Despite all the progress on implementing the Good Friday Agreement, it is clear that we have not yet established a society that is based upon the rule of law. Democracy and human rights go hand-in-hand with and are dependent upon the rule of law.
However, the events of the past few months, in particular, have served to underline the major threats to the rule of law that persist in this society.
The problems include continued terrorist activity from dissident Republicans, intra-Loyalist feuding, acts of violence and murder by virtually all the organisations officially on ‘ceasefire’, the scourge of so-called ‘punishment attacks’, the mafiaism of the drugs trade and protection rackets, the disorder surrounding disputes over parades, and the erection and maintenance of flags celebrating the deeds of terrorist organisations on lampposts across Northern Ireland.
The Drumcree situation throws up several threats to the rule of law. Irrespective of the rights and wrongs of the dispute, when people block roads they are committing both a public order and a road traffic offence. In the name of their own religious and civil liberties, it is wrong for the Orange Order to deny the freedom of movement of citizens to go about their lawful business. Roadblocks are not consistent with peaceful and lawful protest.
Inevitably the police have to be conscious of limited resources in policing these protests, but the right balance has to be struck between pragmatism and ensuring that the rule of law is upheld and is seen to be upheld. Furthermore, it is crucial that over the forthcoming weeks that there is visible demonstrations of arrests and prosecutions for offences committed in relation to Drumcree protests, and that pragmatism does not lead to Nelsonic blindness.
The erection of flags, particularly those of paramilitary organisations, alongside the painting of murals, is a particularly persistent problem. These flags say that particular roads and estates throughout Northern Ireland is the preserve of only part of the community and that others are not welcome. The UDA’s proud boast – ‘Simply the Best’ – begs the question ‘Best at What? Killing??
These flags are not wanted by the vast majority of the people of Northern Ireland. The law at present however is simply not able to reflect popular demands.
The police are relatively powerless to prevent flags being erected. They can only act to stop a breach of the peace if flags are going up in interface areas. Incitement to Hatred legislation is difficult to apply given that intent is difficult to prove.
Under Section 28 of the Fair Employment and Treatment Order (NI) 1998, statutory bodies, such as the Roads Service and the Housing Executive, already have a duty to provide neutral common space. It is open to someone to challenge these bodies in the courts to force them to take action. However, the fear of intimidation and violence act as a powerful deterrent to anyone daring to stick their head above the parapet.
The self-congratulations of David Ervine over the removal of some UVF flags should not distract us from the fact that they should have never been erected to begin with. If any other public representative other than the UDP Deputy Mayor of Belfast had removed the particularly offensive mural on the Shankill Road what would have been their fate? Some of us are threatened for merely opening our mouths.
It will take both changes in the law and changes in public attitudes to address this problem. Alliance believes that the law must be reviewed, and if necessary the erection of flags associated with proscribed organisations should be criminalised.
There is a problem in which statutory agencies are increasingly looking to paramilitary leaders within communities, on an unofficial basis, to resolve particular problems in some Housing Estates. This may bring short-term solutions but it only adds to the power of self-appointed paramilitaries, who believe that they are able to turn-on and turn-off problems at their whim, at the expense of locally-elected representatives, who only depend upon the ballot-box for their authority.
Despite nominal ceasefires, virtually all of the paramilitary organisations remain active and have engaged in violence. The language of complete and unequivocal ceasefires in the Agreement does not tally with the paramilitaries own conceptions of cessations of military operations against only the security forces or the other side of the community.
Murders and other acts of violence have been attributed to both Republican and Loyalist organisations, without the formal admissions of responsibility. Actions have not just been restricted to the respective sides of the community. For example, during the Drumcree-related protests, the security forces were fired upon at Carlisle Circus. The insidious human rights of so-called ‘punishment attacks’ continue with no concern for the dues process of law, without condemnation or concern of human rights bodies such as the CAJ.
Fundamentally, a major dilemma within the peace process over how to react to organised paramilitary violence and other illegal activities has not been resolved. Actions have been overlooked or tolerated and punitive sanctions avoided on a pragmatic basis in order to preserve the integrity of an all-inclusive peace process.
However, this approach gives a signal to certain individuals and organisations that they engage in illegal activities with impunity. This, in turn, brings long-term consequences to the rule of law. The Mitchell Principles and the Pledge of Office have been created to deal with these dilemmas. Despite certain reservations over the scope of these mechanisms, the main issue that society has to consider is over at what threshold they should kick-in.
The final release of politically-motivated prisoners under the Good Friday Agreement can be a watershed. Henceforth, the public should demand that preservation of the rule of law is placed at the top of the political agenda, and that the Secretary of State, the Chief Constable, the NI Executive, the Roads Service and Housing Executive adopt a more pro-active posture.