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Along with my good friend Gemma O’Doherty, I have launched a constitutional challenge to Ireland’s COVID-19 lockdown measures, which the Irish government introduced three weeks ago. O’Doherty and I seek a judicial review of the enabling legislation and regulations, and an injunction or declaration to bring it all to an end.  

In Ireland, as in many countries, we are rapidly discovering that we have been misled, that the COVID-19 pandemic is not remotely as serious as our leaders, with attendant “experts,” have been enjoining us to accept. Yet politicians and experts have cratered the economies of the world, placed the lives of millions at risk (a risk greater than anything posed by COVID-19), and turned the democracies of the West into pop-up totalitarian despotisms. 

It is striking how similar are the legislative packages introduced around the world, and Ireland’s do not stand out. For the first time in history, an infectious disease was combatted not merely by quarantining the infected, but also by radically restricting the freedoms of the healthy and unaffected. People were ordered to remain at home other than for “essential” journeys and daily exercise, which was restricted with specific limits and not permitted to include periods of rest. Our police force, An Garda Siochána (Guardians of the Peace), was given sweeping new powers to question, fine, or detain those who do not comply when given orders to return home. Citizens were summarily denied the right to mix freely, go to pubs, cafes, and restaurants, hold or attend sporting events, travel to earn their daily bread, enter beauty spots and wilderness areas to be alone with themselves and their God. Garda officers even stopped people just walking or cycling down a street, quizzing them concerning their most routine and unexceptionable movements. In some instances people have had their shopping trolleys searched for “non-essential” items. I met a man who, having purchased the wherewithal to paint a gate, received lectures and instructions to return the merchandise to the shop where he had purchased it—whereas it would have been acceptable if he had purchased a trunkload of alcohol and returned home to stew in front of the TV.

Ireland has a written Constitution which, despite a series of vicious onslaughts by politicians in recent years, remains among the best in the world. Article 6, for example, declares that “All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.”

Our Constitution and laws are rooted in natural law and English common law concepts of freedom: We are free people under God unless, for exceptional and proportionate reasons, our Government—with our permission as per the above—is compelled to curtail those freedoms in the interests of the common good. Such interventions are bound by an ethic of minimalist proportionalism. We do not receive our liberties from government, but from God. We, the people, grant the government any powers it may have. The idea therefore of the people being imprisoned in their own homes on the basis of a crisis that daily reveals itself as grossly exaggerated by spurious and now discredited projection models is on its face deeply repugnant to our constitutional rights, which guarantee freedom of speech, association, movement, livelihood, conscience, and religious practice.

Our Constitution is clear: The dwelling of every citizen is “inviolable,” which presumably means that it cannot be appropriated as an improvised prison cell. An “emergency” can temporarily cause the restriction of these freedoms only in the strictest and most precise circumstances. Article 28.3.3 of the Constitution of Ireland (a principle reinforced in the past decade by the Supreme Court) prescribes that a state of emergency may only be declared in time of war or armed rebellion, which may, if so resolved by both Houses of the Oireachtas (Parliament), “include an armed conflict in which the state is not a direct participant.” 

Public safety is one area in which such interventions may from time to time be called for, but these must meet exacting standards of necessity and proportionality. Many of the rights in the Constitution of Ireland are “inalienable” and “imprescriptible,” meaning that they cannot be given up and cannot be taken away.

The most striking thing about the reaction to the COVID-19 impositions was the acquiescence of populations almost everywhere. Under the attrition of state and media propaganda, citizens meekly obeyed summary police commands that breached every principal of constitutional and civil protection. In Ireland, they applauded the “guards” who incarcerated them in their homes, lectured them about sitting quietly by a beach staring at the sea, and sometimes resorted to arresting them with unceremonious coercion on meeting the slightest dissent or resistance. Politicians, priests, and journalists prated cliché upon platitude in support and praise of these measures.

People seemed no longer to understand that freedom, and the word “freedom,” are not ordinary things, that though natural to our human condition they do not occur spontaneously, remain like a misused dog, and respond to an on-off switch. It was truly, darkly amazing to behold.

There is a cost for questioning such things in our current climate. I do not mind so much the people who shout at me in the street. “Ah! The Revolutionary!” “If you don't mind me saying, you're an effing disgrace!” Much worse is that people I know well try to draw me into fatuous arguments in which, within a short time, I am gasping for breath as I realize that we are discussing some peripheral aspect of the saga while the other person remains blind to the gaping hole in the middle, where the freedom to do ordinary things used to sit in plain sight. The “virus” here was a virus of human reason. As Peter Hitchens wrote: We love Big Brother. This is what will remain, when it is over, if it ever in the future may be said to have truly ended.

Romano Guardini warned in Power and Responsibility:

In the long run, domination requires not only the passive consent, but also the will to be dominated, a will eager to drop personal responsibility and personal effort. Broadly speaking, the dominated get what they themselves desire; the inner barriers of self-respect and self-defense may fall before power can really violate.

It was as if people became eager to dismantle their own freedoms, as though these belonged to them like furniture and were not eternal gifts merely borrowed from posterity. It was as though the “pandemic” provided a license to let go of all responsibility and succumb to the embrace of unaccountable power. Liberties gained through the loss of innumerable lives were now being eroded, even though no evidence was proffered of a correlation, still less a causative relationship between action and claimed effect. We went from necessary minimalistic interventions in the interests of balancing public safety and freedoms to a situation that rendered these freedoms no longer freedoms but merely concessions of the state, or, more accurately, the regime.

In the manner the tyranny evolved—without meaningful debate, without noticeable dissent, with a widespread instantaneous decline into levels of spying and snitching that had taken the GDR Stasi many years to perfect—it became something we did to ourselves. Ireland experienced, not for the first time in recent years, a multiple organ failure on the part of the major institutions, the great pillars—Four Estates—of Irish democracy. The Oireachtas failed to debate these momentous impositions; the president failed to exercise his prerogative to refer them to the Supreme Court. The media failed to ask even the most rudimentary questions. No significant member of the legal profession emerged to warn against the implications—no former minister for justice, no former attorney general, no senior counsel or academic lawyer.

There was no equivalent of the U.K.’s Lord Sumption, former judge of the Supreme Court, who said in a BBC interview:

The real problem is that when human societies lose their freedom, it's not usually because tyrants have taken it away. It's usually because people willingly surrender their freedom in return for protection against some external threat. And the threat is usually a real threat but usually exaggerated. That's what I fear we are seeing now. . . . Hysteria is infectious. We are working ourselves up into a lather in which we exaggerate the threat and stop asking ourselves whether the cure may be worse than the disease.

This, Lord Sumption warned, is “how societies become despotisms.”

The hysteria, of course, emanated mainly from the media—in Ireland as much as everywhere else—and this now raises the question as to whether these same media are not now, in their desperation to survive at all costs, a significant danger to our democratic freedoms and the security of our peoples.

Here in Ireland, it falls to two laypersons—two people who worked many years in journalism while it was still a decent and honorable profession—to raise these most fundamental matters relating to freedom and the rule of law. What we now seek to do is what our president ought to have done several weeks ago: to have this legislation scrutinized by the courts so that the people may be reassured that at least some of the organs of State are still functioning and that there exists some means of protection to ensure that such a calamity as this can never, ever happen again.

John Waters is an Irish writer and commentator, the author of ten books, and a playwright.

Photo by Gian Luca Ponti via Creative Commons. Image cropped.

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