LAW CANNOT MAKE RIGHT WHAT IS WRONG!

LAW CANNOT MAKE RIGHT WHAT IS WRONG! Yesterday at the United Nations Security Council, and not for the first time, the great powers tried to drag in “the Majesty of the Law” to support their own nefarious political purposes. In a spurious pseudo-legal exercise, the United Kingdom, with the predictable support of the United States, France, Germany and Canada declared that there was “every likelihood” that the so-called “Nerve agent” attacks in Salisbury, England had been carried out by two named Russian agents on the direct orders of the Kremlin. Predictably, and vociferously, this was denied by the Russian Federation and its allies. Although Sky News got quite excited and gave the story its coveted “Breaking News” status, what happened amounted to no more than yet another effort by the Western powers to use and abuse the international legal system. Their willingness to do so is well-documented by the American and British efforts leading up to the illegal and catastrophic invasion of Iraq in the absence of an unobtainable resolution of the United Nations Security Council authorising the use of force under Chapter VII of the UN Charter “for the purpose of maintaining or restoring international peace and security to Iraq and the region”. That particular abuse of power led to the deaths of approximately one million people and a very fraught regional situation ever since. When you abandon the rule of law and step in to the uncharted territory of illegality and lawlessness, you have no way of knowing just how lethal or evil the devil you have left out of the bag or the sack will turn out to be. The Americans and the British knew perfectly well that they did not have the required resolution to justify or authorize the launching of the Iraq War. Equally, they knew just as well that the case of the “nerve agent” attacks was not suitable or appropriate for grandstanding before the United Nations Security Council, a body whose principal remit and responsibility is “the maintenance of international peace and security”.  In so far as one can judge (given the unremitting and remorseless propaganda surrounding this case), two Russian citizens may well have a case to answer to before the domestic Courts of the United Kingdom, and needless to say, should they be brought to face and answer charges, the Russian citizens would – just like any other people appearing before British courts of Justice - be fully entitled to enjoy the presumption of innocence – unless or otherwise so proven! The Security Council is a political body, although it exercises some quasi-legal or judicial functions, it is not a court of Law! Such a body should not usurp its authority as a Council of International Opinion by pretending that the views or declarations of some of its members carry any particular legal or evidential weight. At the end of the day, exercises of this nature only enable certain Powers to use the weight and authority of the Security Council to promote the rule of the mob or lynch law! Of course, the Security Council plays out its theatre in a very public fashion, but that doesn’t mean that others, many others, have not tried to use, abuse and usurp the Law and legal processes for highly illegal and amoral purposes. The principle that Law and the legal process cannot render “right” or “just” that which is “morally wrong” and “indefensible” is laid down by Sophocles in “Antigone”. Following a Civil War in Thebes, King Creon decreed that Antigone’s two warring brothers, Castor and Pollux, should lay unburied – without receiving the last rites and ministrations as required by law and the gods. Antigone defied King Creon and gave her brothers what burial she could. She paid for her temerity and her sisterly love with her life! Antigone’s sacrifice has been accepted ever since as incarnating the principle that an unjust law is in fact no law at all. Sophocles’ play has been revived a great many times since. The great French playwright Jean Anouilh produced an especially pertinent and relevant version of “Antigone” which was put on and produced during the invasion and occupation of France by the Nazis from 1939 to 1944. The message was not lost on the French theatre-going public, unjust Nazi laws were not law at all! That message and that principle still holds true today, but it doesn’t take or require a Nazi take-over or invasion to trigger or bring that principle into effect. Parliamentarians have very particular or peculiar ideas as to what their law-making powers actually lawfully authorize or entitle them to do. For example, Oliver Cromwell and his Parliament felt that on the basis of trumped-up and perjured evidence, they had the lawful power and authority to execute Charles I, God’s anointed and their Liege Lord and Sovereign! This episode has led to much interesting constitutional debate and theory, judicial murder would appear to sum it up best! The French National Assembly dealt out similar treatment to Louis XVI, a kindly man whose chief crime seems to have been that he baked cakes for the children of the neighbouring town of Versailles. Louis XVI went relatively quietly, not so Marie-Antoinette, a very good mother and a Queen to her fingertips! The National Assembly eventually voted the Queen’s execution, but not before Marie-Antoinette told the mob quite a few home-truths about themselves and what they represented. Donald Trump should read Marie-Antoinette’s speeches before next he attends the 14th July Military Parade down the Champs-Elysees in Paris! Meanwhile, across the Channel, back in London, Parliament had completely lost the run of itself – so much so that Professor AV Dicey, Professor of Constitutional History and Law at the University of Cambridge, devised the theory of the unlimited sovereignty and power of Parliament. Dicey went on to illustrate and demonstrate his theory in the most drastic and dramatic fashion possible, by stating: “Parliament may rule that all blue-eyed babies should be killed!” At this point, it is necessary to make a stand. Dicey was talking about positive or “man-made” law. Most law is man-made from “parking-tickets” to “taxation-rates”, but that doesn’t mean that there is no limit to the laws or the kinds of law that man can make. Sophocles and Anouilh had already made the point that some laws, made by man, were profoundly unfair, unacceptable and unjust; and were not in fact law at all. In Ireland, our Judges have always applied and defended constitutional and human rights, as clearly stated in the Constitution of Ireland and in relevant case law. But, regardless of what Unanimity Frank may say, the Irish Judiciary has also identified many express and implied personal rights, including the right to life of the unborn, “which are natural and antecedent to positive law”! These rights exist and derive from the nature of human existence and pre-date man-made law. It follows that such rights cannot be taken away or abolished by any man-made law, such as a referendum (even assuming that the constitutional requirements for holding a referendum were actually complied with). The referendum on the Eighth, held on 25th May, raises many questions as an exercise in constitutional democracy. What troubles more however is the sad realization that a great many Irish women and men assume and believe that they are justified and authorized, for whatever reason, to destroy or terminate the existence of another human being as yet unborn. Antigone tried to warn us about just such laws, assumptions and beliefs! Regrettably, in its attitude to and treatment of the unborn, many in Ireland and Irish society have embraced what can only be described as a Nazi mentality!

Maurice James, Barrister at Law