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20 December 2001 Edition

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Supreme Court order judiciary to breach constitution

By ROISIN DE ROSA


Tuesday was an extremely bad day for human rights in Ireland. The Supreme Court decided, by a majority of four to one, to overturn Judge Peter Kelly's order directing to the State to provide places of high support for 'children at risk'.

The case is of crucial constitutional importance. The law and constitution say that it is a violation of children's rights to lock them in prisons or mental institutions, when they have committed no offence in law. Yet these children are so disturbed they need secure accommodation with care suitable to their needs.

But what happens when the state just doesn't provide the places? What happens when there just is no secure place available to which a judge can order that the child be sent? And, when this situation continues over seven years, what happens when the Health Boards and relevant Ministers continue to breach their own undertakings, given in court, that suitable places will be provided?

What happens when it transpires that the bureaucrats in the Health Boards decide that it will cost too much money to make these places available?

The judge is obliged to violate the constitutional rights of the child, and send them to prisons, because there is nowhere else to send them. Justice Kelly has repeatedly found himself in this position, and has gone so far as to threaten to imprison Ministers of Health, Children and Education, should they continue to fail to meet their own timetable in providing and bringing into operation secure places of support.

How is the executive arm of the state to be brought to book for its policy of omission? What do the courts do when the executive arm of the state, instead of spending money to provide the requisite secure places, has the gall to apply to the Supreme Court, to overturn the courts' order that it is culpable for its own failure to provide places?

Chief Justice Keane said that Judge Kelly has "crossed the rubicon" in ordering the state to carry out a specific programme of work.

Mr Justice Hardiman said, "if citizens are taught to look to the courts for remedies for matters within the legislative or executive remit, they will progressively seek to further remedies there, and progressively cease to look to the political arm of government." Keep looking, citizen!

A most convenient judgement, indeed, given the reluctance of the leglislature and executive to spend money to ensure respect for the constitutional rights of citizens.

Tuesday's Supreme Court decision is a judgement which allows the state to do whatever it likes, sins of omission and commission, in abusing rights of people, be they asylum seekers, homeless people, disabled people, or people who are sick and in need of care. It just happens to be the case that, actually, there is no care provided, unless of course you have money to buy it.
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