Sunday Business Post
By Tom McGurk
14 August 2005
What on earth have members of the Irish judiciary and legal profession been making of ‘acting’ Minister for Justice Mary Harney’s performance on the Colombia Three? Acting is the operative word, I might add.
Of course, the three men, Niall Connolly, James Monaghan and Martin McCauley, were about as welcome home to the post-IRA peace process as a kneecapping, but that said, there is finally major business to be done here.
Who needs these diversions?
Diplomatically, Taoiseach Bertie Ahern moved quickly to handle the black hole that was opening up. He rushed back from holiday, was briefed by Rory Brady, the Attorney General, and then initiated a quiet round of diplomacy with the US and Britain to explain the potential publicity fiasco and legal quagmire that was opening up.
(Presumably, at these meetings when the participants are discussing matters of international justice, nobody mentions Guantanamo.)
If, from the off, the Taoiseach understood that whatever the three were up to in Colombia, they were not in breach of Irish law, how come the acting Minister for Justice didn’t?
They were not ‘wanted’ here, and whatever they had been up to in Colombia was evidentially unsupportable here. Furthermore, there is no extradition treaty between Ireland and Colombia.
(This is not surprising, given the international reputation of this infamous Latin American judicial regime - though I’m sure the US embassy might know more about ‘judicial and extrajudicial arrangements’ down Bogota way than any of us.)
In fact, there aren’t even any extradition treaties between Colombia and its closest neighbours. Wonder why?
Worse, the case against the three stank. They had first been found not guilty of directing terrorism, with the judge accusing the government witnesses of perjury.
Subsequently, they were convicted by dint of a Colombian appeal process that was held in secret, without either them or their legal team being present.
I have no doubt that the Attorney General might have gently pointed out to the Taoiseach that as kangaroo courts go, here was one whose conclusions would surely be consigned to the dustbin by any subsequent European Court of Justice hearing.
However, even before all of that could happen, what about the small matter of the three’s legal protections under Bunreacht na hÉireann and a Supreme Court that is long used to sorting the wheat from the chaff - and famously used to separating political requirements from judicial absolutes.
In other words, the Colombia Three were a right pain in the arse, but given the standards of jurisprudence and human rights that make us different from, for example, Colombia, we would just have to put up with the silly season headlines and not be diverted from the principal business following the IRA announcement.
Ending wars is a difficult and complex process, and for those who want to make political mischief, there’s always some detritus lying about with which to do it.
There were also wider political considerations. Given the crisis the men had already caused for the peace process, the notion of Ireland or its government attempting to extradite three of its citizens to a Latin American state that is by a byword for lawlessness and human rights abuses would have had incalculable national and international political consequences, not least with the peace process and international judicial opinion.
In this context, the early demand by John Minihan of the Progressive Democrats that the three be extradited at once - echoing Peter Robinson of the DUP - was simply disgraceful.
This man serves in Dáil Éireann, and is therefore charged with upholding the constitution and the rights of all its citizens under it.
Had nobody told Harney, the acting justice minister, the judicial facts?
Maybe it was the novelty of it all, but she seemed determined to go on a solo run.
It was not a decision, I suspect, that got her a round of applause from the patients on trolleys in hospital corridors, or indeed the thousands awaiting the medical card fiasco to end.
Over three days, Harney cooked up a storm with press releases and media interviews. Given the silly season and the fact that most frontline broadcasters were on holidays, she had a free run.
Had nobody in the Department of Foreign Affairs shared the diplomatic briefing with the Department of Justice?
Spotting the Transfer of Execution of Sentencing Bill (an essentially compassionate measure to facilitate the transfer of prisoners across international boundaries, lying undisturbed around the Oireachtas for two years), Harney told the press that “the Colombia Three could be required to serve their sentences in Ireland’‘.
The fact that the bill was unsigned and would require the Colombian justice regime to sign it, having satisfied strict Irish and European judicial standards - can you imagine that? - was neither here nor there.
Even more remarkably, as our courts have recently ruled, legislation such as this cannot be used retrospectively. In short, any Transfer of Execution of Sentencing Bill case was high nonsense, yet Harney persisted with it.
Why?
Next, she dragged the Garda Siochána into it, and suggested that people should help them to find the three men.
(I’ll bet that amused the Special Branch, who of course know exactly where they are.)
She could not explain why they were being sought by the Gardai, nor could she elucidate what Irish law they might have broken, apart from being a bloody nuisance. Her mutterings about false passports is also baloney, since Irish citizens do not require a passport to reenter Ireland, and anyway we have had a common travel area with Britain since the foundation of the state.
Of course, what Harney didn’t say last week was the most significant of all: that if she were really serious about requiring the three behind bars, the Offences Against the State Act for IRA membership was only a chief superintendent’s opinion away.
Sadly, the facts of this Colombia Three mess are simply unattainable.
Nobody, apart from them and their paramilitary associates, knows what they were up to in Farc-land. Once they were arrested the possibility of clarifying the facts disappeared in a wider propaganda war stretching from the unionists to the Colombian government and its death squads to the keepers of Guantanamo Bay in Washington. Press coverage descended into spooks’ briefing time across all datelines.
In the end, this was not an international judicial battle at all, but rather a dirty war of disinformation and propaganda initiated by idiots on their ‘revolutionary’ holidays.
What an extraordinary political calculation by one of our major Irish political players, that this week - and at this sensitive time - we needed more of it.