Will of the People: A Likely Story

If Garth Brooks were chairing Ireland’s 4th Periodic Review under the International Covenant on Civil and Political Rights, perhaps tomorrow’s papers would be filled with headlines about how the country’s international reputation is now in shreds.

There are a number of items in which grave shortcomings have been identified, but I am going to focus on just one in this post.

A report by Kitty Holland in today’s Irish Times outlines how the Ireland rapporteur on the UN Human Rights Committee said that Ireland continues to criminalise abortion ‘even in circumstances in which we deem (member) states to be under an obligation to allow safe and legal abortion.’

If that weren’t bad enough, the initial justification for Ireland’s current legislation, which subjects pregnant women at risk of suicide to examination by three clinicians, bordered on the farcical.

Mary Jackson, principal officer at the Department of Health, responding to Ireland rapporteur Yuval Shany’s questioning about how Ireland’s current regime could be reconciled with Articles 6 and 7 of the ICCPR, which guarantee the right to life and prohibit torture and cruel, inhuman or degrading treatment, said that ‘Ireland’s approach to legislating for abortion complied with Article 25 of the Covenant which guaranteed all citizens’ right to vote and self-determination.’

Article 25 reads as follows:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Ireland’s position, then, was that torture and cruel, inhuman or degrading treatment could be administered provided that it arose from the free expression of the will of electors.

Or perhaps it could not be torture, or cruel, inhuman or degrading treatment, given that voters had freely chosen to administer it.

Whatever. Mary Jackson’s reasoning was rejected in the strongest terms by the Committee, and subsequently withdrawn. Frances Fitzgerald, Minister for Justice and Equality, recognised that ‘the will of the majority cannot derogate from the State’s human rights obligations‘. But it’s worth thinking about how a top civil servant could end up expressing such a view.

If we cast our minds back to the public debate concerning the introduction of changes to Ireland’s abortion legislation last year, there was little or no discussion concerning whether the electorate ought to have a collective right to subject anyone to torture, or cruel, inhuman or degrading treatment.The guiding assumption in media coverage was that ‘the people’ had the ultimate say over what ought to be done with pregnant women.

This stance was succinctly -and uncritically- outlined in a column by Fergus Finlay, CEO of Barnardos, in the Irish Examiner:

We live in a country where the people have decided, very clearly and very explicitly, that we fundamentally value the lives of unborn babies. The people have also decided, equally clearly and explicitly, that we do not want under any circumstances to prevent any woman who wishes to terminate her pregnancy abroad from doing so. And the people have decided, again clearly and explicitly, that no woman whose life is in danger — for whatever reason — should be denied a termination here at home. That’s a clear and unequivocal position. And it’s the position of the Irish people, as expressed time and again in the ballot box.

As I wrote at the time, this means that the ‘people of Ireland’ can call on the institutions of the State to enforce a prohibition on abortion as it sees fit, and this is regardless of the views of the woman who is pregnant. It is only if the woman is at risk of death that an abortion might be allowed, but this has nothing to do with what the woman thinks: it is a matter for an expert or group of experts with sufficient legal and medical qualifications, appointed by the State, to adjudicate.

Hence the particular prohibition on abortion needs to be seen in terms of the common sense understanding of democratic politics in Ireland. Whatever emanates from decision-making processes with a formal democratic appearance are by and large regarded as democratic in themselves, regardless of whether they undermine such things as human rights enshrined in international law.

This understanding also applies to matters such as the introduction of public policy and legislation that create impoverishment and undermine access to decent standards of health care, education and other public services for large sectors of the population. Under the current economic regime, any such consideration is treated as subordinate to the imperatives of economic growth and the enforced requirement to pay off socialised bank debts. Since this is a course of action taken by a government elected at a general election, it is portrayed as democratic, even though the beneficiaries are not the general population, but those who profit from privatisation and a competitive (read impoverished) labour force.

The reasoning of the principal officer at the Department of Health shows sharp disregard for fundamental human rights. That ought to give grave cause for concern. It is a sign that democracy does not loom large in the delivery of health services in Ireland, though a visit to a hospital or a GP surgery will also make this fairly clear.

However, the reasoning is not at all out of joint with Ireland’s dominant political culture. Attending to the demands of ‘the markets’, the general will of money, first and foremost, is the self-evident necessity, and the basic logic to political life according to conventional wisdom is that only once these things are attended to can the general public have access to the services it requires. Among the general public, those with property and money come first.

The ‘will of the people’, by these lights, is really the compliment the vice of the rich pays to virtue, and in the particular case of abortion, the ‘will of the Irish people’, beyond the fact that it does not care what any particular citizen -or non-citizen, as Savita Halappanavar and other horrifying examples attest- subjected to its will might think, has it that those of affluent means can usually find a way around legislation that oppresses the majority, and especially those in the most precarious of situations, at no great cost.

It’s good to see the higher reaches of Ireland’s State bureaucracy exposed for their anti-democratic, anti-egalitarian tendencies in full view of the world. It’s good that international institutions should shine a light onto the tawdry reality behind the projected image of progressive generosity.

But then the question is: why do so many people in Ireland put up with this shit? Why is such arrogant mediocrity so widely tolerated? International opprobrium and sanction can play a role in building a more equal and democratic society, but only when the driving force for change comes from below, confronting the fact that Ireland’s formal democratic appearances -in the absence of any actual democratic content- in fact serve primarily kleptocratic purposes. Given this scenario, a demand for the vindication of basic rights -of the kind already enumerated in international human rights legislation- might hold revolutionary potential.

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