Cassandra Voices

Author: David Langwallner

  • The Qualities Needed in a Judge

    The task of ascertaining essential qualities required to be a judge is necessary for the preservation of a functioning democracy. Any state demands gatekeepers of independence and probity, and leadership of the just and the wise. Importantly, the qualities that make for a good judge do not necessarily align with the skills of a successful advocate.

    First and foremost, judicial appointments must be transparent and non-political. Peer selection may bring effective appointments, but often cronyism and tribal affiliation leads to the selection of judges lacking independence, and even ensnared by vested interests. Crucially, a judge is not a servant of the state but the Rule of Law.

    The judge who bends over backwards to manipulate doctrine to serve the interests of his paymasters in government is no longer a true judge. The judge who does not approach each case with an open mind also dishonours his role. The judge who protects the state, no matter what its malfeasance, is unjudicial and even subversive.

    A first recommendation is that judges should neither be appointed by politicians, nor elected as in the U.S.. Alas even supposedly independent appointment boards are often stacked with the ‘yes’ men of the state, which is another stumbling block to the appointment of truly independent judges. To preserve and promote independence those who select judges must also themselves be independent.

    Secondly, the qualities of the advocate and judge are quite distinct. In Ireland at least, there is far too much veneration of successful barristers, which leads to the assumption that their abilities are those required of a judge. Sir Edward Carson was among the greatest barristers of all time, but a hopeless judge in the House of Lords, where his judgments are often incomprehensible. Partisan, fearless advocacy, so necessary to the stock in-trade of the barrister, is often an impediment to being a judge, who must eschew this approach in favour of dispassionate reflection.

    A judge should sit back and listen, and only selectively intervene, not rush in as if it were a college debate. A person of an adversarial bent is not inclined to be even-handed: he takes sides; rushes to judgment; intervenes and confronts.

    Judges are of course subject to emotions, foibles and prejudices. But to call someone prejudiced is not necessarily pejorative, it merely recognises our flawed humanity. Ecce Homo. What is important is to recognise our prejudices as such, and adjust our responses accordingly.

    II

    The great jurist Jerome Frank argues in Law and The Modern Mind (1930) that in order to predict a judge’s decision we would need a full biography of his life; the politics, morality, race, sex, religion and other factors that shape his character, and which will predict the outcome of any case.

    Frank tuned into how the prejudice of participants in the trial process (judges and indeed jurors or witnesses) influenced decisions, and how selective recall or mistakes in evidence often affected the outcome of cases. Thus, the unpredictability of court decisions resides primarily in the elusiveness of establishing the truth and deep-seated prejudice. He expresses this in two deeply evocative passages:

    But are not those categories–political, economic and moral biases–too gross, too crude, too wide? A man’s political or economic prejudices are frequently cut across by his affection for or animosity to some particular individual or group, due to some unique experience he has had; ….the judge’s sympathies and antipathies are likely to be active with respect to the persons of the witness, the attorneys, and the parties to the suit. His own past may have created plus or minus reactions to women, or blonde men, or plumbers, or ministers, or college graduates, or Democrats. A certain twang or cough or gesture may start up memories pleasant or painful to the man. Those memories of the judge, while he is listening to a witness with such a twang or cough or gesture, may affect the judge’s initial hearing of, or subsequent recollection of, what the witness said…

    Or:

    Jerome Frank 1889-1957.

    When pivotal testimony at the trial is oral and conflicting, as it is in most lawsuits, the trial court’s finding of the fact involve a multitude of elusive factors: First the trial judge in a non-jury trial or the jury in a jury trial must learn about the facts from the witnesses and witnesses, being humanely fallible, frequently make mistakes in observation of what they saw and heard, or in their recollections of what they observed, or in their court room reports of those recollections. Second, the trial judges or juries also human, may have prejudices – often unconscious unknown even to themselves – for or against some of the witnesses, or the parties to the suit, or the lawyers … Those prejudices when they are racial, religious, political or economic, may sometimes be surmised by others. But there are some hidden, unconscious biases of trial judges or jurors – such as for example, plus or minus reactions to women, or unmarried woman, or red haired woman . . . or men with deep voices or high pitched voices . . .

    He concludes: ‘The chief obstacle to prophesying a trial court decision is, then, the inability, thanks to these inscrutable factors, to foresee what a particular trial judge or jury will believe to be the facts.’

    In substance Frank is making two points about the unpredictability of outcomes in trial courts. First, that a judge’s background, prejudices and hunches conditions his decision-making, and secondly that decision are often based on mistaken recollections.

    The usefulness of the judicial hunch – so central to legal realist thought – should not to be dismissed outright. Intuition, common sense, or a feel for an outcome compliments arid rationality, but this has limits.

    A modern variant of the undue application of prejudice is what is called cognitive or confirmation bias, whereby a judge makes his mind up in advance of a trial. A judge who predetermines issues or is influenced by a network of ties, or is simply biased, is failing to preform his job.

    I was recently involved in a case involving a judge of Greek Cypriot origin and a Greek Cypriot complainant. I argued that given Greek Cypriots are a tight-knit community the judge should recuse himself, step aside, which, to his credit, he did. More to the point, he actually brought the matter up himself, which displayed the real qualities required of a judge.

    A judge who fails to disclose any real or ostensible bias is subject to the sanction of breaching natural justice. Thus Lord Hoffman’s failure to disclose his involvement in Amnesty International in an extradition case against Chile’s General Pinochet, which involved the charity, led to a fresh hearing being ordered. The application of the Rule of Law gives anyone a fair trial.

    III

    There have been numerous instances of judges allowing their personal or ideological convictions to influence outcomes. In 1927 the much-lauded Oliver Wendell Holmes, Jerome Frank’s ideal judge, rejected Carrie Buck‘s argument that her constitutional rights had been infringed by being forcibly sterilization for being ‘mentally defective’.

    The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck ‘is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,’ and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.

    Surely Holmes’s belief in eugenics and his mistaken embrace of popular prejudice conditions the outcome of the trial?

    On a lighter note, in terms of judicial prejudice, in Miller v. Jackson (1977) isLord Denning refusal to grant an injunction to a family against a cricket club. The family had moved into a house adjacent to a cricket ground, upset by the danger posed to their young children by cricket balls flying into the back garden. The conclusion is startling obvious from the famous opening paragraph.

    In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

    IV

    A substantial number of roguish characters have been made judges, who like the rest of the speckled timber of humanity inevitably have their foibles. Some judges are perverts, some are alcoholics. A few are both. Far too many are deeply conservative creatures of the establishment. In Ireland, we have our fair share of religious fundamentalists, or worse religious fundamentalist former prosecutors. Perversion in spades.

    Nonetheless, in Ireland, with some notable exceptions, most judges have kept their bibs clean in their personal lives. It may seem controversial to say so, but that should not necessarily matter, at least prior to their appointment.

    A good judge will probably have had wide-ranging life experiences, bringing an ability to empathise with people of variegated backgrounds rather than imposing a class, or caste, credo in increasingly diverse and multicultural societies. I have noticed a significant difference between the smorisgoboard of backgrounds in evidence on the English bench, and the distinct narrowness of background and mentality apparent among their Irish counterparts.

    The more one understands and tolerates the waywardness and infamy inherent in human nature, the more one sees through liars, fraudsters, dissemblers and fabricators among the legal fraternity and their clients. In other words the better one can judge.

    So, what should it mean then to judge? Apart from independence and an ability to acknowledge and submerge personal viewpoints, he has to be, in most circumstances, balanced. He has to weigh and sift and evaluate the evidence and submissions before him. But ideally a judge should not be a narrowly technical lawyer.

