Editorial - Civil Liberties, Northern Ireland, Women's Rights, Wealth Redistribution and Accountabil

THE 100 ISSUES OF MAGILL HAVE SPANNED the period from October 1977 to date. It has been a dismal period in Irish life. We have gone through the most serious economic crisis of the last fifty years, an economic crisis created largely by a combination of domestic political recklessness and vacillation. By Vincent Browne

Progress on social issues has virtually halted in the period, while the abortion amendment campaign represented a reegression from the modest breakthroughs there were made in the sixties and early seventies.

While the severe threat to civil liberties which occurred in the mid-seventies somewhat abated, there has been no official investigation into what went on then and a new piece of repressive legislation - the Criminal Justice Act phas been placed on the statute book.

On women's rights there has been no progress in the period and the women's movement has virtually faded from visibility and significance.

The Northern Ireland situation has at best remained unnchanged. While the death rate has diminished the problem is even more intractable since the trauma of the hunger strikes in the summer of '81.

In terms of a more just and equal society, there has been no progress during the period. Indeed poverty has intensiified, as unemployment has more than doubled. That has reflected itself in a rash of alienation among the poor and the young.

There have been three general elections in the period, preceded by political campaigns on the part of the main parties that have devalued our democracy. Not one party in any of the three elections - with the possible exception of the Labour Party for the June 1981 election - seriously confronted the major issues and offered solutions.

Fine Gael, while protesting about the politics of the auction room, engaged in precisely the same itself in the '81 election and the second election of '82. It sought no mandate for the harsh decisions that needed to be taken and, predictably, then didn't have the nerve to take those decisions in office. Fianna Fail has been convulsed by a series of in ternal crises during the period, having devastated the economy by a reckless economic programme from '77 to '79 and then through a series of vacillations and "U" turns. The Labour Party has approached the verge of disinntegration, robbed of credibility and identity. Meanwhile, the most cynical manifestation of the politics of deceit and manipulation, the Workers' Party, has made steady progress as popular alienation has intensified.

But outside of politics and outside of the hard realities of the economic recession, poverty, unemployment, violence in Northern Ireland, denial of civil liberties and of women's rights, there have been some joyous developments.

Seamus Heaney, Brian Friel and Tom Murphy have flourished as major literary figures. The beginnings of a vibrant film industry have been manifest in the success of Neil Jordan; there has been a renaissance in music with John O'Conor, U2, the Boomtown Rats, Moving Hearts and Van Morrison. In sport there have been magnificent achieveements by Eamon Coghlan,John Treacy,JackO'Shea,Jimmy Barry Murphy, Liam Brady, Ollie Campbell, Tony Ward, and Barry McGuigan. And in broadcasting there have been the continued success of Gay Byrne, the unforgettable docuumentary on James Joyce by Sean 0 Mordha, "Is there one who understands me", and the initial period of Today Tonight, the most successful current affairs television proogramme of RTE. RTE's Radio One has been consistently good also with John Bowman, Gay Byrne (again), Mike Murphy and the news features team.

Magill has participated in many of these failures and successes, through our reporting on them. Five themes have dominated our concerns during the period: civil liberties, Northern Ireland, women's rights, the redistribuution of wealth and the issue of accountability. These were the issues which dominated the magazine's editorial coverrage in the political and current affairs areas.

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Civil Liberties

IN OCTOBER 1977 THERE WERE SOME expectations that the horrors of the previous four years in relation to civil liberties would be redressed. Fianna Fail, which had just then returned to power, had promised the repeal of two particuularly repressive pieces of legislation, The Emergency Powers Act and The Criminal Law Jurisdiction Bill. There was also a promise of an investigation into what had been going on within the Gardai since 1973.

In the event the promises were all dishonoured. The two pieces of legislation were left on the statute book and, to this day, there has been no enquiry into the behaviour of the Gardai. Instead there has been a systematic and persisstent cover up of "irregularities" within the Garda Siochana. Magill has been prominent in reporting on two of these "irregularities" - the fingerprint affair and Garda brutality.

