Imagine being hauled up before a board to answer to a charge of having engaged in discriminatory behaviour. Imagine that discriminatory behaviour is very vaguely and loosely defined and that it can even consist of unintended, non-verbal conduct. Imagine that the burden of proof is inverted, so instead of being automatically presumed innocent until proven guilty, you now have to prove your innocence.
Imagine being judged by a board made up of appointees selected directly by the prime minister – essentially persons of trust transformed into part-time judges with no guarantees as to their independence. Imagine that this board of political appointees can impose fines of up to €10,000. This unwelcome scenario will become a reality if the three bills, which the government is proposing, are enacted as currently drafted.
The bills I am referring to are bills 96, 97 and 166. The first two are the ones providing for equality legislation and the setting up of a board to decide upon charges of alleged discriminatory treatment. Bill 166 consists of a proposal to amend the constitution. It proposes to abolish the constitutional protection whereby only a court of law may impose criminal sanctions or administrative fines which are punitive in nature. A court of law is that which is presided over by a judge in the superior courts or a magistrate in the inferior courts.
The constitution grants the courts the exclusive jurisdiction to decide upon criminal matters and penalties because they are independent and impartial bodies which follow due process rigorously. In this aspect, our constitution provides further protection than that provided for in the European Convention. Now, the government wants to do away with this constitutional protection and allow extrajudicial entities or even public officers to substitute courts of law. In other words, the government is proposing to appoint its political puppets onto a board which can impose penalties that are so high that they are punitive in nature and equivalent to the penalties meted out in criminal cases.
This proposal is a dangerous and retrograde step. Instead of improving access to justice in the courts of law by appointing more judges, the government chooses to set up quangos stuffed with political appointees, giving them the power to mete out hefty fines running into tens of thousands of euros.
There are insufficient guarantees that these political appointees will be impartial. It is more likely that they will be beholden to their political masters for reappointment and retention of their salaries.
For the past three years, the country has been bogged down in a morass of corruption scandals.
Instead of appointing more judges, the government chooses to set up quangos stuffed with political appointees giving them the power to mete out hefty fines- Claire Bonello
A common element in practically every sordid saga is the presence of political appointees or persons of trust. These persons were/are answerable to no one except to their political master and they are not necessarily qualified for the post they hold (Paul Apap Bologna, appointed to the planning board, admitted that he had next to zero experience of planning matters and that he thought he could learn on the job).
What is even worse is that they do not follow any rules or known procedures and play fast and loose with taxpayers’ money operating in a dubious legal hinterland where anything goes.
If the government has any intention of introducing good governance measures, then it cannot possibly continue in this vein, creating a parallel system to the courts of law stuffed solely with its appointees. It should be noted that the Venice Commission had commented unfavourably on the unfettered powers of the prime minister to make appointments. It had also stated that appointments to positions of trust should be strictly limited by law. The mode of appointment of the members to equality board cannot veer further away from the meritocratic and transparent set-up suggested by the commission.
The aims and the objectives of equality legislation are noble and commendable. However, noble ends cannot be achieved by perpetuating the rotten system of political patronage and abolishing constitutional rights. Nor can these aims be attained by enacting vague laws where citizens don’t know exactly what is prohibited behaviour for which they may be heavily penalised. Laws must be clearly worded so that they can be easily understood and enforced with some measure of uniformity.
If laws are couched in the kind of vague and subjective language found in the equality legislation being pushed through parliament, citizens may never be sure if they are committing an offence or not. Even more worrying is the fact that the board may interpret the vague terms in an arbitrary manner, ironically resulting in a law which is meant to stop discrimination creating even more discrimination.
Stakeholders and individuals from all walks of life have aired their concerns about certain aspects of these bills. They have been unjustly dismissed as bigots or wanting to stand in the way of progress. There is nothing more progressive and radical than trying to prevent the enactment of oppressive laws and saying it as it is: that the government of the day is enacting laws which will perpetuate state-sanctioned discrimination under the guise of equality legislation.