Is McDowell right?

Here it is, hopefully the first of many weekly columns folks… (time stamp changed to place it at the top)

Defining a term is always a good place to start, Article 38 of the Irish Constitution:

1. No person shall be tried on any criminal charge save in due course of law.

Is Michael McDowell sailing too close to the wind? Is due process going down the swanny? No, says McDowell, quoted in the Irish Times:

“In particular, in matters relating to the protection of the State’s security and the prevention of subversion of democracy, which sometimes involves making the public aware of underlying facts and allegations, it would be very wrong of a Minister for Justice to fail to take action or to speak out on the sole basis that the subject matter was incapable or unlikely to be established beyond reasonable doubt in the criminal justice process.”

The statement did not say how State security or democracy were threatened by Mr Connolly.

Therein lies the crux. Even if the entire of what McDowell is saying is true – what threatens democracy more; a brother of a known Republican heading an organisation to examine corruption in Ireland, who allegedly travelled on a false passport, or, a Minister for Justice (a barrister himself), circumventing the constitutional rights of a citizen – perhaps leaking confidential information to journalists?

I am inclined to believe the latter, for a number of reasons. It should be noted that I am not known for a love of republicanism, nor of any group that uses violences to further their political aims. Indeed the record probably shows me to be something of an anti-republican, though perhaps not as gung-ho as Mr. McDowell. So if McDowell is right, we must show that Frank Connolly and the CPI pose a threat to the security of the State, and to the democracy we live in.

Firstly, I don’t care if Frank Connolly travelled on a false passport. I do care that it is a crime to do so, I do think people who travel on false passports should be prosecuted to the full extent of the law. But I don’t think travelling on a false passport warrants this level, or indeed any level, of interference from the Minister for Justice. The last time I checked, the people who execute that role are an Garda Siochana, the DPP, and the Judicial system. It is not the Minister’s job to outline a Garda investigation into an individual to Dail Eireann. I believe Michael McDowell is abusing Dail privilege by making these accusations, if he were to act properly – he would let the file sit with the DPP until he decides if there is a case to answer, or not.

Secondly, the Center for Public Inquiry (CPI). Exactly how an organisation such as this, that includes notable and well respected citizens with experience in dealing with corruption could pose a threat to democracy is frankly beyond me. In my own humble opinion the fact that they don’t have a website would warrant the withdrawal of all funding, but I digress It’s here.. Fergus Flood, a man with an examplary record in the judicial system. Frank Connolly himself, for his stories that led to the establishment of the Tribunal that Flood later Chaired.

To be quite honest, though woe I am to say it, I wouldn’t mind if all the people working for the CPI were green-blooded Republicans. It doesn’t really matter – they are trying to do something about the state of politics in Ireland. Michael McDowell might not like it, but he should shut up unless he has evidence he can give to the Gardai that the CPI were subverting democracy and threatening the security of the Irish State. Using his Ministerial position to effectively blacken the name of another individual, before a trial even begins, is nefarious to say the least, regardless of whether Connolly is ultimately found guilty of the actions McDowell alleges. McDowell theories on the CPI attempting to blacken the name of the government in order to further the political ambitions of Sinn Fein seem to be far-fetched, and even if true, do not amount in my view, to subverting the State.

Third, and lastly, it could be argued that rather than attempting to protect the interests of the Irish people, as he so laudibly espouses, it is he in fact who is subverting the institutions of the State. Michael McDowell seems to forget that he too is a citizen of this State – Frank Connolly has not been found guilty of anything. Nothing. Frank Connolly is, whether the allegations are true or not, guilty only of having the misfortune of being disliked by the Minister for Justice. In effect, Michael McDowell is taking it upon himself to decide what rights citizens should have and that ‘subversion’ is what he defines it to be. In other words the due process of law can be dispensed with on the strength of the Minister’s opinion.

Further, and very specifically, McDowell noted and in my opinion dangerously [my emphasis]:

…it would be very wrong of a Minister for Justice to fail to take action or to speak out on the sole basis that the subject matter was incapable or unlikely to be established beyond reasonable doubt in the criminal justice process.

Let’s put that another way, without changing the meaning:

The Minister for Justice should speak out regardless of due process, regardless of establishing something beyond reasonable doubt and regardless of the criminal justice system.

I will reserve my wording in response to this statement, lest I find myself in hot water.

I am quite certain you can make up your own minds about this tawdry affair.

11 thoughts on “Is McDowell right?”

  1. It should be noted that I am not known for a love of republicanism, nor of any group that uses violences to further their political aims. Indeed the record probably shows me to be something of an anti-republican, though perhaps not as gung-ho as Mr. McDowell.

