Judicial Pragmatism at the Expense of Language Rights: The Ó Maicín Decision

Dr Seán Ó Conaill

On Thursday March the Supreme Court handed down the long awaited judgment in the Ó Maicín case and held by a majority of four to one that Mr. Ó Maicín was not entitled to an Irish speaking or bilingual jury.

Ó Maicín is due to be tried in connection with an alleged assault which is alleged to have occurred in the Gaeltacht. Ó Maicín himself, the alleged victim and most of the parties to the case are fluent Irish speakers. Ó Maicín’s constitutional right to conduct his own case through the medium of Irish is well establish by virtue of the status the Irish language enjoys as the first official language and the national language as laid down in Article 8.1 of the Constitution and was not in dispute per se. The central issue here was whether an Irish speaker was entitled to a judge and a jury who could hear the case without the need for translation or interpreters. Murphy J in the High Court {Ó Maicín v. Éire & Others [2010] IEHC 179} refused to grant such a declaratory order, a decision which was upheld by a majority of the Supreme Court. The primary reason for the refusal offered by Clarke J was that to do so would offend the jury trial provision of Article 38.5 of the Constitution. The Court relied heavily on the earlier case of de Búrca v Attorney General [1976] I.R. 38 (a case which concerned the de facto exclusion of the majority of women from jury service) where the Irish Courts had held that jury panels should be truly representative of all of society as a whole, and the exclusion of certain groups or sections of society was deemed unconstitutional. Clarke J felt that empanelling a jury who were capable of understanding a case through the medium of Irish would necessarily mean the exclusion of a large portion of society who do not understand Irish and thus would run against the Court’s earlier ruling in de Búrca. Clarke J further held that even if it were not unconstitutional to empanel a jury of Irish speakers, the relatively low number of Irish speakers in society as a whole would render it almost impossible to empanel a jury using the methods provided for by law at present.

Hardiman J delivered the dissenting judgment and made a number of very noteworthy observations which of course do not carry the force of law but offer an alternative view to the majority. Firstly Hardiman J pointed out that Ireland is without doubt a legally bilingual jurisdiction as enshrined in Article 8 of the Constitution. Hardiman J also pointed to the expert evidence offered by Dr. Colm Ó Giollagáin which was not disputed. In his affidavit Dr. Ó Giollagáin noted that empanelling a jury of Irish speakers, particularly in the Connemara region, would not present an insurmountable task by any stretch. Hardiman J also noted how British Colombia in Canada can manage to offer bilingual trials despite the fact that there tends to be a very limited pool of French speakers in the province. Ultimately Hardiman J felt that by the very virtue of Ireland being an officially bilingual state it was very difficult to come to any other outcome other than to hold that Mr Ó Maicín was entitled to a bilingual jury. He also urged that a jury region be created in the Gaeltacht to facilitate further trials.

The decision of the majority in Ó Maicín can be grouped with many of the more recent judgments concerning the Irish language, whereby a certain judicial pragmatism has been evident, albeit at the expense of the recognition of what are known as language rights. The Irish Constitution awards the Irish language a high status as the first official language and the national language, English being recognised (or accepted as the Irish version of the Constitution puts it) as the second official language. In reality the Irish language is a minority language used by small but not insignificant minority of Irish people. There seems to be certain willingness on behalf of some of the judiciary and even Government to recognise this dichotomy and to err on the side of minimalist pragmatism rather than the strict legalist interpretation offered by Hardiman J.

Recent interventions such as the resignation of the former Language Commissioner, a protest march by over 10,000 Irish speakers organised by Conradh na Gaeilge and even comments by the President of Ireland have highlighted that this issue is not one which is likely to go away any time soon and further cases are extremely likely.

Dr Seán Ó Conaill is the Director of the BCL (Law and Irish) Programme at UCC.

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