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DR. FAROOQ HASSAN, Barrister at Law, Attorney at Law (US),
Senior Advocate
Supreme Court of Pakistan (QC), Professor, Harvard.
Special UN Ambassador for Family,
President: Pakistan Family Forum & Institute of Family Studies
Member, Planning & Selection Committees, World Congress of Families
The European Court of Human Rights ( ECHR hereinafter) recent holding that in Ireland abortion is illegal in every circumstance except where
there is a “real and substantial risk” to the mother’s life is with respect to
a country which has amongst Europe’s most stringent anti-abortion laws. The
court noted in its landmark judgment delivered on 16 December in Strasbourg,
that despite the provision in the Constitution of the Republic permitting
abortion when there is a “real and substantial risk” to the mother’s life, the
government had made it practically impossible for women to get either medical
advice or abortions.
The Court held that there had been no violation of Article 8 of the
European Convention on Human Rights (right to private and family life) in
respect of plaintiffs A and B, but held unanimously, that there had been a
violation of Article 8 in respect of plaintiff C who was suffering from cancer.
The peculiarity of the decision is that the European Court held that C could not
access her rights to an Abortion (which allows this recourse only when her life
is in danger) under the Irish Constitution 40.3.3, but that she had a remedy
against the country’s government under the European law.
The three plaintiffs had complained about the restrictions on the possibility of
abortion in Ireland.
The ECHR held hearings in this matter on 9th December, 2010.
The European Court of Human Rights judgment issued in the Grand
Chamber held that that 2 out of the 3 women had essentially failed to establish
in their arguments that the
Constitution of Ireland vide article 40.3. 3 had been violated.
This key sub- article of the Constitution covering abortion is thus in 40.3,
which reads in totality as follows:
(1) “The State guarantees in its laws to respect, and, as far as practicable, by
its laws to defend and vindicate the personal rights of the citizen."
(2) "The State shall, in particular, by its laws protect as best it may from
unjust attack and, in the case of injustice done, vindicate the life, person,
good name, and property rights of every citizen."
(3) "The State acknowledges the right to life of the unborn and,
with due regard to the equal right to life of the mother, guarantees in its laws
to respect, and, as far as practicable, by its laws to defend and vindicate that
right."
(4) "This subsection shall not limit freedom to travel between the
State and another state."
(5) "This subsection shall not limit freedom to obtain or make
available, in the State, subject to such conditions as may be laid down by law,
information relating to services lawfully available in another state."
It is clear that the crucial provision of the Constitution is sub
clause 3 quoted above, which
expressly provides:-
"The State acknowledges
the right to life of the unborn and, with due regard to the equal right to life
of the mother, guarantees in its laws to respect, and, as far as practicable, by
its laws to defend and vindicate that right"
The third applicant, however, succeeded and established that her “rights to a
private life” which as held by the ECHR is specifically protected under Article
8 of the European Convention Human Rights and thus stood violated.
This right reads as follows:-
Article 8 - Right to respect for private and family life:
1. Everyone has the right to respect for his private and family life, his
home and his correspondence.
2. There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime, for
the protection of health or morals, or for the protection of the rights and
freedoms of others.
The fundamental juristic questions, inter alia, that need to be
raised is:
(1) Does the European Convention of Human Rights allow the ECHR
the judicial power to adjudicate, in simpliciter, on the
provisions of the Irish Constitution? If so how authoritative would such
construction be?
(2) Once the Court had decided that the European Convention does
not give a right to an Abortion that should have been the end of the matter?
(3) Should the task of deciding
issues dealing with the interpretation of the Irish Constitution vest in the
Irish Supreme Court or the ECHR?
The facts of the ABC judgment are in respect of the case of a woman of
Lithuanian origin who had a rare form of cancer and lived in Ireland. By
travelling to Britain to have an abortion only to find that doctors in Ireland
had been unwilling even to tell her if her health were being jeopardized by her
pregnancy. After finding Ireland at fault for denying the woman an
“effective or accessible procedure” to establish her right to a lawful
abortion and thus violating her constitutional rights, the court ordered the
Irish government to pay her 15,000 Euros, about $20,000.
Prime Minister of Ireland Brian Cowen said in Brussels simultaneously, that the
ruling raised “difficult issues” and that it was “too early to predict whether
legislation would be needed.” These sentiments were added to by the Irish
Premier when he was specifically asked to comment that while criticizing the
Republic’s laws relating to abortion, the ECHR had nevertheless upheld the
country’s right to prohibit abortion. Ruling in the cases of the
two other women, who both obtained abortions abroad, the court said that while
Ireland’s restrictions on abortion interfered with their right to have their
private lives respected, the policy of the Republic was quite permissible as it
is based on “legitimate aim of protecting public morals as understood in
Ireland.”
The court’s holding has thus two important points to consider for the advocates
of the pro-life movement. First,
laws dealing with abortion “throughout Europe were less restrictive” than
Ireland’s, except in “Andorra, Malta and San Marino”, in which there remains
entirely a total ban on abortion. In other words, it is permissible under the
present prevalent European human rights regime to legally prevent abortion.
