Freedom for Halawa?

There was great unrest in Egypt in August 2013 following the removal from office of President Morsi. Ibrahim Halawa was aged just 17 and had just finished his Leaving Certificate in Dublin. Ibrahim is an Irish citizen, his family having originated from Egypt. He was holidaying with his sisters in their family’s homeland when they partook in a protest, objecting to the impeachment of President Morsi, a member of the Muslim Brotherhood (the religion of the Halawa family). Ibrahim and his sisters were arrested. His sisters were subsequently released. Now, over 3 years on, 21 year old Ibrahim remains incarcerated in an Egyptian prison.

Over 400 other prisoners arrested with Halawa are also awaiting the mass trial for charges such as murder and attempted murder. The trial has now been postponed 20 times.

Minister for Foreign Affairs Charlie Flanagan has expressed that he was “disappointed and frustrated” by the repeated postponement of the trial and stated

“this is a source of great concern to the Irish Government.”

The Department of Foreign Affairs and Amnesty International have requested his release on multiple occasions. Amnesty have commented:

“This young Irish citizen has been through a horrific experience. He’s been imprisoned without trial for almost four years and endured 20 trial delays.

A major issue appears to be that even the Egyptian government are powerless in this situation, as they can’t infringe on the jurisdiction of the judicial system and request Mr. Halawas release. Charlie Flanagan discussed Halawa with his Egyptian counterpart who stressed they want the matter resolved but can’t interfere. Dara Murphy TD of Fine Gael has commented that the now President, President Sisi has said he doesn’t have power until the trial has concluded.

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Ibrahim Halawa (Image: Free Ibrahim Halawa Facebook – https://www.facebook.com/pg/FreeIbrahimHalawa/photos/?ref=page_internal

TD Gerry Adams commented:

“Ibrahim appeared in court earlier this week in a wheelchair. It is also believed he is suffering greatly as a result of ulceration of the skin due to fly-bites,”

“Ibrahim is very sick. After more than three years, the Egyptian state has failed to produce any evidence against Ibrahim.”

At the time of his arrest, it has been alleged that Halawa was in a Mosque and therefore it has been submitted that he couldn’t have perpetrated the crimes of which he is accused. A review of CCTV of the protest was carried out and no evidence has been found against Halawa.

Darragh O’ Brien TD, a Fianna Fail Spokesperson on Foreign Affairs, who this year visited Halawa in prison along with other TDs, has expressed he is ‘hopeful, more than confident that the trial will soon come to a close.

Halawa was previously being detained in a military detention centre which had exceeded capacity and treated brutally. He has since been moved to a low security prison, after the Irish government put pressure on the Egyptians. Ibrahim Halawa is reportedly now on hunger strike and has been hospitalized on occasion due to his deteriorating health status. It has been reported that he is now being sustained by glucose injections.

Ibrahim’s family have repeatedly reached out to the government asking for them to do more and this week fronted a vigil outside Leinster House for him.

Such an atrocity seems an undoubted breach of this young man’s human rights. This of course would not have been the case had Halawa been arrested in Ireland for example, as he could rely on the Constitution, the European Convention on Human Rights and the EU Charter of Fundamental Rights to vindicate his fundamental human rights. However, it appears it will continue to be a waiting game, and no progress will be made until his trial has finally taken place. It is scheduled again for 26th April.

(Featured Image: Stock Image – Unsplash)

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The Right to Die

Euthanasia is a “deliberate act or omission whose primary intention is to end another person’s life.” Assisted suicide is a criminal offence under s.2(2) of the Criminal Law (Suicide) Act 1993:

“A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for a term not exceeding fourteen years.”

The difference between euthanasia and assisted suicide is that, with euthanasia, the acts of the doctor result in the patient’s death, whereas with assisted suicide, the patient takes the final steps themselves, although with the doctors’ help, who has prescribed the required drug.

Both euthanasia and assisted suicide are illegal under Irish law. Euthanasia, depending on varying circumstances, is regarded as either manslaughter or murder and is punishable by up to life imprisonment. Assisted suicide is illegal, even though the person assisted having been asked by the chronically ill person, or did so to be compassionate and end their suffering.

