The Gardaí are struggling to walk the fine line as a result of the emergency regulations enacted by the Government. On the one hand, they are reassuring the public that resorting to arrest and sanction to deter people from breaking the restrictions on movement would be a last recourse and the hope would be that compliance will continue without coercion, while on the other they risk over-extending their remit with popular support for restrictions at the current time.
Commissioner Harris recently stated “If people see something that is of concern to them, which they think is something where there is a risk of the illness being spread on, a further vector for the illness, they should let us know so that we can act, arrive there, deal with the situation and hopefully resolve it.”
This sounds reasonable in many respects, given the extraordinary situation we are in. It appears simply a concern for minimising the spread of the virus and saving lives. Undoubtedly, the Commissioner’s words are well intentioned, but what he says is not necessarily related to the law. He is asking people to report something that is of concern to them and the Gardaí will come and resolve it. He isn’t relating to the law or legality of an action, but to an interpretation of an observer.
At the present time, people are worried and it may be sensible to request people to contact them: but is that the role of the Gardaí? Is it an over-reaching interpretation of their responsibilities – but also reinforcing the expectation of the public – under the law at this time of crisis? Is it asking neighbours to report on each other? Not really, but there is a need to be cautious. There is a role for the police, and there is a role for community. Many do not like leaving the role of community policing of behaviour to ‘community’ because it feels too arbitrary, yet the whole idea of expecting the Gardaí to resolve issues outside the law is intrinsically undermining to the notion of community. It undermines trust. It undermines accountability to our neighbours, and pushes social engagement from the sphere of community into the realm of the law, eliminating dialogue and human interaction.
I worked for three years in a communist state, and the impact of government mandated reporting on fellow citizen’s is clear. A saying arose: ‘Two’s company; three’s a report waiting to happen’.
We live in a liberal democracy, where freedoms and liberties are underpinned by the rule of law, and there are certain freedoms that are protected by, and from, the rule of law, except in extraordinary circumstances. These liberties, often called civil liberties or human rights, can be found in different form, but the easiest reference is the Universal Declaration of Human Rights (UDHR). This and the UN Covenant on Civil and Political Rights (UNCPR), as well as the European Court of Human Rights, give us a flavour of what these freedoms are – but often we forget the caveats that go with them:
The UNCPR states that “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”
There are a few non-derogable freedoms – such as prohibition of torture, slavery, and being found guilty of a crime where there is no law forbidding it – the law has to be predictable.
One of the articles that can be taken away in times of emergency is:
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
A liberal democracy seeks to protect freedoms and liberties, in particular to protect the rights and freedoms of minorities when there are at risk from the tyranny of a majority. Because democracy can be tyrannical. Of course, we are not facing tyranny right now. But there is reason to be cautious.
The current situation has involved a severe restriction of freedoms – freedom of movement, freedom of association, freedom of employment de facto, and the Gardaí have been granted extraordinary powers for now, in order to deal with the emergency.
My personal view is that these are necessary and helpful right now.
But my view on their necessity is not what should be deciding factor. Nor should it be the deciding factor even if necessity is deemed the majority preference – because there are some who may disagree and whose rights are curtailed for the sake of dealing with the emergency. These are the minority whose rights are designed to be protected by human rights and civil liberties. The vocal majority cannot impose their preference arbitrarily. So far, Ireland has demonstrated admirable cohesiveness in the face of the pandemic. Even the vast majority of those who do not agree with all the restrictions are complying with them for both the common good and respecting the will of the majority and the democratic responsibilities of the government. But this should not be taken for granted, or assumed that it will endure indefinitely. For this reason, we need to be cautious.
We need to be cautious that the Gardaí do not lend to the impression that they have unlimited powers at this time that extend beyond the powers granted to them. We need to be cautious that judges do not over-reach their powers at the current time in order to send a message as seemed to the case in Sligo where a woman was jailed for 28 days for coughing in the face of a member of An Garda Síochana. It was abhorrent to do such a thing. Was it against the law? When coughing is considered as assault, as it has been interpreted, then the law is broken. The question of this interpretation is a subject for another time, and the argument against it right now is a little harder to make. However, the concern is that the judge in question determined that “in the present context” he would “deal with it severely” and that “a message must be sent out” that the Gardaí and the public must be protected. This is problematic and a cause for concern where a judge feels the need to make a political and public statement in place of the law and the Government, as well as feeling the current emergency situation required handing out a more severe sentence than normal. For this reason, there is a need to be cautious.
