OTRs: North and South do it differently…

WESTMINSTER wasn’t the only parliament discussing the thorny issue of how to allow suspected on-the-run terrorists home. There was an interesting exchange in the Dail, in which Taoiseach Bertie Ahern revealed plans for dealing with IRA fugitives south of the border – through a presidential pardon. Reading between the lines, it’s not hard to see why; it may be the only legal way of keeping the ‘get out of jail free’ card away from the suspected killers of Garda McCabe – a hot potato for Bertie and Michael. But it looks like the British kept Bertie completely in the dark about equivalent legislation applying to soldiers or police suspected of past terrorism.Ahern outlined the proposals:

The way the matter is being dealt with in Westminster is very different from our system. Their numbers are far more extensive than ours. I cannot be precise on our figure or whether it is half a dozen, but we believe the number is very small. The arrangement here is that an examination eligibility body will be set up to decide whether an individual is eligible for pardon. The eligibility body will have to be satisfied of the circumstances of each case. It will have to be satisfied that the person in question is not associated or affiliated in any way with an organisation that continues to engage in crime, or to threaten to engage in such activity. The eligibility body’s findings in each case will be forwarded to the Minister for Justice, Equality and Law Reform, who will have to be satisfied of all the circumstances before referring the matter to the Cabinet. If the Cabinet is satisfied, the case will be presented to the President so that a pardon can be issued. That is the process that will be followed. A different system is being put in place in Britain.

This differs from the British proposals on the same issue in a number of ways.

Firstly, while returning ‘on-the-runs’ (OTRs) would have to apply to an Irish or British Eligibility Body (depending on where they were returning to), what happens next is different.

On the British side, OTRs will face a quasi-judicial process, after which they are released on licence. The licence means the OTR can be jailed if he/she commits any further offences. A DNA sample may be taken, to provide an incentive not to, and the person concerned will – if found guilty by the non-jury ‘court’ – have a criminal record.

This quasi-judicial process has at least the facade of being free of political interference, with the Government uninvolved. However, the Government might find it hard to find a real judge to preside over an arrangement that, to the legal profession, must look like either a travesty of justice or a legal minefield.

The Irish are adopting a much more politically hands-on approach, with the Justice Minister and Cabinet making a recommendation to the President. By retaining such tight control of the situation politically, it allows the Government to exclude the McCabe suspects from the amnesty without fear of being taken to court. It is – incredibly – even less transparent than the British process.

The ‘Presidential Pardon’ approach also means that OTRs will not have a criminal record in the Republic, but they will in Northern Ireland. Ironically, loyalists who killed Catholics in the Republic might be better off moving there.

There’s another concern.

The British Government intends extending legislation to encompass the State violence of some members of the security forces. The most strongly opposed to this are the Police Federation (because it creates a moral equivalence between State actions and terrorist actions, and it believes that State terrorism should be dealt with through the courts, as any crime would) and the SDLP (which primarily wants victims of State violence to receive justice).

If Blair thought the manoeuvre would buy him some political cover, he was mistaken. Iain Duncan Smith MP told the Secretary of State today: “I do not think it right for you to use British soldiers as a shield in defence of what is wrong.”

It’s odd that Blair’s proposal is opposed by everyone from the Tories to Gerry Adams, though I suspect that’s only Gerry’s official line. Because republican OTRs benefit most from a clean slate, SF’s opposition to an amnesty for rogue police and soldiers will be token only – thus denying justice to those they promised it to.

However, as the Irish premier told the Dail, he was (wilfully?) ignorant of these plans.

That may have consequences for the inquiry into the Dublin-Monaghan bombings. Despite some misplaced hope that those involved might ‘come clean’, there is little real incentive for them to do that. Why would they, when even the British Government refuses to hand over relevant documents to the Irish?

So even when the Irish publish the results of its inquiry into the D-M bombings in March (announced yesterday, coincidentally), it is unlikely to result in any meaningful action.

North of the border, that raises problems too. If people here want ‘justice’ as opposed to ‘the truth’ or ‘closure’, then what will be really resolved by secretive inquiries into the murders of Pat Finucane and Billy Wright, the probe into the 1,800 unsolved Troubles murders, the Bloody Sunday Inquiry…?

Will judges really be rushing to get involved in meaningless inquiries specifically designed to hide the truth?

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