We are delighted to welcome this guest contribution from Professor Fionnuala ní Aoláin, Associate Dean at University of Minnesota School of Law, Associate Director of the Transitional Justice Institute (UU) and former Commissioner on the Irish Human Rights Commission.
Why the Appointment Process to the Irish Human Rights Commission Matters
The Irish Human Rights Commission consists of a President and 14 other members. Commissioners are appointed for a term of five years. The present Commission started its term in October 2006, and as the appointment process for a new Commissioners to the Irish Human Rights Commission is pending, my comments reflect on the importance of a transparent, accountable and human rights compliant appointment process. It also challenges that process to encourage and support meaningful diversity in the appointments to the Commission, so that our Human Rights Commissions reflects the strengths of human rights expertise, and is not an elitist body with a narrow connection to Irish society, particularly those who experience human rights violations at the cold face.
Ireland, like numerous other western democratic states is a signatory to the major international human rights treaties, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. It is also bound by human rights obligations that arise in the sphere of customary international law, including for example those parts of the Universal Declaration that have customary status. What this means is that treaty obligations require states to take and enforce domestic measures that will advance the protection of human rights, thereby doubly fulfilling the international obligations of the state. For example the European Convention of Human Rights requires (in Article 1) that:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms outlined in section 1 of this Treaty.
The International Covenant on Civil and Political Rights Article 2 to which Ireland is a signatory mandates that:
Each state party to the present Covenant undertakes to respect and to ensure to all the individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant …
When states appear before international monitoring bodies, the focus of attention is what measures and institutions the contracting state has put in place to defend its human rights treaty obligations. Quite simply, many states have recognised that one of the most expedient means of being seen to implement those international standards is to put in place domestic institutions supported by government, taking primary responsibility for various aspects of human rights protection within the state. The merits of Human Rights Commissions are two fold 1) To create genuine and accountable domestic bodies with legal and political responsibility for the enforcement of human rights 2) To discharge international obligations in respect of human rights.
But despite their potential problems have invariably emerged. They include:
- Governments create nominally independent bodies, with few powers and continue to exert political control over the issues that lead to and may be responsible for human rights violations.
- Human Rights Commissions become a means to co-opt the critics of the state, but a lack of power and independence leaves no scope for changing/moulding government policy.
- Human Rights Commissions are a window dressing exercise masking a lack of commitment to eradicating the causes of human rights violations within the state.
- Lack of funding makes the mandate of a Human Rights Commission impossible to discharge and therefore meaningless.
- In some states, appointments have been characterized by cronyism and ‘insider’ dealings, with few genuinely independent voices included by government controlled processes.
In response to the possibility of manipulation in the creation of National Human Rights Institutions the Paris Principles came into being. The Paris Principles are ‘soft-law’ legal norms. The Principles are not binding treaty law. However, as with many such ‘soft-law’ standards there is an ongoing evolution to ‘hard-law’ or customary status. Moreover, they represent a general consensus, translated into standards that functions as a guide to the behaviour of states in this arena. In thinking about the appointment process to the Irish Human Rights Commission I encourage the Minister to fulfil the expectations of international ‘soft-law’ norms as well as to be cognizant of Ireland’s broader treaty obligations to respect and to promote respect for human rights.
Human rights violations occur within states. Ultimately, effective protection must also come from within the state, both to remedy a particular violation and to prevent future violations. The Human Rights Commission is an important institutional actor that should play an active role in preventing and responding to Human Rights violations at source. The central actors in that effort are the Commissioners appointed to the task. A Human Rights Commission is only as good as its Commissioners – this has been the lesson learnt world-wide. It is perhaps with some humility that those of us who have previously served on this Commission should advocate on the importance of independence and autonomy (both actual and perceived) of those appointed to such bodies. Equally it is vital that Human Rights Commissions have connection to and experience of human rights law and practice. Human Rights is a broad field, but the breadth and depth of human rights expertise in Ireland should be represented on any genuinely representative Commission. Finally, given the vulnerability and the lack of voice that those who are at the cold face of human rights violations in Ireland experience the Commissioners appointed should, in some fulsome measure, offer genuine connection and voice to those whose ability to advocate for themselves is muted.