There is a notable difference between acts and omissions leading to death. A person allows someone to die, if they are able to prevent the death, but do not do so. A person kills if they perform an act causing another to die, who would otherwise have not died. The doctrine of double effect must also be considered. This distinguishes between the consequences a person intends and those that are unintended but foreseen.

There is an increasing support for allowing competent adults to make their own medical decisions, even if this may result in their death. People often seek help in taking their own life, due to their illness making them disabled or physically unable to carry the act out themselves.

The issue hasn’t been raised before the Irish courts often and there is an obvious lack of case law in Ireland. The Irish Medical Council have stated, however:

“ You must not participate in the deliberate killing of a patient by active means”.

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Marie Fleming and husband Tom Curran in earlier times. [Image-  Family Handout]

Fleming v Ireland & Ors [2013] is undoubtedly the most well known Irish case on the issue of assisted suicide. Marie Fleming, a Multiple Sclerosis sufferer, wanted it confirmed by the DPP that if her husband assisted in ending her own life, he wouldn’t be prosecuted. Mrs Fleming failed. The Supreme Court focused on the express right to life in the Constitution and set out that there was:

“no explicit right to commit suicide, or to determine the time of one’s death, in the Constitution”

However, the Supreme Court did say it was the role of the Oireachtas to legislate for such matters.

This case was followed in 2015 by the largely unreported Gail O’ Rorke trail which was the first prosecution under the Criminal Law (Suicide) Act 1993. Ms O’ Rorke had attempted to organise a trip to Dignitas in Switzerland for her friend, Ms Forde who had Multiple Sclerosis. The Gardaí intervened and made Ms. O’ Rorke aware that to do so is an offence. She informed the Gardaí of having sent €400 to Mexico on Ms. Fordes’ behalf and said she only later found out it was for a life-ending drug. Ms Forde later went on to take this drug and successfully ended her own life.

Ms Rorke was acquitted of the offence and the jury also found that she was not guilty of “procuring” Ms. Fordes’ death by helping her arrange her funeral.

It is important to remember the differences in circumstances in the Gail O’ Rorke case, and the Fleming case, and to recognise that the O’ Rorke case does not represent a departure from the Irish Courts view on the illegality of assisted suicide and euthanasia in this jurisdiction. The O’ Rorke case simply didn’t amount to “assisting” suicide.

Personally, I would like to see reform in this area. I would like to think that if I had such a debilitating illness, that I would at least have the option to have a family member close by if I did wish to end my suffering. Of course there would be issues with capacity to consent, but given someone had the capacity, I don’t see why they should continue to suffer, or have someone close to them criminalised because they assisted them. To me it seems wrong that if people do wish to end their suffering, they often have to travel alone to places like Dignitas in Zurich.

What is your view on the issue?

(Featured Image: Stock Image – Morguefile)

 

What impact will Brexit have on the ECHR?

Unless you have been hiding in the shadows, you will be aware that on the 24th June 2016, the result of Brexit was announced. Britain voted to leave the European Union. It is estimated that if Britain triggers Article 50 of the Treaty on European Union this month, it could be free of the European Union by 2019, but what would that mean for human rights and the European Convention on Human Rights (ECHR)?

The ECHR was drafted by the Council of Europe and currently has 47 Member States, the UK being one such State. The ECHR sets out fundamental human rights such as freedom of expression and the prohibition of torture, and ensures these rights are protected by its Member States. The ECHR is enforced by the European Court of Human Rights (ECtHR) and is a separate entity from the EU. Therefore by leaving the EU, Britain isn’t free of the ECHR.

If Britain wish to opt out of the ECHR, the Human Rights Act 1998 (which partially integrates the ECHR into domestic law) would have to be repealed. There is some domestic law in place protecting human rights in Britain, such as the Bill of Rights 1698 but this afford citizens a weaker protection than the ECHR.

If Britain left both the EU and the ECHR, there arguably could be a void in human rights legislation. They would be erasing long standing precedent on human rights in their jurisdiction. A new British Bill of Rights has been suggested to remedy this problem. However, an unimaginable amount of consideration would have to go in to such legislation, if it were to effectively replace a major framework such as the ECHR. Critics have expressed fears that a Bill of Rights would weaken the rights afforded to citizens.