As John McGuirk pointed out previously, the common understanding of the law – related in that instance to the presumption of innocence – is being increasingly undermined. The current government in its vocal support in seeking to ban prayer vigils at abortion locations had already begun to undermine liberties that are being threatened by a vocal minority, while the consultation, as well as associated commentary, on hate speech, is similarly threatening a fundamental freedom for the preference of opinion.
An earlier statement by Simon Harris where he warned that publicans ignoring public health advice to close their doors could face problems renewing their licences in the future is also problematic. He warned: “We will remember those who undermined the health and well-being of our people when it comes to renewing licences … We will never forget those who risked the health of our people.” While reflecting the mood of the majority, the publicans were not contravening a law and the threat to remember their non-breaking of law in future should not be acceptable from a Minister. Licenses are granted and revoked under the law, not out of spite or malice, however popular the sentiment may have been at the time.
Democratic freedom is not something that was easily won over history and requires vigilance in protecting it. The old adage of not agreeing with what you say, but fighting to protect your right to say it, is especially relevant now. The same goes for the protection of other liberties in a time of emergency. As a public, we may not agree with someone’s decision to go out for a walk, but we should be vocal in demanding that the Gardaí not overstep what they are mandated by the law to do, and that judges do not set themselves up as lawmakers in deciding what or who needs to be dealt with severely, whether we think they deserve it or not. The sledgehammer of the law cannot be the answer to every disagreement. Sometimes reasonable people disagree vehemently and unreasonably on what scientists cannot agree on.
We are not living in a police state right now but we are living in a time of emergency. There are those who question the appropriateness of the restrictions, and they are entitled to question them. They should be encouraged to question them so long as they do not promote others to break the law. Questioning leads to dialogue and greater understanding. Some who feel that they are omnipotently correct often feel that questioning their view is tantamount to fake news. This is dangerous as it risks that better options may not be found. Not too long ago, freedom of movement was sacrosanct in the EU and anyone who questioned it was hounded, even as the virus spread. Now, restrictions on movement are sacrosanct. The discussion on facemasks on social media descends into vitriol and one-upmanship
There is a danger that the time of emergency can extend longer than needed and that the understanding of the law can become blurred as people become habituated to a nanny, if not a police, state. The tensions between freedoms and the common good require a careful balancing act, and are often only maintained through healthy dialogue and a type of civic republicanism that is robust but respectful and open. The use of emergency powers need to be used with restraint and should be clearly defined which is not always the case in the current time. The Garda Commissioner said that the Gardaí have been seeing people leave their homes for non-essential reasons but this, for many, is subjective. Delivering Easter eggs is not an essential journey we are told, but going to the shop to buy them can be seen as such.
With many government failed commitments in terms of personal protective equipment availability, testing capacity, and poor decisions to allow travel to Cheltenham and not restricting flights from Italy, as well as the ill-advised decision to continue to allow visiting to nursing homes, it is important that virtue signalling by the Government in the placing of ever increasing restriction, exhorting people to report on each other, does not replace proper introspection nor be used as a cover to distract from where genuine failures of transmission control have occurred. To date, there has been limited media scrutiny of the government response to date – primarily because it was difficult to evaluate in the face of such a looming and unknown threat.
Restriction of civil liberties needs to go hand-in-hand with the proper management of the crisis by leadership. Patience will run out if it starts to feel that restrictions are continuing because of government mismanagement in other areas such as the protection of health care workers and ensuring availability of PPE
It is now time for the Government to start to inform the people what are the conditions that they see the state of emergency being relaxed. It is understandable that initially this was not possible as the need to ‘flatten the curve’ but also to delay it, was paramount as there was genuine concern that the virus would overwhelm the health system and that space was needed to get the necessary hospital, testing, tracing and treatment structures in place to manage the spread. Now that a month has passed since the initial restrictions were put in place there should be some level of predictability as to how the epidemic will play out.
Dr Tony Holohan has hinted that modelling is getting much more accurate and that there is predictability on the shape of the curve. At the same time, there is predictability on the capacity of the health service, the timelines on the plans being put in place, logistics pipelines, so within reason, the Government should be able to tell us where and when the peak of the curve will meet capacity and when they expect to be able to ease restrictions and to what extent. Uncertainty needs to be removed as soon as possible. This need not be in the form of announcing a date for easing restrictions, but to state clearly what are the conditions that will allow this to happen, and to provide the public with the information to understand how we, as a populace, are progressing toward that point. This will allow for accountability in the state of emergency, transparency in decision making, and remove the potential for us to gradually slip into what may feel like a police state.
Dualta Roughneen writes from Dublin