This article tells us why human rights commissions exist. Human Rights in Ireland is a joke.
Irish Politicians have illegally introduced opinions into Irish and has been stealing from Social Welfare Recipients since 1998 and nobody is getting protection by law.
Mervyn Taylor (Irish Human Rights Commissioner) signed into Irish law the use of opinions on statutory instruments 272/273 of 1996 and screwed the commission.
Mary Robinson (Ex. President, Human Rights Commissioner) signed into Irish law on amendment 16 to the Irish Constitution the use of opinions and screwed the United Nations.
As Ireland operates a single hierarchy of law, politicians cannot sneeze with those employed in law knowing about it. Committing crimes against humanity and treason by using opinions to hide the evidence has become the norm in Irish law with the full consent of those employed in law.
I agree with the timely and insightful points made by Fionnuala.
Perhaps it is now time to look more radically at the human rights and equality infrastructure as it exists in Ireland. Although I opposed the cynical case that was half-made by the Government for mergers in 2008 I think there is a principled case to be made for a unified human rights and equality body and a revision of the powers and functions of both bodies within such a unified structure. It is in the context of considering this kind of more radical reform that it may be possible to renew the original ambition that existed when the equality and human rights bodies were established.
To suggest that opening up this possibility is too hazardous or politically inopportune is to work within an unduly limited ambition for national human rights institutions.
The undermining of the Equality Authority has been well documented. It seems to me that the record of the Irish Human Rights Commission has been less exhaustively examined. The Commission has established itself as a credible body but it has not realised the full potential of its statutory mandate. The reasons for this are not solely linked to funding. Yes, the funding cuts imposed in recent years were disproportionate and unfair but other factors have contributed to a somewhat underwhelming record of achievement by the Commission at least when compared to the original ambitions for that body.
Now is a good time to debate these issues openly and honestly with a view to building on what we have at a time of real political opportunity.
Rather than alluding to the “underwhelming record of achievement”, could you be precise and spell out what you mean exactly? What “other factors” contributed to the record?
Personally, given their statutory powers and limited funds, I am none too sure as to what they could actually have done differently.
Additionally, the last appointment process was pretty even handed. The positions were nationally advertised, an independent panel was chosen to scrutinise the appointments (Ms. Justice McGuinness, Paddy McEntee, Senator Maurice Hayes and the then Chair of the Equality Authority, Karen Irwin) those appointable, given the view of the panel, then went forward for consideration by Government. Outside of making the Commission self perpetuating, I am unsure what is required to satisfy “requirements”.
I agree with Fionnuala that there is a danger for human rights commissions becoming part of the machinery of the State (Paris Principles notwithstanding). There has been an interesting standoff in relation to similar State agencies, such as the Equality Authority who were scaled down on the basis that they were taking cases against other parts of the machinery of the State. This may also apply to human rights commissions and the experience in some countries shows that there may be an impulse to tread carefully when parts of the Executive of the State are involved in violations or breached.
I agree with Donncha that there is an urgent need to renew the original ambition that existed when the equality and human rights bodies were established. These are changed times and in any case when one reflects back on the promising days of the 90s and examines what actual enforceable rights have been introduced (if any) there is a major questionmark.
A discussion is certainly needed, while of course respecting the valuable and hard work of the commission and other agencies.
For instance, have we devalued the sterling of human rights in Ireland by failing to ensure that they would actually be created in an enforceable way for those who are most vulnerable and in need. On a recent visit to Moyross in Limerick with LLM in Public law students, when one raised the issue of human rights as being applicable, there was a major and spontaneous outburst of lengthy laughter from officials and residents and others.
