Primer on US Supreme Court decision on Constitutional Rights in Guantanamo Bay

On June 12th the U.S. Supreme Court handed down its judgment in the combined cases of Boumediene v Bush and Al Odah v United States (judgment). By a majority of 5-4 the Court held, in a judgment written by Kennedy J., that the Constitutional protection of habeas corpus applied to those detained in Guantánamo Bay who, as a result, are entitled to take habeas petitions in federal district courts. The Court further held that the review mechanisms currently operating in the base (i.e. Combatant Status Review Tribunals with limited federal appeal) are not adequate alternatives to habeas corpus and therefore do not preclude habeas petitions. Given the significance of the decision an unusually lengthy post follows on the decision of the Court. interested parties are strongly advised to read also the concurring and dissenting opinions, all of which are spirited and reveal the extent to which the Court is fundamentally divided on the question of executive detention of those identified as terrorists by the Executive branch.

As an initial matter the Court held that Congress has successfully stripped federal courts of jurisdiction to hear habeas corpus petitions brought by detainees in Guantánamo Bay under the statutory habeas provisions. As a result, if the petitioners are to be entitled to bring any habeas claim it must be on the basis of the constitution. [Interestingly the Court did not consider whether there was any basis for bringing such a claim reliant on customary international law or international human rights law treaties, which might have also been a viable (although necessarily weaker) basis for finding in the petitioners’ favour. These international legal arguments were never presented to the Court by counsel for the petitioners, a decision that I criticise in an article forthcoming in the Israel Law Review and available in unformatted form here].

Article I(9)(2) of the U.S. Constitution, known as the Suspension Clause, provides that the privilege of habeas corpus may not be suspended except where invasion or security requires it. This has been interpreted as enshrining a right to habeas in the Constitution (Ex parte Bollman). The main argument proposed by the Government was that this constitutional provision did not apply to the petitioners because they were located outside of the territorial jurisdiction of the United States. this argument was refuted on two bases – firstly the importance of habeas corpus as one of the few rights protected in the US Constitution in its original form, i.e. before the Bill of Rights was introduced (a point I made in the ICLJ and Panoptica in 2007), and secondly the historical meaning of the writ as one that extended to every situation of effective sovereignty even in the absence of formal sovereignty. In an important passage, on p. 15, Kennedy J. holds:

“In our own system the Suspension Clause is designed to protect against these cyclical abuses. The Clause protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periods of formal suspension, the Judiciary ill have a time-tested device, the writ, to maintain the “delicate balance of governance” that is itself the surest safeguard of liberty. See Hamdi, 542 U. S., at 536 (plurality opinion). The Clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account…The separation-of powers doctrine, and the history that influenced its design, therefore must inform the reach and purpose of the Suspension Clause.”

In the earlier case of Rasul v Bush Kennedy J. had indicated his belief that the Constitution might run to Guantánamo Bay because it was essentially an unincorporated territory of the United States. This reasoning, heavily influenced by The Insular Cases, arises in a much more central fashion in yesterday’s judgment. On pages 22 – 25 Kennedy J. held:

“Guantanamo Bay is not formally part of the United States… And under the terms of the lease between the United States and Cuba, Cuba retains “ultimate sovereignty” over the territory while the United States exercises “complete jurisdiction and control.”…Under the terms of the 1934 Treaty, however, Cuba effectively has no rights as a sovereign until the parties agree to modification of the 1903 Lease Agreement or the United States abandons the base…Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory”.

Building on both of these bases Kennedy J. hands down an extremely strongly worded passage on the extra-territorial application of the US Constitution on p.p. 35-36 that at once constrains notions that the Executive can act with impunity provided it acts extra-territorially and asserts the right of the federal courts to ensure the effective separation of powers no matter where the state may be acting:

“The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.”