It has been suggested that following her 2020 election campaign, Prime Minister Theresa May will set the ball rolling for Britain to leave the ECHR. The rights currently conferred under the ECHR would be instead protected under domestic British law and would be enforced by the Supreme Court, rather that the ECtHR in Strasbourg.

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Westminster & the Houses of Parliament                                               Image-Unsplash

May stated:

 “…..my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its court.”

The ECtHR has been condemned by critics who deem it to hinder nation sovereignty and who are frustrated with it for preventing Member States from deporting terrorists and people who pose a threat to them. They are of the belief that it has too much power in governing domestic policy. The Prime Minister was at odds with the ECtHR when she was acting as Home Secretary when it prevented her deporting the radical cleric, Abu Qatada.

Supporters of the ECtHR recognised the vast work the Court have done in recognising the rights of people and especially of marginalized groups within society. Such groups believe that withdrawing from the ECHR would have a significant impact on Britain’s international footing.

It is worth considering that the ECHR was also a major element of the Good Friday agreement in Northern Ireland. Withdrawing from the Convention would undoubtedly cause controversy.

Alternatively, once Britain has cut ties with the EU and if it chooses not to repeal the Human Rights Act,  they will continue to be governed by the ECHR which is arguably a safer and more robust option.

What do you think is the best option for Human Rights in Britain? IS the best option to withdraw from the ECHR or is remaining in it a safer option? Let me know in the comments.

Featured Image: Pixabay – https://pixabay.com/en/brexit-exit-united-kingdom-england-1481028/

Ireland’s Transgender Recognition

Up until recently, transgender people in Ireland were fighting a long battle to get their rights recognised under Irish law. Foy v An t-Ard Chláraitheoir (No. 2) was the seminal Irish case in this regard. Dr Lydia Foy was a transgender woman who had gone through gender reassignment surgery and then sought a new birth certificate which recognised her as a female. On her first application to the Irish court- Foy v An t-Ard Chláraitheoir (No. 1), it was held that the state weren’t violating Ms. Foy’s Constitutional rights by not recognising the gender she identified as.

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Dr Lydia Foy Image: Sinn Féin Flickr – https://www.flickr.com/photos/sinnfeinire land/19278800941/in/photostream/

However, 2 days after that judgment, the UK case of Goodwin v UK came before the Strasbourg court. In Goodwin, the ECtHR (European Court of Human Rights) recognised that Art 8 of the ECHR (European Convention on Human Rights), which protects the right to private life, protects the right for a person to establish their own identity as a human. By the time Foy (No. 2) came before the Hight Court, the ECHR was incorporated into our law. McKechnie J relied on ECtHR cases and recognised that the Goodwin decision cemented the position of transgender people under the ECHR. He noted that Irish law was in contravention of Article 8 of the  ECHR as it did not recognise the rights of transgender individuals. McKechnie J therefore granted the first ever declaration of incompatibility with the ECHR under s.5 of the ECHR Act 2003. The Gender Recognition Advisory Group proposed that legislation should be amended to recognise transgender peoples rights. However, there was a substantial delay before there was any progress on this and the Irish State was subject to criticism from the likes of the Council of Europe’s Commissioner for Human Rights.

Finally, the Gender Recognition Act 2015 was passed on 15th July 2015. This Act allows transgender people legal recognition of the gender they identify as (without requiring they undergo gender reassignment surgery) and under the Act, they can request a new birth certificate which reflects this. The Act applies to people 18+, although 16 & 17 years old can obtain legal recognition but must go through a more rigorous process.

Dr Lydia Foy was the first transgender person to be recognised under the 2015 Act. Since the enactment of the  Act, many transgender people have been legally granted recognition in Ireland. The legal recognition of transgender people in Ireland has also proven to be a stepping stone for social acceptance, for people who are often marginalized. Recently, we have seen the likes of Girl Guides Ireland stating that they have amended their policy to welcome transgender girls.

Whilst Ireland is undoubtedly moving in the right direction, only time will tell on this issue as unfortunately, no legislation is watertight.

