constitutional question (1 Viewer)

[taubstumm]

warning! big post.

this all arises from michael mcdowell's ongoing antics.

(but the thread isn't about him directly, or at least it's not intended to be a thread where people give out about him. so, hush, ranters.)

i was wondering about the whole justification he's offering for his actions vis a vis frank connolly and the centre for public inquiry. i haven't really been properly following the story, but even on a cursory look, he seems to be offering a very flimsy argument in support of what he's up to.

his side (from here):

The Minister for Justice is, in Irish law, the member of government given special responsibility, along with the Minister for Defence, for the security of the state and the prevention of subversion.

An Garda Siochana's [...] security role is [also] pre-emptive and preventative, not merely investigative.

It is simply wrong to imagine that the security of the state falls to be defended solely through the process of Criminal Justice.

[...]

While the criminal standard of proof beyond a reasonable doubt on the basis of admissible evidence is appropriate to the trial of offenders under Article 38, that standard is not applicable to many other aspects of public and private affairs.

now, here's my (very limited) understanding of irish constitutional law:

there are three branches of government - judicial (runs courts, interprets laws, judges people), executive (runs police, carries out laws), and legislative (the oireachteas - makes laws).

they are different because if one person or entity had control over two or three of them instead of one, there would be a significant risk of tyranny.

mcdowell is part of the legislative chunk - he makes laws. and he appears to be quite blatantly muscling in on the judicial chunk - he's giving out information (which he claims is true) after independently judging a private citizen (and apparently judging them at a different standard than would be required in the courts - i.e. no presumption of innocence, due process, blah-de-blah).

now, most of the debate seems to be focusing on whether or not he's 'pre-emptively' trashing someone's reputation or else whether he's alerting people to subversion - it depends on whether or not you believe him.

but surely that's missing the point - the point is that the constitutional separation of powers is the basic principle of government, and all the other stuff is secondary?

i'd be curious to hear the opinion of anyone who might have a bit of experience or education about this, because it seems like mcdowell has just declared unto himself the right to destroy the life and reputation of whoever he feels like, and back it up by saying that he's allowed do that because of his 'special responsibility'.

 

[Wavioli]

CUNT
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[potlatch]

I thought there were four pillars of government: executive, legislature, judiciary and military.

As far as McDowell goes, I'd say he's acting like Attorney General instead of elected deputy who is a member of the executive. In which case, I'd say he knows he's getting away with mad stuff but by the time people notice, he'll be in Barbados. Same kind of neocon strategy as the White House and some Blairites.

McDowell has frequently gone beyond 'the line of duty' and interfered in judicial processes through his various witch hunts.

But I don't know anything about the law nor nuthin'. Email the ICCL .

 

[taubstumm]

But I don't know anything about the law nor nuthin'. Email the ICCL .

here's their take on it...

http://www.ireland.com/newspaper/breaking/2005/1214/breaking57.htm

McDowell's attack a threat to democracy - ICCL

By Paul Anderson Last updated: 14-12-05, 16:04

The Taoiseach has been called upon to launch an independent inquiry into Minister for Justice Michael McDowell's use of Garda intelligence in his attack on the executive director of the Centre for Public Inquiry (CPI), Frank Connolly.

Aisling Reidy of the Irish Council for Civil Liberties (ICCL) said allegations of a criminal nature had been made by Mr McDowell to seek closure of the CPI.

Mr Connolly has denied being involved in a plot to train Colombian rebels in the use of explosives which involved him travelling under a false passport to the south American country in 2001, as alleged by Mr McDowell.

"Abuse of ministerial power, abuse of Garda information, resources and functions, and abrogation of constitutional guarantees to the individual of protection from abuse of the State are genuine threats to democracy and the rule of law," Ms Reidy said.

Among the issues the inquiry should cover are: the leaking of Garda intelligence to a national newspaper; the invocation of state security as a reason for obtaining a Garda file and the use of the information "to further political objectives".

The Minister's actions should be assessed in light of Mr Connolly's constitutional and human rights, such as the right to due process; the right to one's good name and the right to freedom of expression.

The ICCL also want the inquiry to examine whether Mr McDowell had usurped powers reserved under the Constitution for the Garda, the DPP and the judiciary.

The allegations made by Mr McDowell raised a question over whether the Garda Siochana's imperative to be free from partisan political use was contravened.

"The inquiry must be carried out by an independent legal expert, who must be entitled to examine all information relating to the actions of the Minister, including security files, and must be entitled to question all and every relevant official and member of the Garda Síochána," Ms Reidy said.

"The recent events, from the leak of information from a Garda file to a national newspaper leading to the potential enforced closure of an independent watchdog body, raise fundamental questions about how robust our democracy is, and how confident we can be in limits and safeguards on abuse of State power.

"The handling of this is a watershed incident for the rule of law and the right to independent voices in civil society. If this goes unchecked, or worse seen as an accepted and condoned way for a Minister to act, then we all have to question what the real threat to democracy is," Ms Reidy added.

 

[potlatch]

ZING!!!

 

[c0De_n1NjA]

CUNT

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this was a very aesthetically pleasing post, everything is just right. Top marks.

 

[Wavioli]

everythings been leading up to that post. Its all down hill from here on in.

 

[snakybus]

I used to played football with Frank Connolly and occasionally his brother. Dirty fucker. Good at football. Smart. Very smart. But boring. Never smiles. I hope they cook McDowell's goose.

 

[mazzyianne]

You have it right about the separation of powers alright. It never occurred to me that it affected individual people, ie. Mc Dowell (hate him hate him...oops sorry).
Its used a lot to stop the judges from trying to make the government keep promises, eg. build centres for youths with behavioral problems so they won't just be stuck in jail.

So I dunno.

But it should apply to Mc Dowell I guess, it seems to make sense...

 

[Shine]

but surely that's missing the point - the point is that the constitutional separation of powers is the basic principle of government, and all the other stuff is secondary?

It's been going on as long as govenment's been government no doubt. The powers are separate but the people who occupy the top positions in power are always there for each other. Maybe the difference is that if a really cheeky cunt gets in there and pushes and pushes, he'll end up having to justify himself... and maybe eventually he won't be able to justify himself any more. Maybe he'll get spanked. But it wont change the fact that it goes on and goes on and goes on because - government is a tool of the rich. Shagit. I'm going to make that my signature and end every post with it.
Sorry - did you say no ranters? My mistake.