    The law must be placed in its social context, and more than a passing awareness of non-legal disciplines such as sociology and philosophy, along with a good dollop of common sense, are required. A judge should be morally-upright, which does not mean sexually-sanitised. Any judge should not be precluded from having a personal life, although this must be, to some extent controlled and restrained. Who you meet and why you meet them could come back to haunt you.

    Self-restraint comes with the territory of being a judge, even though you might not like it. This is not to condone the absurd aloofness, and lack of engagement common among many judges.

    But morality in the sense of integrity is a prerequisite. A judge should not be bought or sold. A judge should not allow personal feelings or attachments to influence decision-making. A judge should always search for the right answer as a matter of principle.

    Technical lawyers often miss the big picture through too narrow a focus. A strict adherence to the wording of an act or case law is often to the detriment of justice. A judge should focus on the spirit of the law, applying a purposive and principled approach.

    If a rule does not conform with basic moral or legal principles then it should be jettisoned or subtly avoided. A judge should have the flexibility and wherewithal – the bag of rhetorical tricks – to cater for that scenario.

    As a realist Frank advocates that judges focus on law-in-action, and think in terms of wider policy

    Lord Denning 1899-1999.

    ramifications. Thus Lord Denning in Spartan Steel Alloys v Martin and Co. Ltd 1973 reasoned that if damages were awarded in the context of a power strike then the electricity company could go bankrupt. He struck out the case on the basis that the public interest lay in maintaining a solvent company to generate electricity supply.

    Denning tended to fashion remedies in a novel and creative way to subvert conventional doctrine. For example, he fashioned the doctrine of promissory estoppel to overcome the strict contract law principles of offer and consideration. He asserted that if someone makes a promise they cannot go back on it. An Englishman’s word is his bond. A norm often lacking in Ireland.

    V

    A judge must have intellectual integrity, which is not to say a judge cannot have opinions. It is just necessary to be up front with preferences or prejudices. Which is not to say that a judge’s opinions are necessarily correct.

    There are numerous academic commentaries regarding the methods a judge may use to interpret a text. I have indicated that literalism and rigidity is a dead-end, but there are other failings.

    The method of strict historical interpretation holds a particular spell over Conservatives in the United States. This imports the anachronistic values of long dead individuals into the interpretation of contemporary law. This allowed Judge Scalia in America to uphold the legality of owning handguns simply because the 18th century forefathers of American constitutionalism ran rampant with muskets.

    The most sinister nonsense of the law and economics movement in America – with two highly placed exponents in Easterbrook and Posner – has given rise to a cost-benefit analysis where wealth maximisation is the defining feature of every legal decision, at the expense of human rights.

    Nonsense has infected our culture, and promotes the agenda of the Far Right and Neoliberalism. The costing of everything in hyper inflated times has destroyed much and continues to do so. The balance is wrong. Not the bank balance but the moral balance. The ledger of life.

    Judges, even the greatest ones, are often ensnared by a viewpoint that does not stand up to intellectual scrutiny over time. Even the great Oliver Wendell Holmes became a proponent of Social Darwinism and eugenics, which led him to permit the compulsory sterilisation of a mentally defective person on the basis that three generations of imbeciles was enough.

    I fear Social Darwinism is back in fashion, but at least in the multicultural environment of London, racial abuse and racism are dissipated. But even here there is growing apprehension. Draconian asylum laws and judgments reflect the slide. The deportation of the undesirable is often the deportation of those you disagree with. The greatest judges have always been immune to ideas of racial hierarchies

    VI

    Every judge should also have an inner voice second guessing them. He or she should hear someone whispering in their ear: ‘Perhaps not’, or, ‘Restrain yourself.’ He or she must remain as neutral as an umpire as in a cricket or a tennis match, evaluating the rules of the game and when matters are out of bounds.

    It is a grave responsibility to sit in judgment particularly in criminal justice matters, and apart from the obligation to sift and evaluate evidence carefully, an obligation always arises to lean over backwards to protect the innocent, or at least to accord them the presumption of innocence.

    To impose any form of punishment on a fellow human being as a judge, without a critical filter and a defined sense of what you are doing and why you are doing it, is to forfeit one’s suitability.

    For judges to collude with state authorities or bend and manipulate procedure and doctrine is a form of intellectual sadism. Many barristers try and avoid particular courts on that basis if they can.

    A judge should also have a commitment to procedural fairness, equality-of-arms, human rights, independence and all the other aspects of the Rule of Law, which has little or nothing to do with judicial pay or pensions.

    In Ireland those who prattle on about the Rule of Law are largely political barristers, the men of the Castle seeking high offices of state, and with much to protect and preserve; deliberately masking self-interest in ruling class chatter.

    The appointment of avowedly party-political judges is a grave danger in any serious democracy. A judge should not have been involved or been a member of any political party prior to their appointment.

    A judge should also give detailed reasons for any decision he makes, and that reasoning should display careful consideration. Failure to do so, or delay, is an abnegation of judicial responsibility.

    As a Dublin-based barrister I endured too many written judgments failed to take into account the depth and sophistication of submissions; where the reasons adduced were a paper mask and compression; where the outcome was never in doubt and equality of arms a charade.

    This leads to the question of when a hearing is fair or not. The most important point in this regard is to distinguish between procedural fairness and the obligation to hear both sides and substantive fairness.

    Substantive fairness, which I have found lacking in Ireland, is always to do the right thing, and bugger the consequences. A judge should not be influenced in reaching a decision by how it will look in the media. A judge is not a fashionista or one of the beautiful people. A judge is not a pop star singing to politicians, though some have advanced that way.

    A judge should fearlessly expose corruption and, above all else, not conceal it or protect it. That obligation is often difficult to follow. Giovanni Falcone was assassinated for confronting mafia corruption in Italy. There are different species of mafia, who may even operate among the ostensible guardians of the state.

    Ireland’s greatest judge, for all his faults, of the last twenty years was Adrian Hardiman. The day after his death I met a judicial colleague of his who remarked: ‘Say what you want, he was a voice of independence in this country’; as if that is exceptional!

    Absent are such independent voices in our present judiciary. The times-they-are-a-changing for the worse, winter is coming and difficult decisions are required, but by people ill-equipped for the task. History will judge our judges as not judging in all of the above senses.

    For a great judge can become an historian, a cultural commissar, a public intellectual, and an arbitrator.

    *******

    A last important point on the qualities required in a judge is that he or she should not have an excessively authoritarian personality. A judge should thus be self-reflexive, and avoid pomposity at all costs. Peter Cooke’s caricature is invaluable for anyone aspiring to be one.

    Above all, as the legendary French writer Camus observed, a judge should be a just man.

  • The Subversion of Subversion

    Professional experience as a criminal lawyer has shaped my appreciation of the interplay between political subversion and its criminalisation. I have observed how real subversion often emanates from those state authorities inflicting punishment against the supposedly subversive.

    This has come into sharp focus since a German court declined to extradite the deposed Catalan president Carles Puigdemont on foot of an arrest warrant requested by the Spanish government. Puidgemont is alleged to have used the public purse to fund the referendum, this despite Spain’s Prime Minister Mariano Rajoy actually admitting to parliament that he had not done so. Nonetheless, he faces the charge of rebellion in Spain carrying a prison sentence of up to 30 years, despite the non-violent approach. Fortunately, the German court decided that the offence was not the equivalent of treason under German law, which requires actual violence.

    Subversion is deviation from a social construct or norm and, of course, a positive law. But the norm or law may in itself be morally fallible or sanctionable, and even subversive, an understanding state authorities generally refuse to permit.

    In staging the referendum, Puidgemont was initiating a measure for which he received an electoral mandate from a large proportion of the Catalan people. The Spanish government responded in a manner that suggested it was reacting to a violent uprising, when there was no such thing. State violence is ongoing.

