawyers and judges with regard to the text of the Constitution and its rootedness in the will of the people. Unlike the present gangster breed, the political class of that time sought to do the minimum necessary, and to fence even this minimalism around with safeguards, when facing what turned out to be perhaps the gravest crisis the world had ever seen. 

On the passing of the Emergency Powers Act in 1939, giving effect to the emergency measures permitting the government to suspend the Constitution and govern by regulation, Mr de Valera said that the members of the Oireachtas had ‘conferred on the government powers that they would not dream of conferring except in a grave — a very grave — emergency.’ 

The ‘State of Emergency’ declared in respect of what became known as World War II, which began in 1939 and technically continued in some aspects for many years afterwards, did not remotely extend in scope or effect to comparison with the measures introduced in 2020, even though at the time Ireland was on the margins of a global conflict which in the end had a death toll in excess of 60 million. The provisions of the Emergency Powers Act 1939 included censorship of the press and mail correspondence, under the charge of the Minister for the Co-ordination of Defensive Measures. It was deemed necessary to prevent publication of matter that might undermine the neutrality of the State and to prevent Ireland becoming a clearing house for foreign intelligence. The Act also enabled the government to take control of the economic life of the country under the Minister of Supply.  Rationing of food was introduced under this provision. Internment of those who had committed a crime, or were believed to be about to commit a crime, was permitted, and this provision was used extensively against the IRA. The Emergency Powers Act also provided, under certain circumstances, for a suspension of habeas corpus. An Garda Síochána received extended powers of search and arrest. The powers given to the government by the EPA were exercised by statutory orders termed Emergency Powers Orders (EPOs) made by ministers. Compulsory cultivation of land and queuing for buses were a few headings under which EPOs were made.

But there were far fewer restrictions contained in the 1939 package on the movements or activities of the vast majority of citizens compared to 2020. Shops remained open and no special measures were introduced to control access thereto, or to affect the livelihoods of citizens engaged in normal business. The government did not reach into the family home and impose arbitrary restrictions on the numbers of people permitted to congregate in each other’s homes. There were no restrictions on religious observance.Any curtailment of travel within Ireland was imposed by fuel shortages, or the risk of committing the offence of ‘wasting petrol’, rather than arising directly from regulations. People were free to travel on a visa to the UK. The GAA was able to maintain its All-Ireland fixture lists. There were dances, whist drives, cinema and live concerts. Blackouts were rare. Gas masks were issued to every citizen, but rarely needed. Some men were compelled to attend at work camps to cut turf. The ‘glimmerman’ spied on residents seeking to bypass gas supply restrictions. But, for the most part, the Irish people generally continued to enjoy a high level of personal freedom. A Swiss newspaper observed in 1942: ‘To anyone privileged to leave the warlike atmosphere of England and visit Ireland, which is enjoying a state of peace, it seems as if one is moved into an unreal world. The tempting delicatessen in the shop windows, and above all the peaceful routine and the enjoyment of leisurely gossip remind the visitor of long forgotten times.’

Three months into the 1939 Emergency, addressing a hearing in respect of an application for habeas corpus, one of the country's most senior judges, Mr Justice Gavan Duffy, observed in the course of a judgement: ‘There is no provision enabling the Oireachtas or the Government to disregard the Constitution in any emergency short of war or armed rebellion.’ This, in other words, was the worst the establishment of the time believed it could ever be permitted to get.

This view was upheld, as outlined in our submissions, as recently as 2011 by the late, great Mr Justice Adrian Hardiman in his Judgement on the case of Dellway Invesments & Ors v. NAMA & Ors [2011] April 12th 2011: 

‘Our Constitution makes specific provision for “war or armed rebellion”. It is not for the Courts to extend those provisions to a situation which is not one of war or armed rebellion. That would require a decision of the people in a referendum, if they thought it necessary or prudent to confer such unreviewable powers on the State. The cry of “emergency” is an intoxicating one, producing an exhilarating freedom from the need to consider the rights of others and productive of a desire to repeat it again and again.’

That, in essence, is the central plank of our appeal. But there are several other key points that support and feed into this point. 

One of these relates to the issue of proportionality, i.e. the relationship between the justification for and burden imposed by the measures said to be for the purposes of overcoming a pandemic. Linking this to the question of the declaration (or non-declaration) of a state of emergency is a sometimes controversial question concerning the meaning of key, repeated words in the text of the Fundamental Rights section of the Constitution, essentially Articles 40 to 44 inclusive, especially ‘indefeasible’, ‘inalienable’, ‘inviolable’ and ‘imprescriptible’. These words have come under sustained attack in recent years, not merely from politicians and ideological agitators for whom their apparently absolute connotations pose many obstacles to their attempts to burglarise the rights and freedoms of the people, but also from the judicial bench itself, on to which more than a few of the aforementioned agitators appear to have found their way. 