    Point of order – I am a republican, and so is McDowell (as he himself recently asserted). Neither of us, however, are ‘Provisionals’, which is the proper term to be used here.

    In effect, Michael McDowell is taking it upon himself to decide what rights citizens should have and that ‘subversion’ is what he defines it to be. In other words the due process of law can be dispensed with on the strength of the Minister’s opinion.

    Perhaps a journalist can enquire of the Minister just when he plans to name himself dictator for life?

  2. What I think is most interesting about the week’s developments is that with 1 or 2 exceptions, the meeja vibe is to let it slide. Connolly wasn’t liked, he’s probably guilty, McDowell gave one of their own a great scoop, and they are quite happy that they have the power in this case, not the courts.
    I simply do not understand how anyone can defend a Minister for Justice bragging about giving garda documents to a journalist. He claims that the CPI had the power to undermine the state and this was his motivation. Wasn’t this the same justification Sean Doherty used to tap phones back in the GUBU government? Since certain journalists were clearly getting their information direct from the cabinet, then it was a threat to national security since those discussions should have been confidential. But that was Fianna Fail and this is the PD’s – who were elected keep an eye on Fianna Fail.
    The whole thing is a joke – or would be. If McDowell gets away with this there will be no stopping him.

  3. with 1 or 2 exceptions, the meeja vibe is to let it slide.

    Pretty much the Independent titles let it slide (with the exception of the Tribune), and Madam Editor is a former (?) PD as well. There’s two constituencies here gunning for Connolly – those hostile to the Provos, and those hostile to investigation of scandals among the elite in our society.

    (Perhaps a third, as well – ambitious Justice Ministers from D4 seeking to add to their man-of-action mystique)

  4. By the way what is the whole strikeout of perphaps about in your own first main paragraph. I never get this strikeout thing on blogs. seen it on many sites but no idea about it.

    It used to be done by tags, but there’s a CSS property (can’t think of it offhand) you can assign now to spans, etc.

  5. McDowell does not care if anyone thinks he is wrong or not. As one of the Sunday Tribune columnists alluded to earlier in the year, he likes to play at “show me your willy” politics. He puts me in mind of an overgrown 6th form bully who likes to pick on the first years, but who’ll turn tail and run from guys his own age.

    McDowell will get away with doing and saying as he pleases as long as the voters of Sandymount and its environs continue to elect him. Quite frankly, I do not understand why the people of D4 are so bloody insecure in themselves that they have to elect such a playground bully to represent them.

  6. Posted this on an earlier strand before I got to here (so confused by the evil Internet) but for what it’s worth and somewhat re-worded: There is clear distinction between what McDowell (as Minister for Justice) did in the releasing of this information and the information itself. Information cannot be unlearned i.e. because we have been informed the way we have does not erase that fact that we now know what McDowell considers to be true about Frank Connolly. So two issues now offer themselves: what to do about McDowell and whether the information is true. They are no longer linked e.g. whatever is done about McDowell does not prove or disprove the information about Frank Connolly. As so many people think that McDowell’s actions were completely out of order, it is instructive that the one man, Frank Connolly (who has set himself up as an arbiter of public probity) who could deal an immediate hammer blow to McDowell’s political and quite possibly legal career (by demonstrating that he was not in Columbia at the time in question) has chosen not to do so, citing higher moral ground. This is a particularly weak response from a man dedicated to rooting out all that is wrong in public life. Of course, the obvious conclusion is that he cannot offer such proof – does anyone seriously believe he would hesitate otherwise?. Given our stringent libel laws (all of this was published long before McDowell raised it in the Dail)it is also peculiar that Connolly did not seek redress for what would be a vicious libel if untrue. This also highlights the point that despite all the righteous indignation flying around about McDowells actions, the story was in the public domain since 2002 – in other words it was not introduced under Dail privilege. About the only other difference between this and any other political leak is that McDowell admitted he leaked it.

  7. I have no legal training but I would presume that if evidence of the alleged crime came to light any attempt to bring Connolly to trial for it would fail on the grounds that he cannot now get a fair trial.
    So if Connolly is innocent, his career has been ruined for nothing and if he is guilty he cannot be brought to justice.
    I seem to remember reading somewhere that before entering politics McDowell made a fortune practising law. Too bad he never got the hang of it.

  8. Hi there,

    I am trying to complete a assignment and am unable to find any information on the current status of the Law Reforms recommendations and the proposed changes to the Defamation Bill. I am only looking for short paragraph and any information would be greatly appreciated.

    Many thanks

    Karen Cameron

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