    Spain has long been an aggregation of regional entities run from the centre, often in autocratic fashion. Under the Franco dictatorship (1939-75) non-Spanish identities were actively suppressed. Many inhabitants of the Basque country and Catalonia now regard themselves as belonging to distinct nations. Catalan separatism is not purely atavistic nationalism however, it also flows from a shared belief in republicanism, socialism and anarchism, and a repudiation of the political heirs of Franco operating in the ruling Partido Popular (PP).

    Throughout history states have behaved criminally and used the law to justify it, as we are witnessing in Spain today.

    The norm of Inca civilisation was the blood sacrifice of human victims. Euphemistically phrased, the norm of Nazi law was the ‘evacuation of the Jews’ or the ‘final solution of the Jewish question’. The norm of law enforcement in the Deep South of the United States until the 1950s was the lynching of African-Americans. The norm of the Irish police seems to be to frame people for sexual abuse. These norms are all anathema to fundamental human rights, but were carried out, or at least permitted, by state institutions.

    A deviant and subversive state projects deviancy and subversion on its victims. Contrary views are tightly controlled. Thus the dissident or conscientious objector is prosecuted, sometimes for treason, as a deviation from an oppressive norm. For example, Andrei Sakharov, the Nobel Peace Prize-winning scientist and dissident, was imprisoned by the authorities in the Soviet Union for subversion.

    Increasingly, protesters, leftists, and even human rights lawyers are labelled subversives by authorities subverting the institutions of the state. In Ireland politically-motivated prosecutions have been brought against elected representatives taking part in demonstrations. The Irish judiciary have to some extent resisted the subversive tide, but we may ask how long their independence will endure.

    II

    How are we to explain why more Spaniards are not resisting their government? We may assume that what Michel Foucault describes as the internalisation of punishment for deviant or unorthodox behaviour occurs. There is no need for a secret police force if people are disciplining their own inclinations to resist.

    Foucault said that the direct punishment of earlier times had been internalised, and made more insidious by the exercise of social control in schools, hospitals and factories. In a 1978 interview he said:

    In my book on the birth of the prison, I tried to show how the idea of a technology of individuals, a certain type of power, was exercised over individuals in order to tame them, shape them and guide their conduct as a kind of strict correlative to the birth of a liberal type of regime. Beyond the prison itself, a carceral style of reasoning, focused on punishable deviations from the norm, thus came to inform a wide variety of modern institutions. In schools, factories and army barracks, authorities carefully regulated the use of time (punishing tardiness, slowness, the interruption of tasks) activity (punishing inattention, negligence a lack of zeal); speech (punishing idle chatter, insolence, profanity); the body (punishing poor posture, dirtiness, lack in stipulated reflexes) and finally sexuality (punishing impurity,)

    Right-wing conservatives across the world have always been concerned about the radicalisation of youth, and seen universities as hotbeds of opposition and free thinking. This is leading to the marginalisation and demonisation of left-wing scholars, but the internalisation of control has a more dangerous outcome.

    In colleges, universities and schools we find widespread suppression of free speech and discourse. Discussion is increasingly confined to narrow parameters, with potentially divisive subjects avoided. A generation of rote learners, not critical thinkers, is on the rise. We are in an age of conformity, where obedience has become a sine qua non for career advancement, as Noam Chomsky reminds Andrew Marr in this interview for the BBC in the 1990s.

    The era of uninhibited and rambunctious debate in campuses is drawing to a close. One reason is the so-called ‘snowflake’ phenomenon, where anything remotely controversial is deemed too upsetting for the listener. This is a method of thought control, which often serves to diminish criticism of vested interests. All of these cultural factors are yielding a generation (with many honourable exceptions) who are technocratic and dangerously compliant: a growing body of amoral ‘yes men’ who willingly carry out orders.

    Moreover, within the college structure, promotion and preferment is linked to an increasingly controlled discourse where ideas that cut across dominant norms are penalised. The new paradigm is neoliberal and knee-jerk conservatism, which morphs easily into the kind of authoritarian rule we see mustering in Spain – a democracy with the trappings of a dictatorship.

    An indicator of a growing educational void in that country is the current investigation there into irregularities into the seemingly corrupt way a master’s degree was awarded to Madrid regional premier Cristina Cifuentes. The scandal has extended to another representative of the ruling Partido Popular (PP) whose qualification did not require him to attend class or take exams. The public university King Juan Carlos University has strong ties to the conservative government: he who pays the piper calls the ideological tune. Across the world, it is increasingly advantageous for academics to adopt right-wing viewpoints.

    In conjunction with a compliant Spanish media – including, regrettably, the once liberal El País – it means views offending a dominant norm are characterised as deviant or dissident, or subversive. Yet the norm itself may be subversive, as in the Spanish government’s reaction to Catalan separatism.

    III

    Treason has always been a political prosecution by the victors. Sir John Lavery’s famous portrait of the Court of Appeal trial of Roger Casement springs to mind. He was charged with high treason and executed by the British for attempting to end their rule in Ireland. Mr Justice Darling gazes down on him with barely concealed contempt. The accused looks depressed, as well he might. Casement, once the terrorist, is today held up as a hero and martyr in Ireland. One should always interrogate who is accusing whom of treason, and why.

    Sir John Lavery’s painting of the trial of Roger Casement.

    The great Spanish poet Federico Garcia Lorca was brutally murdered in 1936 for his opposition to the violent imposition of an authoritarian quasi-fascist state in Spain. The rebel who wins becomes a national hero: to the victor the spoils of office, including the judicial arm.

    Woe betide his enemies, such as Lorca. Ironically in the Spain Civil War (1936-39) it was traitors who murdered him: traitors against a legitimate left-wing coalition government. The Nationalists rebelled, invaded Spain from colonies in Morocco and took Lorca’s life, along with hundreds of thousands of others.

    During and after the Civil War, the victorious Nationalists charged thousands of vanquished Republicans with treason for defending a legitimately constituted state. Thus we found the subversive justice of the traitorous victors against the constitutional losers.

    High treason is generally a dubious classification intimately connected to power. The Spanish government has the power in Spain today, and is ruthlessly subverting the law for political ends.

    In an age of ascendant nationalism and irredentism, the vectors of centralisation and monolithic control are growing more resilient as transnational agencies fragment. The EU has looked on at what is happening in Spain with the insouciance of a latter-day Neville Chamberlain.

    This even after Pablo Casado the Prime Minister Rajoy’s spokesman warned that Pudgemont would end up like Catalan Civil War independence leader Lluís Companys. Companys was handed over to Franco’s regime by the Gestapo and shot by firing squad in 1940. Considering the lack of independence of the Spanish judiciary, any prosecution seems likely to be a show trial.

    At least the Schleswig-Holstein court scrupulously examined the extradition warrant against Puidgemont to assess whether the Spanish offence of rebellion was at idem with an allegation of high treason under German law. For a European arrest warrant to succeed, the court must be satisfied that there is an identical offence under domestic law. This involves a comparison of the matter and detail of the laws operating in each jurisdiction.

    The loose definition of violence under the Spanish law of rebellion indicated it was not equivalent to the German law of treason. That objective assessment has unleashed a hysterical response from members of the Spanish government and media, including El País, amidst claims that the decision was politically motivated. More substantively, an appeal has been lodged with European Court of Justice in Luxembourg.

    German courts enjoy a reputation for impartiality. But given the extremely political nature of the charge, one may wonder whether political pressure was applied to the court. The political motivation would surely have been to favour the Spanish government’s argument. So hurrah for the presiding judge Martin Probst and his colleagues Matthias Hohmann and Matthias Schiemann.

    Subversion of political objectives, where the judiciary upholds human rights, may have negative consequences for individual judges who feel the pinch of state control, seen starkly in Poland. But as Foucault observed, modern punishments act more subtly through the internalisation of subversive norms.