These are hard-centred words. They are not utterly, absolute — they allow for minor derogation in narrow and short-term circumstances — but, having their provenance in natural law, they leave limited scope for wiggling. ‘Inalienable’ means ‘cannot be given away’; ‘impresciptible’ means ‘incapable of being lost by the passage of time’; ‘inviolable’ means ‘immune from interference or incursion’; and ‘indefeasible’ means ‘not capable of being annulled or voided or undone’. 

The State claims, in effect, that these words mean next to nothing, that the use of words like ‘emergency’ and ‘pandemic’ is sufficient to unseat and disable them. We say no. And so also appear to have two senior members of the current Supreme Court, Mr Justice McKechnie and Mr Justice O’Donnell. In judgements published last September in the case of Gorry & Anor v. The Minister for Justice & Equality & Ors, the two judges went a long way towards making our case on the lockdown issue, though the particular case they were addressing related to a family- and immigration-related matter. Both judges appeared to be by implication addressing the long saga of incursion on the meanings within the Constitution of the words referred to above, clearly concluding that vaguer concepts such as the ‘common good’ are not sufficient to overcome the all but sacrosanct nature of certain individual rights and freedoms. 

McKechnie J. said: 

‘It is readily apparent that by the use of these terms the drafters intended to secure for the rights of the family the maximum degree of protection available; they are not absolute rights, of course, but the stridency of the language is notable, and this must be taken into account in interpreting the Article. Moreover, merely because some of these words are rhetorical or descriptive in nature does not mean that the Court should be blind to those words, or interpret the provision as though they were not present in it.’

O’Donnell J. took an even sterner line, declaring that rights protected by such words can only be subject to restriction if there is ‘compelling justification’. 

More or less echoing McKechnie J., he said: 

‘It is . . . strange to speak of individual rights (particularly those considered indefeasible or entitled to the highest level of protection) being limited (and, in truth, overridden) by matters as general as those identified such as the “common good” and “the integrity of the immigration process”. Individual rights have value precisely because they are not subordinated to the interests of others. Second, it is unusual for individual rights to be overridden by such vague and general considerations . . . Furthermore, it is not normally enough to say that, while there is an interference with rights, the common good or the integrity of the immigration or social welfare systems are valid countervailing considerations.’

And later:

‘I also respectfully disagree that the words in Article 41, and in particular the words “inalienable” and ‘imprescriptible”, should not be given their ordinary and natural meaning.’

These points, and others made by the two judges, can be referred to in support of what we have been saying from the outset about the disproportionate and unjustified imposition of the lockdown measures, and their unwarranted encroachment on the most fundamental rights and freedoms of the people. Essentially, our argument is that nothing justifies such wholesale and radical encroachment on rights so emphatically appendaged — outside of the invocation of Article 28.3.3°, which, as stated, requires the country to be at war or subject to an insurrection of some kind.

We submitted that the interregnum Government, in office in March 2020, did not extend sufficient weight to balancing the individual and family rights of citizens with the concept ‘the common good’ being advanced as the justification for the derogations of the Constitution then imposed. We submitted that the Court had been presented with no persuasive evidence that a balancing exercise between the common good and the ‘indefeasible’ rights being invaded in its name had been engaged in — no evidence of a costs/benefits analysis, no calculus of the economic and human costs of the lockdown, no estimates of the likely or probable casualties and deaths arising from the proposed measures themselves, in short no due diligence of any kind. We submitted further that no consideration was given to whether the restriction of rights and freedoms was more than strictly necessary to achieve the stated objectives of the interregnum government, and that no credible or sincere measures were put in place to ensure that the restrictive measures would be terminated at the earliest possible time. We submitted, in sum, that the lockdown measures passed by the Oireachtas on March 20th, 2020, and signed into law by the President that same day, amounted to an unwarranted infringement on the fundamental rights of human beings and citizens, in a manner not counterbalanced by any clear or substantiated view of any proportionately urgent necessity of the common good. Either the crisis facing the country was of such gravity as to necessitate a hurried amendment to the Constitution to render Article 28.3.3 capable of suspending constitutional protections in light of the warnings being communicated to the interregnum government, or any measures introduced to deal with the situation were required to respect the demarcations laid down by the Constitution to preserve the framework of the society and enable its constituent elements to function in accordance with the balances clearly set down in the text of Bunreacht na Éireann. It was not open to the government to do what it did — in effect sweeping aside, in unprecedented fashion, virtually every protection enshrined or recognised in the Constitution, and leaving the people of Ireland to the tender mercies of a democratically rejected government, a deeply unpopular and discredited Minister for Health, as well as State bureaucrats and individual Garda officers on the front lines, and moreover reducing the Constitution of Ireland to a mere ornament of our justice system. 