Kennedy J. then goes on to identify the three key considerations in assessing whether the Constitutional right to habeas corpus applies in any particular instance of extra-territorial detention: (1) the citizenship and status of the detainee and the adequacy of the process by which a decision to detain was made, (2) the nature of the sites of apprehension and detention, (3) the practical difficulties involved in resolving the petitioner’s entitlement to the writ of habeas corpus (p.p. 36-37). By application of these criteria he held, at p. 41:

“It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains
de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding. We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. Cf. Hamdi, 542 U. S., at 564 (SCALIA, J., dissenting)”

Having held that the petitioners are entitled to habeas corpus or an adequate alternative the Court went on to consider the basic requirements of a review process in order to meet Constitutional requirements. Although Kennedy J. expressly states that the elements identified in the judgment are not exhaustive (p.p. 49-50) he outlines the following: (1) the review process must provide opportunity for the petitioner to make a meaningful case that his detention is unlawful, (2) the review body must have the capacity to order release although that is not the only remedy that might be provided in the occasion of a successful petition, (3) where a person is detained on the basis of executive, rather than court, order the review tribunal must be enabled to conduct a thorough and meaningful review in relation to whether due process has been accorded. In sum, he held, at p. 57:

“For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.”

And, at p. 58:

“[W]hen the judicial power to issue habeas corpus properly is invoked the judicial officer must have adequate authority to make a determination in light of the relevant law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order directing the prisoner’s release.”

The processes available to Guantanamo Bay detainees under the applicable statutes (i.e. Detainee Treatment Act 2005 and Military Commissions Act 2006) did not, the Court held, satisfy these requirements. The Court held that s. 7 of the Military Commissions Act 2006 is unconstitutional (p.66), and that the Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition (p. 66). In his closing passage Kennedy J. appears to try to placate those who will protest that this decision constitutes an unconscionable burden on the Executive in its attempts to secure the United States against the contemporary threat but nevertheless clearly asserts the Court’s conviction that it is entitled, if not obliged, to ensure that basic principles of the Rule of Law are maintained notwithstanding substantial security threats (p.p. 68-69). The passage, although lengthy, is worth quoting in full:

“In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, proper deference must be accorded to the political branches…Unlike the President and some designated Members of Congress, neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security. Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek.

Because our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury. This result is not inevitable, however. The political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism.”

The Hijab in Irish Schools

This blog post is contributed by PhD candidate Mairead Enright whose research (on the nikah nama) is supervised by Dr. Siobhan Mullally and funded by an IRCHSS thematic grant for research into Gender, Equality, Multiculturalism and Religious Diversity

The issue of religious dress is at last beginning to make headlines in Ireland just as it has done in Denmark, France and the UK. Medical students who wished to wear hijab while working at Beaumont hospital (they were permitted to wear disposable hijabs) and a Sikh recruit to the Garda reserve who wished to wear a turban as part of his uniform (he felt unable to join after permission was refused) were the focus of comment in 2007. In May of this year the issue of religious dress in schools gained prominence.

14-year-old Shekinah Egan’s parents requested that she be allowed to wear the hijab to school in Gorey, Co. Wexford. Her school board of management granted permission but the principal referred the question to the Department of Education, which refused to provide the guidance sought. In practice, Muslim students have had permission to wear the hijab in a number of schools for some time. However, there is no consensus on the issue; the Sunday Business Post reports that a south Dublin school has banned the hijab, citing its Catholic ethos as justification. Both the ASTI and the Irish Council of Imams have emphasised the desirability of achieving a consensus on the issue.

The current Minister for Education has said that the government will consider whether to issue guidelines on the wearing of hijab in schools when it drafts an intercultural education strategy some time later this year. It seems likely that, if guidelines are issued, schools will retain a significant amount of discretion around the issue of religious dress. As we await the department’s decision, a number of important issues have ripened for consideration. They include:

· What the constitutional position on this issue will be. To date, there is no case on point and any argument on the hijab would be from first principles. For a summary of possible arguments see Claire Horgan, “A Veiled Problem: Religion in Irish Schools” (2005) 8 TCLR 5 (Available on HeinOnline). At ECtHR level, hijab bans were upheld in the context of a teacher of young children in a non-denominational school in Dahlab v Switzerland and in respect of a university student in Leyla Sahin v Turkey (where, of course, the state’s interest in preserving a policy of secularism was a core issue). Arguably, any Irish case would raise very different considerations, not least because the majority of Irish schools are Catholic in ethos rather than non-denominational. In England and Wales, school bans on forms of Muslim dress other than the headscarf – the jilbab (a long gown) and the niqab (a veil which obscures the face except the eyes) – have been upheld as consistent with the ECHR by the House of Lords and the High Court respectively. However, these decisions were made in the context of schools where alternative forms of dress which were acceptable to the majority of Muslim students in those schools were already permitted. In terms of issues of non-discrimination and freedom of religion, it may be that Ireland is largely free to carve its own path.