    IV

    An Enemy of The People is perhaps Henrik Ibsen’s most overtly political play. The premise is simple: a prominent and well-connected local engineer, whose brother is the town mayor, is asked to conduct a survey of the municipal water supply. The town in question is famous as a spa resort, attracting a great deal of tourism. But when the tests are carried out, he finds serious impurities and informs the townsfolk of the results.

    The reaction is revealing, and dispiriting. Rather than lauding his wisdom in carrying out the analysis, vested interests turn on him with ever-increasing ferocity. A storm of hatred is unleashed.

    He will destroy the local economy. Livelihoods will be effected. The industry of the town will suffer. The whistleblower is shunned, ostracised, victimised. His family is torn apart and he becomes an enemy of the people. The mob descends in all its unfettered glory.

    Those that seek to expose corruption – its multi-hydra tentacles which reach the highest levels of power – are often disposed of by whatever means necessary. They have drawn the enmity of the powerful: the ones who matter.

    Puigdemont is no money launderer or expropriator of public funds, as many in the highest ranks of the PP have been revealed to be. He is no traitor, but an elected representative who endeavoured to offer the Catalan people the chance to declare a desire for independence, only to see the attempt attacked by the central government, whose violent excesses recalls the the Franco dictatorship.

    We often see mismatches between crime and punishment. The fictional John Valgean in Victo Hugo’s Les Miserables is maliciously persecuted for his theft of a loaf of bread. On the other extreme, those companies that now systematically plunder the world’s environment and usher in an era of unheard of inequality escape punishment having manipulated democracy.

    It’s quite simple. Subversives among the corporate elite would prefer a centralised Spain. An independent Catalonia or Basque country could spell trouble for transnational commerce.

    So let us take stock and assess carefully the use of terms such as dissidence, subversion and deviance which are bandied about. Let us consider who are the real traitors.

    Rebellion may be rebellion against tyranny, or it may be a counter-revolution involving those who are resistant to genuine democracy. So let us be wary of subversion by those who are themselves subversives.

    This article was written in collaboration with Frank Armstrong and A. Reynolds.

  • What the Irish Abortion Debate Ignores

    The greatest trial lawyer of the last century was undoubtedly Clarence Darrow. He was often described as just a lucky country bumpkin, or a ‘lucky old son of a […]’ in the vernacular of the time. More than a lawyer though, he became the exemplar and paradigm of secularism in America, a voice of reason pitched against a cacophony of superstition and religious hysteria.

    By the time of the Scopes Trial in 1925 Darrow was widely regarded as a dog who had had his day. The case involved a young schoolteacher who had shown the temerity to teach Darwinism in the Deep South: Dayton, Tennessee to be precise. It is dramatised in the play, and film, Inherit The Wind (1960), which at times plays fast and loose with the facts for dramatic effect.

    It was actually a test case; the arrest had been staged by the American Council of Civil Liberties in order to bring a showdown with the fundamentalism that was creeping into American politics. The schoolteacher had volunteered for the task.

    The American Council for Civil Liberties wanted a clean-cut preppie lawyer, but they got Darrow. Why? Because they were bereft of funds and the Baltimore Herald, under its legendary editor H.L. Mencken, insisted. Mencken was the greatest muck-racking controversialist in the history of journalism, a uniquely acerbic wit, perhaps only rivaled by that of Christopher Hitchens. They were paying for the trial, and would call the shots.

    So Darrow dragged his weary bones into the Lions’ Den of the Deep South, assailed by a plethora of ailments which would ultimately kill him, but not just yet. His opponent was an old adversary, and if not quite a friend, someone for whom he had a degree of respect. Enter three time unsuccessful candidate for the Presidency of the United States: William Jennings Bryant.

    Darrow and Bryant’s careers shared a certain trajectory in that both rode a populist and progressive wave, involving the enfranchisement and protection of the ordinary working man both in the great cities and rural heartlands. Where they differed markedly was that Bryant was also a religious fanatic, who railed against the imposition of northern secular values on the Southern states. They were in league with one another in seeking to improve the lot of the poor in life, but fell out over their understanding of the origins of life. The divisive issue was Charles Darwin’s Theory of Evolution, as it remains today.

    It was really a show trial with a foregone conclusion. The question of guilt was never in doubt. America itself was in the dock. The Baltimore Sun ensured an international spotlight, while the new medium of radio provided an immediacy to the coverage, foreshadowing the role of television in the OJ Simpson Trial seventy years on.

    With the continuing culture wars in America, the case has never been of merely historic interest. It also has a relevance to the understanding of events in contemporary Ireland, which sees a similar confrontation. The new battleground is the forthcoming referendum to repeal the 8th Amendment to the Irish Constitution, which says:

    The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

    II

    In the recent case of M & ors -v- Minister for Justice & ors the Supreme Court of Ireland gave the green light for the abortion referendum to proceed. But this is just the opening salvo in a long campaign. The forces of obscurantism and absurdity are mustering. No doubt the roughhouse Youth Defence will swing into action, while more polite academics and lawyers, but with similar extreme views, will work out the stratagems and ruses. The X Case of 1992, where a fourteen-year old girl, pregnant as a result of statutory rape, was initially denied by the High Court the right to travel to the UK for an abortion but given leave on appeal by the Supreme Court to do so, will seem like a squall by comparison to the force of this hurricane.

    So what is going to happen?

    First and foremost the recent decision paves the way for the referendum. I expect, in sequence, the following to ensue:

    1.    There will be a challenge to the wording and content of the referendum on the bases that people are either being misled or that it is deliberately vague. This will fail, as it always does, but another publicity bun fest is guaranteed.

    2.    There will then be deep scrutiny of all funding sources and avowed support, either explicit or implicit, by governmental structures, as well as any other interference in the process to engineer an outcome.

    This may, or may not, succeed, but could delay the Referendum process, require a redraft, or if after the event, lead to an application for the invalidation of the result, which will also prove unsuccessful.

    Thus it will fail, but further publicity will ensue.

    But I think there is a paradigm shift. This is the final battle, the last hurrah.

    What can the so-called Catholic intelligentsia do to avoid the democratic of the people will if the obvious legal route proves fruitless, as it ought?

    There is one last avenue available in my considered legal opinion, and that is to argue that the right to abortion violates the right to life itself.

    This is precisely what the Supreme Court denied in the M & ors, as they confined the protection of the unborn to the clause likely to be deleted through the referendum. So wider arguments under the substantive right to life can seemingly be negated. This seems settled, but no doubt challenges are being considered to the absence of protection of life arising out of the probable deletion of the Eighth Amendment. Once legislation is formulated, a multiplicity of challenges seem inevitable.

    A harbinger of this appears in an Irish Times article by (14/3/18) by one of the leading ideologues on the Pro Life side William Binchy. He suggests that the forthcoming referendum repealing the Eighth, if passed, will open the door to unfettered abortion-on-demand, akin to the regime in the United States under Roe v Wade; but he dangles the opportunity for a further challenge too, quoting from Chief Justice Frank Clarke’s judgement in M & ors: ‘the State is entitled to take account of the respect which is due to human life as a factor which may be taken into account as an aspect of the common good in legislating.’

    A never ending saga in short.

    Then there are the informal tactics and strategies that will be used. These include variations on a theme and, potentially, violence. The clamour is going to get worse and worse. Protests, attacks on the court, demonstrations outside Dail Eireann, civil unrest, intimidation, shock tactics, framing, the kitchen sink.

    III

    The Catholic Church still runs most maternity hospitals, and has put the kibosh on the implementation of the X case for over twenty years. So the league of decency will endure, and democracy will be frustrated.

