However scant the support provided by the legal process, as a lawyer I am drawn to rights-driven considerations. In terms of recent context – blinkered by the present over-reaction – Obama’s climate change initiative has been overturned by Trump, who effectively tore up the Kyoto Accord.
The internal U.S. solution to climate issues is to endorse such market-driven approaches as ‘Cap and Trade’. For example the Law and Economics movement allows and encourages individual U.S. States to permit, through legislation, permission to purchase the right to pollute. Obviously what happens is that once a corporation’s pollution credit is exhausted in a given State they simply move on. It is, in short, a polluter’s charter.
A pollution or carbon tax is justified on the basis that it will promote efficiency but little account is taken of the externalisation of environmental meltdown, or on whether it is regressive or not. China’s ongoing disregard for pollution controls and restraints on consumption is well documented. The excuse given is that the U.S. is doing worse. So there seems to be little hope of the Big Two changing course.
Nonetheless, as we will see, such ‘environmental rights’ as there are can be divided into three distinct categories: environmental procedural rights; the right of environment and the right to environment.
A Consensus of Crisis
Discourse on the status of the Blue Planet is varied and complex. On the one hand it is quite clear that it will survive climate chaos even if humankind does not. Gaia, as James Lovelock conceives her, has an infinite capacity for renewal and regeneration. But the scale and imminence of the impending disaster is being carefully manipulated in the vectors of public opinion. Trump, Bannon and others should be indicted for the crime against humanity of ecocide.
The science is saying – the work of Elizabeth Colbert in particular – that without radical action, within sixty years the remaining wild mammals may be extinct. In these circumstances human extinction is likely to occur by increments.
Various parts of Earth will be rendered uninhabitable through plant and animal die outs, destroying natural habitats and accelerating ecological meltdown. Raised temperatures will foster further mass migrations, with no clear destination, or pity, emanating from the privileged few, as quarantining of refugees in secluded detention centres becomes the norm.
Radical inequalities in wealth and assets will diminish life expectancies through poverty and an under-resourced and undermined welfare system. Death on the Instalment Plan, as Louis-Ferdinand Céline put it after the Great Depression awaits for many of us. So in the medium term a mass extinction seems unlikely. More likely there will be significant population culls as a cost-benefit analysis to human life is applied.
A crucial consideration, flagged in detail by John Gray, is that the top soil on which agriculture rests is being rapidly eroded. Furthermore, of even greater concern perhaps, is that chemical inputs into agriculture are wreaking havoc with natural ecosystems.
Gray has previously argued in favour of an alliance between moderate conservatism and the green agenda, conserving venerable institutions while enhancing environmental and civic health. This is a variant on sustainable growth or development. Unfortunately, this admirable ideal appears to have little chance of success in the real world of power and money.
Besides, the post-truth plague has put wind in the sails of climate change denial, as inaccurate and self-serving ideas are peddled by the likes of Michael O’Leary. These are accepted as valid points of view, as part of a misplaced notion of balanced coverage.
The agenda is clear. The far-right prizes its assets and its riches, and prefers to pillage the Earth, rather than protect the planet.
Collapsing Glaciers, Arundhati Roy and Indian Precedent
According to the Geophysical Research Letters the ongoing melting of the glaciers of Antarctica is expected to be exacerbated by the collapse of the greatest canyon on earth: the Denman Glacier. By now the glacier is mostly cut off from the sea due to the level of glacial ice piled inside and atop the ravine.
As the glacier’s edge continues to retreat down the slope, however, warm ocean currents will pour into the canyon, battering bigger and bigger sections of the glacier and gradually turning the Denman trough into a giant bowl of melt water, with nowhere to go. This scenario could have a runaway feedback loop of melt that ultimately returns all of Denman Glacier’s ice to the sea — risking a nearly 5 feet (1.5 m) rise in the planet’s sea level.
This could lead to significant migrations from South to North – a mass exodus in fact – as overheating increases, joining the ever prevalent boats arriving in Sicily and elsewhere on the Mediterranean. I fear increasingly draconian measures to control migration and effectively dispose of fellow human beings.
The developed world is not immune however. The environmental crisis, coupled with inevitable pandemics to come, is likely to precipitates a global financial collapse. The recent Financial Crisis has already brought ‘strong man’ leaders, and an increasingly oppressive jackboot state in so-called democracies.
Assets need to be preserved, and those who threaten the status quo and the inward rapacious march of unchecked capitalism may be disposed of. As John Gray remarked in a different context: ‘The quickening advance of science and technology in the past few centuries has not gone with any comparable advance in civilization or human rationality.’
Many human rights organizations reliant on funding and sponsorship from right-wing think tanks are becoming less than eager to confront the hard issues, as the consequences for doing so is a withdrawal of funding. The priorities of the Ford Foundation and others, who fund NGOs, brings a devotion to identity politics rather than the crucial issue of climate change.
Those therefore, such as the Indian writer Arundhati Roy, who challenge rapacious capitalism around the world, or have the temerity to object to its nefarious agenda will be murdered, imprisoned or simply disappeared. This goes hand-in-hand with sectarian repression in India where, ‘people are graded and assessed according to their faith.’
Naomi Klein has offered a powerful critique in a series of books ever since The Shock Doctrine (2007). The important point to grasp is that the Chicago School approach of enforced shocks and distractions occlude sinister power grabs. The Covid-19 pandemic is a perfect sideshow in this respect for a shake down by large corporations. Over-reaction and mass hysteria about a virus becomes another distraction from a bigger picture of environmental, and social, meltdown.
In India and beyond, Arundhati Roy demonstrates how neo-liberalism and environmental damage go hand in glove in her Capitalism a Ghost Story (2014). Since the publication of The God of Small Things (1997) she has channelled her energies into political activism against the growing environmental and economic calamity being perpetrated on her native land, through the depredations of neo-liberalism. It is that political conscience that is the primary interest of her new awareness.
In Capitalism: a Ghost Story there are all sorts of resonances to her new work of politicized fiction The Ministry of Utmost Unhappiness. There is the mass evictions of India’s ‘surplus population.’ The street vendors, rickshaw riders, the small shops and business people, that brought the suicide of 250,000 farmers. This forced displacement, often from rural areas to cities, augments wealth of the one percent of plutocrats who control India. A graveyard, or simply being simply dumped in a river bed, is often the fate of the displaced, or the disappeared.
It is clear in both books that this is the product of a society where corruption is endemic. Inequality works to the benefit of monopolistic corporate interests, involving crossover interests of transnational corporations and law firms. Even the NGO sector won’t cut it as Roy saliently points out: ‘charity douses anger with pity.’ It can even silence criticism of neo-liberal atrocities by deflecting attention to ‘safer’ human rights issues such as gender equity.
Her recent short text, available in any decent book store for £2.99, No One is Too Small to Make a Difference (2019), provides a summary of her speeches. She questions, given an imminent mass extinction, whether attending school is a terribly worthwhile idea, and identifies a cathedral solution. This is a brilliant analogy as we need deep structural and integrative thinking, and the leadership of the just and the wise. She might also have noted that serfs and slaves built the cathedrals, just as wage-slaves constructed those great cathedrals of capitalism: the skyscrapers.
On Monday my book “No One Is Too Small To Make A Difference” will be released in the United States. This is an updated edition with more speeches, which will be released in other countries and languages soon as well. And all my earnings will go to charity. pic.twitter.com/QH6X9edHnS
Greta Thunberg sees the world through black and white lenses. Good and evil. This provides a refreshing clarity, demanding action to be taken now, or her generation has no future. She is right insofar as the overwhelming majority of scientists are to be believed.
Fortunately she is Swedish and retains a comparative freedom to speak her mind, despite the chastisements of Mr. Trump. The writ of neo-liberal justice does not extend to that Nordic country just yet.
Little wonder also that anarcho-syndicalist groups such as Extinction Rebellion have gained traction when the political process has failed. The dangerous vista of extra-legal tactics, beyond civil disobedience, is on the horizon. The beast is slouching towards Bethlehem.
Applying Sustainability in Our Daily Lives.
There are also environmental considerations about the quality of civic life. Alain de Botton’s The Architecture of Happiness (2006) argues that the kind of buildings we inhabit and work in make a profound effect on our wellbeing. The poet Kathleen Raine pointed to a sense of homecoming when we encounter cities ‘where in architecture, sculpture and painting, the needs of the spirit are met.’ She attributes a growing alienation in the Britain of the 1960s to the architectural fashion of the time.
It is self-evident that operating in an aesthetically pleasing home environment will raise the spirits, and yet this idea is often dismissed. Placing people in Bauhaus tower blocks creates battery hens. America is the paradigm of the skyscraper mentality, with Chicago’s Louis Sullivan ‘the father of the skyscraper.’
I have visited perhaps the seminal modernist or rather brutalist example of sustainable living apartments. Le Corbusier’s Unite d’Habitation (1952) is the perfect expression of his idea of ‘a machine for living in.’ Although wonderful in principle, in application it is a bastardised disaster.
East elevation of Unité d’habitation Marseille in 2019
How can you function properly, or think straight, while raising a young family living in an overpriced tenement which chews up most of your salary? Commuting to work compounds the problem, as you spend your spare hours on a train going to and from an ‘open plan’ panopticon of a workplace that generally diminishes your wellbeing. Sedentarism and a lack of exercise will shorten your life span and diminish a capacity to think freely. Failures in Irish urban planning, such as Ballymun Tower Blocks, lay behind the heroin epidemic of the 1980s.
Yet there is good urban planning that raises the spirit. Paris was a crime and slum invested medieval city until the Baron de Haussmann developed a prototypical grid system, after Napoleon III instructed him to bring air and light to cetnre the city, to unify the different neighbourhoods with boulevards, and to make the city more beautiful. Yet today beyond the city limits, the architectural depredation of les banlieues has engendered the social dislocation and La Haine.
It should be noted that great businessmen – which is not entirely an oxymoronic idea – think long-term and in terms of fundamentals of life. Benevolent capitalists, such as the Adriano Olivetti and John Cadbury, had regard to the quality of life of workers and housed them appropriately, endowing long obsolete privileges such as pensions and benefits.
As indicated, in procedural legal terms the broad notion of ‘environmental rights’ can be divided into three distinct categories: environmental procedural rights; the right of environment and the right to environment.
Environmental procedural rights include those associated with rights of participation in decision-making, access to information and the ability to access justice, such as is expressed in the Aarhus Conventionunder European Union Law. But any consultative processes and public hearings are irrelevant if outcomes are pre-determined.
The right of environment is perhaps the most radical, envisaging as it does a value in the environment beyond mere human benefit. Such an approach assumes that the environment should be held as a good on its own merits, and protected as such. The argument is based on the position that it is arbitrary to restrict justice and rights exclusively to inter-human relationships and to tolerate a situation in which interested parties are deprived of essential values in the distributive process on the basis of morally irrelevant factors – such as their not being human.
Finally, there is the right to environment. This was first given international expression in the Stockholm Declaration, Principle 1 of which stated that ‘[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being …’
The right to environment is conceptualized as a right pertaining to each individual – the environment is valued not on its own merits, but in light of its importance for human existence. The exact description of the right has been framed in various ways. A range of adjectives have been used: decent, healthful, natural, pure, clean, ecologically-balanced, safe (see International Environmental Law and Policy for the 21st Century, Pring and Nanda). Throughout the literature, a common theme is that of ensuring human health is not put at risk by environmental degradation. Obviously, this approach is open to the criticism that it is entirely anthropocentric.
So do we assess the environment as a benefit to us as humans or as an intrinsic good in and of itself? I would argue in favour of the latter approach. But legal case law and rights are toothless fairies if there is no political will to implement them.
Coda
So legislative and constitutional protections exist and lobbying continues apace. This seems destined to fail, although I have not given up hope. In the present circumstances – portals or otherwise – as creatures of bounded rationality, with limited time, what we can do in our own lives is at least try and do as little harm as possible.
What I don’t find nice, and I really don’t need, is people clapping. I don’t need rainbows. I don’t care if people clap until their hands bleed with rainbows tattooed on their faces. I don’t even (whisper it) need Colonel Tom, lovely man as he clearly is…
The coronavirus crisis has shone a light on lots of good and bad things in this country. It is of course to be welcomed that key workers, including those for the NHS and social care, are being increasingly valued. I hope the reality is dawning that immigrants and BAME staff are vital to the NHS and we couldn’t manage without them.
But don’t feel you need to clap. Enough with the rainbows. When this ends, people need to show their value of key-working staff in practical ways; pay them enough to be able to live in our cities, and recognise, support and welcome immigrant staff who prop this country up. Listen to the views of NHS workers when they raise concerns, address the culture of blame and bureaucracy. Anonymous NHS Doctor, 2020[i]
Mediated Isolation
Cocooned in state-imposed lockdown, many of us succumbed to media binges while absentmindedly doing the housework, feeding the kids or, my own personal bête noire, chasing the kids down to do their homework. For some this might entail spending a sizable proportion of their waking hours perched in front of flickering TV screens while others opted for being serenaded by the droning tones of radio heads defining their versions of a ‘national reality’, from which we were physically excluded.