· Whether Ireland will follow other European countries on the retreat from normative multiculturalism, or whether aspirations for what the Statement on Integration Strategy and Diversity Management calls a “common sense” approach to cultural difference will be realised in a different form which will take account of the peculiarities of the Irish context. The education spokesmen of the major opposition parties have argued that the hijab engages crucial questions around the Irish approach to cultural difference and have called for a ban on the hijab in public schools. Labour’s Ruairí Quinn stated that “If people want to come into a western society that is Christian and secular, they need to conform to the rules and regulations of that country… Nobody is formally asking them to come here. In the interests of integration and assimilation, they should embrace our culture…Irish girls don’t wear headscarves.” Speaking to the Irish Times, Fine Gael’s Brian Hayes observed that “[t]here is enough segregation in Ireland without adding this to it.” Public opinion appears to be more nuanced. Monday’s Irish Times reported the results of TNS/mrbi poll on the place of the Islamic headscarf in Irish schools. 48% of those surveyed felt that Muslim students should be allowed to wear the hijab in state schools with significant differences of opinion between men and women, younger and older people, socio-economic groups and supporters of the main political parties.

· Whether it will be possible to develop policies around interculturalism which avoid essentialism and take account of the complexity of the issues at hand. For instance, the intersections of racial, cultural, religious and gender differences which characterise the hijab as a policy problem. To date, reference to gender has been curiously absent from political statements on the hijab. However, media commentary on the matter has run the full gamut of the “Multiculturalism vs. Feminism” debate. For a flavour, see Martina Devlin in the Irish Independent, Alison O’Connor in the Sunday Business Post and Breda O’Brien in the Irish Times.

· What will be the role of unelected representative bodies such as the Irish Council of Imams, which are gaining a significant role as spokesmen for religious and cultural groups, what effect their prominence in policy debates will have at a local level, and what steps will be taken to ensure that ‘minorities within minorities’, especially women and the young, will have a meaningful voice in negotiations around culture.

· Whether we are seeing in statements such as Mr. Quinn’s assertion that “Irish girls don’t wear headscarves” a nascent politics of belonging – similar to the exclusionary politics of Britishness promote
d in the UK – which defines Irishness, not in terms of birth or blood, but in terms of behaviour. Would our politics of identity be able to absorb hybrid notions of identity and will the process of integration require transformation on the part of established Irish citizens as well as on the part of newcomers? The story of the girl at the centre of the current hijab controversy: Shekinah Egan; the daughter of Irish and British converts to Islam, who wears her hijab to play camogie, neatly embodies this issue.

New ECHR Blog

Antoine Buyse, Utrecht, has just started a new and already very interesting blog dedicated to the ECHR. As far as I know it’s the only blog with a sole focus on issues relating to the Strasbourg Court and the implementation and substance of the Convention making it a very welcome addition to the Blogosphere – ECHR Blog.

Cluster Munitions Treaty Agreed in Dublin

A ground-breaking international treaty to ban cluster munitiions is to be agreed in Dublin today. The text of the treaty was provisionally adopted by 110 states participating in the Croke Park Conference on Wednesday May 28th. The treaty will ban all types of existing cluster munitions. Proposals for transition periods allowing states to use the weapons for between seven and twelve years were defeated. The treaty will impose an obligation on states parties to destroy existing stockpiles of cluster munitions within eight years. Specific provision for humanitarian assistance for victims is included and the treaty imposes obligations in relation to clearance of contaminated land. These provisions go beyond what was agreed in the 1997 Ottawa landmine treaty. The main producers and deployers of cluster bombs, the United States, China, Russia, Israel, India and Pakistan, did not participate in the Conference. A last minute intervention by UK Prime Minister Gordon Brown overcame initial resistance on a blanket ban for cluster munitions. News that the UK was willing to give up cluster munitions that it has used in recent years in Iraq marked a distancing between the US and the UK positions on this issue. Difficulties remain however. New generations of smart cluster munitions fall outside of the scope of this treaty. Particularly controversial has been the introduction of a provision on joint military operations, which will allow states parties to this treaty to participate in military operations with non-states parties who hold stockpiles of cluster munitions.