    This is no longer a Secular Age. Religious fundamentalism in all parts of the world is on the rise. In Ireland there are well placed boyos in the judiciary, and the once proud voices of secularism are no longer heard: Susan Denham has retired, and Adrian Hardiman passed away. All contacts with pious judges will be utilised to disrupt the passage of this referendum. But in the light of the present decision I still predict this will prove fruitless.

    The world will be watching as they were in Dayton Tennessee. The outcome will expose Ireland for what it is in many respects: a grubby Third World, sexually-hysterical, religiously-disturbed state.

    This outcome will be different however. The abortion argument will prevail. The Religious Right will lose. Or at least they will lose this vote. But let me sound a cautionary note.

    A drawn out Referendum campaign will keep attention away from the real burning issues of housing, homelessness and rising inequality. Who cares about the right to choose, after all, if you cannot afford to eat?

    Those funding the litigation might do well to focus on the quality of life of the living rather than the inception of life itself.

    It seems to me that this victory for progressives will be deeply ambiguous. Yes, a right to choose will be established, but at what cost?

    There is merit, I grudgingly concede, in the argument that abortion as a lifestyle choice fits with a Neoliberal paradigm. An extension of consumerism that ignores the gathering storm of economic catastrophe brought on by rising poverty and ecological meltdown.

    Political talents and revenue are being devoted to pursue fruitless opposition to a done deal: fight the good fight for abortion, and forget about the war against homelessness.

    I just wonder who is going to reprise the role of Darrow or William Jennings Bryant, and, above all, who is going to get the role of Mencken, the prince of gutter press journalists in this morality play.

    There is a wider struggle at work, in defence of reason and the Enlightenment, which the vacancy of Neoliberalism ignores. Thus, the legendary Darrow asked in the Scopes Trial:

    Can’t you understand? That if you take a law like evolution and you make it a crime to teach it in the public schools, tomorrow you can make it a crime to teach it in the private schools? In addition, tomorrow you may make it a crime to read about it. Soon you may ban books and newspapers. Then you may turn Catholic against Protestant, and Protestant against Protestant, and try to foist your own religion upon the mind of man. If you can do one, you can do the other. Because fanaticism and ignorance is forever busy, and needs feeding. And soon, your Honor, with banners flying and with drums beating we’ll be marching backward, BACKWARD, through the glorious ages of that Sixteenth Century when bigots burned the man who dared bring enlightenment and intelligence to the human mind!

    IV

    Noam Chomsky recently claimed that the Republican Party is the ‘most dangerous organization in world history’. He has corrected many interviewers who mistakenly assume he meant ‘the most dangerous organization in the world today’. Given his precision with language, what seems an outlandish statement, is clearly one he takes seriously.

    The Paris Agreement on Climate Change has been criticized for being not nearly stringent enough to succeed in keeping temperature rise below two degrees Celsius over pre-industrial averages. It is earnestly hoped by environmentalists that it is a stepping-stone before a more robust deal. Fat chance, as Trump’s administration goes about dismantling even that fig leaf of modesty.

    Chomsky also mentioned in a recent BBC Newsnight interview that there has to be a connection between the denial of the science, and the fact that nearly 40% of the American public believe the Second Coming will occur by 2050.

    In his illuminating Seven Brief Lessons on Physics (2014) Carlo Rovelli chides humanity for failing to draw the lessons necessary for survival:

    I believe our species will not last long. It does not seem to be made of the stuff that has allowed the turtle, for example, to continue to exist more or less unchanged for hundreds of millions of years; for hundreds of times longer, that is, than we have even been in existence. We belong to a short-lived genus of species. All of our cousins are already extinct. What’s more, we do damage. The brutal climate and environmental changes which we have triggered are unlikely to spare us. For the Earth they may turn out to be a small irrelevant blip, but I do not think that we will outlast them unscathed – especially since public and political opinion prefers to ignore the dangers which we are running, hiding our heads in the sand. We are perhaps the only species on Earth to be conscious of the inevitability of our individual mortality. I fear soon we shall also have to become the only species that will knowingly watch the coming of its own collective demise, or at least the demise of its civilisation.

    The passage points to the differences between ideas informed by science, and those grounded in fundamentalist interpretations of religion. Science sees humanity for what we are in the universe, rather than being its centre and purpose. Far more terrifying than this is the preacher who refuses to accept that we might just be an irrelevant blip in the universe, and sees the Earth as something created for us to make hay with. Not only that, but many milenerian Christians rapturously await the demise of civilization and the end of days.

    It seems odd in these circumstances that that such effort should be made on behalf of the human unborn, when they assume it is all going to be over imminently.

    Human beings commonly display a desire for transcendence in this our cruel world. Marx stated in his ‘Critique of Hegel’s Philosophy of Right‘ that ‘Religious suffering is the expression of real suffering and a protest against real suffering. He admitted that ‘Religion is the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions. It is the opium of the people.

    He goes on, however, to argue that the ‘abolition of religion as the illusory happiness of the people is the demand for their real happiness. To call on them to give up their illusions about their condition is to call on them to give up a condition that requires illusions. The criticism of religion is, therefore, in embryo, the criticism of that vale of tears of which religion is the halo.’

    The Religious Right is to an extent, a predictable outcome of the social and economic “vale of tears” in our time, although their collusion with Big Business in the United States is truly horrifying. It certainly helps that Genesis with it assumption of man’s dominion over the Earth permits a scorched earth economic policy.

    Lost in all of this is the message of Pope Francis, and others, for Christian socialism and environmental responsibility; a worldwide enforcement of social and economic rights to food, shelter, health care and housing. I am decidedly agnostic about the existence of God. It is religious fundamentalism, extremism and rapacious greed that I despise.

    In fact the church may have its own battle between the Neoliberals and Christian socialists. The smart money is on the former winning out. Pope Francis may suffer the same fate as Pope John XXIII.

    V

    I once represented a middle aged woman named Carmel Doyle who as a five-year-old recited a bible story which the Catholic Church made millions out of from an Oscar-nominated film called Give Up Yer Aul Sins. Yet the child, now a poor adult, would have received nothing had I not fought her case.

    It seems to be the inception, not quality of life, that matters to the hierarchy of the Catholic Church: let them eat cake and dream of the afterlife.

    The Religious Right have resorted to murder when necessary. I think of Gods Banker Roberto Calvi hanging off Blackfriars bridge; Pier Paolo Passolini the Marxist and Atheist film director murdered on a beach near Rome; the collusion for decades between ‘Christian’ ‘Democrats’ in Italy and the mafia, to the advantage of the Vatican; but most are killed by a thousand cuts.

    So let us commence a life watch. The abortion life watch juxtaposed with the homelessness outside the doors of the court where constitutional issues are finely disentangled as the social structure unravels. While Rome burns, progressives will fiddle amid the gladiatorial circuses of the forthcoming referendum.

    Neoliberalism has no problem with abortion. There are, after all, far too many of us. I maintain that it is important that a woman should not be compelled to endure a pregnancy against her will, but it is permitted by economic elites as way of controlling population, without the troublesome necessity of infanticide through poverty. That was a solution advocated satirically by Jonathan Swift in his A Modest Proposal, a vital cautionary tale for these dangerous times.

    Featured Image: Marina Azzaro

  • A Cost-Benefit Analysis of Life

    Harry Gleeson was wrongfully hanged for the murder of Moll McCarthy in 1941, and fully exonerated in 2015 after the case was re-investigated by the Innocence Project in Ireland.[i] Gleeson was framed by the police, with the collusion of elected representatives, for the murder of Moll McCarthy, by reputation a ‘lady of the night.’

    There followed what amounted to a show trial in which the judge and prosecution barrister concealed evidence, and conducted proceedings in a wholly inappropriate manner. On the eve of his execution Gleeson met his junior counsel Seán MacBride who, expecting an admission of guilt, instead was confronted with an assertion of innocence and plea that one day his name should be cleared.

