Speech at the “Towards a new Ireland” conference by Patrick Yu
Introduction
2013 marks the 15th anniversary of the Good Friday Agreement. It is the time to have a quick look at what have been achieved under the GFA. For the Good Friday Agreement, Strand 1, 2 and 3 of the institutions, except the Civic Forum have been implemented. Chapter 6: Rights, Safeguards and Equality of opportunity, which is the essential part in any post-conflict society nation building.
However the crucial part is partially implemented. A new set of institutions such as the Northern Ireland Human Rights Commission, the Equality Commission, which merged the previous 3 Commissions and one body into a single Commission in 2000 along with the Human Rights Act.
But for the Bill of Rights for Northern Ireland (the advice by the Northern Ireland Human Rights Commission), the legacy of the past (the Eames Bradley Report), gender equality and participation, economic, social and cultural rights (poverty reduction plan and action), the Single Equality Bill for Northern Ireland and the Irish Language Bill under St. Andrew Agreement, etc. and etc., which are the key components in any transitional justice that need to heal, to reconcile and to reconstruct a new society are still missing.
Both the British and the Irish government are the guarantors of the Good Friday Agreement under the Vienna Convention on the Law of Treaties. The people in the North and the South, as well as Irish in Britain, have a right to ask both governments to take political leadership and commit to implement the Agreement in full. This is the only way to secure our shared future for the next and future generations.
For the Human Rights Act the British Prime Minister has tried to dismantle it without great success through the Bill of Rights Commission process in Great Britain. Due to the devolved constitutional arrangements in Northern Ireland, Scotland and Wales, the ECHR and EU law have been enshrined in the Northern Ireland Act 1998, the Scottish Act 1998 and the Government of Wales Act 2006. Any dismantlement of the Human Rights Act would create a constitutional crisis for Great Britain as it leaves the little England in an isolated position, both outside and inside the British Isles.
This can be regarded as a prime objective of the British Prime Minister as it could create an opportunity to exit both the European Union and the Council of Europe through a future referendum. This election mode strategy of a future referendum would make Great Britain pay a very heavy price. It will create xenophobic sentiments to attack foreigners on one hand, and any public services will be subjected to further immigration control on the other. We wait and see the European Election next year.
Any changes on the status of the European Union of the United Kingdom will have an extremely negative effect on the island of Ireland in terms of the economy, border control, and of course the political relationship between the British and Irish. Therefore the East and West relationship is an important area that should be considered for a progressive Ireland.
The British Prime Minister, when he addressed the CBI last November, set forth a political agenda that seeks to restrict rights, equality and crucially judicial review through a number of consultations and policy papers. The infringement of such a basic right for people to challenge the government on any abuse of power by the state is a worrying development.
Parallel to the British Prime Minister, the decision was made by the elected representatives of the Belfast City Council in December last year to put the Union Jack on selected days instead of every day. The motion adopted, immediately riots broke out and ongoing protests outside City Hall. It is completely out of control for months in the heart of the city centre and in the east side of the Belfast. This backdrop inflames the annual parade season this year.
In general the violent portrayal of Northern Ireland has once again become an international focus. The police were attacked, private and public property was damaged, our economy suffered, and politicians started to play the blame game. Our common experiences as ethnic minority people living in Northern Ireland during any political stalemate is that ethnic minorities and foreigners will become targets of hate and we have witnessed the increasing of racist attacks in certain areas as result of the ongoing flag and parade stand-off. Where is the democracy and the rule of law?
With the US government intervention by appointing the former envoy to Northern Ireland Dr. Richard Haas and Dr. Meghan O’Sullivan to start an all-party talks process – the creation of a Panel of Parties in the NI Executive in July 2013 on a government flagship strategy was published in May this year, “Together: Building a United Community” (TBUC). At the same time the First Minister has made the decision to unilaterally to shut down the plan to build a reconciliation centre inside the Maze Prison, a plan that was agreed by the two major parties in government inflames another political stalemate.
These trends and development consolidate the importance of international human rights law to set the standard to maintain democracy, the rule of law and human rights protection. Today I will specific focus on the concept of fraternity and democracy which links to rights-based social justice.
What is equality?
Equality is a common word that means different things to different people. Some sees equal opportunity is equality. Of course equality is also a common term used by politicians, civil society, such as NGOs, employer organisations, trade unions, etc. to promote their own particular values or interests.