Negotiations on the adoption of the cluster munition treaty have been led by Ireland, New Zealand, Norway, Peru, Austria and the Vatican, following the extensive of cluster munitions by Israel in Lebanon in 2006. For further information on the Dublin Diplomatic Conference see: http://www.clustermunitionsdublin.ie/

This blog post is contributed by Dr. Siobhan Mullally

International Experts to Gather at the CCJHR to Discuss Legal Responses to Crimes of Sexual Violence

On 27th June 2008 the CCJHR will hold its 3rd Annual Criminal Law Conference. This year’s conference, supported by the Department of Foreign Affairs in recognition of Ireland’s chair of the Human Security Network, concerns “Reforming the Law on Sexual Violence: International Perspectives”.

The conference will feature papers from renowned experts in international and Irish law:

* Judge Teresa Doherty (Special Court for Sierra Leone)

* James Hamilton, Director of Public Prosecutions
* Kelly D. Askin (Open Society Justice Initiative)
* Doris Buss (Carleton University, Canada)
* Martha Fineman (Emory University)
* Fionnuala ni Aolain (Univ. of Minnesota and TJI, University of Ulster)
* Penny Andrews (Valparaiso University and La Trobe University)
* Madeleine Rees (OHCHR)
* Ben Klappe (Netherlands Defence Academy)
* Ollie Barbour (Irish Defence Forces)
* Nora Owen (Commission for Victims of Crime)
* Tom O’Malley (NUI Galway)
* Amira Khair Khair (ICC Women/Sudan)
* Milena Pires (Timor Leste)
* Mary Ellen Ring (Senior Counsel; to be confirmed)

A preliminary programme is available here and the booking form is available here. Those interested in attending are advised to BOOK EARLY to avoid disappointment as this is an ever-popular event.

Any queries relating to the conference can be directed to ccjhr[at]ucc.ie

Same Sex Marriage Decision in California and its Possible Value in Irish Litigation

Yesterday the California Supreme Court declared state statutes that defined marriage as being between a man and a woman as unconstitutional (by reference to the Californian Constitution). In In re Marriage Cases (Cal. May 15, 2008) (Opinion) the State Supreme Court held that the essential substance and significance of the right to found a family required that the Californian Constitution had to be interpreted in a manner that would guarantee the right to all Californians, whether in opposite or same-sex relationships. Although California already had impressive domestic partnership laws that gave registered couples almost all the rights and obligations of marriage, the Supreme Court held that absolute equivalence was required. The Court did not hold that the term ‘marriage’ would have to be used to describe the required new legal framework, but whatever is introduced must be exactly the same in every way, including in name, for opposite and same-sex couples.

This decision echoes many of the elements of Perez v Sharp [(Oct. 1, 1948) 32 Cal.2d 711, 198 P.2d 17] – a decision from the same court in 1948 overturning laws that barred interracial marriage. As in Perez the Court held that the right to marry is a fundamental human right and means a right to establish a legally recognized family with a person of one’s own choice. Although this has historically been an opposite-sex structure, George CJ held that “tradition alone…does not justify the denial of a fundamental constitutional right”. The Court again echoed Perez when it held that the equal protection clause was engaged in relation to marriage-bans for same-sex couples. This case is the first one (to my knowledge) where a federal court has held that ‘strict scrutiny’ applies to differentiated treatment based on sexual orientation. In relatively simple terms, this means that rigorous justification must be advanced for differentiated treatment – ‘tradition’ would not be enough. [An ECHR lawyer can not help, it seems, but to hear echoes of Karner in this element of the judgment].

In re Marriage Cases is an extremely important decision for American law – its constitutional reasoning seems very sound, although there is an activist element which the dissenting judges, who claimed marriage was a question for the legislature alone, were particularly critical of. This case may also be useful in Ireland where constitutional principles are not entirely dissimilar to those with which the Californian Supreme Court was dealing. The Irish Constitution includes a right to marry [which does not specify marital form] and an equality clause [admittedly quite weak in historical perspective]. It seems quite plausible that similar reasoning would fit within our constitutional framework and it is to be expected that In re Marriage will make a comparative law appearance when the Supreme Court hears the appeal in Zappone & Gilligan v Revenue Commissioners. [KAL Case information is available here]

Five CCJHR/Faculty & Department of Law PhD Candidates Awarded IRCHSS Doctoral Scholarships

The CCJHR and Faculty & Department of Law congratulate our five PhD Candidates who have just been awarded the prestigious IRCHSS Doctoral Scholarship. This brings the total of IRCHSS Doctoral Scholars in the UCC Faculty & Department of Law to 12, with two more candidates being funded through an IRCHSS Thematic Grant awarded to CCJHR Co-Director Dr. Siobhan Mullally. In addition, the PhD student community in UCC includes holders of the prestigious EJ Phelan and Travelling Studentship awards from the NUI and scholars funded through PRTLI 2 and 3.