    McBride was moved, and thereafter, having served as Minister for External Affairs between 1948 and 1951, campaigned against the death penalty. He was instrumental in setting up Amnesty International, for which he ultimately received the Nobel and Lenin peace prizes.

    Sean MacBride in 1986

    That case betrays the closed nature of Irish society in the 1940s. But with pervasive patterns of corruption, apparent state criminality, including targeting of individuals, can we say governance today has improved? The late Supreme Court Justice Adrian Hardiman gave a disturbing account of the conduct of ‘the force publique’ over the past number of years in his dissenting judgment in DPP v JC (2015)[ii], citing a former President of the High Court to the effect that ‘proper discipline has been lost from An Garda Síochána.’

    If anything, state-sponsored illegality may be worse than ever. Recently our police force, perhaps in collusion of Tulsa and the Department of Justice, subjected an innocent man, Garda Maurice McCabe, who was perceived as a threat, dissident or whistleblower, to an horrendous allegation of child sex abuse.

    Rather than being pensioned-off, high-ranking Gardaí and their lawyers, should be brought before a court capable of identifying a new species of crime, as occurred at Nuremberg after World War II. Framing people for abuse or murder is no ordinary offence, but amounts to a Crime against Humanity by agents of the state, a breach of an obligation ergo omnes, offending fundamental principles of Natural Law, and universal human rights.

    The crucial point about framing people for sex abuse, or indeed state-sponsored murder, is that it fatally undermines the integrity of the justice system. When the gatekeepers are themselves criminal, as was the case in Nazi Germany, or in Serbia under Milosevic, it erodes trust in government, and any sentencing should take into account this profoundly aggravating factor.

    Nuremberg Trials, 1946. Crimes Against Humanity.

    Radbruch’s formula

    In this context, it is notable (in Streletz v Krenz ECtHR, 2001[iii]) that East German Border Guards were retroactively convicted for shooting people as they escaped over the Berlin Wall; even though, at that stage, they could argue that they were merely complying with commands.

    The German Constitutional Court and indeed the European Court of Human Rights utilised the great anti-Nazi German jurist Gustav Radbruch’s formula that positive law must always yield to fundamental principles of morality. Any law compelling servants of the state to shoot fellow citizens – in circumstances where clear threats to public safety are absent – does not comply with fundamental principles of justice.

    The defence of following orders, which the Nazi official Adolf Eichmann had offered at his trial in Tel Aviv in 1961, is not available. Evil is evil, no less so for being the banal plea of a bean counter that he was merely putting people on trains. Perhaps we may one day also hear: ‘I was only doing my job working for Goldman Sachs.’

    Kenya

    In Kenya, my client Mr. Kimani has been on death row for seventeen years. While still a teenager he was caught on the same bus as where a brutal crime was being committed. Thereafter, he stopped at a restaurant and was arrested, brutalised and charged.

    During the ensuing trial he was provided with sub-standard representation (too mildly referred to as ‘ineffective assistance of counsel’) and, despite no meaningful evidence, the judge directed a decision of guilt, violating the presumption of innocence, which Lord Sankey described as ‘the golden thread of the common law’, in Woolmington v. D.P.P (UKHL, 1935). Thus his youth has bee snatched away after seventeen years on death row, prior to the ongoing intervention of the Innocence Project.

    My involvement came about after Elizabeth Kimani, a former student, visited me in Griffith College, where I taught at the time. She had just returned from Kenya, after a break of many years, where she had attended her sister’s funeral. There she discovered her nephew’s plight. She requested my assistance, and I consented after some deliberation. This resulted in a trip to Kenya accompanied by Michael Gallagher, a student caseworker, to present submissions to the then recently constituted Committee of Mercy in Nairobi, under the elegantly named, but dubiously relevant Power of Mercy Act, 2011.

    Nairobi, Kenya

    I arrived in Nairobi with a degree of trepidation, having heard it is the seventh most dangerous city on Earth. Thankfully, I was greeted by a waiting guide, who provided an armed guard and armour-plated vehicle to chaperone us through teeming streets to the secure sanctuary of the Stevroy Stanly Hotel. There followed a pause for breath, a quick shower, and then another three hour journey through the Rift Valley to Naivasha prison, perhaps the most hostile prison in all of Africa.

    When Michael and I arrived we were kept waiting for another three hours before the scheduled meeting with the Committee of Mercy took place in a small dark waiting area. It was no more than the size of a large kitchen, and contained at least ten prison guards in combat uniforms, who floated in and out with sub machine guns poised for action. At the end of what I think a not accidental ordeal, the hearing, which again took over three hours, was conducted in a packed room in circumstances of polite formality, but underlying hostility.

    The runes and smoke signals of an altogether different culture are difficult to interpret, but age and professionalism masked my nervousness. I proceeded to point out the utter improbability of my client having any involvement in the crime, with the aid of a clearly traumatised but remarkably articulate client, who despite being downtrodden was secure in his plea of innocence.

    Second Visit

    Circumstances beyond my control compelled a return flight the following day, but a second appearance over the summer was finally agreed. The issues of the original case were re-ventilated, including victim impact reports. The relatives of the crime were also allowed to express their distress, which had no bearing at all on the guilt or innocence of my client.

    Long hours passed before I requested a break for coffee and a cigarette: ‘Of course sir, please come this way’, I was told. I was then led through security checkpoints down from the sixth floor we were on, and driven half a mile up the road to the top floor of another building, where a dusty annex of a bar served as a smoking area.

    President Kenyatta had in fact banned smoking in all public places in Kenya and, I was informed by a senior government official that two American tourists had actually been arrested for lighting up in a public building the previous day. At the time the social impact of the crime of smoking in a public building seemed almost humorous to me by comparison with the distortion of justice inflicted on Mr Kimani.

    After this diversion, the Committee of Mercy asked me to draft a supplemental set of submissions, addressing a section that had not attracted attention. It enquired, notwithstanding my client’s innocence, whether he could fend for himself on the outside. This reflects recent trends in the administration of justice, symptomatic of a neo-liberal tendency to apportion human rights according to economic status, an evolution in the direction of homo economicus, on which more later.

    Since then there has been silence out of Kenya: reconstituted committees, dithering, managing of the message and now a power vacuum, during which Kenya has had no government, after an invalidated election. The fate of Mr. Kenyatta and his government, and by extension Mr. Kimani, hangs in the balance. So I await the long deferred outcome, more in hope than expectation.

    Born Free

    Thereafter I took a brief safari to see what wild animals survive, and encountered the wonderful Lake Naivasha. I also visited the former house of the writer of Born Free, Joy Adamson, and her husband, both of whom had been murdered by local vigilantes for their outspoken views. On both trips an informative guide issued a series of coded warnings.

    That very day, he said, the country’s most prominent human rights lawyer had been murdered at the behest of the government. He warned that our activities had attracted their attention too, and our movements were being monitored, a situation not altogether unfamiliar to me in Ireland. Aside from the pleasure of discovering the National Museum, and a truly fabulous flea market, it was with some relief that I boarded my plane out of the country, landing in another country with a Third World legal system: Ireland.

    Flying back, I was deeply unsettled by the outrage perpetrated on Mr Kimani, and the sinister weighing of his life post-release in terms of his economic status. I also dwelt on the murder of the human rights lawyer, and the desperate plight of wildlife, which constitutes ecocide. A light bulb went off in my mind, as I saw a common systemic source for all this injustice.

    I consider Goldman Sachs, along with certain other multinational corporations to be war criminals, as they have perpetrated Crimes Against Humanity and universal breaches, ergo omnes, of economicide and ecocide. Ruthless economic exploitation and environmental destruction work hand in hand. So let us convene a virtual reality Nuremberg hearing, a new International Criminal Court directed against the corporate criminals of the New World Order.