We produced voluminous evidence that the crisis claimed by the interregnum government to exist was grossly over-egged, being exaggerated by spurious virus detection tests, wholesale mis-certification of deaths and incessant misinformation, propaganda, and terrorising of the population. The decision to legislate was based either without proper consideration of the facts and the relevant law, or, at best, made on the basis of information already emerging as dubious last March — and since revealed to be deeply flawed, inaccurate, embroidered, manipulated and bearing no relationship to the scale of the problem it purported to address — and so was in every respect utterly unbalanced, unreasonable and disproportionate.

There was one other matter that was central to the constitutional aspects of our case: the absolutely unrelated and arbitrary nature of the lockdown regulations in the context of the ‘parent legislation’, the Health Act of 1947, upon the foundations of which they were ostensibly constructed. Our case here was that the measures/regulations were so out of keeping with the tenor and spirit of that legislation as to be ultra vires the 1947 Act, which is to say ‘beyond the reach of its powers and therefore invalid’.  

The chief purpose of the 1947 Act is to prevent the ‘spread’ of communicable disease, but it confines itself in this objective to measures which impinge upon the infected, and those reasonably suspected of being infected. It also provides, in some detail, for the treatment of children who may be infected. Its provisions cannot logically apply to anyone other than a person who has been diagnosed by a registered medical practitioner as having the disease at issue, or being a ‘probable source of infection’ due to having associated with someone diagnosed as having the disease. No-one else is capable of ‘spreading’ the disease. 

In court, I described the Act as being characterised by ‘tenderness’, which I compared unfavourably with the authoritarianism explicit in its 2020 misappropriation. There is nothing in the 1947 Act to permit the locking up of healthy people, the closure of the entire country, the issuing of fines to people for carrying out commonplace, wholesome and lawful human activities, or the mandatory wearing of useless and degrading face muzzles.

What I hoped was a helpful analogy I put to the court was that of an electrical appliance (the lockdown regulations) plugged into a junction box (the 2020 amendments to the 1947 Act), which is shoddily connected by an extension lead to the power source represented by the original Act. Because of the disparity between the different elements, the device at the end of this dodgy circuitry amounts to a serous hazard to public safety, serenity and freedoms.

There were several other connected issues, all converging on the question of the capacity of the Constitution to continue in these circumstances to do what it is supposed to do: protect the rights of the people from encroachment by the State. Under Bunreacht na hÉireann, the State does not have proprietorial claims on the rights and freedoms of the people, which come to us from the Holy Trinity, whether you believe (in) it or not. The State may do nothing except that which the people expressly permit; the people may do as they please except whatever they themselves decide expressly to forbid. 

One vital link in this circuitry is the right of public access to the courts, which has been denied in many courtrooms around Ireland over the past ten months. The issue here is that Article 34.1 of the Constitution insists that justice must be conducted in public, which is to say that the courtroom doors must be kept open so that those citizens wishing to attend may do so. This principle is currently being abused on a wholesale basis with a view to doing away with it altogether. In our case, the State and Oireachtas came up with a farrago of specious arguments on this point, which I believe we have managed to dispose of. 

Another central issue is the unprecedented series of irregularities that attended the passage of the Covid legislative package last March: the curtailing of Oireachtas deliberations — both numerically and with regard to due process — in pushing through the most radical set of restrictions introduced in the entire history of independent Ireland, without meaningful debate, without votes, and without any of those with the power to challenge them — the Opposition, the President, the media, for starters — as much as opening their beaks to protest. There was also the general sense of chaos that accompanied these events: the fact that the interregnum government pushing these unprecedented measure had just been booted out of office in an election; the fact that three of the ministers sitting around the cabinet table at which these tyrannies were dreamt up had lately lost their Dáil seats; the fact that the laws were passed by an incoming Dáil and a dubiously constituted outgoing Seanad, and so on and on. In a certain light, it is possible to see the wholesale disregard for procedure, for democratic debate, for constitutional values, for public accountability of any kind, as of a piece with the consequences to be observed on the highways and sidewalks of Ireland over ensuing months, a kind of matching set of perverted mutual mirrorings of contempt and hostility towards the citizens of Ireland: on the one hand an appearance of irregularity — an expedient short-cut here, a blind eye there —  on the other, a serious and possibly directly consequential abrogation of a fundamental right; on the one hand the utter disdain of our political class for the processes and procedures laid down to protect our democracy; on the other the cavalier manner in which An Garda Siochána has seized the opportunity to grind its boots on the faces of the people.