From the second issue of the magazine (November 1977) we have campaigned on the fingerprint affair. The High Court case of two officers involved in that affair, Pat Corliss and Michael Diggin, last November, for the first time pubblicly established, from internal documentary evidence, that there had indeed been a scandal of major proportions within the Garda Siochana on that issue and that the senior echelons of the Gardai had contrived to cover up the affair. In that they were assisted by two Ministers for Justice, Patrick Cooney and Gerry Collins.

To re-cap briefly on that affair: a false identification was made of a mark found on a helmet which was recovered from the scene of the killing of the British ambassador in June 1976. Even after all senior fingerprint experts in the fingerprint section had stated that the identification was wrong, the two officers responsible for the identification stated they would go into court and swear as to its validity. This was of the most serious significance - the head of Scotland Yard's fingerprint section, who was consulted on the matter subsequently, said that what was done threatened to bring the whole science of fingerprints into disrepute.

Yet the reaction of the Garda and political authorities was to pretend that nothing unusual or untoward had occcurred. Then the two officers responsible for exposing the false identification were victimised within the force and the officer most responsible for the scandal was subseequently promoted to superintendent.

In the issue of Garda brutality, instead of there being an enquiry into what went on, several of the Gardai most implicated in the allegations at the time - including the Garda now centrally involved in the Kerry Babies enquiry, Superintendent John Courtney - were promoted.

THE MOST CELEBRATED CASE RELATED to Garda brutality was the Nicky Kelly one and Magill, almost alone of the Irish media, vigoorously campaigned for his release because of the extraordinary circumstances leading to his conviction and the dismissal of the appeals in his case.

As the Supreme Court found in his case, there was no doubt but that he, Kelly, suffered beatings while in Garda custody. The issue was at whose hands he had suffered those beatings. As more than eighty Gardai gave testimony to the contention that there had been no ill-treatment of Kelly, the courts decided, without further examination, that Kelly must have been beaten while in a cell with a cooaccused. The courts entirely ignored the circumstances in which Kelly happened to be in, as it is against rules and practice for a person (a) to be placed in a cell with another detainee while in Garda custody and (b) it was quite extraaordinary for a person, charged before the District Court, not to be remanded into prison custody, rather than back into Garda custody.

There was at the very least a reasonable doubt but that the Gardai were constructing an alibi for themselves by avoiding Kelly being examined by a prison doctor before a scenario could be created whereby it would be possible later to argue that he must have been beaten by a cooaccused.

It was not just the Gardai that were indicted by the Kelly case but the entire judicial process as well. The Special Criminal Court was greviously at fault, so too was the Court of Criminal Appeal and the Supreme Court. Ironically, two of the judges most centrally involved in that case, Justice Tom Finlay and Justice Liam Hamilton, have both recently been elevated within the judiciary.

There have been countless other cases of course - the Michael Lynagh case, brilliantly written up by Gene Kerrigan, the entire file of cases dating from the mid-seventies incluuding the Christy Lynch case, the Mallon bugging affair and most spectacularly the Kerry Babies case. Only in the latter case has there been an enquiry and then the terms of refeerence have been restricted to just this case. Even if this ennquiry were to find gross wrong-doing on the part of the Gardai involved, it would be quite insufficient. What has gone on since '73 needs to be enquired into, for only such an enquiry will expose the remedies that need to be built into the system and will act as sufficient deterrent to further malpractice in the future.

Of course the whole issue of the accountability of the Gardai is intrinsically involved in all this and we deal with that issue later on.

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Northern Ireland

THE CRISIS IN NORTHERN IRELAND HAS intensified during the last seven and a half years. True the number of deaths arising from the conflict there has diminished but the problem there has become far more intractible and the prospects of a solution - any solution - are dimmer now than at any time previously.