    It must remain a virtual for the moment as the perpetrators now manipulate the machinery of the state, but the wheels of justice keep on turning. Our Earth is in constant motion too, but humanity is playing its final rounds on a doomsday roulette wheel.

    Corporate criminals who design and profit from the excesses of human exploitation should be brought before international tribunals, along with those who would callously consign people to fend for themselves after unlawful incarcerations. At least, with the help of the Innocence Project in the US, after his exoneration Sunny Jacobs secured a measure of compensation, allowing her to open the Sunny Jacobs Centre on the not altogether sunny west coast of Ireland.

    Meanwhile, as U.S. Republicans luxuriate in destroying the welfare and administrative state, and a plutocracy attempts to secede from humanity, building safe havens against Climate Change, and boltholes in distant outposts, Mr. Kimani sees his life ebb away in the worst prison in Africa. We must hope the Committee of Mercy reconvenes quickly, and at least the stain of that singular injustice will be washed away, as, to quote Shakespeare’s Portia.

    Shakespeare’s Portia.

    The quality of mercy is not strain’d,
    It droppeth as the gentle rain from heaven
    Upon the place beneath: it is twice blest;
    It blesseth him that gives and him that takes:
    ‘Tis mightiest in the mightiest: it becomes
    The throned monarch better than his crown;
    His sceptre shows the force of temporal power,
    The attribute to awe and majesty,
    Wherein doth sit the dread and fear of kings;
    But mercy is above this sceptred sway;
    It is enthroned in the hearts of kings,
    It is an attribute to God Himself;
    (The Merchant of Venice, Act 4, Scene 1)

    At the same time we demand a broader interpretation of justice, with humanity on the brink of extinction: at current rates of degradation to top soil we have sixty years of agriculture remaining.[iv]

    As three-term former U.S. President Franklin Delano Roosevelt (1882-1945) put it: ‘A nation that destroys its soils destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people.’[v] We require a new Nuremberg for Crimes Against Humanity and Nature, evolving our understanding of mercy and justice, “above this sceptred sway.”

    Crimes Against Humanity

    I recently visited Chartwell House, once the permanent residence of perhaps the greatest politician to have ever lived: Winston Churchill. To paint him as a latter-day saint would be wide of the mark, but to a large extent it was his conviction that Nazism was a distinct barbarism that ultimately led to the Nuremberg trials.

    In the wilderness years before World War II he was indeed a Cassandra voice. But any rush to judgment of our latter-day war criminals must be tempered with deliberation, thereby avoiding Herman Goering‘s charge at Nuremberg that ‘the victor will always be the judge and the vanquished the accused.’[vi]

    In Roy Jenkin’s view Winston Churchill was the greatest prime minister of Britain, and I would concur. But tell that to soldiers annihilated at Gallipoli or civilians firebombed in Dresden. He too was directly or indirectly implicated in Crimes against Humanity.

    It tends to be the little people who suffer, and away from abstract theorising, I will continue to lobby for the release of Mr Kimani. But let us still convene an International War Crimes Tribunal of the righteous holding to account corporate criminals, who endeavour to secede from the rest of humanity by retreating into gated enclosures.

    An indictment can proceed from their own memoirs, as such characters are generally shameless. Let them bear witness to their depredations, and let us signal to posterity our opposition to their infamy, for as the Czech novelist Milan Kundera attested the loss a historical memory involves a failure to confront tyranny.

    By drawing attention to their criminality, future generations may adapt, before it is too late for the natural world, and perhaps the likes of Mr Kimani may yet be welcomed back into society. Alas it is too late for Harry Gleeson, but at least he now may rest more peacefully.

    [i] Erin McGuire, ‘How Harry Gleeson was wrongly hanged for murder in 1941’, Irish Times, 6th of April, 2015, https://www.irishtimes.com/news/crime-and-law/how-harry-gleeson-was-wrongly-hanged-for-murder-in-1941-1.2165731, accessed 22/11/18.

    [ii] DPP v JC, Judgment by Hardiman J., [2015] IESC 31, http://courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/285b25317187412480257e280050f5b4?OpenDocument, accessed 22/11/18.

    [iii] Streletz, Kessler and Krenz v. Germany, ECtHR, 2001, http://hudoc.echr.coe.int/eng?i=001-59353, accessed 22/11/18.

    [iv] Chris Arsenault, ‘Only 60 Years of Farming Left If Soil Degradation Continues’, Scientific American, https://www.scientificamerican.com/article/only-60-years-of-farming-left-if-soil-degradation-continues/, accessed 14/11/18.

    [v] Untitled, ‘11 Forest Facts and Quotes to Tweet or Share’, April 20th, 2015, Worldwide Fund for Nature,  https://www.worldwildlife.org/stories/11-forest-facts-and-quotes-to-tweet-or-share, accessed 22/11/18.

    [vi] Gary Jonathan Bass, ‘Stay the Hand of Vengeance: The Politics of War Crimes Tribunals’, October 29th, 2000, The New York Times, https://archive.nytimes.com/www.nytimes.com/books/first/b/bass-vengeance.html, accessed 22/11/18.

  • Culture of Complaint

    Editor’s Note: The presumption of innocence is a hallowed principle central to the Rule of Law. Human rights lawyer and founder of the Innocence Project in Ireland, David Langwallner rails against a culture of Political Correctness that permits trial-by-media of alleged sexual offences, leading to a distortion of male-female relations. He identifies this with an all-consuming Neoliberalism, in which vendettas are pursued through false accusations – often for economic advantage – and where the parameters of permitted behaviour in courtship are sanitised to a point where men are being reduced to automatons. While strongly condemning the behaviour of Harvey Weinstein and his ilk, he argues that many of his accusers were willing participants, and only spoke out when it was to their advantage.

    David Langwallner receiving the prize from Miriam O’Callaghan for Pro Bono & Public Interest Team/Lawyer of the Year at the AIB Private Banking Irish Law Awards 2015.

    The late great art historian Robert Hughes penned an anti-political-correctness polemic in 1980 entitled Culture of Complaint. He argued that America was witnessing a pandemic of false sexual harassment claims, often leveled in corporate or institutional power games. At the same time, David Mamet, the legendary American playwright, wrote his Orleanna, a structured and more nuanced evaluation of the parameters of sexual harassment.

    I despise political correctness, and the dumbing down it has brought to personal relationships and public discourse. In many instances it has marginalised forthright criticism, protecting vested interests, who employ the tactic of character assassination.  Relationships between men and women are also distorted. The slide Hughes and Mamet wrote of in the 1980s, has today become an avalanche.

    No one in their right mind condones acts of sexual violence against men or women, or persistent harassment, whether sexual or not. Workplace bullying, moreover, is not always sexual. At any level, whether sex is the weapon or not, no one should sanction a breach of trust, or an abuse of power.

    We have witnessed all too many ageing multi-millionaire bulldog types, usually from the arts or politics, using the ‘casting couch’ to steer or negate career advancement, especially of women. Though it seems that if a reputation is truly satanic, such as Mick Jagger’s, that individual may escape condemnation.

    It should equally be noted, in the interests of balance, how long bright-eyed starlets were circumspect about blowing any whistle on Harvey Weinstein. It seems some were more than compliant in the toleration of his behaviour, and in some instances his advances, as long as it succoured and supported their careers.

     

    In many instances his accusers lack true moral grounds for condemning him now. Questions of guilt and attribution cuts both ways, a subtlety not grasped by the present snowballing hysteria of outing perverts and harassers. The crimes of the accused, whether real or not, are exposed amidst the hypocrisy of the accusers.