Part of our case is that the drafters of the Constitution could not have intended such chaos to reign, and such facility to be afforded to would-be tyrants in usurping the rights and freedoms of the people. It is my personal view that the drafters did indeed insert into the text of the Constitution measures which, if correctly interpreted, would have served to protect the people’s interests, but that these have to some extent been perverted by spurious Standing Orders and wrongheaded court judgements over the decades. For example, we do not believe it is either tolerable or necessary that the period of interregnum between democratically-elected (technically, anyway) governments ought to stretch to 139 days, as it did last spring; in fact, by the interpretations to be found in the case law, there is no temporal limit on the Oireachtas to resolve such a stalemate or return to the people for clarification. This cannot have been the drafters’ intention.

The situation is not beyond reclamation, and we have laid lightly down for the assistance of the court a number of possible areas of exploration in this regard. We did so with appropriate humility, as laypersons, litigants-in-person, citizens called to the cause of protecting the public interest, seeking only leave to participate in a public process of verification in front of an objective judge.

Our case against the Minister and Attorney General is analogous to, if not in substance, an application into the legality of the detention of a person relating to Article 40.4.1°, which provides that ‘No citizen shall be deprived of his personal liberty save in accordance with law’. We brought it as expeditiously as possible on the grounds that the State had unlawfully imprisoned us in our homes and taken away or fundamentally curtailed our Constitutional rights to freedom of association and assembly, freedom to travel, right to family life, right to manifest our religion etc. etc., and so the burden of proof at the leave stage lay, in our submission, with the State, just as is required by Article 40.4 of the Constitution, to certify in writing the grounds of our detention, so that the High Court should, after giving the person in whose custody we were detained an opportunity of justifying the detention, order our release from such detention unless satisfied that we were being detained in accordance with the law. In effect, the entire population was — is — being held captive, as though kidnapped by the State. It is not up to us to demonstrate that they have overreached themselves: a blind man on a blind galloping horse could see that. 

Are we going to win? The alternative is unthinkable, and not just for us. This, rather than some personal hurt or affront, is what truly disgusts me about the manner in which the media have treated, or mistreated, our challenge to date. 

For, if the case put forward by the State and the Oireachtas in this case were to be given the green light by the courts, this would mean that the rights and freedoms hitherto presumed to be contained, acknowledged and recognised in the Constitution of Ireland, and presumed for the past 84 years to have had the meanings capable of being ascribed to them according to ordinary and everyday interpretations of words in the Irish and English languages, were null and void. It would mean that the guarantees of these rights and freedoms laid lovingly down by our forefathers in the constitutional text were actually not the assertions of rights or freedoms at all but coded messages to would-be tyrants that, in constitutional fact, the citizens of Ireland are to be regarded by those who manage to seize some instrumental power over them as mere serfs and chattels, to be imprisoned at the whim of authority.  

If the State’s case is indeed to pass muster, this question will immediately arise: What, in fact, does the Constitution of Ireland forbid, protect, prevent or restrict? Of what worth are its assurances? What, if anything, does it allow the people to do without permission of the State, the government, the force publique? If such previously understood fundamental rights and freedoms of Irish citizens as have been suspended in the present crisis can be so suspended without recourse to the sole provision in the Constitution allowing for the declaration of a State of Emergency, what therefore remains of the ordinary meanings the text of our Constitution appears to express, insinuate or imply? What is the difference between this Constitution and no Constitution? In short: is Bunreacht bogroll? Has it always been? Has it lain in plain sight as a charter for tyrannous despotism, all this time?

What, then, is the purpose of the constitutional text, the bound copies they sometimes sell in the better bookshops, the courts enjoined to protect it, the oath taken by the President to defend it? What is the purpose of An Garda Siochána, were it to be made clear that its role is no longer to uphold the ostensible meanings long assumed to be contained in the text of the Constitution? What is the point of the solemn declaration made by those who are inducted to serve the Irish people as ordained members of the force publique? — those authorised to exercise State-licensed coercion against the citizen in rare and highly qualified circumstances? Are the individuals and entities comprising the Irish force publique now merely the unregulated wardens, accusers and floggers of the people, the tax collectors and security details of politicians and other State actors? 

And, what  — were the Court of Appeal, and subsequently the Supreme Court, to agree with the State’s submissions in this case of ours — might henceforth prevent or restrict any group or individual seeking to curtail even further the rights and freedoms of citizens, on achieving governmental office by means which may or may not adhere or be subject to the ostensible meanings of Bunreacht na hÉireann, from locking every citizen of Ireland into a gulag  — or perhaps, to keep things fully up to the minute, a laogai — and throwing away the key?