Internet and social media platforms have also served to distract us from excess navel gazing by informing us of FB ‘friends’ consumption habits that day, conjectures as to when the ‘circenses’ of sport will return to lighten up our beleaguered days and the travails of celebrities struggling to survive their privileged lockdowns, while providing anodyne and impractical advice on how we too might achieve elevated states of consciousness.
However, no matter which media is our poison of choice, it is hard to escape the constant, mind-numbing refrain that ‘we are all in this together’, facing the same existential threat irrespective of our status in society, our relative wealth, cultural and religious ethos and any other distinguishing features, real or imagined. Only by sticking together will we be able to defeat our contagious foe, or so the story goes.
Never ones to let a good crisis go to waste, the advertising industry has swiftly conceived and produced a slew of adverts to hawk their clients’ wares by tapping into the positive sentiments of this catchphrase. Praising frontline workers or highlighting our newfound unity – separated but together – they strive to manipulate the emotions and purchasing decisions of their target audiences.
Some of us feel stressed during this time, but there are many things we can do to help us mind our mental health and wellbeing. Staying connected will help us all get through. Visit https://t.co/cf8uvz2CF8 for advice and support for your physical and mental wellbeing. pic.twitter.com/Eu106PZM3k
But are we really all in this together? Has the Covid-19 pandemic impacted us all in a similar manner? Or has it and the measures imposed to tackle it impacted upon different sectors of our societies?
Mortality Rates
The first and most obvious disparity of impact has been the varying mortality rates between different age groups. Amongst those diagnosed with Covid-19, people over 80 were seventy times more likely to succumb to the virus, than those under 40 and the death rate amongst males has been seen to be greater than amongst females. A Public Health England report revealed a higher mortality rate amongst members of Black, Asian and Minority Ethnic (BAME) groups than in White ethnic groups, those born outside the U.K. and Ireland as well as, unsurprisingly, ‘those in a range of caring occupations including social care and nursing auxiliaries and assistants; those who drive passengers in road vehicles for a living including taxi and minicab drivers and chauffeurs; those working as security guards and related occupations; and those in care homes.’[ii]
However, it could be argued that these facts should not be used to detract from the fact that we are all in this together. After all, Covid-19 resulting in higher mortality rates amongst certain age categories is surely just a characteristic of this virus, similar to how the second wave of the 1918 flu virus disproportionately resulted in deaths amongst young men and women in their 20s and 30s, ‘while often sparing the very young and the very old.’[iii] Similarly, there are obvious reasons why people on the frontline and who have been dealing directly with the public have experienced greater rates of infection and higher mortality rates. Although the higher rates of death amongst BAME groups is evidently concerning, it too requires greater examination to be able to determine its exact cause.
Socio-Economic Disparities
While one might claim pathogens are ‘democratic by nature’,[iv] in the sense that viruses do not consciously target potential victims or particular social groups, certain social and economic factors clearly influence their ease of dissemination and transmission.
In the United States, according to the epidemiologist Camara Phyllis Jones, the higher infection rates amongst African and Latin American communities can be at least partly attributed to their being at a greater risk of exposure and less protected. Other contributing factors include the existence of socio-economic and health disparities, themselves the outcome of historical segregation and endemic racism,[v] as well as the increased levels of contact with environmental pollution and lower rates of access to health care.[vi]
In many parts of the United States, people of colour make up a higher proportion of some low-paid professions that have elevated risks of exposure to the virus—those who staff grocery stores, drive buses and work at food plants, for example. Also, COVID-19 is deadlier for people with chronic conditions, including diabetes, obesity and cardiovascular disease. These have a higher incidence in many minority ethnic and racial groups.[vii]
In the U.K., considerations such as ‘crowded housing and working conditions’ have been advanced as reasons for the divergences in infection and death ratings between ethnic minorities and white people. For example, whereas only 2% of white people in the U.K. are living in crowded conditions, overcrowding is far more prevalent amongst minority ethnic groups with as many as 30% of Bangladeshi, 16% of Pakistani and 15% of black African households being overcrowded.[viii]
Social Determinants of Health
According to Dr. Enam Haque, a GP based in Manchester, while BAME groups, particularly from South Asia, are more prone to diabetes, heart disease and high blood pressure, which does increase their risk of contracting Covid-19, a more significant role is played by the social determinants of health.[ix]
As Farrell, McAvoy and Wilde explain
Health is not just the outcome of genetic or biological processes but is also influenced by the social and economic conditions in which we live. These influences have become known as the ‘social determinants of health’. Inequalities in social conditions give rise to unequal and unjust health outcomes for different social groups.[x]
(i) Social determinants contribute to health inequalities between social groups. This is because the effects of social determinants of health are not distributed equally or fairly across society.
(ii) Social determinants can influence health both directly and indirectly. For example, damp housing can directly contribute to respiratory disorders, while educational disadvantage can limit access to employment, raising the risk of poverty and its adverse impact on health.
(iii) Social determinants of health are interconnected. For example, poverty is linked to poor housing, access to health services or diet, all of which are in turn linked to health.
(iv) Social determinants operate at different levels. Structural issues, such as socioeconomic policies or income inequality, are often termed ‘upstream’ factors. While ‘downstream’ factors like smoking or stress operate at an individual level – and can be influenced by upstream factors.[xi]
The social determinants which have placed minority ethnic groups at a health disadvantage already as well as other vulnerable groups – less economically secure white people, the homeless and so forth – have led to their members being at greater risk of falling victim to Covid-19. It is critical these factors are addressed, not just in a piecemeal fashion or through a short-term approach in response to this pandemic, but comprehensively with structures being put in place to reduce the health inequities experienced by BAME communities and other vulnerable groups, as well as ensuring equitable access to health services.
— Padraig O'Reilly Photojournalist (@padraig_reilly) May 6, 2020
People around the world have been obliged to adapt to living in relative isolation, frequently separated from their loved ones due to stringent lockdowns. They have found themselves in straitened conditions on reduced incomes, with many worried as to whether their pre-Covid-19 jobs will still be there when the economy reopens. The vulnerable in countries such as India, South Africa or the Philippines, are faced with the Catch-22 situation of abiding by savage lockdowns, facing potential starvation and severe malnutrition for their families, or venturing forth at the risk of violent beatings or worse at the hands of the police for breaking state-imposed lockdowns.
As Joseph Natoli writes, the rich face no such dilemmas.
Those who live on dividends and interest from investments face no Catch-22. Private planes take them where they think they will be safer. Sheltering in place on your yacht with a serving crew is a safe sort of isolation. It’s in fact not much different than life before the pandemic. A cell phone and zoom keep you actively tending your horde. A top 20% meritocratic class has already been working from home, not bound by office or punching a wage clock. Life’s not much different for them. Nannies and tutors, daily tested, can handle, as usual, the offspring. Someone — not you — will cook and clean. Life’s not much different. No Catch-22 here…[xiii]
One of the most vocal advocates for the re-opening of the economy and ending the lockdown measures in place is the controversial billionaire Elon Musk. He even went so far as openly defying the local authorities in the US to reopen his flagship Tesla auto assembly plant in Fremont, California, which public health officials had ordered shut down some two months previously. Due to a complicated pay deal Musk had negotiated with Tesla, which could culminate in the ‘biggest executive pay windfall in global corporate history,’ opening this plant was critical to help him reach the required targets.[xiv]
While, it might be argued that Musk was right in his arguments about opening the country to business to prevent economic devastation, whatever his personal interest, this is not the issue here. If an ordinary U.S. citizen had defied the public health authorities as Musk did, publicly defying the civic authorities to arrest him as he joined his workers in the factory,[xv] would they have got away with it? Having got his way, Musk can now sit back in comfortable isolation, while his workers run the risk of contracting any circulating viruses, as he waits for his bonus to come home to daddy.
Rich Man, Poor Man
During Covid-19, the ultra-rich have managed to increase their already obscene share of the world’s wealth, as poor people around the world have struggled to survive. A report by Americans for Tax Fairness reveals that between 18 March and 19 May, in the midst of state lockdowns and business closures, the wealth of Jeff Bezos (Amazon), Bill Gates (Microsoft), Mark Zuckerberg (Facebook), Warren Buffett (Berkshire Hathaway) and Larry Ellison (Oracle) grew by $75.5 billion. The personal wealth of Elon Musk alone, grew by 48% or $11.8 billion.[xvi]
At the same time, the severe impositions of movement control and lockdowns globally have disproportionally affected the more vulnerable members of our societies. While things may be booming for the wealthiest, many of the poorest and most defenceless communities are subject to violent and humiliating punishments to ensure they stick to quarantines, leaving them at the risk of starvation. Alberto Ruíz, who sits on a resident’s social organisation in the deprived Tacumbú neighbourhood of Asunción emphasises the lack of support that has been provided to lockdowned families deprived of any income and how people have been instructed ‘to stay at home, to protect your family. But in poor neighbourhoods, you have to go out to earn a living: if you don’t, you die of hunger.’[xvii]
As Arundhati Roy writes, encapsulating the horrors of those most affected by the Indian lockdown, migrant workers and their families.
Many driven out by their employers and landlords, millions of impoverished, hungry, thirsty people, young and old, men, women, children, sick people, blind people, disabled people, with nowhere else to go, with no public transport in sight, began a long march home to their villages. They walked for days, towards Badaun, Agra, Azamgarh, Aligarh, Lucknow, Gorakhpur — hundreds of kilometres away. Some died on the way. They knew they were going home potentially to slow starvation. Perhaps they even knew they could be carrying the virus with them, and would infect their families, their parents and grandparents back home, but they desperately needed a shred of familiarity, shelter and dignity, as well as food, if not love. As they walked, some were beaten brutally and humiliated by the police, who were charged with strictly enforcing the curfew. Young men were made to crouch and frog jump down the highway. Outside the town of Bareilly, one group was herded together and hosed down with chemical spray.[xviii]
Philip Alston, the former United Nations Special Rapporteur on extreme poverty and human rights, accuses many states of having enacted policies reeking of social Darwinism, by prioritising the wealthiest to the detriment of the poor.[xix] Looking at how entire countries have been shut down by governments, many of whom have failed to make even minimal efforts to protect the most vulnerable members of their societies, it is hard to disagree.
Covid-19 and minority ethnic groups
From early May, New York City reported over twice as many deaths amongst the African and Latin American communities per 100,000 residents compared to white people. The Bronx, with the highest concentration of African Americans, had the city’s highest rates of deaths and hospitalisation.[xx] Data from early June indicates that Black Americans have been throughout the U.S. been 2.4 times more likely to succumb to Covid-19 than White Americans.[xxi]
This disparity of impact on black and Asian communities is also an issue of serious concern in the U.K. Harriet A. Washingtonwrites how
In April, the UK Intensive Care National Audit and Research Centre estimated that 35% of people in intensive care with COVID-19 are black, Asian or members of other minority ethnic groups, nearly triple their proportion in the UK population. The first ten physicians in the United Kingdom known to have died from COVID-19 were also from black, Asian or minority ethnic groups.[xxii]
Racial Inequality in the U.K.
A Public Health England report, Covid-19: review of disparities in risks and outcomes, highlighted the role that deprivation can play in exacerbating infection and mortality rates.