The critical development in the period was the 1981 hunger strike in Long Kesh. Magill chronicled the beginnnings of that saga, reporting on how the IRA leadership was at first indifferent to what was going on in the prison, then resentful of the initiative being taken from the operaatives on the "outside", then scornful of popular support for the hunger strike and only belatedly in favour of it and supportive of the movement in support of the prisoners.

Yet the hunger strike was regarded by the British and many people in the South as merely a clever device on the part of the IRA leadership to win popular support, followwing the commission of several atrocities.

The death of Bobby Sands and of the other prisoners transformed the Northern Ireland political scene. They made an internal settlement impossible and they gave the republican movement a bedrock of popular support which was to frighten the British and Irish Governments - though not sufficiently as yet into taking any radical action.

They also had a significant impact on the character of the republican movement. This was pushed into a political role, which was very much resisted for a long time and resisted to the end by the more hard line element within the movement. As a consequence the centrality of the miliitary campaign was less crucial and, partly, as a result of that there has been a diminution of military activity. The hunger strike was indeed a watershed and not at all the vicctory which Mrs Thatcher elieved it to be for her Governnment.

It was a watershed for it both crystallised and intensified nationalist alienation - an alienation, since then compounded, by a series of judicial decisions exonerating members of the security forces who have gunned down civilians, by a shoot to kill policy by these same security forces.

From the perspective of the editorial stance of this magazine, an internal settlement to the Northern Ireland problem would be the preferred outcome, solely because it would be the neatest - we do not share any feelings of territorial aggrandisement. But the hard reality is that an internal settlement is not on. It is not on because of this alienation that has been mentioned but primarily it is not on because of the sectarian character of the state of Norrthern Ireland itself. The very existence of that entity creates and festers sectarianism and conflict - for there to be a resolution of these tensions a broader context had to be created and created in circumstances of certainty.

Realistically, this means an all-Ireland solution - absorpption of Northern Ireland into the UK while it would create that broader context would certainly not do so with any certitude, given the historical background.

But the prospects of such an outcome are dim indeed, for there is absolutely continued intransigence on the unionist side and there is no evident willingness on the part of the British Government to nudge them towards a more conciliatory position.

Not indeed that there has been anything done in the South to nudge the unionist towards a more conciliatory position either. .

The collapse of Garret FitzGerald's constitutional cruusade and the debacle of the abortion amendment represent a serious setback in the quest for the creation of a new society here which would reflect the various traditions and beliefs on this island in its structures and culture. Fundaamentally, in spite of a great deal of rhetoric to the contrary, there is no real commitment here to the ideal of a united Ireland, for there is no political will to take on the vested interests in order to create the kind of society which might help bring that about.

In contrast there is apparently great political will to inngratiate ourselves with the British. The lengths that have been gone to to push through extradition have been quite extraordinary and have involved an almost Alice in Wonderrland attitude to the reality of a political conflict in Northern Ireland.

To state that the conflict in Northern Ireland is political is not to state that the violence perpetrated there is at all acceptable or is not heinous. Neither is it to lend one word of approval to the despicable killings of off-duty UDR and police men and women. But to deny that these killings do not have as their objective a political goal is simply fatuous.

But that is not the only reason for objecting to extraadition. There is the additional consideration that by extraaditing people to the North we are handing them over to a police force and a judicial process that is essentially secctarian and corrupt - the conviction of Dominic McGlinchey on the basis of laughable evidence for the murder of an old woman is a case in point. The fact that McGlinchey was guilty, even according to himself, of several other quite appalling crimes is irrelevant to this issue.

It is all the more inexcuseable for us to engage in extraadition when there is a mechanism already inplace for the trial and, where appropriate, conviction of persons for offences committed in Northern Ireland - the Criminal Law Jurisdiction Act. The fact that the Northern authoriities apparently do not wish their own evidence to be tested in the environs of a southern court is in itself commentary on the value of that evidence.

