Page 38
Language
Rochtain ar Cheartas: Access to Justice for Gaeilgeoirí By Muireann McHugh, SF Law De réir Bunreacht na hÉireann, cosnaítear cearta na Gaeilge go sainráithe. De réir Airteagal 8, is í an Ghaeilge an céad teanga oifigiúil na hÉireann. Tá cosaintí ann de réir reachta freisin. Ach, in ainneoin an aird a thugann Bunreacht na hÉireann do chearta teanga, tá sí siombalach ar an iomlán. In ionad cosaint láidir a thabhairt do Ghaeilgeoirí, bíonn siad fágtha le Béarla a úsáid i socruithe oifigiúla, mar shampla sa chóras dleathach. Mar sin, bíonn sé deacair do Ghaeilgeoirí rochtain a fháil ar cheartas, toisc gur mhainnigh an Stát a dhualgais bunreachtúla. Article 8 of the Constitution affords the highest legal protection to Irish language rights. However, this “protection” seems to be largely symbolic. Notwithstanding the efforts of the drafters of the Constitution to place the Irish language on a high footing, the English language has become dominant in Irish society. This makes it nearly impossible for Gaeilgeoirí (Irish language speakers) to use their spoken language when dealing with official or governmental authorities; including those within the legal system. Irish-speaking defendants facing the judicial process are presented with limited options, and it is challenging for Gaeilgeoirí to find an adequate avenue for justice. This begs the question; what rights do Irish speakers have in the administration of justice? Cearta agus Teidlíochtaí Gaeilgeoirí sa Chóras Dleathach Rights and Entitlements of Gaeilgeoirí in the Legal System Section 8 of the Official Languages Act 2003 deals directly with the administration of justice for Irish-speaking people. As per s.8(2), anyone appearing in court or offering evidence can use their language of choice without “discrimination.” In civil proceedings where the State or some State body are party, the other party can use their language of choice. Significantly, no provision is made with regards to language for criminal trials (trialacha coiriúla). The practical difficulties that would be involved, such as Irish speaking Gardaí, solicitors, witnesses etc were deemed too great to overcome. In the case of MacCarthaigh v Éire, the Supreme Court held that a defendant of a criminal trial is not entitled to an Irish speaking jury (giúiré). It was found that to limit the jury to such an extent would be inconsistent with the legal requirement for a jury to be made up of a sample of the entire population of Ireland, not just the two per cent who are Irish speaking. Two landmark cases which furthered the development of Irish language rights were the cases of Ó Beoláin v Fahy and Ó Cadhla v The Minister for Justice and Equality. The Ó Beoláin judgment confirmed, for the first time, that the State had a duty under Article 8 to translate Acts of the Oireachtas. This is a significant judgement in the promotion of access to justice for Gaeilgeoirí, as it enhanced their ability to read and understand the law, and regulate their conduct accordingly. In Ó Cadhla, Ní Raifeartaigh J held that the State has a constitutional duty under Article 8 to make “reasonable efforts” to assign a bilingual judge (breitheamh) in a criminal trial. In many respects, this decision is to be welcomed, but it does not go as far as conferring a positive duty onto the State. Thus, there is no guarantee that an Irish-speaking defendant will be tried by an Irish speaking judge, which hugely hinders a Gaeilgeoir’s access to justice. Evidently, there is judicial reluctance to vindicate express constitutional language rights. Drogall Breithiúnach agus Dualgas an Stáit Judicial Reluctance and the State’s Duty The jurisprudence surrounding Irish language rights cases suggests a willingness to recognise the validity of these rights under Article 8 of the Constitution, but a reluctance to posit a duty on the State to fully vindicate these language rights. Cases normally deal with individual redress instead of sweeping change for Gaeilgeoirí.
