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Archive for December, 2009

Lithuanian Enquiry into CIA Secret Prisons

December 22, 2009 Leave a comment

A parliamentary enquiry in Lithuania has concluded that the CIA ran two secret prisons in that jurisdiction to which various suspected terrorists were ‘extraordinarily rendered’ in the aftermath of the 11 September 2001 attacks. According to the Irish Times news report the enquiry has found that the detention centres were opened and operated in conjunction with the Lithuanian intelligence agencies and that there was no domestic political approval of them. This adds Lithuania to Poland and Romania as European jurisdictions in which such prisons operated.

This is worrying in a number of respects. First of all there is, of course, the concern that a European jurisdiction allowed for the operation of these ‘ghost prisons’. These prisons were clearly intended to circumvent US and international law. Furthermore, they were designed and operated in a manner that attempted to ensure that the domestic law of the relevant state could not be availed of by detainees in any attempt to secure their liberty. The idea of designing a detention centre that would operate outside of the law is almost certainly to ensure that intelligence officers can use whatever mechanisms they deem appropriate or necessary in order to acquire ‘intelligence’ about the detainees’ alleged activities without the spectre of legal accountability for such actions. It seems unlikely that thoughts at that time were directed towards acquiring evidence that could be used in a court of law—there would, after all, be clear questions of admissibility if sustainable claims could be made that information was acquired in an unconstitutional manner. Rather, the information to be gathered was clearly ‘intelligence’—i.e. designed to be used in counter-terrorism design and operations as opposed to in any prosecutorial process. Read more…

Conway and Mulqueen on Gangland

December 21, 2009 Leave a comment

HrinI blogger Vicky Conway and Michael Mulqueen of UL have recently published “The 2009 Anti-Gangland Package: Ireland’s New Security Blanket?” in the Irish Criminal Law Journal. The introduction to the article gives a flavour of the insightful analysis it offers:

Between January 2009 and the Dáil summer recess, the Irish government introduced six Bills in response to the problem of organised crime, which had already been linked, in media coverage, to the deaths of 15 people that year. In the previous decade multiple Acts and Amendment Acts had attempted to address the problem which, in political and media discourse, appeared to grow since the killings of Veronica Guerin and Det. Garda Gerry McCabe in the summer of 1996. With each year, the government introduced wider powers and tougher laws. The 2009 package of legislative measures represents a significant leap forward in this trend, not least through its scheduling of organised crime offences; this creates a legal requirement for the use of the non-jury Special Criminal Court in any such trials, an unprecedented step for non-paramilitary activity. Many experts and legal practitioners have predicted that at least two of the laws that comprise the package will be challenged in Irish and possibly European courts. In this article we examine the context for the introduction of the 2009 laws and difficulties which emerge from them, both in terms of the rights they potentially breach and their likelihood of success. Of particular concern to us is how the package of measures represents an underlying shift towards viewing gangland crime as a problem of national security – a shift which risks creating a myriad of further problems. Our conclusion is that not only will the package not succeed in reducing gangland crime, by moving the State further into the realm of emergency law, the package places Ireland on a very dangerous precipice for any democratic state committed to human rights.

The ICLJ is available to read on Westlaw IE for those with a subscription.

Mass cards challenge fails

December 18, 2009 Leave a comment

The High Court dismissed yesterday a challenge to s. 99 of the Charities Act 2009, which creates an offence of selling a Mass card “other than pursuant to an arrangement with a recognised person.” A “recognised person” is defined as a bishop, or a provincial of an order of priests recognised by the “Holy Catholic Apostolic and Roman Church.” The provision, giving legal effect to certain discriminations pertaining to clerical status within a particular church, and confining the sale of a religious product  to those authorised by certain authorities within that church, was challenged by a Longford retailer. While the written judgment is not yet available, early media reports have suggested that the ruling turned partly on the fact that the there was no evidence that the sale of pre-signed Mass cards constituted the profession or practice of his religion. More interestingly, McMenamin J. has apparently suggested that the State may justifiably lend its weight to a discrimination of status deriving from within Roman Catholicism. It is unclear, as of yet, whether the Court has dismissed the claim on the basis that the plaintiff, as a retailer, cannot rely on the rights of a hypothetical third party which might be engaged in the practice of religion in issuing an “unauthorised” mass card, or whether it does not believe that the rights of such a party would, in any case, be violated by the state’s buttressing of the internal rules of the church. More detailed analysis will follow once the judgment becomes available.