The five new IRCHSS Scholars here in the CCJHR are Sinead Ring, Joe McGrath, Eoin Daly, Eilionoir Flynn, and Louise Kennefick.

Sinéad Ring holds a first class honours BCL (Law and German) and an LLM (Criminal Justice) from UCC. She worked with the Law Reform Commission from 2004-2006 and was Principal Legal Researcher on the Commission’s Report on A Fiscal Prosecutor and A Revenue Court and the Report on Prosecution Appeals and Pre-Trial Hearings. She is reading for a PhD entitled, “The Social Contingency of Judicial Discretion: A Study of Pre-Trial Applications for Prohibition in Cases of Alleged Child Sexual Abuse”. She is being supervised by Professor Caroline Fennell. She holds a Faculty of Law PhD Scholarship.

Joe McGrath graduated with a First Class Honours BCL from UCC. He holds the Faculty of Law PhD scholarship. His doctoral thesis is entitled “The Criminalisation of Corporations and Corporate Officers”. He is being supervised by Prof. Irene Lynch Fannon and Dr. Shane Kilcommins.

Eoin Daly is a BCL (Law and French) graduate of UCC (First Class Honours). He holds the Faculty of Law PhD scholarship. His doctoral thesis, under the supervision of Dr. Conor O’Mahony, is entitled “Freedom of Religion in the Context of Public Education: a Comparative Analysis”.

Eilionoir Flynn graduated with a BCL from UCC in 2006. Her PhD thesis is entitled “Advocacy Services for People with Disabilities – the Potential for Improved Enforcement of Disability Rights” and is being supervised by Dr. Conor O’ Mahony. She holds a Law Faculty PhD Scholarship and recently completed a research visit to La Trobe University, Melbourne, using the Aidan Synott Bursary.

Louise Kennefick graduated with a BCL Degree from UCC in 2003. She subsequently completed a postgraduate legal diploma in 2004 and qualified as a solicitor in 2006 following a two year apprenticeship in London. She is currently pursuing a PhD in the area of Criminal Law with a particular emphasis on the Criminal Law (Insanity) Act 2006 under the supervision of Professor Caroline Fennell and Dr. Darius Whelan.

UCC Faculty & Department of Law enjoys enormous success in attracting funding for members of our PhD community, and also has a number of internal funding opportunities available to candidates. Anyone considering pursuing PhD studies here in UCC is recommended to view our PhD page and contact either the Chair of the Graduate Studies Committee, Professor John Mee, or an individual member of staff they would like to supervise their work. Details of academic staff are available here.

Commentary on Saadi v Italy

We wrote about the important Grand Chamber decision in Saadi v Italy (on Article 3, non-refoulement, and diplomatic assurances) here. CCJHR member Fiona de Londras was invited to prepare an Insight on the case for the American Society of International Law.

According to the Society, “Insights provide decision makers, the general public, and members of the legal profession around the world with brief, balanced accounts and analyses of significant legal developments and newsworthy events involving international law”.

The Saadi Insight is now published and is available here.

Mildred Loving R.I.P.

Mildred Loving died on 2 May at her home in Virginia. She achieved notoriety in 1967 when her groundbreaking case – Loving v Virginia – resulted in the United States Supreme Court handed down a unanimous judgment in which it held that miscegenation laws prohibited inter-racial marriage were unconstitutional.

For more on the case, and on Mildred Loving, see this Obituary in the New York Times

COE Human Rights Report on Ireland Released

As part of his visit to Ireland last November, COE Commissioner for Human Rights Thomas Hammarberg visited the Centre for Criminal Justice and Human Rights and met with members to discuss and highlight issues of particular concern. This visit is mentioned in his Report which was released yesterday. The Report makes a total of 34 Recommendations, which are listed below. The Government of Ireland’s response to these recommendations is included as an Appendix.