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Women's Rights

THERE WAS SIGNIFICANT PROGRESS MADE on the issue of women's rights in the early seventies but since 1977 there has been little progress on any front and the influence of the women's movement as such has diminished. True there are women in the Dail than there were previously and is now a Minister for State for Women's Affairs but there are few who would contend that anything of substance has accrued as a result.

Women are still predominantly in the lower paid jobs. Women are still effectively excluded from the top positions in politics, business and the professions. Our culture is still sarurated with an anti-woman bias. The conduct of the Kerry Babies Tribunal illustrates this very well. It would be unthinkable for a man to have been put through the ordeal that Joanne Hayes was subjected to.

The fact that the women's movement has gone into decline is not in itself significant for it was bound to take a different and less shrill form after the initial breakthroughs had been achieved. But for there to be little or no pressure at all nowadays for the promotion of women's rights must be disquieting.

What needs to be done in relation to women's rights is the following:

- there must be a programme of positive discriminaation for women in filling public appointments, including all positions in the public service and state boards. The present policy pursued by Nuala Fennell of simp}i compiling a list of qualified women for particular positions is far too passive.

- public sector incomes policy has got to discrimiinate generally in favour of the lower paid and thus mainly in favour of women.

- the contraception laws must be reformed to allow both married and single adult women easy access to contraceptive facilities .

- the constitutional prohibition on divorce has to be repealed and then legislative provision made for the introduction of divorce when marriages have broken down irretrievably - of course this has relevance for separated men as well but the present chaotic situation relating to divorce afflicts women mainly.

- sexist language and behaviour has to be discouraged through the elimination of sexism from all school textbooks and through a programme of general cultural conditioning designed to counter the very virulent sexist strain in Irish life - the conduct of some senior counsel in the Kerry Babies Tribunal is a classic example of sexist behaviour.

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The Redistribution of Wealth

BOTH PARTIES IN THE PRESENT COALITION Government are theoretically committed to the creation of a more just and equal society but both lack the political will to do anything about it. They are both mesmerised by the problem in the public finances and give priority to that over all other concerns. Both have effectively abandoned any reform pf the taxation system or of public expenditure as a whole or of job creation policy under the guise of the prevailing constraints on policy because of the state of the public finances.

It is a cop out.

The failure to tackle the problem of taxation reform is perhaps the most serious. The present system is both greeviously burdensome and regressive - ie favouring the rich rather than the less well off. The big problem is the failure to index taxation bands, thereby dragging the lower paid more and more into the higher income tax bands as their wages rise in line with inflation. The multitude of tax allowwances and exemptions is another major problem, favouring the middle classes who, for instance, alone can afford big mortgages and life insurance policies. There is additionally the problem of farmer taxation.

The structure of public expenditure is also intrinsically regressive - ie favouring the rich rather than the less well off. A great deal of public expenditure is allocated to proojects such as third level education, the health service and public sector pay, where people or the offspring of people in the higher income brackets are the major beneficiaries.

There could and should be major cuts in public expennditure, while favouring the less well off, if there were the political will to tackle the problem. However, a combination of vested interests from doctors to teachers to civil servants effectively prevent any meaningful reform in these areas.

The inefficiency of our vastly overstaffed and overrexpensive public service is another area where governments have balked at taking hard decisions - it is now sixteen years ago since the Devlin Commission reported on the reform of the public service and nothing has been done effectively in the meantime.

While a more efficient, responsible and less costly public service should in itself be of benefit to the poor, it would be illusory to believe that that would be sufficient. There simply has to be a transfer of resources from the richer sector of our society to the poorer. This should be refleccted in pay negotiations across the board. It should be reeflected most particularly in an inheritance tax, which would get to the core of inequality.

But quite apart from that, there should also be a conntinuing assessment of the incidence of poverty and a flexxible social welfare system which urgently and compasssionately deals with instances of poverty and deprivation which are neglected by the present highly bureaucratised system.

