GILLIANS OPEN LETTER TO FRANCES FITZGERALD ABOUT THE DOCHERTYS

Frances Fitzgerald

Politician
Frances Fitzgerald

Frances
Fitzgerald is an Irish Fine Gael politician who serves as the Tánaiste
and Minister for Justice and Equality in the Government of Ireland. She
has been a Teachta Dála for the Dublin Mid-West constituency since
February 2011. She was

8 August, 
2016
 
Your
reference:
0706172828
Frances Fitzgerald,  Justice Minister,
Minister’s Office, 
51 St Stephen’s Green,
DUBLIN, 
D02  HK52,  Republic of Ireland
Dear Ms Fitzgerald,
Your duty
to uphold the rule of law in the Republic of Ireland
Following previous correspondence with you/your office
(copies enclosed), I wish to correct a statement which I made with regard to the
petition for Habeas Corpus by Brian and Janice Docherty, and to apologise for
the insufficient grasp of Irish law which caused my error.   However, now that I have been
properly informed of the facts, I am disturbed to find that the mishandling of
the Dochertys’ petition by the Irish justice system is even more shocking than I
had supposed, since a High Court judge appears to be the driving force behind
this flagrant breach of Irish law.
To quote Article 40.4.2 of the Irish
Constitution:
“Upon complaint being made
by or on behalf of any person to the High Court or any judge thereof alleging
that such person is being unlawfully detained, the High Court and any and every
judge thereof to whom such complaint is made shall forthwith enquire into
the said complaint and may order the person in whose custody such person is
detained to produce the body of such person before the High Court on
a named day and to certify in writing the grounds of his detention
, and the
High Court shall, upon the body of such person being produced before that Court
and after giving the person in whose custody he is detained an opportunity of
justifying the detention, order the release of such person from such detention
unless satisfied that he is being detained in accordance with the law.”(my
emphases).
Please note, that the law
requires the judge who has received the petition  – 
in the Dochertys’ case, Judge Haughton  – 
to enquire into the matter “forthwith”: the legal definition of
“forthwith” being as soon as can be reasonably done, with no excuses for
delay.
Note also that the words
“shall” and “may”, in general acts of the legislature or in private
constitutions, are both to be
construed imperatively  – ie, as far
as implementing a properly presented petition for Habeas Corpus is concerned,
the judge who receives the application does not have the luxury of choice with
regard to progressing it “forthwith”.
Nevertheless, when Brian and Janice Docherty completed,
in detail, all the requisite paperwork for Habeas Corpus, asking for their four
children to be brought physically before the court, and for their immediate
release, unless reasonable grounds for their detention could be made public,
Judge Haughton, despite his professional qualifications, appeared not to
understand the legal implications of either “may” or “forthwith”.   In contempt of his lawful duty to
act immediately, he hedged and equivocated, saying, ludicrously, that “the other
side” should be given ten days to put their story together, and disappearing for
a time from Chambers, presumably to consult with colleagues.   He re-emerged only to fob the
Dochertys off with the suggestion that they return to the Circuit Courts: and
when it was pointed out to him that the circuit-court path had already been
trudged and re-trudged ad nauseam, his extraordinary reply was, “That’s it.  That’s all I’m going to say.  You can stop protesting, Mr Docherty.”
According to the notary who signed the Dochertys’ sworn
statement, there has been no previous
refusal, ever, to hear a petition of Habeas Corpus
.
Judge Haughton gave no lawful reason for his refusal to
act in accordance with Irish law. 
No provision of the Constitution was quoted.  No legal precedent was offered to
justify his remarkable behaviour. 
Without shame or compunction, he brushed aside a crucial provision of the
Irish Constitution which is designed specifically to prevent the arbitrary
exercise of power, and effectively told the Dochertys to get lost.  Clearly, he considers himself to be
above the law.  Equally clearly, he
expects to be protected from any repercussions which might result from his
actions.
To whom does he look for his protection ?  Why is he so confident that he will not
be held to account ?
As the person appointed to uphold the rule of law in
Ireland, what are you doing show this person that the law may not be flouted by
high-handed judges ?  What are you
doing to ensure that his performance in office is investigated ?  What are you doing to uphold the right
of the Dochertys  –  a right guaranteed under the Irish
Constitution  –  to have their children produced in open
court, so that the hitherto highly confidential grounds for their detention may
be made public ?
I trust that you will act forthwith to insist that the
rule of law is obeyed  –  even by judges.
Yours sincerely,
Gillian
Swanson   MA
(Oxon)
Enc:   copy of e-mail to Frances
Fitzgerald dated 1 July, 2016; copy of e-mail from Neil Colgan dated 29 July,
2016; copy of e-mail to Neil Colgan dated 3 August, 2016

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