Democracy and the Courts

banks and govt

 

About five hundred years before the birth of Christ, an event we have recently celebrated, the notion of democracy was expounded in the Greek city states, most notably Athens, where an assembly of citizens voted directly on laws governing the state.

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Although Athens cannot be described as a true democracy in the modern sense, given that women, slaves and freemen under twenty years of age could not be citizens (and therefore could not vote), it did introduce the notion of the Separation of Powers, which forms the basis of many western democracies to this day.

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Under this model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. The typical division of branches is into a legislature, an executive, and a judiciary.

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If this theory was applied in Ireland, (somewhat simplistically, but remember I’m a blow-in) it should look something like this:

Separation of Powers-pic.

When the system works, it creates a balance of power, as none of the arms is allowed to dominate the other, and each arm operates to check and control the power of the other. So for example, the Supreme Court can declare an Act passed by the Oireachtas to be unconstitutional, or the Courts can declare that a Minister exceeded his or her powers or did not follow a prescribed procedure. At the same time, the judges in these courts are only allowed to say what the law says (as created by the Oireachtas), and not whether they agree with it or think it is a good or pleasing law. The courts must restrict their analysis to whether the law is compatible with our Constitution.

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When it comes to the relationship between the Legislature (Oireachtas) and the Executive (the Taoiseach and Cabinet of Ministers) these two should keep each other in check as the Oireachtas represent the People (the so-called fourth arm of government) who put them there, and who can vote them out. Therefore the laws passed should reflect the will of the People and should be carried out (to the letter) by the Executive.

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This is where the wheels come off. If one party becomes dominant in the Oireachtas, then there is very little separation between the Executive and the Legislature, as what the Executive wants it gets, and the Legislature really becomes a mouthpiece for the Executive. This is exacerbated by the Party Whip system, where TDs are not allowed to vote with their conscience or for their constituents, but must rather toe the party (Executive) line. The People have effectively surrendered their power.

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This is currently the situation in this country. Although that majority has been whittled down, the FG/Labour coalition still has a dominant majority in the Dail, and accordingly can push through legislation if and when they want. They can also delay legislation indefinitely.

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In terms of the balance of power theory, when one arm of the structure becomes dominant this is what is termed a dictatorship. As the Executive is so dominant in this country, Ireland is arguably a dictatorship – what the Executive wants, it gets.

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And this is where the Courts come in. When there is a proper balance between the three components of the model, judges are restricted to interpreting the law, nothing more. This is important as judges are appointed, not elected, and accordingly must not be allowed to make law, that is not their job. It is only the job of the Oireachtas, as the elected voice of the People.

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However, where an Executive becomes so dominant that it effectively can pass laws at will, the Courts need to become far more active in order to try and regain some balance in the system and thereby ensure democracy, rather than dictatorship. Judges need to forget their political affiliations and rather become protectors of fundamental liberties. This notion of an activist court is frowned on by traditionalists, but needs must, and there is certainly a need in Ireland at the moment.

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Our current Supreme Court is possibly the most conservative and Executive-friendly court since this wonderful country of ours achieved independence. My wish for the New Year is that this changes dramatically, and that all our courts, led by the Supreme Court, become a lot more critical of the high-handed manner in which this country is ruled, and allow the People a voice.

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I will no doubt be soundly criticised for setting out such a naive and simplistic analysis of the political system in this country. Such criticisms are justified, but this blog has never pretended to be anything other than simplistic and naive, which is not necessarily a bad thing.

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Compliments of the season to everybody. I hope that you had a blessed Christmas, and may 2016 bring you all that you desire and deserve.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution and tagged , , , , . Bookmark the permalink.

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