The mortality rates from COVID-19 in the most deprived areas were more than double the least deprived areas, for both males and females… ONS analysis shows that between 1 March and 17 April 2020 the deprived areas in England had more than double the mortality rate from COVID-19 than the least deprived areas.[xxiii]
Given the relatively impoverished status of BAME groups, as evidenced in their far higher concentration in impoverished locales such as the most deprived 10% neighbourhoods, their vulnerability to Covid-19 is further aggravated.[xxiv]
Ethnic minority workers also tend to be employed in more insecure and more poorly regulated work with a Carnegie U.K. Trust, UCL and Operation Black Vote report noting that BAME millennials were some 47% more likely to be on ’notoriously unstable “zero-house” contracts.’ As a result, they have been disproportionately engaged as key workers in front-line positions, placing them at greater risk of catching the virus.[xxv]
The situation for migrants to the U.K. employed in front-line positions, necessitating direct contact with the public, is if anything even more precarious. A particularly tragic case was that of Rajesh Jayaseelan who succumbed to the virus alone in Northwick Park hospital on 11 April. Rajesh, who had come to London about a decade earlier to provide for his family, had starved in his rented accommodation for several days. He had informed his wife he did not want anyone to know of his condition, as he feared being cast out on the street, as had happened at his previous lodging where the landlord had evicted him due to the risk of his contracting the virus as a Uber driver. By the time he made it to the hospital where he passed away, he was already critically ill. He left behind a wife and two young children, to whom he bade one final farewell in a last video call from his hospital bed.[xxvi]
The situation in South Africa clearly illustrates the social and economic divisions that existed in society prior to Covid-19 and how they have remained in place during the virus and punitive lockdown. Rather than creating a national unity where everybody feels they are in it together, the pandemic and, in particular, the actions taken to combat it have in face served to reinforce the social schisms. As Patrick Bond writes:
The lockdown and social-distancing mandates simply won’t work in the overcrowded townships, which traditionally under apartheid were built merely as the urban holding cells of a reserve army of migrant labor… Many workers and most of the massive unemployed precariat were immediately without income as the full lockdown began on March 27, just as the state safety net was fraying… So as Covid-19 has struck, the country’s extreme inequality has been exacerbated, and the state’s long-standing delivery shortcomings stand exposed… For many people suffering what were already recessionary conditions, coronavirus seems the least of their concerns.[xxvii]
Bond quotes a local activist who explains that while people understand the potential threat of coronavirus ‘it is here for a short period, while we have been living under these dangerous conditions since 2000.’[xxviii]
Le coronavirus, c’est l’État (the coronavirus is the state) [xxix]
As she recounts issues of police harassment and oppression in the tower block estate of La Caravelle located in the commune of Villeneuve-la-Garenne, Malika points out a boy of 13, who looks younger, and relates how a couple of days previously he had frantically knocked on her door pleading for help as the police were around.[xxx]
Another resident, Taha Amghar, details how a body of police followed him home, entered his flat and beat him with their batons. They had then detained him overnight, and refused him access to legal representation. Rather than receiving any apology for this completely unnecessary detention, Taha was later issued with a deportation notice on the grounds of his Moroccan nationality, prohibiting him from working, despite having lived in France for 16 years. To add insult to injury, Taha has a medical certificate from a French doctor explaining the necessity of his remaining in France as he has a chronic illness for which treatment does not exist in Morocco.[xxxi]
It is for this reason that Malika states ‘Le coronavirus, c’est l’État.’ For the relatively impoverished residents of La Caravelle, Covid-19 is being exploited by the state and its’ servants, primarily through the brutality of police operations, to repress them. Whereas for Louis XIV, he was the nation (l’État, c’est moi), today the French state (ab)uses the coronavirus, by using it as a ‘veil’ to disguise its’ efforts to engage in targeted violence and discrimination, primarily against ethnic minorities.
As Assistant Professor of Sociology, Jean Beaman writes,
While everyone in France is subject to this decree, early evidence reveals it has been differentially applied. COVID-19 is not the equalizer or leveler some have suggested. Rather, this state of health emergency has disproportionately affected some populations compared to others, as some communities are more policed and surveilled than others. And these communities and populations are those that were already marginalized in France before COVID-19.[xxxii]
Plight of refugees and migrants
Similarly, it is hard to see how the almost 71 million refugees and forcibly displaced people worldwide[xxxiii] are being included as one of us, members of the ‘we’ fighting an implacable, infectious foe. As Cork-born Ettie Higgins, the UNICEF Deputy Representative in Jordan, warns previous experience has demonstrated “that a pandemic accentuates existing inequalities and makes life much more difficult for the most vulnerable.”[xxxiv]
Corralled in alarmingly overcrowded camps, the risk levels for refugees is greatly elevated for virus contraction and dispersion, not to mention the barriers, including language, they experience in accessing health services. Devoid of support, residents from many different countries in the Moria camp on Lesbos, where there are over 20,000 people living in a camp designed for less than 3,000, have come together to spread awareness of the virus to their fellow camp residents. A group of four Afghan women, one of whom had been a tailor in Kabul and who was willing to head the operation, volunteered to sew face masks for the camp’s population.
While people continue to be detained inside refugee camps in horrible conditions where there’s limited measures to prevent the spread of Covid-19, restaurants and bars will be opened this week across Greece. This discriminatory treatment is fulfilling the goal of local rightwing groups of keeping migrants out of public spaces away from public view, abandoned by the state.[xxxv]
Added to their immediate concerns regarding Covid-19, refugees are also impacted by the cessation of free movement and international travel between countries, with some countries also placing a hold on resettlement intakes.[xxxvi]
In the U.K., the sharing of patient information between healthcare services and the Home Office has resulted in highly negative health outcomes for migrants with an insecure migration status, as they have avoided going for treatment even for serious complaints such as tuberculosis, lest they be detained and/or deported.[xxxvii]
Indigenous people’s face many challenges, similar to those experienced by refugees and other vulnerable groups. As the UN Permanent Forum on Indigenous Issues highlight:
Indigenous peoples often have much in common with other neglected segments of societies, i.e. lack of political representation and participation, economic marginalization and poverty, lack of access to social services and discrimination. Despite their cultural differences, the diverse indigenous peoples share common problems also related to the protection of their rights.[xxxviii]
Making up some 6% of the world’s population, 476 million people spread over 90 countries, indigenous peoples account for about 15 percent of the extreme poor and have a life expectancy some 20 years lower than that of non-indigenous people worldwide.[xxxix] Frequently deprived of good access to health care, higher rates of poor health and lack of access to adequate sanitation facilities and other preventive measures, the advent of Covid-19 was seen as a significant threat to these communities. However, the lockdowns implemented without adequate support measures, could create greater long-term problems.
As lockdowns continue, Indigenous peoples who already face food insecurity, as a result of the loss of their traditional lands and territories, confront even graver challenges in access to food. With the loss of their traditional livelihoods, which are often land-based, many Indigenous peoples who work in traditional occupations and subsistence economies or in the informal sector will be adversely affected by the pandemic. The situation of indigenous women, who are often the main providers of food and nutrition to their families, is even graver.[xl]
Even worse, some governments are using the cover of Covid-19 to implement policies and actions that indigenous people oppose. In Canada, Kate Gunn, a lawyer at First Peoples Law Corporation wrote in early April how the Crown had still not clarified how it would safeguard the title and rights of Indigenous People’s during Covid-19. The Crown had also failed to confirm whether it would continue to make decisions which might impact on First Nation rights, a particularly critical issue given the impossibility of the First Nations to participate meaningfully in consultations during this period.[xli]
The Choctaw nation and the Irish
Although the mortality rate during the 1740-41 Irish famine is estimated to be slightly higher,[xlii] the 1840s famine is generally remembered as the greatest tragedy to have befallen the island of Ireland. Fuelled by blight devastated potato crops and an, at best, callous British administration,[xliii] one million Irish died and over a million more emigrated between 1845 and 1852 out of a population of 8.5 million.[xliv]
One of the few positive memories of this famine was the wonderful humanity demonstrated by the native American Choctaw Nation who, moved by the plight of the Irish, donated $170 in 1847.[xlv] This was a highly significant sum of money in those times, particularly when you consider that in 1831, the Choctaws had been forced to walk from their ancestral lands in the American southeast to the new Indian Territory in Oklahoma. Along this ‘trail of tears,’ many Choctaw lost their lives.[xlvi] And yet a mere 16 years later they were sufficiently moved by the suffering of a people living in a distant land to dip into their meagre resources to help alleviate the plight of the Irish.
Choctaw ‘trail of tears’
Now, over 170 years later, the Irish finally had the chance to repay this debt to some extent. In response to a fundraiser established to support the Navajo nation, badly impacted by the Covid-19 virus and the lack of suitable health facilities and equipment, many people of Irish origin contributed generously. Several of these contributors left notes drawing attention to the solidarity and humanity displayed by the native American community during the Irish famine.[xlvii]
Solidarity in India
The current pandemic has been witness to acts of heart-warming human solidarity. In India, the transgender community were seriously impacted by the sudden imposition of the Covid-19 lockdown on 24 March. Frequently dependent on daily income to survive, many struggled to survive, dependent on whatever relief was made available by the state and NGOs. Despite their precarious situation, transgender people have established support and assistance scheme for other vulnerable groups.[xlviii]
In Porur, the transgender community helped some 40 members of eleven stranded migrant, Muslim families. Originally from Andhra Pradesh, these individuals did not have identity cards and were therefore ineligible to receive relief. Keerthana, a transgender sanitary supervisor helped feed sanitation workers in Puducherry. According to Srijith Sundaram, an LGBTQ activist, the transgender community was able with the help of patrons to distribute rations and other essential items to these workers.[xlix]
Moved by the frightful conditions and suffering of migrant workers travelling on the Shramik Special trains commissioned to ferry them home, Rasheeda who lives in impoverished circumstances in New Arif Nagar slum in Bhopal, decided she had to do something to assuage their misery. Leaving her house at daybreak, Rasheeda collects materials and food to prepare packages of food. Wasif, her husband, who works in a nearby junkyard as a rag-picker, helps her collect the food, firewood and utensils to prepare these packages. The children in their colony pack the food. Upon the arrival of a train, dozens of the children rush forward with packets of food and water. Between 200 and 250 food packets and 50 litres of water are distributed daily to the grateful passengers.[l]
Rasheeda and Wasif engage in this selfless work each day even though, according to Wasif:
There are days when we get to barely eat as well, but we try hard to feed the passengers because we at least are at home. However, the lockdown has not only made them homeless but penniless too.[li]
Six kitchens are operated by their neighbours in the Blue moon colony and New Arif Nagar slums, despite the intense poverty and deprivation experienced by their inhabitants. Each kitchen prepares 20 to 25 kgs of rice daily to distribute to the passengers of two to three Shramik trains. They continue in their altruistic work, despite themselves having only received assistance of 5 kgs of flour and rice from government authorities over two months previously.[lii]
Final Remarks
I would argue that if there is one thing that Covid-19 has demonstrated conclusively, it is that we are not all in it together. At least, not in terms of our experiences, our levels of resilience and the impact the virus and state-imposed lockdown measures have had upon us. For vulnerable groups in the Global North or South, minority ethnic groups, refugees and indigenous people, the homeless or financially insecure, the negative impacts of Covid-19 and, in particular, the lockdowns, have been far more severe, resulting in serious economic stress, increased immiseration and deprivation, hunger and even death. Furthermore, as the Covid-19 infections decrease, economies reopen and people get back to work, the inequalities that pre-dated Covid-19 will still be here.
Moving forward, we need to work together to ensure the most vulnerable groups amongst us receive the support and assistance they need to address these inequities, ensure they are provided with equal access to education, health and other social goods and are able to participate fully and equitably in our society and economy.
[x] Clare Farrell, Helen McAvoy & Jane Wilde, Tackling Health Inequalities: An All-Ireland Approach to Social Determinants. 2008, Institute of Public Administration & Combat Poverty Agency: Dublin, Page 11
[xlii] S. Engler, F. Mauelshagen, J. Werner and J. Luterbacher, The Irish famine of 1740–1741: famine vulnerability and “climate migration”, Climate of the Past, 28 May 2013, page 1174
I didn’t particularly want to write this article. I didn’t want to get involved in the whole online social media circus of opinion and rebuttal, triggering and offense. But I feel like I have something to say, and what I have to say is important. So I’ll speak my truth.
About a month ago, I completely removed my attention from the hysterical world of 24-hour news cycles, social media, the conspiracy theories, the craziness, the arguments and rebuttals, the fear, projection and lashing out. So I stopped watching the news and left Facebook, and very liberating it was too.
The collective process the world was going through as a result of Covid-19 (Coronavirus) was taking its toll on me. I had never experienced such fear and anger online before. People were literally lashing out, blurting their unprocessed emotions, fear and anger, all over social media, mirroring perhaps, conversations that were occurring in family homes all around the world.
Instead, I put my energy into the world around me: learning new skills, fishing, growing food, renovating a cottage. Putting my energy and vision into creating a new reality. But something is making me speak out at this time.
I would like to preface what I am saying by acknowledging that Covid-19 is a real threat that has caused great loss and suffering to many families all around the world.
The collective hysteria resulting from it, however, is every bit as damaging as the virus itself.
On the nature of fear
My background is as an outdoor guide. I spent two decades guiding in remote and sometimes dangerous rivers and mountains on four continents. During that time I became very familiar with the nature of fear. A large part of the psychological aspect of guiding in adventurous environments involves managing people’s fears.
One lesson I learnt beyond any doubt is that fear is contagious. Just like a virus. If one person in a group becomes fearful, it spreads like wildfire throughout the entire group, a legacy of our evolutionary heritage, and the fight or flight mechanism.
What we have witnessed, in the past few months, is the entire human species in fight, flight or freeze mode. It is collective anxiety on a global scale, amplified by social media and hysterical media coverage.
Our political leaders, for the most part doing their best and responding to an unprecedented situation, were pressured by a fearful media and hysterical public to do something, anything, and naturally they reacted from a place of fear.
As anyone with a background in adventure sports will know, good decisions are never, ever made from a place of great fear or hysteria.
The Indian philosopher Krishnamurti wrote: ‘Fear of any kind breeds illusion … where there is fear there is obviously no freedom … It makes one tell lies, it corrupts one in various ways, it makes the mind empty, shallow.’
I am not suggesting that our government in Ireland is consciously part of some nefarious plot to undermine democracy. Not intentionally anyway. But democracy has nevertheless been undermined as a result of the hysterical response to Covid-19.
In the UK, former Supreme Court Justice Jonathan Sumption said: ‘This is what a police state is like, it is a state in which a government can issue orders or express preferences with no legal authority and the police will enforce ministers’ wishes’. He has called the lockdown ‘the greatest interference with personal liberty in our history’. When great legal minds are telling us that the rule of law is being undermined, we should listen.