I do not wish to detract from what Professor Fionnuala ní Aoláin because I have read much of her work and have great respect for her views but I must shed some light on how the NIHRC treats those seeking assistance.
While I have no direct expereince with the Irish Human Rights Commission I have had misfortune to have suffered the NIHRC. From my first having contacted the NIHRC on 7th December 2001 until 29th July 2009 the NIHRC’s records detail that a stagering 262 letters, emails or phone calls were exchanged in relation to my case but no decision was ever made that any aspect of my case raised any human rights concerns. On no occassion did the NIHRC ever find my case to be of concern, even after recent discovery of another man, descrided as a “top IRA man”, having been arrested as much as 15 muniutes before my arrival on the scene.
This weekend gone I have just been passed copy of a letter from the NIHRC, wherein, it states;
“If you are actually referring to the Christy Walsh case, you may find it helpful to read the judgment, which you can find at http://www.ccrc.gov.uk/CCRC_Uploads/WALSH_JOHN_CHRISTOPHER_-_11_1_02.pdf. You will see there that Carswell made no statement indicating that “exceptions apply to the fair trial guarantee in Northern Ireland”. He said nothing that, as a lawyer, you could interpret in that way; no exceptions apply.
…
To paraphrase, an appeal court had to take account of all the evidence before it, not just the allegation of unfairness, and if all the facts showed that the defendant was guilty, the conviction should stand. Thus, Carswell was not saying that there are exceptions to the right to a fair trial; he was certainly not saying that Mr Walsh was an exception. In Carswell’s opinion, Christy Walsh was given the fair trial to which he had a right.”
This is the first explaination that I have ever heard where the NIHRC spell out why they have endorsed the abuses to my human rights and believed that my conviction should stand.
In January 2002 the Diplock Court found the Trial Judge, Petrie, to have been “unjustified” for his “main criticism” of my defense and thus primary ground for convicting me. However the Diplock Court went on to set precedent removing the right to a fair trial in NI when it concluded that,
“… if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded unsafe, the present case in our view constitutes an exception to the general rule. … the conviction is to be regarded as safe, even if a breach of Article 6(1) were held to have occurred in the present case.” Per Lord Carswell, R v Walsh (2002) NICA 1
The whole letter defends Carswell, who, in the Commissions eyes did no wrong –it should be remembered that even they have acknowledged that they have never investigated my case? The Commission had the value not only of a British Irish Rights Watch report which contradicts the Commission’s view of my case but also the fact that my case was re-opened in 2007 by the Court due to Carswell’s Judgment being so inappropriate. I had to respresent myself after the NIHRC refused to help, advise me or suggest a lawyer who might have. http://issuu.com/christywalsh/docs/irish-news-25jan2007
After my case was re-opened I asked the Commission if it would take fresh look at my case in 2007 but it refused. I asked the Commission to take fresh look at my case in September 2010 and again they refused.
If the IHRC is anything like the NIHRC then it is no more than a Quango for bored middle class house wives (of whatever gender) and victims will continue to suffer.
The NIHRC is considered to have raised awareness about human rights, I beg to differ, but what good has knowing what my human rights are when I am ineffectual standing alone trying to defend my rights. They are complete fraud and affront to human rights.
http://www.christywalsh.com/html/commissiongate.html
Ps “It is always likely however that even when things do go well that ultimately Christy will remain very angry at the Commission and may well be vocal. Damage limitations might be what we’re facing here…”
Northern Ireland Human Rights Commission, 26th September 2008
Further, in regard to transparency and accountability in NI members of the public cannot make formal complaint about the NIHRC because it enjoys Parlimentary protection. In comparrison, if a member of the public wished to make formal complaint agianst the Equality Commission or Child Commissioner they need only make it to the Ombudsman. I believe the NIHRC was a fraud for votes for the GFA and was never meant to be meaningful.