Safeguarding the law

Among the implications of last week's ruling in the case of Mr A is that the Supreme Court no longer sees itself as primarily a court of law, but as a court of "common sense". We are frequently warned that "hard cases make bad law" and they don't come much harder. "It is scarcely possible to think of a less meritorious applicant," said Justice Hardiman, seeming to appeal not to principles of jurisprudence but to something less tangible. Mr A, in applying for release to the High Court, had not sought approbation for his moral qualities, but argued that the law under which he had been convicted did not exist.

As citizens, parents, we welcome the fact that a child rapist has again been locked away. But perhaps as citizens also we should be concerned that there has occurred in this case a definitive reinterpretation of the constitution to place notions of "reality", the "common good" and something called "true social order" ahead of the pure rule of law. All five judges reached similar conclusions and based their decisions on, essentially, two points. One is that there is no blanket entitlement to retrospectivity when laws are found unconstitutional. The other is more vague – a general sense that the heinous nature of the act for which Mr A was imprisoned should be brought to bear in deciding whether he should be entitled to "piggyback" on Mr CC's successful challenge to the statutory rape law. The Supreme Court appeared to say that, notwithstanding that the law has been deemed unconstitional, Mr A's conviction should not be vitiated because all right-thinking people agree that he is not a nice man. And, anyway, he did not seek to argue at the time that the law was unconstitutional. Laws are written down to preserve against subjectivity and caprice. Frequently people complain when, for example, drunken drivers get off on what are termed "technicalities". But the letter of the law is not some elastic semantic limit for lawyers to do battle over – it is a safeguard for the citizen. The law is what the statute says, not what it "should" say or what was intended by the legislators at the time. Wherever cracks are discovered in a statute, it is the practice that accused persons will benefit, even when "common sense" may be placed at a disadvantage.

If, for example, you apply the common-sense principle to the case involving Judge Brian Curtin, it is obvious what should happen, but nobody in authority has so far proposed this. Among the implications of last week's ruling is that, in future, responsibility for the condition of legislation resides not with the state but with the citizen in his sometime capacity as defendant. Henceforth, unless an accused person has himself pointed to unconstitutional elements in laws utilised to convict him, he shall not be entitled to benefit from the subsequent striking down of such laws. The court also decided that it is possible for a law to be nullified and yet for its consequences to continue in force. Several of the judges argued that because the conviction of Mr A was achieved in good faith, it must be regarded in the same way as if the law had not been struck down. Because the consequences of bad laws are not reversible, we must act as if they were good laws. But if laws which have been found unconstitutional are to be regarded in the same way as laws which have not, what is the point of a constitution? It is difficult to imagine such logic being applied to a problem in which the heat of public opinion was not such a significant factor, and the consequences in less fraught cases may jump up to surprise us. It may be refreshing to see the Supreme Court apply principles of common sense to a matter with such an unambiguous moral dimension. But who now guards the law?