Irish Law and Politics

RELATIONSHIPS between the British and Irish governments concerning Irish affairs, and particularly Northern Ireland, are rarely without difficulty. But a series of recent decisions by the Irish Supreme Court threatens to tear asunder any remaining shreds of the 1985 Anglo-Irish agreement. This agreement was intended to increase intergovernmental cooperation in a whole series of issues, and particularly to assist the British and Irish in their common fight against terrorism.

One of the main planks of the agreement allowed the Irish a limited advisory role in the daily affairs of Northern Ireland - including cross-border security, equal employment opportunities for Northern Ireland's half-million Roman Catholics who form the minority population, and other matters of common interest. In return, the Irish government, then under the leadership of the outward-looking Garret Fitzgerald, undertook to recognize the ``legitimacy'' of Northern Ireland. It seemed, on the surface, a neat quid pro quo or compromise.

But recent rulings of the Irish Supreme Court has put to rest such cozy notions. Responding to a test case put forward by a Northern Unionist politician, the court ruled that, in effect, the Irish state still lays legal claim to all the territory of the island of Ireland, as outlined in Articles 2 and 3 of the Constitution. It took a little time for the significance of this ruling to sink in - that, clearly, the Irish Constitution in legal terms lays claim to all the territory of the island irrespective of any stipulation of the Anglo-Irish agreement. In plain language, the legal claim of the ``legitimacy'' of Northern Ireland appears to have no validity. For the first time the sturdy legal independence of the Irish judiciary has sent the politicians reeling.

There was more to come. Some weeks later the Irish Supreme Court refused a political request to extradite two convicted IRA terrorists who had escaped from prison in the north and had fled to the Irish Republic. The refusal to grant extradition was based partly on the grounds that the judges feared that the men would be assaulted or ill-treated if they were sent back. This ruling was regarded as deeply offensive by the prison authorities in the north who, despite lapses by individuals, are widely regarded to rule firmly but fairly.

The Irish Supreme Court further raised hackles, and not only in Northern Ireland, when on April 8 they refused to extradite former Sinn Fein member of Parliament Owen Carron on grounds that the firearms offense he faces in Northern Ireland is ``political'' and therefore not subject to extradition. Mr. Carron had skipped bail in the north and had fled to the south where he eventually won his long battle to avoid being returned to Ulster.

The legalities are complex but they touch on a long history of disagreement between the two countries on what constitutes a ``political'' offense. In Ireland this has been understood to include an offense which has as its motivation a ``political'' aspiration, presumably that of Irish unity. In 1987 Ireland signed the European Convention on the Suppression of Terrorism, which rules out any ``political'' motivation for such offenses.

The Carron case and other cases were judged on legislation predating the signing of the European Convention, and therefore ``political'' motives could not be ruled out. To be fair, the Irish courts have granted extradition on certain cases, and Irish government sources are hopeful that the European Convention will help to place extradition between the two countries on a firmer footing.

In practical terms, the Irish Supreme Court rulings will confirm the views of a large number of Northern Ireland's 1 million Protestants who favor retaining the link with Britain that the Irish republic is a ``safe haven'' for terrorists. The Protestants also express little surprise at the continuing Irish legal claim to northern territory irrespective of any terms of the Anglo-Irish agreement.

In short the recent rulings will reinforce the view among northern Protestants - by no means all of them hard-line - that whatever the government in Dublin and London may claim, the Anglo-Irish agreement is now something of a must and that the Irish republic, despite its often fine words and sentiments, cannot always be trusted to deliver. This means that hopes of any agreement in the north, where it is desperately needed, are more remote than ever. Unionist politicians, with their worst fears appearing to have been realized by the Irish courts, have even more reason to dig in their heels and cry, ``No surrender.''

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