Our civil liberties and civil rights are not something that we be taken for granted. We forget now that Irish independence and the fight for freedom came at a high cost. ‘The price of liberty is eternal vigilance’, is a quote attributed to Thomas Jefferson.
It does not matter whether you consider yourself to be politically on the left, centre, or the right, the erosion of civil liberties that has occurred in most Western democracies over the last few months is something that should concern you. if the there is one thing the history of the last century has taught us, it is that tyranny can take many forms.
Over two thousand years ago, Plato warned of the dangers of tyranny arising from a fearful and chaotic democracy. The people, when afraid, beg for a strong leader to come to save them. Tyranny can arise, not from a despot seizing power, but through a fearful public demanding protection from an external threat. This threat is real, but is overblown: ‘This and no other is the root from which a tyrant springs; when he first appears he is a protector.’
Many other great political thinkers have expounded on the idea of the tyranny of the masses. The great Irish political theorist Edmund Burke, wrote in a 1790 letter that ‘The tyranny of a multitude is a multiplied tyranny’.
John Stuart Mill in his famous essay ‘On Liberty’ (1859) spoke of the need to protect against, ‘the tyranny of the prevailing opinion and feeling … as the majority opinion may not be the correct opinion.’
We confront a dystopian nightmare of an Orwellian society of constant surveillance, with the government and/or corporations controlling what we can think, what we say, and how we act.
Militaristic language has become all too commonplace, thereby justifying extreme wartime measures. We talk of ‘front line’ workers. Much as these amazing doctors and nurses are doing a wonderful job and should be commended, there is no ‘front line’.
This is not a war. You cannot fight a war against a part of Nature. That is like fighting a war against yourself, a mass collective schizophrenia. This is part of the problem with our current rational-materialistic society: in our arrogance we believe ourselves to be somehow separate from Nature. This crisis is showing us clearly that we are not.
The following liberties have been undermined since the start of the Covid-19 hysteria:
The right to personal liberty and to protest.
Article 40.4 of the Irish constitution guarantees a right to liberty, while Article 40.6.1 says you have a right to assemble and to associate freely.
The right to assemble and to protest is an essential part of any functioning democracy. Remember the mass civil unrest that was occurring in Hong Kong and France before Christmas? This has disappeared without a trace. Are we no longer allowed to march on the streets should the need to protest arise? What is now stopping future governments using the ‘health and safety’ of the public as an excuse to crack down on civil disobedience?
One of the most important of our human rights, established as early as 1789 in Article XI of the French ‘Declaration of the Rights of Man’ – ‘The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely’. Article 40.6.1 of the Irish Constitution guarantees a right to express freely your convictions and opinions .
However, this right has come under attack in recent months, with censorship becoming very prevalent. Any questioning of the mainstream narrative quickly gets labelled ‘false news’ or a ‘conspiracy’ theory, thereby stifling debate and discussion. Who has the power to decide what is false news? Do you, or do I? Or does some unelected Youtube or Google content executive?
The mainstream media and social media companies have unprecedented power to manipulate the narrative. Social media and search engine algorithms can effectively control what we read and see, and therefore control the reality we live in. Who decides what we should think, and who holds this absolute and terrifying power?
I may not agree with what you are saying, but I absolutely respect your right to say it. Otherwise, one day, we may find that right has been taken from us.
The seemingly benign concept of using a ‘contact tracing’ app could easily be misused by governments to normalise mass surveillance of citizens at all times, in the interests of public safety. Keeping track at all times of where you go and who you are with, a smartphone becomes like a voluntary ankle tag. With smartphones becoming almost essential to function in society, this mass surveillance is constant.
One of the very worst tendencies this crisis has brought out in people is of of neighbours spying on one another, settling old grievances by informing. Have people forgotten already how secret police, such as the Stasi in East Germany, controlled populations by encouraging this behaviour?
The French philosopher Michel Foucault believed that: ‘the power of a goverment is co-extensive with its ability to surveil’, and wrote about the symbolic prison of the Panopticon, in which prisoners never knew when they were being observed, so were obliged to be on their best behaviour at all times. We are living in a digital panopticon, and giving governments unprecedented powers of surveillence.
Inside one of the prison buildings at Presidio Modelo, Isla de la Juventud, Cuba.
Moreover, with cash becoming redundant through this crisis, governments and corporations have acquired an even greater capacity to surveil, and therefore control, our lives. In the U.K., Derbyshire police used drones to film hillwalkers in a remote mountain area, while in California police fined surfers a $1000 for catching waves.
Is this the kind of society you want to live in?
Despite posts yesterday highlighting issues of people still visiting the #PeakDistrict despite government guidance, the message is still not getting through. @DerPolDroneUnit have been out at beauty spots across the county, and this footage was captured at #CurbarEdge last night. pic.twitter.com/soxWvMl0ls
The right to bodily autonomy and personal sovereignty.
Are we going to give away our right to bodily autonomy to pharmaceutical companies, and the possibility of a mandatory vaccination programme?
I am neither pro- nor anti- vaccination, but I believe that people should enjoy an absolute right to decide what is put into their bodies, freedom over their own body. A right to bodily integrity has been recognised by the courts as an unenumerated right, protected by the general guarantee of ‘personal rights’ contained under Article 40 of the Irish constitution.
There is some disagreement in the scientific community around the safety of vaccines, with billions of dollars having been paid out in compensation by the Vaccine Injury Courts over the past thirty years, but any dissent of the mainstream Big Pharma narrative is brutally suppressed and attacked. In the Middle Ages, heretics were burnt at the stake for daring to question the mainstream version of reality. While they are not burnt at the stake today, anyone who questions the mainstream narrative is attacked, vilified, and discredited
If anyone thinks these concerns over civil liberties far-fetched, I suggest you look at the situation in China at the moment, where the government has used the crisis to strengthen its grip on power, and to crack down on dissent.
Dmytro Sidashev / Alamy Stock Photo
What sort of world do we want to live in post-Covid-19?
I would easily sacrifice an element of safety for my freedom. I want to live in a world where personal liberty and civil duties are both honoured and respected; where personal sovereignty is not given away to unelected global corporations; where political power remains vested in individuals and communities, and a central State does not have unchecked power to interfere in citizens’ lives. Where policing is by consent, and not by coercion and control. I want young children to be able to run freely in the outdoors without fear, or masks.
Image: Daniele Idini (c)
I do not want to die anytime soon, but if I do, so be it. I have long accepted that one day I will die. I would much rather die a free man from Covid-19 than live in a dystopian surveillance society. What we are seeing is a global collective psychological process, the unconscious and unprocessed fear of death. By facing and accepting our own mortality, this fear dissipates.
I do not want to live in a sanitised, risk-free, nanny-state surveillance world, where the government knows where I am at all times and controls what I think, what I can say, what I put in my body. I do not consent to this version of reality. I will not be part of it.
The real front line is about personal power and self-sovereignty. Reclaiming our power from the unelected Silicon Valley AI/tech, media and pharmaceutical executives, who have acquired greater power over every aspect of our lives, with hardly any oversight.
We need to come terms with the immense power that is accumulating in Google and Facebook to influence, manipulate and control what people think. Even that most Machiavellian of realpolitik bureaucrats Henry Kissinger recently wrote: ‘The Age of Reason originated the thoughts and actions that shaped the contemporary world order. But that order is now in upheaval amid a new, even more sweeping technological revolution whose consequences we have failed to fully reckon with, and whose culmination may be a world relying on machines powered by data and algorithms and ungoverned by ethical or philosophical norms’. He who controls the algorithms controls the world.
This is not a world I want to create. I do not consent. For sure this crisis has brought out the very best in humanity, with neighbours helping one another, communities coming together, increasing food security and developing a great sense of solidarity. But we cannot, Pollyanna-like, ignore the potential for the slide into a dystopian surveillance society.
What sort of society do we want our children and grandchildren to inhabit? This is the real front line. We have had a great opportunity for reflection and collective dreaming, for visioning and birthing a new society and new reality. The birthing process of the new world will be messy and painful, as births always are, but the baby will be born.
We are not powerless. We have the power to rewrite the story and create a beautiful world for future generations. Let us make our collective vision a beautiful one.
Today is a better day, with the roof of my home intact and my family and I bundled up inside; in an effort to comply with the rules handed down to fight against the invisible ‘enemy’, whose name is Covid-19. Regardless, this is what the government is telling me. That and I’m doing my Leaving Cert ‘by hook or by crook’ or whatever that means.
I completed my Junior Cert while I was in emergency accommodation, but I wonder how I would feel now if I was still cramped up in that small space, in that one room, with my two brothers, two sisters and my mum. I wonder how I would cope studying on the floor, with a greater amount of books and a larger family of ants.
I wonder if I would have more fear, as the mice roamed around on the floor chewing up my exam papers.
I wonder how it would feel? I know my faith in God would not wane. If He could get me through it once he could do so ten times over. But I hope the system will have changed in my favour and the thousands of other kids living in a modern type of poverty.
Would the government still impose the stress of exams if they knew what it was like to be me?
I’m living in an inequality that’s hidden, along the airport road. Maybe I’d have to go outside for food ten times more than everyone else because there was never any room in the B&B mini fridge.
I was constantly breathing in the air of misery. I need a mask for that too, just as much as I need one for the sickness looming over us.
Before it was cigarette smoke, canned meatballs and now it’s respiratory droplets of a virus that could kill me.
Or how would I feel if my dad was abusing me, like the girls from the family next door were subjected to. It didn’t take long. I think it was just two weeks and it didn’t take a goodbye either.
One day they just left and took a piece of my heart with them too.
What about these circumstances? Is ‘by hook or by crook’ worth these circumstances?
What if I had to take care of my little ones? While my mom goes outside to try and bring a little money in. If she had lost her job because of the pandemic. Now our only source of sustenance was gone. Then we would be relying on the government even more than what we were doing before. What do you call that? Resting on the government? Relaxing on the government? Maybe even sleeping on the government because of the sheer amount of people whose lives were turned upside down because of it. As if living life sideways was any easier.
500,000 people lost their jobs.
With the threat of being kicked out looming over them. How many kids can cope studying on the floor of a dirty B&B? How many students can cope tasting modern poverty while the weight of a global pandemic is weighing on their shoulders. My brothers would sit on the floor next to door to get a secure connection so they could complete their assignments for university. I would sit on the window sill trying to refresh the Edmodo page. Seeing if I can get a good grade on all the work I’ve been missing.
I wonder what I would say if this was still me?
I would be fighting even harder for the government to understand that the Leaving Cert was never a friend to me. They should understand that they’re adding more stress to me and that I’m already feeling the pressure of this pandemic on top of me. Government: why don’t you listen to us and be a little more considerate? You should just go ahead and cancel the Leaving Certificate.
In whatever happens I know that God loves me and that he’s the only one that really truly knows what’s best for me. So even in this uncertainty, I will praise God with my everything.
So this what I would say if it was still me, studying on the floor of a B&B.
Illustration by Malina Molenda/Artsyfartsy for Cassandra Voices
Antiga, Mui Nobre, Sempre Leal e Invicta, the city of Porto, a place so magical, strong and with such welcoming people, full of life and undeniable beauty, alas did not avoid the pandemic. Today it is one of the epicentres of the contagion in Portugal.
For anyone who have been living in the city for the past five years, you can see a constant evolution and growth in several respects, mainly social, cultural and financial.
Now all this prosperity is in jeopardy due to the lack of tourism, immigrants and businesses producing taxes for the government; so Porto and Portugal, which depends mostly on these earnings, faces an arduous period in this global crisis.
The Portuguese city that won the title of best European destination in 2019, and which is one of the most popular destinations for Erasmus students in Portugal is today empty, and filled with the deafening silence that roams the empty streets of the city.
Feeling of Emptiness
I used to work in the city centre, and during my bicycle commute I would pass through the busiest streets and avenues of the city, where hundreds of shops and university faculties were full of people, who create the rhythm to these neighbourhoods.
Now walking through those same places I passed by on ‘ordinary days’, I can see the extreme change the pandemic has caused in its journey through Porto: the people and stores I saw daily are no longer open as a ghostly atmosphere remains throughout the day.
It is sad to see this charming city this way now because in addition to its natural beauty, it is the people that give life to the place. During this crisis, what we see are great idle spaces waiting for everything to return to normal, with people only able to dream of a freedom they took for granted.
Despite the feeling of emptiness hanging over the city, Porto was one of the first Portuguese cities to apply a rigorous lockdown, with streets famous for their bars and clubs hurriedly closed to avoid crowds and possible contagions, thereby reducing the damage that could have been done.
Insecurity and Impotence
In the few days that I have been out to the market or to use public services, it seems that the majority of the population are following strict social isolation and other measures to prevent the spread of the virus.
The change in pace of the city and people’s habits is remarkable; we can see this in small acts of daily life, such as taking public transport, which is the opposite of what it had been: now buses and trams are full of empty seats.
One of the measures first adopted was the deactivation of charging stations for tickets at all bus stops and subway stations so that people would avoid having to touch them, thus making all trips free. Yet all these are empty at the moment, or with few people waiting around for public transport. Those who still travel are keeping at a safe distance from one another. I see a bit of despair in their eyes, the only feature you can make out from their masked faces.
