Sunday, July 16, 2006


At least they can safely pass a law to throw Enda Kenny in jail now

(For the blissfully uninformed: Enda Kenny).

There's very little public discussion and debate, outside the legal columns, of Supreme Court judgements in Ireland, certainly compared to in the US. Vincent Browne, one of the few prominent columnists (not surprisingly, he's also a barrister) to discuss such matters regularly, makes a fair point today.

Non-Irish readers (and Irish readers can safely skip this paragraph) may not know that there was a splendid panic here recently when the Court found that a 1935 law describing the offence of statutory rape was unconstitutional since it didn't allow for the possibility that someone could make an honest mistake about what age their sexual partner was. This led to the brief release of one statutory rapist (only about 6 months before he was due to be released, but that didn't make the headlines) and others seemed set to be freed as well. But then, hey presto, the Supreme Court decided that their finding of unconstitutionality was not to be retroactively implemented, thus returning "Mr A" (hint to Mr A - change that name, man, it gives a sinister impression, which is definitely not what you need in your situation!) to prison (hurrah!) for an offence that no longer exists.

Now (and welcome back my fellow Irishmen and women!), obviously enough, sympathy is rather thin on the ground for this "A" fellow, who had sex with the twelve year old daughter of a friend (hence no question of an honest mistake) after getting her drunk. And it would indeed be unreasonable to apply all court judgements retroactively, ruat coelum and all that.

But the Court now appears to have decided that retroactivity should almost never apply - it should be a rare exception. So the state can now, in theory, throw people in jail on the basis of unconstitutional laws - already existing, or yet to be made - and expect the Supreme Court to back them up. Presumably such people need not all be as repulsive as "Mr A".

Browne concludes:
There is something very serious here, if my contention is correct. It would mean that the Supreme Court was playing around with the law to fit the circumstances.And one of the safeguards we supposedly have of our liberties is that the Supreme Court will always stand by the law, at all times, irrespective of how unpopular or how difficult.
This seems like the kind of thing that deserves more discussion. There'd more fuss about it if it happened in America, that's for sure.

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