Featured Image: Stock Image – Unsplash https://unsplash.com/collections/554131/hyper-gender?photo=aht9I6SOu2A

Trump’s ‘Travel Ban’ & its infringement on Human Rights

It is a reasonable assumption that you are all relatively familiar with the Executive Order which was invoked by Donald Trump on 27th January. This was heavily reported by the media as being a ‘Travel Ban’ but was also branded an “Anti-Muslim Ban”.

In essence, the Order prevented immigration & temporarily barred people from entering the U.S from the following countries:

  • Iran
  • Iraq
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

These 7 countries are predominantly Muslim and this caused worldwide outrage.

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Of course, the ban was then blocked and the 9th Circuit Court of Appeal in San Francisco have since refused to reinstate it. It is important to note however that this doesn’t necessarily render the ban unconstitutional and undoubtedly there will be more to follow on this point as the legality of the ban is further examined. Those opposed to the ban felt it was repugnant to the 1st amendment of the U.S Constitution which was 1 of 10 amendments to the Bill of Rights on 15th December 1791.

The Immigration & Nationality Act was passed in the U.S in 1965. This set out that one can’t be “discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth or place of residence“. Given that the 7 aforementioned countries were all predominantly Muslim, this resulted in the ban being dubbed an “Anti-Muslim” ban by critics and that it was a violation of the 1965 Act.

Zeid Ra’ad al Hussein, the United Nations rights chief said of the ban:

“Discrimination on nationality alone is forbidden under human rights law”

 

Under the United Nations Refugee Convention, the U.S is obliged to provide safety and protection to those facing persecution. In denying such people admission, the U.S was presumably flouting this duty.

Ireland & Preclerance

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Stock Image – Unsplash

Had the ban remained in place, there was also a possible human rights issue relating to preclearance in Irish airports.

The Aviation (preclearance) Act 2009 gives effect to the Preclearance agreement between the U.S and Ireland in 2008. This act means that preclearance in carried out in both Dublin & Shannon airports, which of course are Irish airports, and also the only European airports to have preclearance facilities for the U.S.

Preclearance areas are governed by Irish law however, and must be conducted in accordance with the Constitution and the European Convention on Human Rights (ECHR).

Fiona de Londras, in a blog post, raised an issue in relation to the effect Trump’s Executive Order would have had on discrimination on Irish soil. It is worth browsing humanrights.ie generally on the topic. De Londras noted that if someone was turned away at preclearance, they must be treated in accordance with Irish law and therefore any Irish officials involved must act in a way that is not in contravention with either the Irish Constitution or the ECHR. The State is required to ensure Constitutional rights and right under the ECHR are protected in such preclearance areas. Had the travel ban remained in place, we my have seen breaches of such rights become very topical.

Given that deportation is still a hot topic in the U.S, what do you think will happen next? Will a similar but more ‘thought-out’ ban be put in place?

Featured Image:  Stock Image – Unsplash

 

 

 

 

What are Human Rights?

It is important to have a basic understanding of Human Rights before engaging with this blog. Many of you will be very familiar with the concept but for those who are less familiar, hopefully this post will give you clarity.

Human Rights are difficult to define, but it is the belief of many that Human Rights derive from the natural law i.e, they are inherent in a person by virtue of the human personality.

If we analyse both words separately: ‘human’ and ‘rights’, we can deduce that human rights denote rights which are fundamental to every person. All rights are seen as being of equal importance and they must be protected by our legal system.

The United Nations Office of the High Commissioner for Human Rights definition is commonly cited. It set out that Human rights were:

‘basic rights and freedoms that all people are entitled to regardless of nationality, sex, national or ethnic origin, race, religion, language, or other status’.

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European Court of Human Rights, Strasbourg                                                            Image – Pixabay

Human Rights are now protected by our national and international legal systems. In Ireland, they are protected in the 1937 Constitution of Ireland. They are also heavily protected by the European Convention on Human Rights (ECHR). The ECHR is fundamental to the case law we will be addressing on this blog. However, there remains a noticeable lack of a definition of the concept of Human Rights.

In my next post I will be addressing the Human Rights issues that surrounded President Trumps ‘travel ban’ in the U.S.A. Make sure to follow the blog so you don’t miss a thing!