    Michael Colgan, the former Director of The Gate, our latest outing and a more sedate Harvey, is now being thrown to the wolves. In both cases it is noticeable that exposure only occurs once a power base has been eroded: Weinstein, after decades of success in independent cinema loses his Midas touch after a string of flops, and brewing financial difficulties; dwindling audiences at the Gate Theatre, meanwhile, may have contributed to Colgan’s downfall. Of course for some such as Mr. Polanski the glamour never fades and that is, in a perverse way, his protection.

    There is something very unseemly about the sight of this coup de grace ending the career of the ageing male. The final nails in the proverbial coffin. The killing of the once-prized bull by the matador media.

    After all Sir Edward Carson – in even more puritanical times –  and with at least a measure of compassion, refused to prosecute Oscar Wilde after the damage had been done in the civil case, which exposed his gay love affair with Lord Alfred ‘Bosie’ Douglas; by Carson himself of course, and with a good deal of vindictiveness, from one Trinity man to another.

    “The poor man has suffered enough”, he is reputed to have said. Standards of decency have plummeted since. No doubt a queue of lawyers are slavering at the prospect of successful actions against aging playboys.

    Edward Carson: ‘The poor man has suffered enough’.

    In a different context The French famously say ‘les absents sans toujours tort’, ‘the absent are always wrong’, or translated to this context the disempowered – compulsorily or not – are now easier prey for a slightly hysterical Witch hunt.

    Arthur Miller wrote one of his best plays The Crucible on that them, where religious and sexual hysteria – a toxic mix at work in Ireland – leads to an all-consuming madness of false allegations. Not that Weinstein appears to be innocent, but others may be. The point is that balance is lost once the story begin.

    Complainants who were amenable, or tolerant, in the past now seek to expurgate their involvement, cleansing their souls and conscience by shopping someone. Often, as was seemingly the case with former deputy Prime Minister Michael Fallon in The United Kingdom, to protect their own job. The issues of guilt and retribution are far from clear.

    Motivations are murky. As in the Mamet play, and indeed a Michael Douglas film called Disclosure (1994), sex allegations are often linked to political or corporate power plays. Saying someone has touched your knee inappropriately may save one’s job. It’s kill or be killed in our Neoliberal universe.

    The culture was of course different before the transcendence of political correctness, a greater laxity in personal conduct was tolerated, and both sides often participated in what might be deemed the immoral, generally sexual, pleasures of an uncensored society.

    It ill-behoves one side to scream from the citadel of innocence, and dress in the cloak of victimhood considering their consensual participation, and inculpation in some cases.

    That in no way exculpates, or should lead to toleration of, the practices of Mr. Weinstein, or even earlier, and more notoriously Mr Polanski, whom the French protect, as they seem to, all artists of significance, which is merely to note a peculiar national characteristic. For him, as was said of Benjamin Disraeli, the glamour never fades.

    Thus, the retrospective retributive justice by the kangaroo court of vox populi, and the dangerous menace of public avengers. The Rule of Law is being subverted and due process and forensic truth-seeking replaced with trial-by-media, whipped up by a populist clamour. Prosecution by smear, through innuendo, and ‘no smoke without fire’, even by falsehoods in some instances.

    None of this is helped by the psycho-babble of often pseudo-feminism, including the blathering of Hilary Clinton, reversing the burden of proof, and undermining the presumption of innocence. This antiquated feminist agenda dovetails very neatly with trial-by-media. Guilty in the court of public opinion before any charges are made and– as in the case of Garda McCabe in a different context – the manufacturing of guilt and suspicion by politically-motivated criminal and corrupt public officials.

    Careers are rapidly destroyed, reputations irretrievably damaged, without anything so troublesome as a court process, or even internal disciplinary procedures, where anonymity may be preserved.

    **********

    All of this is leading to a great disturbance and realignment of normal interactions between men and women.  Displays of attraction will be culturally realigned, such that communication of permission and refusal will be increasingly difficult to divine. 

    This will destroy much of the interesting texture of courtship and flirtation, displays of intimacy, and non-intrusive physical contact. A peck on the cheek or hand on the shoulder, may now be considered an act of violation. In American corporations, in some instances, employees who wish to date are required to sign a sex contract, detailing precisely what is consented to.

    This will magnify the mistakes and misunderstandings that often precede sexual congress, complicating the quest for a suitable mate, or ideal match. A sexually-programmed, robotic world beckons, appropriate for the preferred model of serf employees.

    I dislike intensely corporate cleanliness, fused with the family values of the religious maniacs of the U.S. Republican Party. A sexually ‘clean’ Neoliberalism, served up with great dollops of hypocrisy. A Corporatism requiring the worker to comply with stable domestic strictures on fidelity and religiosity.

    Sexual behaviour has been, and always will be, a disturbance of the ordinary and smooth processes of income accumulation. Deviation cannot be tolerated among a malleable workforce.

    Furthermore, in many instances an innocent man is the victim. False allegations against Cliff Richard and Paul Gambiccini nearly destroyed clean-cut, almost asexual, national treasures. It has become a penalisation of success, a titillating feature of the celebrity culture. An allegation of sexual deviancy may destroy a trade competitor, to gain a trifle of public recognition for yourself and reinvigorate a flagging career. A solipsistic ‘Me’ generation demanding Andy Warhol 15 minutes of fame.

    In this blood sport, the more talented and renowned the celebrity, the greater prize the scalp becomes. All the more opportunity for faked outrage against a fallen idol from plastic people, who equate success with one’s name appearing in the newspapers.

    It is also, frankly, a society rapidly becoming the obverse of Margaret Atwood’s novel The Handmaid’s Tale (1985), a dystopian tale following a Second American Civil War, where women are forced into sexual and child-bearing servitude. The new handmaidens are an increasingly de-sexed and under-the-thumb male population. Today all men except those under total control, display the Original Sin of perverts and harassers.

    Other expressions of public opinion, such as the film Fight Club (1999), have demonstrated this precarious male identity. What escape now for the domesticised American male, drawing his wage in an insidious corporate culture, where any degree of abnormality in courtship is impugned? The Irish equivalents of Fight Club remain the male debating society, binge drinking and that awful sport of rugby. In these arenas male aggression can flow uninterrupted.

    Irish male debating societies.

    **********

    Although Mr Weinstein and Mr. Spacey seem, at first blush, guilty, after trial-by-media, or at least to have a strong case to answer, I fear the whole onslaught will lead to a McCarthyite Witch Hunt, about which Miller’s play based around the Salem Witch Trials is a parable. The present hue and cry and that of over half century ago, are linked by a common plethora of false allegations, stoked by the religious and political Right for nefarious ends.

    Someone needs to turn this ship around, and quickly, before genuine expressions of male and female sexuality are distorted for good.

    Vive la difference as the French say. Not all flirtation and banter is harassment. Not all men are rapists. The pendulum has swung too far, and through the constant recourse to public titillation in the media, important ideas concerning the problems of economic and environmental catastrophe are side-lined. The bread and circus of sexual distraction is delivered in daily doses by red top and broadsheet alike.

    Michael Fallon is no Winston Churchill, but his fate recalls a story – apocryphal or otherwise – told of the latter being accosted under the influence as he entered the House of Commons by Lady Astor: “You are drunk Sir Winston”, she said. “I am”, he replied, “but I will be sober in the morning and you will still be ugly”; an undeniably sexist remark, which, in the present circumstances, would lead to a swift political demise for Britain’s war time leader.

    ‘Who’s a pretty girl’, Winston Churchill and Lady Astor

    This is a plea for moderation and balance, and for an appraisal of the true evils inherent to Neoliberalism; an appreciation that the very difficult road of reason, principle and fairness needs to be traveled; coupled with examination of the often willing participation of those leveling accusations. Too often, we externalise blame, excluding individual and collective failings, which, to reiterate, in no way condones genuine sexual violence or harassment.

    But let us not confuse fakery, contrivance and falsity with reality.

    Featured Image: Daniele Idini