Secondly, the court noted that despite an apparent European consensus on the
issue, it was up to “individual countries to set their own abortion laws.”
In other words, abortion per se, is not prohibited by the European
laws or that the European Convention does not say anything directly about
abortion.
This dicta of the ECHR jurisprudence is of vital significance
since it emphasizes, within the context of the questions posed above,
that laws of this public moral nature remain within the domestic
jurisdiction of 47 Member states of the European Community but that
still in compliance with the spirit of the European law, the
enforcement of the country’s own constitution has to be watched closely by the
Court in Strasbourg.
Some background information about Ireland’s constitutional history on this point
would be helpful. Laws and procedure dealing with this subject is essentially
regulated by a 1861 law that makes abortion — either providing or obtaining one
— or intentionally provoking a miscarriage, into criminal offences; these
offences carry a possible life sentence. However over the next century and a
half there took place a number of referendums and precedents of important cases
that led to legislative changes. It is thus safe to say now that the position is
not quite what it was in the middle of the 19th century. A 1983
referendum guaranteed that the life of the mother would be taken into account
along with that of the unborn child.
The Irish Supreme Court in a vitally significant decision in 1992 held that
preventing a 14-year-old rape victim from seeking an abortion abroad was
legal in Ireland if there was a “substantial risk to the mother’s life”.
Another referendum in 1992 had already lifted the ban on traveling abroad for
abortions; indeed it had made it legal for abortion rights groups to
disseminate relevant information about the modalities of getting such
abortions outside Ireland.
Plaintiff C had unintentionally became pregnant and was afraid that her cancer
would relapse as a result of her pregnancy; advocates for abortion rights
maintain that as eventually held by the ECHR, this ruling provides us with a
good test case since it emphasizes how Irish law on abortion is really
fundamentally flawed by being essentially against the interests of both doctors
and patients.
Another point that is relevant is the mechanism or modality that is
practically available to a person under the laws of Ireland The court
clearly castigated Ireland for laws that have a prohibiting effect on doctors’
ability to counsel patients effectively. A doctor and a patient concurrently run
the risk of “serious criminal conviction and imprisonment” if the doctor is of
the view that abortion option is there because the mother’s health is at risk
from pregnancy, but is then is afraid of being overruled by a subsequent
bureaucratic opinion.
This abortion matter of the three women was noted with concern and attention
internationally; this is evident from the fact that the court received several
Amicus briefs submissions from leading American groups
representing both sides of this debate. Advocates for abortion rights estimate
that 5,000 Irish women have abortions every year in neighboring Britain. Dr.
Mary Favier, spokeswoman for Doctors For Choice, an Irish group that
advocates more lenient abortion laws, said in a statement.
“Silence has too long been part of abortion in Ireland, This ruling will
fundamentally alter that silence, and doctors will have an important role as
voices for change in any abortion discussions and as vocal supporters of women’s
reproductive health rights.” On the other side, advocates of the pro-family
movement are plainly fearful of the far reaching implications of this decision.
A protagonist of this view Saunders thinks that in
this case (only a medically related fear by one of the plaintiffs) any directive
from the Irish government to doctors to begin “prescribing abortion” in such
cases, i.e., when someone fears merely the possibility of a fatal illness will
likely result in a wholesale liberalization of “abortion rights”
in Ireland.”
While it is really too early to prognosticate with precision on this eventuality
towards “liberalization” based on apprehensions, it is seems arguable that the
larger writing on the wall is be quite emphatic in its focus. Like in every
society, the ultimate fate of such evolutions depends upon the
collective will of the concerned people.
In arriving at such fundamental decisions, religion and history of
that society has a pivotal role to play. As such it is really for the Irish
people specifically, whether the philosophical message of this jurisprudence is
accepted or not by them in times to come. It is possible that in order to go
ahead, the heavily pro-life Irish people may well alter the existing
constitutional scheme to make it even less prone to any interpretation
that could blend itself to the kind of conclusion now reached by the ECHR;
alternatively, the people may well accept the flow of European societal
trends that are currently in evidence in much of Europe on this subject.
I feel that the theories and the practice developed by primarily the Western
Nations since the last five decades of 20th Century relating to
fundamental rights, emancipation of women and by the norms now emanating from
International Conventions such as CEDAW and the notion of reproductive rights,
it is more than possible that the result reached in this case by the ECHR may
well hold the field in the foreseeable future.
What the real worry of the pro-family partisans is self evident in cases of this
nature. But, with respect, the road for achieving the desire result in
significant court cases is hardly to simply criticize, ex post facto,
the decision. If genuine progress towards such an eventuality is really wished,
it requires, in my view a different kind of approach. To delve deeply in this
modality is not possible in this brief legal survey of this Irish case; however,
at an appropriate juncture I would certainly like to go more deeply into this
matter to articulate my perspectives of how best to counter such evolution and
to suggest, in particular, the precise role that the pro-family NGO community
can effectively play to meet this changing moral and juridical yet most
disturbing metamorphosis.
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