The UK Supreme Court Dismisses the Jewish Free School Appeal

December 16, 2009 5 comments

A nine-judge panel of the United Kingdom Supreme Court today delivered what the Guardian is describing as ‘the most controversial ruling since the supreme court [sic] was created’. Whilst the Court, in the words of its President Lord Phillips (at [8]), ‘has not welcomed being required to resolve this dispute’, it ruled, in a 259 paragraph judgment, that the Jewish Free School’s (JFS) admissions policy amounted to direct discrimination on the basis of race. Whilst further commentary will undoubtedly follow over the next few days, there follows a brief summary of this decision. Mairead Enright blogged on the Court of Appeal’s decision on this case when the Supreme Court heard the case in October (here and here).

At issue was whether part of the JFS’s policy for choosing between potential pupils in the event of oversubscription (and, as Lord Phillips noted at [5], ‘JFS is an outstanding school. For many years far more children have wished to go there than there have been places in the school’) which gave priority to applicants regarded as “Jewish by birth”. M, a child who applied to the JFS, was denied a place at the school because, in the determination of the Office of the Chief Rabbi of the United Kingdom, M’s mother was not Jewish at the time of M’s birth as her conversion to Judaism had not taken place in an Orthodox synagogue. Read more…

Job Opportunities: IHRC Human Rights Education Project

December 16, 2009 6 comments

The IHRC has advertised for two positions on human rights education:

  • Project Co-Ordinator
  • Assistant Co-ordinator

See www.ihrc.ie for more details.

HUMAN RIGHTS EDUCATION PROJECT

(Funded by Atlantic Philanthropies)

Established under the Human Rights Commission Acts 2000 & 2001, the Irish Human Rights Commission (IHRC) has a wide ranging remit to promote and protect human rights as defined in international agreements to which Ireland is a party and in the Irish Constitution.

The IHRC human rights education project funded by the Atlantic Philanthropies aims to provide targeted human rights education to civil and public servants in the justice sector. The project aims to provide these stakeholders, in the short term, with increased awareness of applicable human rights standards and increased capacity to conduct internal training. The Project will achieve its aims through (1) the provision of targeted human rights education training for certain sectors of the civil and public service (2) the creation of a human rights education handbook for civil and public servants in the ‘justice sector’ and provision of initial training for trainers on the handbook. The duration of the project is 16 months.

The IHRC is now seeking 1 Project Co-ordinator and 1 Assistant Co-ordinator to work with current staff of the IHRC taking direction of IHRC Director of Research, Policy and Promotion, under the authority of the Chief Executive.

PROJECT CO-ORDINATOR

The IHRC is seeking responses from highly qualified candidates interested in implementing this project as part of a project team. Applicants will need to meet the following essential criteria:

  • A degree in law, education, humanities, or the social sciences, or other qualification which is acceptable to the Commission as being at least equivalent to a degree in any of the aforementioned subjects and relevant to the duties of the position
  • A strong knowledge of Irish and international human rights standards and mechanisms
  • Demonstrated project management skills
  • Experience of developing training and educational materials on human rights or related subjects
  • Experience of using participatory training methodologies
  • Experience of preparing, organising and delivering education and training courses on human rights or related subjects
  • Ability to manage one’s own work effectively, to use own initiative and be self-motivated
  • Ability to oversee and to evaluate the work of others
  • Excellent communications and writing skills
  • Excellent interpersonal skills, including the ability to work as part of a team
  • Experience of managing staff
  • Excellent networking skills
  • Sound judgement and integrity
  • At least 8 years satisfactory experience of relevance to the duties associated with the position

ASSISTANT CO-ORDINATOR

The IHRC is also seeking responses from highly qualified candidates interested in the contract of Project Officer. Applicants will need to meet the following essential criteria:

  • a primary degree in education, law, social science or a related discipline
  • Good knowledge of human rights and international law
  • Experience in providing research support in relation to education and training initiatives in human rights related fields
  • Some experience in an education and/or training field related to human rights
  • Strong research, writing and organisational skills
  • Some experience of event management
  • Be a ‘self-starter’ who is enthusiastic about the promotion of human rights and can operate with limited direction / supervision
  • Excellent interpersonal skills, including the ability to work as part of a team
  • Sound judgement and integrity
  • Strong word processing skills and familiarity with the internet

Respondents should have experience relevant to the duties associated with the position.  It is the applicant’s responsibility to provide evidence of how she or he meets these criteria.

Both contracts will be awarded on the basis of a 16 month contract for services.  The successful contractors will not be members of staff of either the IHRC or Atlantic Philanthropies.