In this sense, equality is also an ideological concept that involves the power of ideas being used to reinforce and legitimise existing power relations or the status quo. In a divided society like Northern Ireland, equality becomes a subject of social division. It is based on the zero sum games of victimhood. It is about my rights and using it to trump other’s rights.
Equality, in a simple term, is to treat everyone equally. The problem in using such a concept is that it refuses or denies differences in our society. It is the power relationship to shape what are the acceptable norms and identity (male, white, middle age, able-bodied with distinctive Christian faith or values, orange or green) in our society in order to fence off or assimilate the differences.
It is also the process of exclusion of others within a social structure in our society. Simply it ignores the special needs of certain social groups and their disadvantaged position in our society. The classical example is one size to fit all (both inter groups and intra groups). It is not just an individual issue. It is the structural inequality in which individuals of that group identity or cultures will be excluded or discriminated against. Therefore it highlights the limitation of the liberal conception of individual rights.
Individual identity is made up of biological and social factors such as gender, ethnicity and sexual orientation. A good example is a Pakistani disabled young woman (gender, race, religion, age and disability). She might be a lesbian, too. People find themselves have more than one social grouping or identity.
Multiple identities and membership of more than one social group structure makes the unique experiences and identity of individuals. And in fact policies for service provision and organisation of work practices have often not been designed to take account of these multiple differences, resulting in exclusion and compounded or multiple discrimination.
We have asked whether, why and within what limits all human beings should be treated equally, but have not raised these questions in relation to cultures. If we interpret human beings and their actions, choices, preferences in terms of the system of meaning characteristic of their cultures (not limited to ethnic, linguistic or religious, including other group cultures such as woman, disabled people, gay or lesbian, different age group, single parent, etc.) we have great opportunity to do them justice.
The key issues are: How to accommodate differences without losing social cohesion? How to reconcile the apparently conflicting demands of equality of treatment and recognition of cultural differences whether it is orange or green or it is rainbow of all colors? How to create a spirit of brotherhood or sisterhood and solidarity among culturally diverse members?
If we are to ensure fairness and equality in culturally diverse societies, we need to do two things:
- We must appreciate that equal treatment might have to be different and not identical to its content.
- We need to develop appropriate conceptual and institutional tools to ensure that different treatment does not lead to unfair discrimination or privilege.
Liberty, Equality and Fraternity: core values of our society
Equality is not just a social concept. The issue is, what equality means in our society? And what is the institutional means to deliver equality? The means – whether it is equal opportunity, positive discrimination, equality outcome, mainstreaming, etc. – and ends – such as fraternity – of equality are links with the core values of our society such as social justice, human rights protection, democracy and the rule of law. Ten years ago I read an article of Mr. Justice Gonthier, Justice of the Supreme Court of Canada, about Liberty, Equality and Fraternity: “Fraternity – the Unspoken Third Pillar of Democracy”. I will use his conception on fraternity to share my insight on the equality debates in Northern Ireland and beyond.
The motto of Liberty, Equality and Fraternity has new meaning in the 21st century. Fraternity is together with liberty and equality in the very first article of the Universal Declaration of Human Rights: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. (In French, “esprit de fraternite”.) This is the universal core value of any society.
Fraternity advances goals of fairness and equity, trust and security, and brings an element of compassion and dedication to the goals of liberty and equality. Liberty and equality are antithetical to fraternity. Whereas liberty and equality emphasise the rights of individuals, fraternity emphasises the rights of the community (communal and/or group rights). Whereas liberty protects the right to live free from interference, fraternity advances the goals of commitment and responsibility. Fraternity is the necessary adjunct of liberty and equality that imports these values into community.
The first value of fraternity recognises that there are certain people within this community who require special protection and to whom we have a commitment. Certain vulnerable groups need extra measures to play a meaningful role in our community. In this aspect fraternity informs our understanding of equality – the state may be discriminating against individuals by failing to accommodate their special needs. This aspect of fraternity – that of inclusion – is essential for the proper functioning of the state. As a result, the law is filled with examples of duties imposed on individuals to take positive steps to assist persons who are disadvantaged or in need of care or protection (positive action).
