by John William O’Sullivan
On May 13th 2020, Mr Justice Charles Francis Meenan refused permission for John Waters and Gemma O’Doherty to challenge the emergency laws brought into effect by the Irish government in response to the COVID-19 outbreak.
This judgement is enormously important for two reasons: first, it shows that some members of the Irish judiciary do not understand the gravity of what they are dealing with; and second, it shows that the Irish courts are placing the authority of a caretaker government over the citizens’ ability to assert their constitutionally-protected rights. We should carefully analyse these two trends, as they seem almost certain to arise in court-rooms across the Western world in the coming weeks and months.
The separation of powers in constitutional republics is meant to ensure that one branch does not overstep its bounds and encroach on the freedom of a people. This much, everyone is taught in civics class. Yet the ruling by Justice Meenan does not read like he has taken it seriously.
Justice Meenan’s argument against Waters’ and O’Doherty’s case is rather simple: he claims they must prove that the Irish government’s actions have been “disproportionate” in response to the COVID-19 pandemic. He claims, citing previous cases, that constitutional rights are not absolute and that if a government acts against them to deal with a threat “proportionately” then the government is allowed to trample on those constitutional rights.
The problem with this argument is that it implicitly sides with government action as against the constitution. The government is assumed to be in the right and the onus is on the citizen to prove not that the government’s actions are unconstitutional, but that they are “disproportionate” given the threat of the pandemic relative to the constitutionally-protected rights they override.
Yet the function of the courts in a constitutional republic is to keep the government in check, not the constitution – much less the citizenry. The government, having access to plenty of legal resources, should be well able to defend itself against constitutional challenges so long as it is acting legally. Citizens, like Waters and O’ Doherty, do not have access to these resources and so the instinct of a court in a functional constitutional republic should be to side with them and place the onus on the government to prove the constitutionality of its actions.
Setting a very high legal bar – that is, for citizens to have to prove that the government has acted “disproportionately” rather than simply to highlight constitutional violations and start a legal conversation – effectively bars the citizenry from challenging their government. It renders the courts effectively subordinate to the legislature in that the means by which the courts’ oversight functions are set in motion are so difficult to operate that only people with very high levels of legal expertise can do so. If there is groupthink within the legal profession or if the cursus honorum is set up to disincentivize challenges to government authority, the legislature will be free to do what it wants.
The fact that Justice Meenan does not understand the gravity of the case in front of him is shown in the previous cases he cites to back up his position. For example, he cites the cases Mohan v. Ireland and Cahill v. Sutton. The first case relates to the constitutionality of state funding of political parties based on gender quotas. The second relates to the statute of limitations on personal injury claims.
These are workaday issues. A general quarantine of society that is destroying livelihoods and standards of living for every citizen in Ireland is not a workaday issue. Would Justice Meenan invoke these sorts of workaday cases if the legislature had deployed murder gangs to take out political rivals? I am not trying to be hyperbolic, but merely to ask at what point a High Court judge recognizes that the constitutional norms under threat are far more serious than gender quotas and personal injury claims.
In his ruling Justice Meenan notes that one of the applicants “gave unsubstantiated opinions, speeches [and] engaged in empty rhetoric to draw an historical parallel with Nazi Germany”. But anyone with a more global outlook and a better historical perspective would see that parallels to Nazi Germany are, in this context, quite appropriate. Not because anyone is insinuating that the Irish government is moving to murder the Jews, but because the way the Nazis rose to power was quite like what is currently happening in Ireland and elsewhere in the world.
In 1933, Hitler did not yet have full power over the country; but after the Reichstag fire, he convinced President von Hindenburg to pass an emergency decree to suspend civil liberties. The German jurist Carl Schmitt would later theorise how the rise of centralized power was intimately connected to a declaration of a state of emergency that would eventually evolve into a “state of exception” enabling the sovereign to transcend the rule of law in the name of the public good.
Justice Meenan’s ruling had all the hallmarks of being a product of a well-trained legal mind, but it lacked the historical perspective needed to defend constitutional rights in a time of strife. If anything in the ruling lacked proportionality, it was the court’s inability to recognize the sheer weight and importance of the case in front of them.
The initial Irish High Court case is ominous. It shows that at least some members of the judiciary do not see the gravity of what is unfolding in the Western response to the COVID-19 pandemic. It also shows that those same members of the judiciary are much more likely to side with the legislature than they are with the constitution and the citizenry – placing enormous burdens on the latter, while trusting that the former is acting in good faith.
We will likely see this response repeated in areas of the West where the current elite have become insular and entrenched, as they have in Ireland. This does not make legal action against the quarantine impossible, but it does make it difficult. What the Irish High Court ruling has shown is that those of us who are terrified by government overreach in response to the pandemic are going to have to work very hard indeed to make our case. The courts are not on our side.