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Accountability

THE WHOLE PURPOSE OF JOURNALISM is to enforce accountability on the part not just of public bodies but on the part of all institutions of power in society. Thus journalism is concerned not just with Governments but also with police forces, bureaucracies, courts, big business, trade unions, churches, even newspapers themselves.

The issue of accountability is one of particular imporrtance in this society, where the usual mechanisms for ennforcing it in a formal sense have effectively broken down. The means whereby Governments are supposed to be held accountable is through scrutiny by Parliament. But in our system, Parliament is the creature of the Government and accountability is thereby rendered obsolete.

It has been perhaps in the realm of the Gardai that Magill has most pursued its campaign on accountability. In our society, the Gardai are given enormous powers vissa-vis the individual. But there is as yet no process whereby the Gardai are held accountable for the manner in which this power is exercised. Inevitably, given the degree of power accorded the Gardai and given the lack of any meaningful accountability process, the Gardai have abused their powers - this is no reflection on the body of men and women who are in the Gardai, rather a commentary on human nature.

If the Gardai are given powers of detention and interroogation, then it is inevitable they will abuse those powers if neither the courts nor Parliament nor any outside agency enquires into how those powers are exercised. For the last seven and a half years only a section of the press has atttempted to exercise any accountability function in relation to the Gardai. As a consequence, that section of the press is perceived - particularly by the Gardai themselves - as being anti-Gardai. There is a quite proper and healthy adversary relationship between the Gardai and the press or there should be. This should be seen in the context of both fulfilling their proper function.

The absence of accountability as a whole has been ressponsible for many of our present difficulties. It is inconnceivable that we would ever have got into the economic mess of the last five years had the Government and public bodies of the day been held properly accountable for what they were doing. Equally the regressive nature of both our taxation system and of a great deal of public expenditure would hardly have been perpetuated if a proper accountaability process had been in operation through Parliament.

There have been recent attempts to reform our Parliaamentary system in order to improve the accountability proocess but the attempt so far has proved half hearted. In any event, it has shunned the major problem - the whipping system as it operates in the Dail and the absorption of public representatives in constituency work.

For so long as Governments are in a position to enforce rigid discipline among its backbench TDs then there can be no proper accountability of the Government to Parliament.

The present system is justified on the grounds that if Governments cannot enforce the support of their backkbenchers, then it is rendered impotent in the sense of getting its legislation, policies, budgets etc through the Dail. But Governments should not have the power to force through their programmes and legislation through Parliaament - this is precisely the point. If it has that power there is no meaningful accountability. Backbench TDs should have absolute freedom in enquiring into the actions and policies of the Government, they should have the right to sponsor their own legislation, to put forward their own programmes and then to be judged on the basis of what they freely and openly do in Parliament by their electorate.

This would not mean any instability for Governments, for the constitution could be altered to give them fixed tenures in office - it would then be up to the Government of the day to openly win support in Parliament for its programmes and legislation.

There is the other consideration that TDs should be debarred from canvassing favours for their constituents. There is an obvious and simple remedy for this - anyone on whose behalf representations are made by anybody, other than designated officials, should have their case rejected forthwith or they should be placed at the end of the queue. This would at a stroke relieve TDs of the entireely pointless competition on constituency favours - pointtless from the point of view of the supposed beneficiary at least.

In the exercise of its function to hold public bodies and powerful institutions accountable, there are serious restricctions on the freedom of the press here which need to be redressed.

There are four categories of legal restrictions. The libel laws, the contempt of court rules, the secrecy laws and the section 31 of the Broadcasting Act.

With regard to the law of libel: in so far as matters of public interest are concerned and in so far as public figures are concerned, a different standard should be applied by the courts than in the case of private individuals and private issues. Fundamentally, what is at stake here is the public's right to know matters of critical public importance. If the libel laws inhibit that, then they are bad. In my view the libel laws do inhibit such a process.

They do so by applying standards of judicial proof in matters of public interest or in relation to public figures.

