The Rule of Law and Advocacy in Civil Society

Michelle O'Kelly

Issue 381, vol.95, Winter 2006

In modern times, we have seen civil governance taking more account of the electorate, and consulting interest-groups (such as non-governmental organisations). Similarly, interest-groups now proactively woo public opinion through advocacy, and use the media to raise awareness. But in all this reciprocity is called for. Just as government would no longer be an authentic partner in our polity, if it withdrew from consultation – equally, advocacy-groups would no longer be playing the game according to the rule of law, if they resorted to any manipulation of public opinion which employs intimidatory tactics or engenders a bias tending to occlude the claims of reason.

The use by advocacy-groups of epithets for opponents like “radical”, “extremist”, “right-wing, represents a retreat from the common ground of reason.

When the High Court found the statutory-rape law to be unconstitutional and when an offender was released from prison, inflammatory and scare-mongering protest generated an atmosphere of hysteria in which the avoidance of recourse to lynch-law was no longer guaranteed. Anybody not part of this “consensus” might have feared being branded a “pedophile-supporter”. Such a climate allowed for no mention of a perpetrator having any rights (even an alleged perpetrator); no reference to those legal child-protection measures already in place; no advertence to prejudicial risk while court proceedings were ongoing.

Following the public uproar, one wonders how balanced was even our Government’s approach. There was the proposal (among the terms of reference of the Special Committee on the status of child protection) to definitively abolish that controverted defence of honest error in statutory-rape cases. Another proposal was one to hold a referendum to reinforce the rights of children under the Constitution – when, arguably, the Constitution vindicates those rights already. Meanwhile, the Minister for Children is to consult children as young as 12 on the age of consent.

In the controversy about same-sex marriage – to take but one side of the question – those opposing the measure may experience the ground-swell of public opinion as being strong enough to brand them as “homophobic”.

In the operation of the State compensation scheme for those abused in residential institutions, it is an alleged victim who effectively makes the determination of fact – pace the principle of impartiality (“no one is a judge in his own case”).

Some campaigners for asylum-seekers’ rights are polarizing potentially rational discussion, by demanding an end to all deportations – so blurring any distinction between asylum and migration…And with anti-police feeling running high in some quarters, any and every incident may invite the knee-jerk reaction of a call for an independent public inquiry : for instance, the death in Garda custody of murder-suspect Dwayne Foster – even though there was no evidence whatever of Garda wrongdoing.

Michele O’Kelly is a barrister and Mercy sister, who worked in Bosnia in the early 1990s during the civil war in that region. As a practising lawyer, she has done extensive pro bono work, at home and abroad.