National system for protecting human rights

– Ratify Protocol No. 12 to the European Convention on Human Rights and the Convention on Action against Trafficking in Human Beings.
– Adjust the legal aid scheme to the extent that it reflects actual cost of living standards.
– Review the mandates of the different human rights complaints bodies with a view to optimising their effectiveness and independence as well as closing current protection gaps, with particular reference to the remits of the Ombudsman and the Ombudsman for Children.
– Provide comprehensive and comparative information to the public on the mandates and functions of different complaints mechanisms.
– Facilitate the interaction of authorities with civil society representatives at all levels to ensure that their experience and expertise can benefit policy formulation and implementation.
– Conduct a base-line study to assess the extent to which human rights are integrated into education and training, so that further needs can be identified and addressed for ensuring that human rights awareness reaches all walks of society.
– Develop a national action plan on human rights as an inclusive process for continuously improving human rights in Ireland.

Children’s rights

– Implement the National Action Plan for Social Inclusion 2007-2016 so as to significantly reduce the number of children experiencing consistent poverty.
– Use the opportunity of the proposed constitutional amendment to incorporate the best interests of the child as a general principle in the Irish Constitution, in line with the UN Convention on the Rights of the Child.
– Prohibit corporal punishment of children in a comprehensive way.
– Provide for professional care in the accommodation facilities for separated children and assign a guardian ad litem to each separated child.
– Address the increasing demand for choice within the educational system, in particular with regard to cultural and religious diversity.
– Provide adequately resourced separate facilities and services for minor psychiatric patients, and make early intervention at a local level possible for such children.

Juvenile justice

– Ensure full implementation of the Children Act 2001 and its sentencing principles, for example, by providing guidance and specific training to the judiciary.
– Develop further the system of alternative sanctions for juvenile delinquents and ensure adequate funding for the system across the country.
– Review the current system of Anti-Social Behaviour Orders so that it does not lead to an increased use of detention and ensure its independent monitoring.
– Apply the Children Detention School model when the detention of juvenile offenders is deemed a necessary measure and discontinue the imprisonment of children in adult facilities.

Non-discrimination and women’s rights

– Review the resource needs of the Equality Tribunal to minimise its backlog of cases.
– Clarify the scope of legal abortions through statutory law in line with domestic jurisprudence and provide for adequate services for carrying out such abortions in Ireland.
– Change the law on birth registration in such a way that transgender persons can obtain a birth certificate reflecting their actual gender.
– Provide the National Office for the Prevention of Domestic, Sexual and Gender-based Violence with adequate resources for the effective fulfilment of its broad mandate while, in particular, ensuring effective support for women victims of violence through services supplied by both state and civil society operators.

Measures against racism and xenophobia

– Monitor the implementation of the National Action Plan against Racism and the local anti-racism and diversity plans in close cooperation with civil society and ethnic and cultural minority representatives, while preparing new action plans to succeed the current ones.
– Improve data collection on racist and xenophobic incidents.
– Provide for the racist motivation of a crime to be considered as an aggravating circumstance in Irish criminal law.

Situation of Travellers

– Work closely with Travellers when preparing, implementing and monitoring policies and programmes designed for the Travellers.
– Promote the participation of Travellers in political decision-making at local and national level.
– Ensure that Travellers are effectively protected against discrimination and racism under national and international law.

Treatment of migrants and asylum-seekers

– Ensure that the right to remain in Ireland during the procedure is granted to asylum-seekers who appeal asylum decisions which raise questions in relation to Article 3 of the European Convention on Human Rights.
– Reconsider the provision in the proposed Immigration, Residence and Protection Bill which would direct costs for so called “frivolous and vexatious” proceedings to the legal counsel of the applicant.
– Provide family accommodation to families with children seeking asylum in Ireland.
– Introduce temporary work permits for asylum-seekers.
– Introduce statutory provisions regulating family reunification for all groups of people.
– Implement the principle of the best interests of the child in decisions within the field of immigration and refugee law related to children.

Fight against terrorism: extraordinary renditions

– Review the current inspection and monitoring arrangements in Ireland with a view to ensuring that effective and independent investigations are carried out into any serious allegation of extraordinary renditions