It is disturbing to think that a few months ago our lives followed the natural course of existence; I never imagined I would live to witness an event of this magnitude in the world, and I believe that none of us were prepared for such a change. A feeling of helplessness and insecurity is in the air with the virus.
Birds, Dogs, and Freedom
I’ve been spending most of my time indoors, moving from one room to room to the next, trying to break the monotony. These days I realise that one of the sunniest places in the apartment is in the laundry room, a small space that barely holds two people, but it provides us with a view over the street below, and a little sunshine, except when it’s raining.
Sitting in the laundry, in between thoughts, I stop to have a coffee and observe the neighbourhood. The only movement I can make out are people coming home with shopping bags from the supermarket, and dogs taking their owners for a walk.
These days I also notice that the trees in front of my apartment are full of birds, dozens of them, which spend their days singing, and coming and going between branches. This may seem like a cliché, but I envy the freedom of the birds have to come and go as they please.
In the days that I went out to take the photos for this article, I was sure that the city had been taken over by pigeons and seagulls. I definitely saw more of them than usual in the squares and gardens!
The few people who venture to the squares share the space with the birds and the solitude of a city that has always been synonymous with joy and strength.
What I, other immigrants, and the Portuguese hope is that we can return to the life we had before, and be able to leave this prison, without bars, that our homes have become. While we try to renew ourselves, the city is still and visibly lacking the energy and joy of the local population.
What is most intriguing in this situation, at least for me, is that we are trying to reinvent ourselves. For example, I have started to cook a lot more during these days of confinement, learning new recipes, in addition to adapting the house for new activities we never used to do at home, like dancing and exercising.
Despite everything I believe that together we will overcome this difficulty, which is happening on a a global scale; staying at home admiring the birds and their songs that echo along with an inaudible cry for freedom from the citizens.
Featuring image and photography by Felipe Monteiro
Here’s Mr Pip, aged parent”, said Wemmick, and I wish you could hear his name. Nod away at him Mr Pip, that’s what he likes. Charles Dickens, Great Expectations
Dickens’s Aged Parent, or ‘the AP’, looks contented as he pokes his fire. Most of us locked-down septuagenarians, I suspect, are restless to escape to some kind of normality, albeit a ‘new normal’, that is largely unknown. Meantime we amuse ourselves with the supports of modernity, media, reading and the infinite offerings of the world wide web, as well as absorption in whatever tasks are necessary and permissible, gardening if we’re lucky. The bottle banks may also have a tale to tell.
Few are free from undercurrents of anxiety, more or less severe. How long will this go on? What will the reckoning be? Mass unemployment, social unrest, collapse in asset values, savings emasculated?
There are other fears. If this can happen, then what else? The same or different? Fresh outbreaks of the virus? If world financial systems can somehow be made to cope with this emergency, suppose there’s another around the corner.?
We can have a gnawing sense that our civilisation got things wrong, that it is being, somehow, punished. A year ago I heard a retreat-giver say that we had lost the ability to read the signs of the times.
We had belonged, or thought we belonged, on a planet that although under threat, and although subject to disaster more or less randomly distributed, was broadly on a path of progress, of improvement, even for under-developed regions. Nature mostly provided balance and harmony.
Modern science reinforces this optimism at the cosmic level. We now know that the total universe that includes our Milky Way as one of nearly a hundred million galaxies has been expanding since the Big Bang. But if the rate of its expansion had been even a millionth of a percent slower, the whole thing would have collapsed, imploded in upon itself. There was fine tuning.
Now trust is at issue with a particularly severe jolt for the Western world.
It could be said that most of our strategies of coping are in the nature of distraction. To the extent this is so, the underlying unease remains. Call it dis-ease in fact.
Foreshortened Horizons
Speaking personally, the experience of being herded into seclusion as a 70-plus, brings home as never before, the sense of foreshortened horizons. Are we to lose a whole summer, that we can ill afford to forego, before illness strikes or the grim reaper shows up? At times the lockdown can feel like a dress rehearsal for the real thing. Heretofore, our unconscious aim may have been, as I heard the poet David Whyte express it, to get out of life alive. Yet he also warned: “Reality can be terrible when there’s no time left to say goodbye”.
Is there an alternative, some place where an AP can go, while staying put?
Let nobody mention God in this largely post-religious society! The theology of the Deus Absconditus might be a fit?
Willigis Jaeger, Benedictine friar and Zen master, died on 20th March 2020 in the midst of the Covid-19 crisis, at the age of 95. This is perhaps a suitable moment to invoke his wisdom.
Jaeger was regarded as a mystic, and got into trouble with the Vatican authorities in the time of Cardinal Ratzinger, when it was said that he was subordinating dogmatic teaching to the mystical path.
Jaeger’s declared aim was to unite the wisdom of East and West, incorporating recent scientific findings.
A completely new religious sensibility is awakening in society today. We can only hope that the rigidity ingrained in many religions can be overcome, so that oneness, interdependence, inter-relatedness and love can be experienced … Love is the founding force of the universe. The individual can attain to this realisation by retreating to a place of peace and rest from time to time and, dare I say, by engaging in the practice of the spiritual way.
In Buddhism the pathway is Zen, in Hinduism it is Yoga, in Islam it is the way of the Sufis, in Judaism it is the Kabala and in Christianity it is the way of the mystic.
‘Mysticism’ was defined by Jaeger as a state of ‘empty oneness’.
Mindfulness Revolution
This writer will not make the mistake of attempting to teach that which he has not yet learned. What might be called a ‘mindfulness revolution’ is well under way. Fundamental to all such practice is meditation and there are a variety of teachers on and off line who propose particular methodologies.
As is well known, the invitation is to work towards a personal stillness, the development of a capacity to be present in the moment. It is perhaps fair to say that a core element of the practice is to still the workings of the intellect or rational mind, which is usually in alliance with the ego. In fact it might be said that in the Western world, the human being has tended to become a thinking machine, powered continuously by media in its various forms.
Since our thinking capacity is virtually unstoppable, recourse is had to a device, a support – a focus on breathing, or repetition of a word (mantra) or, simply, inhalation and exhalation of the breath.
So many people, when discussing the value of meditation, will say, I could never be still, my mind is too active. As one who has persevered with this for twenty years, I can only say that the same is true for me. What one realises in time, however, is that each time the subject becomes conscious of a new distraction, and returns to the support, something useful has happened. We have rehearsed what it takes to be less identified with our thoughts, more open to whatever it is that is more. The goal, if there is one, is detachment.
Detachment
Detachment, it might seem runs counter to another stated aim, that of cultivating the capacity to be present, in the Now, as it is said. But in truth what is called for is a presence to self, to body, feelings and mind, and that is not possible save from a place of some detachment.
Concerning the difficulties of attaining a level of detachment – or disidentification – Joan O’Donovan, O.P. has written encouragingly:
We may not be able to disidentify, but we can become aware of how we are identified. That is to say that at the level of our everyday personal self we can begin to be aware of how identified we are with achieving, with seeking for affirmation, with self-justifying. We can practice becoming aware of all this in a non-judgemental way, without even trying to change or improve ourselves. We are simply aware. This simple act of awareness can be an amazing catalyst, because once we become aware of being identified, we are no longer identified.
She stresses however that this kind of self-awareness is not something we acquire by our efforts, because it is already in us.
It is an inner knowing that we can allow to emerge, a latent power of mind, a heart knowing of ourselves, a subjective knowing in which we uncover our own compassion, a compassion that goes from self to others. [ii]
Inducements
The direction that is being taken here does not promise any of the satisfactions of the world-ego.
Yet Jaegar does express what might be thought of as inducements!
We need to enter into a new dimension, a dimension of the unknown emptiness which is beyond all ego-activity. Anyone who breaks through to a deeper all-embracing level of consciousness will find new answers and develop a new understanding of life. Only in this dimension, beyond all rational understanding, will we find real meaning and purpose in our lives. Only when we experience who and what we really are – a timeless being at one with the essence of all beings – will we find answers to the questions of life and death.
The person who can enter this deep stillness will undergo a transformation. In this peaceful resting stillness something happens. The quietude changes us. This quiet is the place from which intuition arises. Decisive ideas are born here. They are not the product of discursive thought.
Although emphasising the value of spiritual practice, Jaeger was in some ways dismissive of religion. He was much influenced by the teachings of Meister Eckhart who was both a mystic and a theologian (and, like Jaeger encountered condemnation from Rome).
Jaeger defined spirituality as “a path to a trans-personal, trans-rational, trans confessional level of experience, where true reality is found”. But he considered that the true meaning of religion lies in the experience of this primary reality, a reality that has nothing to do with rational personal consciousness and lies deeper than all images and concepts.
He saw rituals and ceremonies as important, insisting that religion finds full expression in our daily life and that the experience of the essence of our true being permeates all life. He saw the value of maintaining linkage with mainstream religious traditions as a protection against our going off the rails.
He believed, however that a new language is urgently needed in the religious sphere. ‘I come across numerous people who can no longer understand the traditional language used in Christianity. The conventional images no longer speak to them or touch their hearts.’
The Truth
Part of the problem, perhaps, is that spirituality is a difficult subject to address: Mike Boxhall, a unique spiritual teacher who died in 2019 wrote: ‘Anything you can say about it is really not worth saying as what is said will be words about something, not the experience itself, and will therefore be a concept. A concept is about a truth and is not, and never can be, the Truth.’ [iii]
A spell in the cocoon, perhaps – especially if fed with periods of silence – may afford us a sense of having made some little progress on the path, and perhaps initiate a practice that would serve us well in our residual time. We may have the possibility to discover a self that is more than our everyday self, and in so doing, to exchange New Life for Old. [iv]
In his recent book, Trials of the State Law and the Decline of Politics, (Profile Books) 2019 Jonathan Sumption argues for judicial deference to the Separation of Powers between the legislative, executive and judiciary branches, warning about the politicization of the latter. He argues that courts have assumed too much power, negating the political process, and that the domain of human rights has become rudderless.
Keith Joseph
Recently, in light of the Coronovirus pandemic, he has sagely warned about the endurance of restrictions on basic liberties in an interview on BBC Radio 4 at the end of March, where he decried: ‘A hysterical slide into a police state. A shameful police force intruding with scant regard to common sense or tradition. An irrational overreaction driven by fear.’ Perhaps this former adviser to the Conservative M.P. and Cabinet Minister Sir Keith Joseph – a formative influence on Thatcherism – is on the road to a more conciliatory Damascus?
Of course there is a liberal consistency in his approach, in that he does complains in his book about the disproportionate interference by the British State into our private lives.
Now, with police officers restricting movement and enforcing self-isolation – curbing a natural inclination towards sociability among human beings – he pointedly decries an appalling vista. In the land where the cause of liberty is taken seriously, and the faerie queen resides, we find the genesis of transhumanism, alongside unchecked executive authority.
Sumption’s faith in a representative democracy, which has been undermined in recent times, is touching, but out of step with the perils we face.
Quoting the American realist Judge Hand, he points out that a society where basic civility has been all but lost cannot be saved by judicial interventions, let alone politicians. As someone with Thatcherite sympathies he must surely recognise that the neo-liberal order is in collapse all around him. An unfettered free market has brought division and cartelization that is not equipped to deal with the demands of a major crisis.
Alas, human dignity is difficult to preserve when you are left to wait on a trolley in a hospital corridor with an undignified death on the horizon. These are the kind of human rights Sumption has never really deigned to address.
Magna Carta
I recently paid a visit to Runnymede – in the halcyon days when one was allowed to roam free – the site in 1215 of the signing of Magna Carta (the Great Charter). It is the cornerstone of UK constitutionalism, and the closest to a foundational, written document, albeit the rights and privileges it confers are limited to the nobility of the time.
Noticeably, apart from in the gift shop, the text in its complete form is not evident. But one part of the text, Clause 39 is everywhere; on the fabulous exhibit ‘The Jurors’; on one of the chairs, of which more later; in the actual memorial itself in truncated form; and in the recent ‘Writ in Water’ sculpture, where it emerges like a primeval incandescent blob from out of the water. It reads
No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.
It is the genesis of due process and the rule of law; a tradition now under grave threat, just as Sumption warns, with fundamental human rights no longer applying under a state of emergency.
On that subject, in the famous Radbruch Formula (Radbruchsche Formal) the great German jurist argued that where statute law is incompatible with the rule of law to an intolerable degree, and where it negates the principle of equality, which is central to justice, it could be disregarded. In 1946 he wrote:
[P]reference is given to the positive law, duly enacted and secured by state power as it is, even where it is unjust and fails to benefit the people unless it conflicts with justice reaches so intolerable a level that a statute becomes in effect false law and must therefore yield to justice where there is not even an attempt at justice, where equality the core of justice is deliberately betrayed in the issuance of positive law then the statute is not merely false law it lacks completely the very nature of law.