Fraternity also recognises that in certain interactions with other people, one must do more than just treat them equally or in a manner that respects their liberty and freedoms. Rather, in certain circumstances, one cannot abuse their position in an unfair manner. Fraternity informs the notion that we as a community cannot rest solely on our “liberty” rights in a manner that is unfair to others. The backbone of civil society rests on treating each of our neighbour in a fair manner and with a degree of trust. Justice, equity, fairness, and trust operate simultaneously to guarantee the smooth functioning of a community in a way that is in accordance with the community’s conscience.
In that sense, freedom of expression is not a license to hate. In other words, freedom of expression does not mean to vilify. Freedom of expression is also not regarded as too important or valuable to be interfered with. It is an established norm that freedom of expression or religion and conscience is not an absolute right.
In this regard it reminds me the 1993 UN Vienna Declaration, which states that “All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” On the other hand, Universal Declaration of Human Rights affirms that the exercise of my rights must be done in a manner consistent with the protection of other rights. This norm also reflects in Article 17 of the ECHR which provides that:
“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
Moreover, international obligation prohibits all advocacy that constitutes incitement to discrimination, hostility or violence (“incitement” or “incitement to hatred”), as mandated by Article 20(2) of the International Covenant on Civil and Political Rights (“ICCPR”). The recommendations also apply to some of the provisions contained in Article 4 of the International Convention on Elimination of All Forms of Racial Discrimination (“ICERD”).
Another aspect of fraternity is that of cooperation. The difference between liberty and equality, on the one hand, and fraternity on the other, is that the former values promote the free association of individuals, whereas the latter promotes the cooperation of individual in the community. Cooperation is inspired by the commonality of interests and gives rise to the pooling of resources in pursuit of a common goal. Cooperation requires people who are connected with one another to work together to advance common interests. However, fraternity implies or suggests formal knowledge of the common good sought by the cooperation, and a desire to arrive at that common good.
In conclusion, the values of fraternity in a community are crucial to bring liberty and equality in practice. It is the spirit of brotherhood, sisterhood and solidarity that we are missing in the divided society in Northern Ireland.
Finally, for a progressive Ireland, North and South, we need to have universal values of not only human rights but also democratic pluralism, rule of law, transparency and accountability. We all have a role to play to cherish these universal values and direct our society towards a shared, reconcile and healing future. In that sense we need to acknowledge, accept and address the legacy of the past. For the sake of our next and future generations, the Good Friday Agreement should be implemented in full.
Good relations trump equality
Democracy, rule of law and human rights protection are the intrinsic value system in any human society. Human rights protection have no meaning unless it is enforceable through the rule of law, i.e. the judiciary adjudicate the State whether it infringes the rights of an individual. It is the fundamental principle of democracy to have the separation of power between the Executive, the Legislature and the Judiciary. Therefore, without democracy rule of law will have no meaning as dictator could abuse his power over and above the law. In a modern democratic society like in UK and Ireland, increasingly in this country the politicians openly attack human rights judgment, in particular judges and using the majority in the Parliament
Fairness and social justice are the core values of our society on the island of Ireland.
Rights and equality are being eroded over the last 15 years in the North as result of non-implementation of the key parts in Chapter 6 of the Good Friday Agreement. This is under Rights, Safeguards and Equality of Opportunity.
We have the situation in the North: we all pretend to play the victimhood game to fence off the others. It is not uncommon today to see using good relations to trump equality in policy formulation, in particular if one side has such a needs and the other side don’t. For ethnic minorities, we are not being recognised, as government has no data on race except the census. It gives them a good excuse not to do anything for ethnic minorities in policy development nor do they conduct more research to fill the vacuum. They don’t!
Increasingly politicians politicise rights and equality by their own interpretation. The current flag protest and the past parade season as well as the ongoing stand-off in Woodvale where a camp set up for civil disobedience using democracy to trump equality and rights.
Chapter 6 of the Agreement lists a lot of outstanding issues 15 years ago. These issues still remain the same today. I quote the following:
- The right to equal opportunity in all social and economic activity regardless of class, creed, disability, gender and ethnicity
- The right to freedom from sectarianism harassment; and
- The right of women to full and equal political participation.
Discrimination on the basis of race, colour, nationality, religion, political opinion, gender, sexual orientation, disability, age, etc. and etc. is still the daily life battle of ordinary people in the North. The figures from the NI Industrial Tribunal show these upper trends.