On the 26th of March the Irish Human Rights and Equality Commission (IHREC) issued a statement confirming that it had been given permission by the Supreme Court to appear as amicus curiae (friend of the court) in the case of DPP v. Dowling.
As the statement noted, the case concerns the criminal prosecution of Mr Dowling for trespass at a restricted area at Shannon airport and, in particular, the extent of the availability of the defences of necessity and lawful excuse in the circumstances of this case.
According to the IHREC, Mr Dowling argues that a judgment of the Supreme Court is needed on the elements of the defence of necessity and lawful excuse and its availability in a case of “direct action”.
The Supreme Court, it was further noted, has agreed that there is in fact very little Irish authority on the subject of the defence of necessity in relation to the charge of trespass and how it might relate to the offence of trespass in this case.
Director of the IHREC Deirdre Malone said the following: “This case raises questions in relation to the interaction between criminal prosecution and the constitutional rights of freedom of expression and assembly in the context of “direct action” and the defence of necessity and lawful excuse. The Commission looks forward to making itself available to assist the Court in its consideration of these important issues.”
The Commission is, of course, entitled to assist the Court on points of law. What is striking is its selective interest in when those points arise.
This, to me at least, is a very interesting comment by Malone in light of the decision by the Government to deploy members of the Defence Forces to, from what we can gather, forcibly disrupt the ‘blockades’ that are taking place at oil refineries and our main transport routes. With respect to the oil refineries the suggestion of unlaw trespass has been strongly suggested by Government and indeed the Gardaí.
The Taoiseach has argued that what is taking place is an act of national sabotage. The Tánaiste has described some elements of the protests as “sinister.”
Now, as the Dowling case deals with constitutional issues around freedom of assembly, you might think that the IHREC would surely be just as quick to try and assist in clarifying whether in fact the ordinary hauliers, farmers, contractors and motorists who are out protesting are also entitled to constitutional and legal protection when practising their right to assembly.
You might think that, but you would be wrong.
To date the IHREC has been, as far as I can tell, absolutely silent on the decision of the Government to deploy the army against its own citizens. Isn’t that extraordinary?
Let us not forget that this is the same IHREC which only weeks ago appeared before the Supreme Court in its first-ever proceedings brought in its own name, arguing that the State had failed to meet the basic needs of unaccommodated international protection applicants.
Now you don’t have to agree with Dowling and his actions, and you don’t have to agree on the issue of accommodation rights for asylum applicants.
But what I am suggesting you notice is the total radio silence from the state’s own human rights agency when it comes to assessing or defending the rights of the fuel protesters, especially when you have the Taoiseach of your own county effectively calling you saboteurs and threats to the state’s economy.
This is not far from the bother that Eamon Gilmore once got into when he levelled accusations of economic treason at Taoiseach Brian Cowen. A statement he went on to retract.
The decision to deploy the army may be proportionate. It may be disproportionate. It may be perfectly consonant with the right of the Government to take such action. It may not.
If it’s not, then surely the Government better prepare for a slew of compensation claims for unlawful confiscation of property. These are all aspects of this issue that a human rights organisation should have some interest in establishing.
Not to put too fine a point on it, but this kind of selective legal outrage from the IHREC is one of the reasons that those outside the rarified air of the NGO ecosystem absolutely despise said NGOs.
The public’s growing contempt for these organisations flows directly from this pattern of prioritising certain victims and certain protests over others.
Of course, the IHREC might at this very moment be drafting a strongly worded condemnation of the decision to deploy the army. Who knows. I just wouldn’t hold my breath waiting for it if I were you.