Even an arch-Anglo Saxon empiricist such as Sumption now seems to see clearly a return to the embedded draconian legislation of yesteryear; yet as a Justice of the Supreme Court, until 2018, Sumption was not one to use rights-driven considerations to qualify or strike down legislation. He would never have been the Lord Atkin of the last public emergency during World War II, whose famous dissenting judgment in Liversidge v. Anderson (1941) is worth recalling:
In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.
The Disappeared
The film by the great Chilean director Guzman Nostalgia for the Light (2010) is part of his continuing exhumation of the nefarious legacy of Pinochet. It is largely devoted to the plight of numerous Chileans searching the desert for the bones of their children, often scattered over great distances, near the camps where Pinochet interned his victims. One particularly poignant scene features an elderly woman finding different bones of her son in different locations, which she proudly exhibits.
In Runnymede the disappeared are represented on the deeply affecting mosaic patterns of a chair. Yet the Thatcherism which Sumption contributed to endorsed Pinochet’s rule. Now Milton Friedman’s shock doctrine, visited on Chile after its emergency, may be used against a land more accustomed to moderation. You reap what you sow Lord Sumption.
Lord Sumption
Parts of Sumption’s book, and his more recent pronouncements, demonstrate the dread sense of foreboding of a wise elder, and he serves the public good by speaking out.
One senses, with his keen sense of history, that he thinks also that neither court nor politicians are going to solve any of this; that it is the beginning of a reversion to a medieval standard of justice, prior to Magna Carta. This humble Fool senses that deep down the noble King Lear-Lord Sumption is revealing less than he has demonstrated.
Throughout the COVID-19 pandemic, the world has seen a deluge of misleading advice, false rumours, and coordinated attempts to contravene expert advice. Over the years, it’s become popular to collectively refer to this as fake news.
This was a term that gained traction throughout the 2016 Presidential Election in the United States, and has become a popular buzzword ever since. It was even the Collin’s Dictionary Word of the Year in 2017,[1] highlighting its impact in the cultural zeitgeist. While this phenomenon is not new, the current incarnation carries a significant digital difference. Technology can foster the spread of false stories with unprecedented speed and efficiency.
This was demonstrated during the Irish referendum to repeal the 8th amendment. Researchers out of UCC showed that when people were given both true and fabricated stories about events in the run up to the referendum, participants, from both sides, recollected false stories, particularly about the other side.[2]
More recently, the discussion in Ireland has begun to probe the role of digital platforms in perpetuating the dangerous spread of ill-founded claims. It appears that in the time preceding each government announcement about COVID-19, instant messaging apps are flooded with false, misleading, and potentially harmful whispers.
As these concerns grow, so too do calls for legal intervention. While this is necessary, and likely, important details must be hammered out in relation to risks associated with the delicate task of regulation in this area. In many cases, harmful false information does not affect everyone equally.
In particular for elderly and vulnerable groups, the accuracy of medical information and advice can genuinely be a matter of life and death. This must also be considered when looking at how far-right campaigns attempt to weaponise digital platforms to lay the blame of COVID-19 against immigrants.
At the moment, numerous claims with misleading and xenophobic undertones have characterised the social media landscape, with Chinese citizens being disproportionately targeted with abuse online.
In light of this, an important detail is emerging. Misinformation can be weaponised to target groups that are already marginalised. This must be acknowledged as regulatory solutions to misinformation continue to develop. While law could have a critical role in curtailing future misinfodemics online, marginalised voices must be protected within these efforts. Within this protection, the potential for social media to platform underrepresented voices must be considered.
The Importance of Digital Activism in Democracy
The objective of combating misinformation must not be viewed in isolation. While much more needs to be done in order to preserve the accuracy of information and news online, the Internet’s democratic potential must not be undermined. Much of this potential is grounded in creating areas of unprecedented accessibility, where diverse and pluralistic voices can be amplified. This can be seen through the expansion of digital activism.
Public opinion now widely regards the role of digital platforms as a valuable vehicle for initiating social change. In America, a 2018 study demonstrated that 69% of citizens feel that social media platforms are critical in ‘getting politicians to pay attention to issues’, while 67% felt that they are important for ‘creating sustained movements for social change.’[3] As well as enlarging the scope for democratic deliberation and participation, social media has facilitated new open forums for activism, while eroding previously robust structural barriers and allowing citizens to more directly amplify issues of public interest.
In recent years, digital platforms have fueled numerous activist movements addressing racial and gender based societal problems. Two flagship social movements have showcased the potential for digital platforms to be a generative environment for social change. The Black Lives Matter movement brought attention to systemic racial injustices, while #MeToo drew global eyes to a wide spectrum of sexual harassment.
While these two movements had separate social motives, both were operationalised by digital platforms that helped to consolidate harmonised messages, and mobilise international solidarity.
The 2013 shooting of Trayvon Martin sparked a hashtag that drew attention to events involving unjust treatment and persecution by law enforcement and the criminal justice system. With further shootings by police in 2014, protests led to civil unrest, spurring use of the hashtag that galvanised a number of international ‘chapters’ adopting the same slogan.
In doing so, social media platforms were instrumental in spawning an umbrella activist movement. After the 2014 shooting of 18 year old Michael Brown, the hashtag resurfaced. In the three weeks after this incident, #BlackLivesMatter appeared on social media approximately 58,747 times every day. When the judicial decision not to indict the police officer responsible for Brown’s death was issued on November 25th 2014, the hashtag was used 172,772 times.
Within the following three weeks after this decision, the hashtag appeared 1.7 million times across popular digital platforms. Through its ability to focus attention on specific incidents and wider related social problems, the #BlackLivesMatter demonstrated the role of social media as a powerful mechanism for broaching politically sensitive but socially prescient topics.
Digital platforms have also facilitated impactful discourses surrounding gender based violence and harassment. Originating with accusations levelled at high profile figures in 2017, #MeToo gained viral traction in late 2017, leading to a variety of related stories shared by both celebrities and ordinary users who recounted instances of harassment.
Many of these users would not have had their stories heard in the days before more accessible platforms that give users access to an audience. In this way, technology and surrounding digital architectures, have revolutionised discussions surrounding stigmatised issues. The hashtag #MeToo has been used tens of millions of times since the initial 2017 tweet from actress Alyssa Milano which prompted women to report their experiences.[4]
The benefit of ‘hashtag activism’ to foster a social movement around a cohesive message can be seen through its ability to hold power to account. Public pressure on foot of the hashtag and related discussions bred numerous consequences.
In spite of particular focus in America and the English-speaking world, the #MeToo gained significant international traction, aided by social media’s ability to transcend border. By fostering environments where victims of sexual harassment and abuse could report and publicise personal anecdotes that reinforce the movement’s broader message, it encouraged exposure of personal and often relatable stories. This shows that social media can act as a machine for creating empathy.
Instances such as #MeToo also forced a discussion to question and challenge existing structural flaws in how harassment was dealt with upon receipt of complaints. This exposed unacceptable standards and worrying loopholes, and did so under a universal and recognisable framing. In this way, social media can carry important social capital, especially to those who need it most.
This is a point that should be threaded through legal discussions that broach intervention on foot of misinformation concerns. As a policy objective, misinformation must be minimised, while also striving to maintain and expand the internet’s democratic capabilities.
The Backfire of Censorship as a Response to Misinformation
In light of social media’s role as a vehicle for social activism, legal responses to the problem of misinformation online must be delicately handled. If regulatory intervention in this area is based on an obsession with cancelling out anything other than mainstream voices, this could have harmful consequences for digital activism.
Globally, recent examples can demonstrate how this manifests. In Hungary, recent legislative developments for Prime Minister Viktor Orban to ‘rule by decree’ involve criminal sanctions for spreading false or ‘distorted’ information. These sanctions can match, and even exceed punishments for defamation and slander under Hungary’s criminal code.
Hungary is turning into the EU’s first fully fledged autocracy, critics have warned, after its prime minister assumed the indefinite power to rule by decree and protests grew against a nationalist curriculum imposed upon schools https://t.co/Un3c8gAppk
— The Times and Sunday Times (@thetimes) April 2, 2020
In India, misinformation led to a confused exodus of migrant workers in light of rumours over lockdown restrictions. Many of these migrant workers were desperately attempting to leave their place of work to return home, in fear of being restricted from leaving during a prolonged lockdown. This underscores the reality that misinformation can harm the most vulnerable, and already marginalised.
In response, the Supreme Court issued advice to the central government, noting how potentially harmful the spread of ‘fake news’ online can be. The Court was correct in identifying the problem, but provided worrying commentary in issuing solutions. It was ultimately advised that media outlets are prohibited from publishing information ‘without first ascertaining the true factual position.’ The factual position needed to be verified by the government.
This is a problematic solution when recognising the need for governments to be held accountable. It is especially troubling during a crisis such as the COVID-19 pandemic. If the government becomes a self-appointed arbiter of truth, what happens when that same government is faced with information that is true, but that is also unfavourable?
Social media has a unique role to play in bolstering movements that expose injustices, mistreatment, and neglect of marginalised and disaffected groups. Unfortunately, it is also a space where misinformation thrives.
This presents a future quagmire, if and when more serious regulatory measures are initiated to respond to this infodemic. These are difficult interests to reconcile. However, the adoption of a holistic approach, grounded in human rights, can help to disentangle this problem, and offer proportionate solutions.
How Should Irish Legal Responses Proceed?
The current Irish legal framework has been characterised by numerous encouraging developments in response to this issue, often correctly seen as an electoral problem. More broadly, a major legal issue has been the growing pains of political advertising law in the digital age, Regulation of political and issue based advertising has not been fully applied to digital advertisements and appears outdated when considering the growing sophistication of the technological capabilities.
2018 saw the ‘Interdepartmental Group’ on the Irish ‘Electoral Process and Disinformation.’ This report ascertained that while the risk posed to Ireland’s electoral process was ‘relatively low’, online developments exposed glaring vulnerabilities. In particular, threats of potential ‘cyber attacks’ and ‘the spread of disinformation online’ were identified as ‘substantial risks.’[6]
This was followed by The International Grand Committee on Disinformation and ‘Fake News’, which convened in Dublin on November 7th 2019. This was a promising development, and recognised the need for a holistic approach to this problem. Signatories from eight countries agreed to advance measures to curb the spread of disinformation, while also acknowledging the need for fundamental rights to be protected.
The question of how this delicate balance can be achieved is one that requires a lengthy discussion. Viewing the problem of misinformation currently, it appears as though regulation should intercede quickly and heavily. However, it would be far better to take a step back and develop long term and human rights-proofed solutions.
Adopting a human rights approach, within initial stages, carries two valuable benefits. First, it can ground discussions in a thorough recognition of the scope of rights and civil liberties that need to be protected whilst combating misleading and harmful information online. The right to non-discrimination, the right to free speech, and the right to free and fair elections all need to be taken into account. This is a balancing act that can be achieved when using human rights as a guide.
In terms of how to achieve this balance, human rights can again inform this discussion. Principles such as proportionality and the well-established need for legal intervention with free expression to be ‘necessary in a democratic society’, provide highly useful guidance. This is guidance that is extremely important considering the tendency for governments to use extreme events to usher in draconian legal measures.
Some of the most invasive and harmful legislation has been rushed in on the back of a crisis. As seen with the introduction of the Patriot Act after 9/11, the time of emergency is often not an ideal time to craft laws that protects civil liberties. This must be taken into account when figuring out how to intervene to stem the flow of false claims online.
Human Rights Central
The immediate crisis demonstrates that vulnerable groups are among the most immediate victims of the misinfodemic that has accompanied COVID-19. Accordingly, robust steps need to be taken to debunk and mitigate the spread of rumours and falsities that identify marginalised targets in future events such as these.
Going forward however, this problem must be seen more broadly. A crucial step that the legislators must take is to ensure that human rights are central to forming responses to misinformation. When considering how activist voices and social movements can be protected while advancing solutions, comprehensive and routine consultation with human rights groups is needed.
Civil society and non-profit organisations must be engaged to inform Irish law makers in how to construct effective prevention of misinformation, but insulate digital activism from censorship. Hopefully, the severity of the COVID-19 pandemic can kick start this complex but critical legal discussion.
[1] Collins Dictionary Announces “Fake News” as the 2017 Word of the Year’ (Collins 2017) <https://www.collinsdictionary.com/woty>.
[2] Gillian Murphy, (2019) False Memories for Fake News During Ireland’s Abortion Referendum. Psychological Science, 30(10), 1449–1459.