There are many instances where a journalist would have sufficient proof journalistically to be satisfied that a story of major public interest is true but because of the laws of libel they would be prohibited from reporting that. For instance, one public figure of the past decade got a massive bribe. I believe that when this person is looking for support in an election the public should know that this has occurred. Yet, although we have a number of independent sources for this story, we would be unable to stand this up in court because of the burden of judicial proof.

In another instance, we are aware that another public figure, who reports to be in favour of peace and all that, was in the last decade directly responsible for several murrders. Yet we are unable to alert the public to the hypocrisy being deployed by this person.

There is additionally, the point that for a press to be free to exercise its responsibility to society, there must be breathing space, within which there would be room for error. We are not suggesting unbridled licence for journalists, rather we are suggesting that there should be a recognition of the fundamental reality that unless there is a freedom to be wrong there is no real freedom.

The same regulations regarding libel should apply here as applies in the United States. These were laid down in a elebrated Supreme Court case, New York Times v. Sullivan.

In that case, Justice Brennan, delivering the majority verrdict in that case stated: "we consider this case against a background of a profound national commitment to the principle that debate on political issues should be uninhiibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Erroneous statement is inevitable in a free debate and, it must be protected if freeedom of expression are to have a 'breathing space' that they need to survive." He concluded by saying: "a public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice - that is with knowledge that it was false or with reckless disregard of whether it was false or not." .

The best example of how our contempt of court rules are restrictive is to note that if the same rules applied in the United States as apply here, then the Watergate scandal could not have been reported in the media until all legal actions connected with it were disposed of by the courts  that would probably have been at least five years after the scandal broke.

The Irish and British contempt of court rules would have put a gag on the press from the moment that the original Watergate burglars were charged. Nixon would have got off scot free as would his entire entourage.

There is a genuine problem regarding the conflict beetween a free press and a right to a fair trial but I think that the United States Supreme Court again took the correct course of action in this instance.

The case concerned was Nebraska Press Association v. Stuart (1976). In that case the court found that any instituution of prior restraint on newspapers on what to publish infringed the First Amendment protection of freedom of the press. They argued that the right to a fair trial could be protected through a variety of other mechanisms, other than that of gagging the press, such as prohibiting officials involved in the case from speaking to the press and quesstioning juries that were unlikely to be prejudged by what they had read. In Britain and Ireland there is far too ready a resort to restricting press freedom, without regard for the damage that is being done to the body politic by such acctions.

The position regarding official secrets is crazy. In fact all Government documents, another name for which is ironiically public documents, are secret.

The whole tradition of secrecy, which pervades our sysstem of government is anti-pathetic to democracy and is resolent of an authoritarian strain which pervades much of our society still. We should be campaigning to get rid of these and the other legal restrictions on the freedom of the press, as well as having a Freedom of Information Act in troduced here, to which incidentally Fine Gael is commmitted, not that that means anything.

Section 31 of the Broadcasting Act has had an enorrmously inhibitory effect on RTE and is founded on an arrogance that a Government minister - nowadays Jim Mitchell - can decide what is in the best interests of the public to know or not to know. The section is usually justiified in terms of denying subversives the freedom of the airrwaves but this misses the point. Subversives or indeed anyybody else have no right to the freedom of the airwaves or to publicity in the press for that matter. The only right involved is the right of the viewer, listener or reader. Once broadcasting freedom is curtailed it is the right of the viewer and the listener that is infringed, not the right of the subversives for they had no rights in the matter from the beginning.

Magill will be around for quite some time to come to play its minor part in holding Governments, Gardai, public bodies and the other institutions of power accountable. Our readers can assist us in two ways - first of course by continuing to support the magazine and secondly through keeping in touch with us about abuses, excesses, malpracctices etc. We also hope to report on the more joyous aspects of Irish life. We will be doing so on a fortnightly basis from March 7 next.

VINCENT BROWNE