Letter of application with comprehensive CV, marked ‘Human Rights Education Project’ to Kirsten Roberts, Director Research Policy and Promotion at info@ihrc.ie by 5 January 2010.

More details can be found by following the below links:

Contract Specification for Project Co-ordinator.doc (58 KB)

Contract Specification for Assistant Co-ordinator.doc (47 KB)

A light at the end of the tunnel for Madgalene Laundries survivors?

December 16, 2009 1 comment

The Irish Times reports that the government will consider new evidence detailing State involvement in the referral of women to Magdalene laundries in the 1960s before it decides whether to provide redress to former inmates.

The decision yesterday by Minister for Education Batt O’Keeffe follows an admission by Department of Justice officials this week that women were transferred following court appearances to a church-run asylum on Sean McDermott Street, Dublin, during the 1960s.

According to a Spokesman for the Minister, “the information now being referred to by the group wasn’t available when the Minister for Education and Science issued his letter on September 4th, 2009,”

Significantly, a Department of Justice spokesman confirmed yesterday they now knew and accepted that a number of women charged with criminal offences were remanded in one Magdalene laundry under arrangements made by the Department of Justice. The spokesman also asserted that a number of women convicted of criminal offences were also given the alternative of going to prison or a Magdalene laundry by the courts.

These revelations are consistent with claims made by Justice for Magdalenes, a group representing survivors, which have previously been discussed on this blog.

Bearing in mind the acknowledgement by the Deparment of Justice that the state did in fact play a role in relation to the referral of women to Magdalene laundries, it seems incumbent on the Minister to revisit his conclusion that former residents are not eligible for compensation from the Residential Institutions Redress Board due to the fact that the state was ‘not complicit’ in referring women to the laundries.

Pre-Implantation Embryos and the Irish Constitution

December 15, 2009 1 comment

As we blogged earlier the Supreme Court today decided the case of Roche v Roche concerning, inter alia, the constitutional status of spare embryos created through IVF treatment but not implanted. The case also had important private law aspects but it is the constitutional issue that is most relevant to us at HRinI. Having now read the judgments in this case I have picked out some of the relevant quotes re the constitutional issue from the various judges. As I suspected earlier, the matter is perhaps not as cut and dried and it at first appeared in the news reports mainly because of some equivocation in the Chief Justice’s judgment although the remaining judgments seem to me on an early reading quite categorical in their finding that pre-implantation embryos do not have constitutional protection.

It is appropriate to begin with the judgment of the Chief Justice which is available here. Following an overview of the moral and ethical dilemmas faced in considering when it might be said that ‘life’ begins, the Chief Justice held that this is essentially a legislative matter as opposed to one of pure constitutional interpretation:

One comes back to the fundamental issue in this case namely whether this Court should consider that the frozen embryo is human life within the meaning of Article 40.3.3.

In the course of the appeal counsel for the appellant acknowledged that the issue is polycentric. That is to say it is an issue which must be viewed from many standpoints, moral, ethical, philosophical, theological and scientific. It is an issue on which engenders passionate views on one side or the other in virtually all disciplines.

I do not consider that it is for a Court of law, faced with the most divergent if most learned views in the discourses available to it from the disciplines referred to, to pronounce on the truth of when human life begins.

Absent a broad consensus on that truth, it is for legislatures in the exercise of their dispositive powers to resolve such issues on the basis of policy choices.

….

…in the context of this case, there is uncertainty or no consensus as to when human life begins. The choice as to how life before birth can be best protected, and therefore the point which in law that protection should be deemed to commence, is a policy choice for the Oireachtas. It is one which falls to be made having taken into account all the factors and strands of thought which it considers material and relevant.

The Courts do not have at its disposal objective criteria to decide this as a justiciable issue….The onus rests in the Oireachtas, to make the initial policy determination so as to define by law when ‘the life of the unborn’ acquires protection. The other alternative is an amendment to the Constitution.

….

Accordingly in my view it has not been established, by the appellant, and it is not a justiciable issue for this Court to decide, that the frozen embryos, constitute “life of the unborn” within the meaning of Article 40.3.3.

I don’t think  CJ’s judgment holds that constitutional protection begins at implantation and that is that. Rather it think it says that we can not be satisfied that the constitutional protection begins pre implantation. Making that decision is not a judicial role. It is a policy matter. He essentially invites the Oireachtas to legislate in this context. However, the CJ’s judgment stands alone in this context. The starkest contrast is perhaps with the judgment of Denham J available here: Read more…