The 14th century Statues of Kilkenny are generally remembered as one of the poorer attempts by the British state in Ireland to maintain its authority over this island nation during the Medieval period. They were a body of laws passed in 1366/7 to prevent the erosion of the distinctive identity of the Anglo-British colonists in the country and their assimilation into indigenous Irish society. It essence their purpose was to stop English men, women and children in Ireland becoming Irish men, women and children. Of course their prime target was the Irish language, that most obvious sign of Irishness.
“Whereas at the conquest of the land of Ireland and for a long time after the English of the said land used the English language, mode of riding and apparel, and were governed and ruled, both they and their subjects called Betaghes, according to the English law… now many English of the said land, forsaking the English language, manners, mode of riding, laws and usages, live and govern themselves according to the manners, fashion and language of the Irish enemies; and also have made divers marriages and alliances between themselves and the Irish enemies aforesaid; whereby the said land and the liege people thereof, the English language, the allegiance due to our lord the king, and the English laws there, are put in subjection and decayed, and the Irish enemies exalted and raised up contrary to reason…
Also, it is ordained and established that every Englishman do use the English language, and be named by an English name leaving off entirely the manner of naming used by the Irish; and that every Englishman use the English custom, fashion, mode of riding and apparel, according to his estate; and if any English, or Irish living amongst the English, use the Irish language amongst themselves, contrary to the ordinance, and thereof be attained, his lands and tenements, if he have any, shall be seized into the hands of his immediate lord until he shall come to one of the places of our lord the king and find sufficient surety to adopt and use the English language…
…no difference of allegiance shall henceforth be made between the English born in Ireland and the English born in England, by calling them English hobbe or Irish dog but that all be called by one name…”
Over 600 years later it seems that little has changed as the Supreme Court of Ireland has enacted a new Statute of Kilkenny for the 21st century: Irish-speaking citizens have no constitutional or legal right to be judged in court by Irish-speaking juries. In contrast English-speaking citizens have every constitutional and legal right to be judged in court by English-speaking juries. In fact it has been revealed that the Court Service of Ireland screens potential jurors to ensure their fluency in the English language. However it is not permitted to screen potential jurors to ensure their fluency in the Irish language. In other words English-speaking defendants are legally entitled to judgement by English-speaking jurors but Irish-speaking defendants have no legal entitlement to judgement by Irish-speaking jurors! From the Irish Times:
“While the State had instituted an informal screening system to ensure jurors in Dublin have an adequate command of English, it had argued it would be unlawful to operate such a screening system in the interests of producing a jury with an adequate understanding of Irish…”
How is this anything but discriminatory in form and practice? It places the rights of English-speaking citizens above those of Irish-speaking citizens. It places Irish-speaking defendants in court cases at a disadvantage when on trial if they choose to be tried through the medium of Irish in front of English-only juries who will require translators to follow the proceedings. Furthermore given the levels of antipathy towards Irish-speakers in society the very real possibility that some jurors will hold hostile views towards Irish-speakers will inevitably prejudice their trials.
What is any of this but a Statute of Kilkenny for the 21st century? Even some members of the Supreme Court are aware of the anomaly as pointed out by Justice Adrian Hardiman in his judgement, the only one of the five judges to express dissent at the decision of the court:
“Peadar Ó Maicín, the appellant in this case, is a citizen of Ireland who lives in Galway. He is a native speaker of the Irish language, that is Irish is his first language and he has spoken it continuously since he was able to speak at all. He subsequently learned English. He was reared and educated in Rosmuc in the Connemara Gaeltacht.
…part of what is implied by the constitution of this State as a bilingual State, by Article 8 of the Constitution. If that is impractical, or really cannot be done for reasons of resources, or for any other reason, then the position may be addressed by the Oireachtas, pursuant to Article 8.3. But, absent such action by the Oireachtas, the bilingual nature of the State requires that the Tribunal of Fact understand the evidence as it is given. I believe that in any other State that proposition would be regarded as axiomatic, as it clearly is in Canada, on the basis of the information summarised elsewhere in this judgement.
I have already quoted with respectful approval Clarke J.’s statement that:
“It follows that those wishing to conduct official business in Irish do have a right, derived from the constitutional status of the Irish language, to have their business conducted in Irish.”
If that statement was unqualified then there would be no difference of opinion in this case. But it is immediately qualified as follows:
“However it equally follows that that right is not absolute and must be balanced against all the circumstances of the case (not least the fact that the great majority of the Irish people do not use Irish as their ordinary means of communication) particularly the fact that other citizens are entitled to conduct their business in English as an official language, and also any other competing constitutional interest which may arise.”
As we have seen, this is not the first time where the rights of an Irish speaker are diluted by reference to alleged competition with the rights of English speakers.
This formulation and approach appears to me to ignore the fact that the effect of Article 8 is to render Ireland a bilingual country. This means that there must be parity of respect for each language and its users. Mr. Ó Maicín’s right to use the Irish language is in no way affected if the defendant tried before him, or the defendant after him, opts to take his trial in English. Equally, the rights of those English speakers are in no way affected by Mr. Ó Maicín’s opting to take his trial in Irish.
As we have seen, both the constitutional composition of the State, and the current policy of the State, is one of bilingualism or as the current policy document calls it “functional bilingualism”.
We have represented to the European Union that Irish is in use as a vernacular language in the State. I simply cannot understand how such a representation could be made if it is impossible for a citizen to have a trial in this “vernacular” language in the Courts established by the very Constitution which constitutes the State a bilingual polity.
Ireland became a bilingual State not because, as in some countries (Belgium, Canada, India), there were severe conflicts threatening the very existence of the State on the topic of language use, but as a deliberate choice. It was enshrined in the Constitution also as an act of deliberate choice. Once enshrined in the Constitution, the language provisions became part of what the Judges promise “to uphold”. That promise is to “uphold the Constitution”, not to “uphold it as far as may be reasonable in present day conditions, as perceived by them”.
If it is thought that it is now simply too difficult to uphold the Constitution in the manner identified by the various cases cited in this judgement, it would be more honest to amend the Constitution or to legislate in the manner permitted by Article 8.3. But neither of these are for the judges to do: action on them must be initiated by one or other of the political organs of government.”
[With thanks to Cuan Ó Seireadáin for the link to Justice Hardiman’s written judgement]