A Cosy Consensus

national | rights, freedoms and repression | opinion/analysis Saturday June 03, 2006 14:20 by Sean Crudden sean.crudden at iol dot ie Jenkinstown, Dundalk, Co Louth. 087 9739945

The Rule of Law

Is a cosy consensus the same thing as the rule of law? How are politicians or judges prevented from mucking about with the law, introducing bad law, administering the law in a partial or unfair way? Does the system require more checks and balances? Is obscurity and obfuscation the order of the day? Are we taking the modh direach to a lawless and capricious Alice-In-Wonderland world?

Under the old mental health legislation (1945 act - still in operation?) many patients felt that things were being done in a cosy consensus in a way that suited doctors and families of the mentally ill but in a way that many patients felt was capricious and inimical to their interests. I’m talking about "committal" and continuation of treatment. Somehow there seemed to be a "doctor’s way" of doing things which paid scant regard to the patient. Of course there has been an attempt by new legislation to correct any imbalance in the system by setting up "Tribunals" and a "Commission" to oversee this matter.

For a person my age (62) perhaps an authoritarian or paternalistic system is more direct and less cumbersome. I don’t mind being at the mercy of a doctor because I know the doctor and the doctor’s track record and I am relieved of the burden of appearing before people I do not know and for whom more than likely I would have even less respect than I have for the doctor. What I am trying to say is that in practical terms there is a trade-off. We are trading what could be termed a personal or "professional" relationship for a more legalistic, taxing and long-drawn out route.

However at the end of the day a mental patient expects the law of the land to hold him or her in proper regard as a human being. And the patient expects the law to be a bulwark against capricious treatment or downright abuse.

Really I am outlining these concerns because there seems to me to be an analogy here with the way the criminal courts operate in regard to the ordinary citizen.

For example only yesterday draconian legislation was put in place governing the sexual activity of young people.

There is some suggestion that the director of public prosecutions may have discretion as regards who should be or should not be prosecuted under this law. This suggestion (whether it is realistic or not) is made to mitigate the heavy burden placed on young people by the new law. Incidentally it flies in the face of the basic republican precept that the law should be applied strictly in every case without fear or favour.

The latter is the reason why all laws should be exact and logical. Needless to say any half-baked or uncertain law should be weeded out of the statute book and repealed.

Then again if too much of a discretionary role is given to the director of public prosecutions or even to the courts - including the highest court - the appalling spectre of political influence raises its ugly head.

Just as it often seemed to me that the doctor’s way of doing things (in the past?) was bad medicine so it seems to me that the lawyer’s way of doing things this past week is bad law. And the frightening thing about it is that it seems that the "lawyers" have been backed by hook or by crook by the politicians.