Irish Examiner: Rossport Five expose State’s denial of constitution

Irish Examiner: Rossport Five expose State’s denial of constitution

“Irish citizens who should be defended by the state against such global predators as Shell can be persecuted for defending their rights. The Government and the courts have disgraced themselves in this matter. The Rossport Five must be freed immediately, with a State apology for what is less a miscarriage than an abortion of justice.”

Monday 11 July 2005

THE High Court decision to jail the Rossport Five for insisting on their constitutional rights is symptomatic of an utter disregard of the constitution by the State as a whole.

The abominable ‘deal’ the Government has cut with Shell/Statoil means the entire Corrib gas field has been handed over to these private companies with no interest retained by the state, with all expenses accrued by these companies over the past 25 years paid by the State, and with no royalties payable to the State.

This gas refinery, the only land-based refinery in the world, will discharge toxins into air, sea and drinking water in an inhabited and environmentally sensitive region; the high-pressure supply pipeline will pass beside houses, and the entire Corrib operation will be based in Ayr in Scotland.

Shell/Statoil will not be using Irish labour or services, and they are not doing so currently except where these are offered for free by the state.

But by far the worst aspect of this ‘deal’ is that it confirms the denial of our constitution by all state organs, in principle and practice, and thus of Ireland as an independent nation.

Neither the licenses sought by private archaeological firms to excavate along the route of the M3 in Co Meath, nor the compulsory acquisition orders (CAOs) sought by Shell in Erris, Co Mayo, were signed by the ministers responsible, even though under the legislation in both cases a minister’s signature is required.

This is because the ‘Carltona Principle’, or ‘Delegaus Doctrine’, is used.

Under this principle, a civil servant is delegated ministerial powers, so that the respective ministers can avoid legal liability, even though there is no constitutional justification for this activity: the Carltona Principle is based on common law and, as such, directly contravenes article 15.2 of the constitution.

In other words, the reason the Carltona Principle is invoked, whether it be to grant CAOs to the NRA or to Shell, excavation licences to private firms or landing licenses to foreign military aircraft, is to enable a minister to avoid responsibility for a willful breach of the constitution.

An instance of this is former Environment Minister Martin Cullen’s response to the Supreme Court’s decision in 2003 that the Irish State has a constitutional duty to safeguard heritage.

This decision confirmed existing national monuments legislation as being in accord with the constitution, and essentially made it sacrosanct.

Mr Cullen responded by throwing out the national monuments legislation and introducing the 2004 National Monuments (Amendment) Act, which enables the environment minister to order the destruction of any national monument or site for any reason.

Because this act was introduced in contempt of the Supreme Court decision, all actions carried out under its aegis, for example the construction of the M3 motorway, are by definition illegal.

Likewise, CAOs directly contravene the constitution’s guarantee of an absolute right to private property, yet the Government allowed Shell to issue CAOs against farmers in Erris, and the minister for the marine invoked the Carltona Principle to avoid personal responsibility for his breach of the constitution.

Let there be no doubt, the Government has granted state powers to a foreign corporation.

The High Court, by acquiescing in the Government’s gross abuse of power, has become an abetter, pretending, as Government ministers are won’t to do, that Ireland is a “common law country,” and that judges can simply stipulate what is the law.

But the High Court is not entitled to issue injunctions against citizens who refuse to comply with CAOs.

The constitution does not recognise corporations or grant them legal rights which the High Court, by conducting its grotesque parody of due process, sees fit to do. Consequently, Irish citizens who should be defended by the state against such global predators as Shell can be persecuted for defending their rights.

The Government and the courts have disgraced themselves in this matter. The Rossport Five must be freed immediately, with a State apology for what is less a miscarriage than an abortion of justice.

Andrew McGrath

Secretary

The Tara Foundation

16 Glenmore Road

Dublin 7.