[3] Dan Whitehead, ‘You deserve the coronavirus’: Chinese people in UK abused over outbreak <https://news.sky.com/story/coronavirus-chinese-people-face-abuse-in-the-street-over-outbreak-11931779>
[4] Monica Anderson, Activism in the Social Media (Pew Research 2018) < https://www.pewresearch.org/internet/2018/07/11/activism-in-the-social-media-age/ >
[5] Anke Wonneberger, Iina R. Hellsten & Sandra H. J. Jacobs (2020) Hashtag activism and the configuration of counterpublics: Dutch animal welfare debates on Twitter, Information, Communication & Society < https://www.tandfonline.com/action/showCitFormats?doi=10.1080%2F1369118X.2020.1720770&area=0000000000000001>
[6] Emanuella Grinberg, ‘What #Ferguson stands for besides Michael Brown and Darren Wilson’ (CNN, November 19, 2014)
[7] Monica Anderson and Skye Toor, ‘How social media users have discussed sexual harassment since #MeToo went viral’ (Pew Research 2018)
[8] How Social Media Users Have Discussed Sexual Harrassment Since Metoo Went Viral (Pew Research 2018) <https://www.pewresearch.org/fact-tank/2018/10/11/how-social-media-users-have-discussed-sexual-harassment-since-metoo-went-viral/>
[9] Colm Quinn, Hungary’s Orban Given Power to Rule by Decree With No End Date,’ <https://foreignpolicy.com/2020/03/31/hungarys-orban-given-power-to-rule-by-decree-with-no-end-date/>
[10] Supreme Court Asks Government To Curb Fake News On Virus, Set Up Portal Within 24 Hours For Real Time Information, Bloomberg Quint (31 Mar 2020) <https://www.bloombergquint.com/coronavirus-outbreak/sc-asks-centre-to-curb-fake-news-on-coronavirus-set-up-portal-within-24-hours-for-real-time-info>
[11] Online Advertising and Social Media (Transparency) Bill 2017 Part 1, 2.
[12] Overview- Regulation of Transparency of Online Political Advertising in Ireland, Department of the Taoiseach (14 Feb 2019) <https://www.gov.ie/en/policy-information/7a3a7b-overview-regulation-of-transparency-of-online-political-advertising-/> Last accessed 11 Oct 2019
[13] In particular when the European Court of Human Rights assesses interferences with free expression, a key question the Court asks is whehter the interference was necessary in a democratic society, and predicated on a pressing social need [https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-18(2007).pdf]
Years ago, arriving late one evening in Ostende by train – always my favourite means of travel – from Paris, I went to the first hotel I spotted: The OLD SHAKESPEARE HOTEL. I booked a room and, feeling expansive after a film shoot in Sud Tirol, asked the blonde receptionist for directions to the best restaurant in town. In her arms, she fondled a Pekingese which had the all-seeing eyes of an intelligent chimp. The woman said, with complete assurance: ‘This is the best restaurant.’
When I dumped my bag I went down to the restaurant where the only diners were a man with a cravat and two glamorous women. While I waited for a menu I heard the word ‘chateaux’ and assumed they were haute bourgeois patronising the best restaurant in town. Reassured that the receptionist was not lying, I listened out for other snatches of conversation.
“Florida! Of all places.”
“Its actually quiet in Winter.”
“Do you really like McDonalds?”
“Well, it has Disneyland and Cape Canaveral.”
I switched off and shortly afterwards they left. I was now the solitary diner.
The middle-aged waiter in white handed me the menu. I thanked him and he responded with the simple phrase: “As you please, sir.”
I studied the menu and said, “I’ll just have the best fish dishes you have.”
He repeated, “As you please sir,” and took the menu away, replacing it with the wine list. As my filming expedition had been more than usually successful I chose a rather expensive Pouilly Fuisse.
“As you please, sir”
Over the next hour that was the only phrase he repeated, after my every “Thank you.”
Perhaps that was the only English he had? Once I tried to engage him.
“What do you do when trippers from London ask for fish & chips?”
“We do everything, sir”
And that was his only deviation from the role of perfect waiter. In a small aquarium in front of me there was one lobster and one crab, the latter missing one of its muscular claws. It was pressing itself despairingly against the glass while the lobster hovered. I knew it was going to die, eaten by animals like itself before they were eaten in turn. But I was to be this crab’s final executioner. My uncommunicative waiter delicately fished him out.
There followed at discreet intervals and in stately procession a series of small miracles of the most delicious food I have ever eaten, titbits of shrimp, mussels, smoked eel, halibut, salmon (smoked and fresh on the same plate), oysters (with a special fork), squid. All were prepared lovingly and served in its own unique dish or platter, garnished with a sprig of this or that herb, or slices of lemon impaled.
Having no other than perfunctory human communication available, in my notebook I actually wrote down details of each course, even noting that dishes were all wheeled in on a silver tray. Including, of course, the single clawed crab.
I felt no pity for it, so sated was I in the luxury of perfectly prepared food.
“This is the finest food I have ever enjoyed,” I said to the morose waiter.
“As you please, sir,” he repeated. I must have heard him utter this thirty times, before and after every dish.
The only other people I glimpsed were a young Asian couple in aprons who emerged briefly from the kitchen to look at me and smile shyly. Then they disappeared again. The Pekingese also appeared once, without its owner, to study me inquisitively. Satisfied, he trotted back to report satisfaction, presumably to the handsome blonde at Reception.
The dessert was astonishing in its construction and taste. I have no idea of what it consisted but felt guilty at destroying such a work of art with a fork.
The only detail that let down the side was the that the toothpicks were plastic rather than wooden, but I overlooked this as I sipped on my Hennessy cognac, feeling not in the least bit guilty about the starving masses or the bill to come next morning. It was the best money I ever spent.
Many years later I went to Ostende, but could not find the Old Shakespeare. I wondered whether it existed any longer; maybe I dreamed up the meal? But I could still relive the splendour of it like some old love or a sensuous dream.
This evening, in a vacant and pensive mood, I scribbled down these words about the experience, and wondered idly if the miracle of the Internet could help me, so I Googled the place. Yes, an advertisement suggested it still existed as a centre of gourmet eating. There was even a phone number.
A woman answered my call in Belgianese and said that, at least as far as I could gather, that the hotel/restaurant was no more. I assumed Coronavirus was responsible. “No”, my multilingual son – who was eavesdropping on the conversation informed me; “the building is now apartments.”
The first are financial measures assisting those affected, protecting living standards, and maintaining spending in the economy. The second aspect concerns laws permitting agents of the State to shut down mass gatherings and to order people to stay in their homes. Also, there are regulations allowing for the detention of a person, on foot of a medical recommendation, if they refuse to self-isolate.
The rapid spread of the pandemic temporarily hands necessary draconian powers to a State that has already acquired other wide-ranging powers in response to subversive activity relating to the ‘Troubles’ in Northern Ireland and, more recently, violent gangland criminality. These have long been subjected to criticism by civil liberties activists in Ireland, including Mary Robinson, as well as external bodies, concerned by the unwarranted erosion of the rule of law.
In particular, the Offences Against the State Act 1939 permits trial without jury before the Special Criminal Court. Subsequent Offences Against the State legislation created a number of special evidential provisions in response to the unique situation then at play in Ireland, including the use of ‘belief evidence’ of a Chief Superintendent before the Court and the drawing of ‘adverse inferences’ from the silence of a suspect in custody.
Interestingly, the Special Criminal Court became the focus of a lengthy exchange during the leaders’ debate on RTÉ prior to February’s election, with Sinn Féin President Mary Lou McDonald repeatedly being asked to clarify her party’s position on the issue.
Indeed, Fine Gael leader Leo Varadkar went so far as to rule out a coalition with Sinn Féin based on its purported view on the Court; his Fianna Fáil counterpart Micheál Martin then claimed that Sinn Féin always votes against the renewal of the Offences Against the State legislation on instruction from ‘their IRA old comrades.’[1]
The problem with handing over such powers to the State is that once granted they are not easily relinquished, as the police and judiciary grow accustomed to their exercise. This has been the case with the Special Criminal Court that now sits in the impressive and imposing Criminal Courts of Justice building on Parkgate Street in Dublin.
Protecting civil liberties, such as the right to jury trial, may seem less important as long as extraordinary powers are not abused. However, the existence of special powers poses the ongoing risk that they may be exploited by unscrupulous, or even tyrannical, politicians or agents of the state.
This article provides background on the emergence of the Special Criminal Court, and the general criticisms that have been directed against the use of a non-jury trial, followed by an assessment of its use against organised crime. It also posits potential alternative practices that could be used to protect endangered juries. As we enter a prolonged period of draconian measures restricting our conduct it is salutary to consider the powers already at the disposal of the State.
General Criticisms in the Use of a Non-jury Court
The current Special Criminal Court has been subject to general criticism since its establishment in 1972. The justification for the existence of a non-jury court centred on the potential for juror intimidation and the fear that jurors could be coerced in their decision-making. In announcing the establishment of the Special Criminal Court, the then Minister for Justice, Desmond O’Malley, referred to the prevalent atmosphere of intimidation in courthouses and the threat of retaliation.[2]
In response, a statement from the ‘Citizens for Civil Liberties’ on 26 May 1972 expressed the concern that the establishment of the Court would deprive citizens of the right to jury trial.[3] The introduction of belief evidence later that year[4] also sparked criticism from members of the academic community. Writing in 1974, Mary Robinson stated that, ‘in effect, this would not even be a case of one man’s word against another, but a case of belief which was based on undivulged facts and derived from undivulged sources – which could only be at second or third hand – being set against another man’s assertions’.[5]
While the workload of the Special Criminal Court declined noticeably over the following decade, this appears to have been the result of a decline in subversive activity rather than the result of a policy change on behalf of the DPP.[6]
Writing in 1989, Hogan and Walker noted the lack of political pressure to have the court disbanded and posited that this might be a tribute to the fairness and impartiality of the operation of the Special Criminal Court since 1972. However, they wrote that this also provided ‘disquieting evidence of the “seepage” of emergency legislation into the ordinary law of the State. What was once seen as a radical (and purely temporary) departure from standard norms has now become an accepted feature of the criminal justice system’.[7]
While in 1996 the Supreme Court indicated the necessity that the Special Criminal Court be kept under constant review, it refused to find that the system was unconstitutional.[8]
Human Rights Committee
The use of the Special Criminal Court was criticised by the Human Rights Committee in 2001, which found that the State was in breach of the right to equal treatment, espoused by Article 26 of the United Nations Covenant on Civil and Political Rights, given the power of the DPP to certify trial in the Special Criminal Court.[9]
The Committee found the State to be in breach of the obligations under Article 26 and stated that it was critical to its conclusion that the DPP was under no obligation to provide reasons and that judicial review of his decision was ‘restricted to the most exceptional and virtually undemonstrable circumstances’.[10]
In its 2002 report, the minority of the Committee to Review the Offences Against the State Acts 1939–1998, which consisted of Hederman J. and Professor Dermot Walsh, focused on the primacy of the right to trial by jury, which they described as ‘a cornerstone of the criminal law system’ which ‘ensures that the innocence or guilt of a person charged with an offence is determined by twelve randomly chosen members of the community, each of whom brings to the process the benefit of his or her life-experience and individual perspective.’[11]
They noted that the risk of possible jury intimidation is reduced, that the members of the Court can be relied on not to be swayed by political views from convicting where the offence was politically inspired and that the prospects of conviction may be considered more likely, ‘not because the members of the Court are unfair but because studies have consistently shown that non-jury courts have a higher conviction rate than courts with trial by jury’.[12]
Furthermore, Professor Dermot Walsh in his dissenting comments in the Report of the Committee to Review the Offences Against the State Acts 1939–1998 argued that such exceptional criminal justice measures would, under the guise of combating terrorism, cause more lasting damage to basic democratic values and the rule of law than ‘the terrorists could ever hope to have achieved,’ and suggested the replacement of the standards underpinning the Offences Against the State legislation with ‘standards that are more firmly rooted in due process, civil liberties and human rights’.[13]
In contrast the majority of the Committee stated that ‘as long as there is in existence a paramilitary threat to public peace and order, the need for the Special Criminal Court will probably remain.’
In light of the majority recommendations, the operation of the Special Criminal Court has been maintained, despite on-going controversy in the context of organised crime, which is discussed below.
Meanwhile, most of the recommendations made by the Committee to Review the Offences Against the State Acts 1939–1998 intended to align the legislative provisions with human rights norms have not been implemented and have largely been ignored by the State.
In its 2014 report on Ireland, the United Nations Human Rights Committee highlighted its continued concern ‘at the lack of a definition of terrorism under domestic legislation and the continuing operation of the Special Criminal Court’.[14]
The UNHR Committee called on the State to ‘introduce a definition of “terrorist acts” in its domestic legislation, limited to offences which can justifiably be equated with terrorism and its serious consequences’ and to consider the abolition of the Special Criminal Court completely.[15]
Trial of Organised Crime in the Special Criminal Court
In 2002, the majority of the Committee to Review the Offences Against the State Acts 1939–1998 reported that juries in Ireland are ‘distinctly uncomfortable’ in cases involving organised crime and that attempts have been made to tamper with juries in high profile criminal trials in the ordinary courts. The Committee felt that the threat posed by organised crime was sufficiently serious to justify the continuation of the Special Criminal Court on that ground alone.[16] In DPP v Special Criminal Court & Ward,[17] Carney J stated:
Those engaged in [organised] crime require a wall of silence to surround their activities and believe that its maintenance is necessary for their protection. They have at their disposal the resources, including money and firearms, to maintain this wall of silence and will resort to any necessary means, including murder, in furtherance of this objective.[18]
It has been suggested that organised criminality is not ‘ordinary’ crime as such and measures akin to those used against suspected terrorists are warranted.[19]
Criminal Justice Act 2009
Despite the foregoing, the use of the Special Criminal Court for the purposes of non-subversive and organised crime has sparked heated debate in recent years. For example, the Criminal Justice Act 2009 was urgently passed through the Dáil against a background of increasing gangland violence and it evoked great controversy, with many lawyers publicly opposing it.
