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Oligarchy and the 26-County Constitution

15/05/08

Last week the Supreme Court of the 26-County State ruled in favour of Bertie Ahern on three counts against the Mahon tribunal, which has been investigating the financial affairs of the former 26-County premier.

It ruled that, first, Ahern could not be held to account by the tribunal for remarks made in Leinster House that contradicted his evidence to said tribunal. Second, that documents relating to advice given to Ahern concerning the transactions under scrutiny did not have to be released into the public domain. The third issue, which the tribunal conceded, concerned Ahern’s right to view the calculations used by the tribunal to arrive at the sterling amounts estimated to have been given to him.

The right invoked to prevent Ahern being held to account for the lies he pronounced in Leinster House is that of Article 15.13 of the constitution which states that: “The members of each House of the Oireachtas [sic]…shall not, in respect of any utterance in either House, be held amenable [i.e. accountable] to any court or any authority other than the House itself.”

Such a ‘right’ is rooted not in the history of the Irish people but in the British constitution, which holds that ‘Parliament’ is the highest authority in the land and it is this very same ‘right’ that unionist politicians so often invoke to slander Irish Republicans at Westminster. They refer to it as ‘Parliamentary privilege’. A privilege, that is, of those who rule to accuse the ruled or to defend themselves against the truth known and lived by the ruled.

The history of the Irish people is rooted in a struggle to make accountable to those who have ruled them either by outright force or consent. It is not the dialogue between those who are in a position of power that forms the basis of Irish democracy (or any so-called constitution that ‘gives’ Irish people their rights), but rather the dialogue amongst the Irish people themselves. The Republic was proclaimed not in any Parliament or assembly, but on the streets of Dublin.

Any constitution which apes that of the British class system is not only unrepresentative of the Irish Republic but indeed contradicts its very foundations. It is no wonder then that those who benefit from such a document are those who perpetuate the class system introduced by the British government in Ireland.

This can clearly be seen in the verdict of the Supreme Court judges who remarked without a blush that the Mahon tribunal was not permitted to suggest that the contradictions between Ahern’s testimony to the tribunal and statements made in Leinster House indicated that he was being untruthful. Rather it was left to the “court of public opinion” to make such a judgement. However, even if such a court existed, wherein would lie its power? How can the “public” punish any wrongdoer coming before it? Put simply, it can’t.

Thus not only does Ahern ape the British in his use of a constitution that privileges the privileged, but so too do the Supreme Court judges recognise the legitimacy of the principle of immunity for those of wealth and power. This is further emphasized by the ruling on the second issue before the court, namely, the (attempted) release of documents relating to advice given to Ahern.

To defend himself against the release of said documents (150 pages in all), Ahern availed himself of the right to one’s ‘good name’. This right was pronounced by the Supreme Court of the 26-Counties in 1971 during a case brought against the brother of the notoriously corrupt Charles Haughey. Essentially, it states that it is possible to prevent the admission to the court of documents relating to advice given to the defendant if their admission could damage the ‘good name’ of those under scrutiny.

The 26-County Supreme Court ruled that although the Mahon tribunal was not constituted to administer justice (i.e. it did not possess a prosecutory function) and so was unable to impose a penalty on Ahern, it was still functioning in an adjudicative manner, so would pronounce its judgement which could have an effect on Ahern’s reputation. This then means that certain documents that would be prejudicial against Ahern’s ‘good name’ are rendered inadmissible and Ahern’s ‘good name’ is left intact.

It is clear however, both in Ireland and abroad, that Ahern’s reputation is in tatters and with it the reputation of the political and legal institutions of the 26-County State. The absence of democracy is tangible and the necessity of real de-colonisation becomes ever more pressing.

Again it becomes clear that the 26-County constitution protects the privileges of those who can afford to have a ‘good name’ while those who come to the 26-County state without the correct papers spend days in prison and special branch officers collect files on those who wish to build a truly democratic Republic free from the vestiges of the English class system.

As Tommy Mc Kearney said in Arbour Hill on the anniversary of James Connolly’s execution, this is not the Republic, it is an oligarchy.

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