A large group of lawyers penned a letter to The Irish Times expressing their dissatisfaction with the content of the Act and the manner in which it was rushed through the Houses of the Oireachtas. Among the complaints was the fact that the Act had been:
… introduced without any research to support its desirability and without canvassing expert opinion or inviting contribution from interested parties on the issues. It appears now that it will be passed without proper debate in the Dáil because such debate has been guillotined by the Government. It is quite simply astounding that we as a society would jettison ancient rights and rules of evidence in such a manner and seemingly without regard to the effect such impetuous legislating might ultimately have on the respect for the rule of law in this country.[20]
It was further argued, in relation to the Act’s provision for applications to extend time in detention to ‘be heard otherwise than in public’ and to the possible exclusion of the accused and his legal representatives,[21] that ‘the provision for secret hearings to extend detentions without the presence of the suspect or their lawyer’, was a stark departure from the principle that justice should be administered in public. The letter set out that:
Secret hearings should be anathema to a system based on the rule of law. From the manner in which detention hearings are currently conducted, there is nothing to suggest that investigations would be compromised. In the main the court hears generalised evidence about the necessity for further time to carry out interrogations, forensic testing or assessment of evidence.[22]
[T]his provision fundamentally alters the nature of criminal justice in Ireland. It allows for the judge to hear evidence of a Garda of any rank, in private, and without legal representation, in order to justify the continuing detention of a person … In essence what this means is that a person can be held without knowledge of the grounds on which the judge is justifying their continued detention. This detention can be justified by the secret information from any member of the Garda Síochána, regardless of his or her expertise or experience.
In 2014, the United Nations Human Rights Committee expressed particular concern ‘at the expansion of the remit of the Special Criminal Court to include organized crime’.[23]
Flouting Human Rights
With the announcement of the second Special Criminal Court in 2015, the debate regarding the justification and role, if any, of the Special Criminal Court, resurfaced. In June 2015, the Minister for Justice, Frances Fitzgerald, informed the Seanad that:
Organised crime continues to present a significant law enforcement issue, with a number of criminal gangs continuing to engage in serious crimes. There is, unfortunately, stark evidence of the willingness of these gangs to engage in murder, armed robbery, kidnapping, drug smuggling, counterfeiting and other serious offences. We are also faced with the reality that there are growing links between paramilitary groups and organised crime. Given the nature of organised crime, the investigation and prosecution process can be lengthy and difficult.[24]
In October 2015, the Director of the Irish Council for Civil Liberties shared an alternate view:
The Special Criminal Court was created as an extraordinary court in extraordinary times; however, no reasonable person could today claim that there is a public emergency threatening the life of the nation. It is therefore unjustified that this Court’s procedures suspend fundamental fair trial guarantees, including the right to trial by jury. The UN Human Rights Committee has repeatedly identified the Special Criminal Court as being in violation of Ireland’s legal obligations under international human rights treaties and called for its abolition. In 2014 the Committee expressed particular concern ‘at the expansion of the remit of the Special Criminal Court to include organised crime’.
The continuation, much less the expansion, of such a court in peacetime flouts Ireland’s human rights obligations and is not necessary in a democratic society. Crime, particularly violent and gang crime, are a legitimate concern for our legislators. Tackling such crime must not rely, however, on chipping away at the right to a fair trial, but on a commitment to adequately resourcing An Garda Síochána and the regular Courts.[25]
More recently, in November 2018, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Professor Fionnuala Ní Aoláin, commented on the Special Criminal Court regime.
At a lecture hosted by the Irish Council for Civil Liberties (ICCL) and the International Network of Civil Liberties Organisations (INCLO), she stated that ‘the Island of Ireland, more so than many parts of the world has experienced emergency law, emergency practice and the seepage of the exceptional into the ordinary in ways that has not served the rule of law nor the protection of human rights well.’ She pointed out that there had been ‘consistent and trenchant concerns about the use of the Special Criminal Court and the Offences Against the State Act as a “work-around” the ordinary protection of the law’.[26]
The Future
There is a genuine risk that the use of non-jury trial, originally an emergency measure, is becoming normalised. It is disappointing that the debate and dialogue in Ireland surrounding the Special Criminal Court have primarily revolved around two poles; jury or non-jury trial. There has been little political discussion of intermediate alternatives for protecting jurors, which, in modern times, might include the use of technological solutions to some of the problems posed by potential jury intimidation.
One possibility would be to allow the jury to observe proceedings from a remote location, though it must be acknowledged that such protective measures may have a prejudicial effect and may invite the jury to draw negative connotations about the culpability of the accused. Options such as transporting the jury to their homes or taking steps to anonymise the jury[27] may not be as feasible in Ireland given the small size of the country and would again involve the risk of prejudice towards the accused where the jury members are aware of the protective measures taken. A more realistic option to prevent juror intimidation would be to limit the right to inspect the panel from which the jury is drawn, as has been done in Northern Ireland.[28]
If the Special Criminal Court is to remain in being, it would be preferable that the decision regarding form of trial should lie with the courts rather than the DPP or the legislature.[29] Instead of using a system of scheduling a vast number of offences which are presumptively tried before the Special Criminal Court, each case should be considered on an individual basis.[30]
The right to jury trial was described by Thomas Jefferson as ‘the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.’[31] One would have thought that in light of the high status formally accorded to trial by jury in the Irish Constitution, these alternatives would merit serious consideration.
Conclusion
The current Special Criminal Court was established in 1972 as an emergency measure in response to a unique set of circumstances then at play in Ireland. It would appear, however, that the court now has de-facto permanency in our criminal justice system. While the majority of trials in the Special Criminal Court continue to involve subversive activity, prosecution of organised crime in the court is increasing and a situation has now arisen where emergency powers have become normalised.
Now, as the Government responds to an unusual situation for Ireland with emergency legislation, it is worthwhile to bear in mind the earlier response to subversive activity in Ireland and – in the words of Hogan and Walker – the ‘disquieting evidence of the “seepage” of emergency legislation into the ordinary law of the State.’
[1] Ceimin Burke, ‘Explainer: What is the Special Criminal Court and what is Sinn Féin’s stance on it?’, The Journal, February 6th, 2020, https://www.thejournal.ie/special-criminal-court-explainer-4993281-Feb2020/
[2]Davis, The History and Development of the Special Criminal Court 1922–2014 (Bloomsbury Professional, 2014) 169, citing 261 Dáil Debates (15 June 1972), col 1765.
[3]McInerney, ‘Special Courts Introduced’ (1972) The Irish Times, 27 May, 9.
[4]‘Belief evidence’ was introduced by the Offences Against the State (Amendment) Act 1972, s 3(2), which was passed on 3 December 1972. The provision is discussed in detail in Ch 6.
[5]Robinson, The Special Criminal Court (Dublin University Press, 1974) 31.
[6]Hogan and Walker, Political Violence and the Law in Ireland (Manchester University Press, 1989) 237.
[7]Hogan and Walker, Political Violence and the Law in Ireland (Manchester University Press, 1989) 239.
[9]The powers of the DPP in this regard are discussed in detail in Ch 2.
[10]Kavanagh v Ireland, Decision of the UN Human Rights Committee (CCPR/C/71/D/819/1998, 4 April 2001), at para 10.2.
[11]Hederman et al, Report of the Committee to Review the Offences Against the State Acts 1939–1998 (2002), at paras 9.88–9.
[12]Hederman et al, Report of the Committee to Review the Offences Against the State Acts 1939–1998 (2002), at para 9.90.
[13]Hederman et al, Report of the Committee to Review the Offences Against the State Acts 1939–1998 (2002), 255–261.
[14]United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014). The Committee had previously expressed concern in 1993 (Comments of the Human Rights Committee, CCPR/C/79/Add 21 (3 August 1993)); 2000 (Report of the Human Rights Committee, Vol I, Gen Ass, 55th Sess, Supp No 40, A/55/40 (10 Oct 2000)); 2008 (Concluding observations of the Human Rights Committee: Ireland’, CCPR/C/IRL/CO/3 (30 July 2008)); and 2013 (‘Report of the Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya: Addendum to Ireland’ A/HRC/22/47/Add.3 (26 February 2013)).
[15]United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014).
[16]Hederman et al, Report of the Committee to Review the Offences Against the State Act 1939–1998 (2002), at paras 9.33–9.36.
[17]DPP v Special Criminal Court & Ward [1999] 1 IR 60.
[18]DPP v Special Criminal Court & Ward [1999] 1 IR 60, 63.
[19]Campbell, Organised Crime and the Law: A Comparative Analysis (Hart Publishing, 2013) 128.
[20]Undersigned Solicitors and Barristers, ‘Criminal Justice (Amendment) Bill’, (Letter to the Editor) (2009) The Irish Times, 8 July.
[21]Pursuant the Criminal Justice Act 2007, s 50(4A).
[22]Undersigned Solicitors and Barristers, ‘Criminal Justice (Amendment) Bill’, (Letter to the Editor) (2009) The Irish Times, 8 July.
[23]United Nations Human Rights Committee, ‘Concluding observations on the fourth periodic report of Ireland’, CCPR/C/IRL/CO/4 (19 August 2014).
[24]Seanad Debates, Vol 240 No 9 (11 June 2015). The Minister was speaking to the Seanad in support of a resolution to continue in operation s 8 of the Criminal Justice (Amendment) Act 2009, which adds certain ‘organised crimes’ to the schedule of offences that can be tried before the Special Criminal Court.
[25]‘Special Criminal Court Decision ‘Flouts Rule of Law’, says ICCL’, ICCL Press Release (29 October 2015). https://www.iccl.ie/press-release/special-criminal-court-decision-flouts-rule-of-law-says-iccl/ accessed 20 January 2019.
[26]‘UN expert criticises the Special Criminal Court and the Offences Against the State Act’, ICCL Press Release (21 November 2018).
[27]These steps include referring to them by number only, housing them in a secret location and monitoring their calls, as occurred in United States v Gotti 777 F Supp 224 (EDNY 1991).
[28] Juries (Northern Ireland) Order 1996 (SI 1996/1141 (NI 6)), Art 26A, as inserted by the Northern Ireland Act 2007, s 10. This was found not to breach the Art 6 right to a fair trial in Re McParland [2008] NIQB 1. See Campbell, ‘The prosecution of organised crime: removing the jury’, (2014) 18(2) IJEP 83, 97. See also, the recent recommendations of Seymour CB in relation to non-jury trials in Northern Ireland (Seymour CB, Report of the Independent Reviewer Justice and Security (Northern Ireland) Act 2007, Tenth Report 1 August 2016 – 31 July 2017 (Her Majesty’s Stationery Office, April 2018), at para 23.2).
[29]As suggested by Campbell (Campbell, ‘The Prosecution of Organised Crime: Removing the Jury’ (2014) 18(2) IJEP 83, 100).
[30]This proposal was suggested by Dr Liz Campbell in her article, ‘The Prosecution of Organised Crime: Removing the Jury’, (2014) 18(2) IJEP 83, 100. It may be noted that, in England, Wales and Northern Ireland, the Criminal Justice Act 2003, Pt VII, which was commenced in January 2007, provides that trials on indictment may be held without a jury in cases where there is a risk of jury tampering. Under s 45 of the 2003 Act, the parties will attend a preparatory hearing prior to the decision to hold a non-jury trial and are given an opportunity to make representations with regard to the decision. This safeguard does not apply where non-jury trial is certified in relation to offences with a political or religious motivation in Northern Ireland under the Justice and Security (Northern Ireland) Act 2007 and is non-existent in Ireland. As Independent Reviewer of the powers under the Justice and Security (Northern Ireland) Act 2007, David Seymour CB has proposed that the Public Prosecution Service could, once they have formed a view that a non-jury trial certificate should be issued but before the submission goes to the DPP, notify the defendant that they are minded to issue a certificate, specifying the condition or conditions and any other material which is in the public domain, and invite representations within a specified period. This would lead to increased transparency in the process, a reduction of the risk of judicial review and to circumstances where the final decision of the DPP would be fully informed, particularly if the defence made coherent and plausible representations that, for example, the conditions relied on were not met. (Seymour, Report of the Independent Reviewer Justice and Security (Northern Ireland) Act 2007, Tenth Report 1 August 2016–31 July 2017 (Her Majesty’s Stationery Office, April 2018), at para 23.3).
[31]The Papers of Thomas Jefferson, vol. 15, 27 March 1789 – 30 November 1789, ed. Julian P. Boyd. Princeton: Princeton University Press, 1958, pp. 266–270. ‘From Thomas Jefferson to Thomas Paine, 11 July 1789,’ Founders Online, National Archives, accessed September 29, 2019, https://founders.archives.gov/documents/Jefferson/01-15-02-0259.
