Case Note: Gaeilge Bhriste? Irish Language Rights in Ó Maicín v Ireland

AuthorHazel Bergin
PositionSenior Freshman LL.B. Candidate, Trinity College Dublin
© Hazel Bergin and Dublin University Law Society
Is fearr Gaeilge bhriste ná Béarla cliste.
There is a growing sense of dissatisfaction among the Irish-speaking
community with what is seen by many as a lack of governmental support
for the Irish language.
The recent Supreme Court decision in Ó Maicín v
is unlikely to dispel that unhappiness.
The Ó Maicín case centred around two main issues: (i) the question of
jury selection in Irish courtrooms, and (ii) that of Irish language rights.
While a brief analysis of the court’s approach towards jury selection will be
provided, this case note is primarily concerned with the Supreme Court’s
position on Irish language rights.
It is critical of the majority’s opinion,
Senior Freshman LL.B. Candidate, Trinity College Dublin. The author would like to thank
Feidhlim Mac Róibín for his many helpful comments and advice. All errors and omissions
remain the author's own.
Broken Irish is better than clever English. See Daltaí na Gaeilge, Proverbs,
(visited 12 January 2014).
Examples of this dissatisfaction include the resignation of the Irish Language Commissioner,
Seán Ó Cuirreáin, in 2013 in protest at the State’s perceived marginalisation of the Irish
language. Government plans to merge the office of the Language Commissioner with that of
the Ombudsman provoked strong criticism from the Irish language community. See Verona
Dhrisceoil, “Irish Language Rights in the Era of Austerity” (2012) 30 ILT 72; Niamh Nic
Shuibhne, “State Duty and the Irish Language” (1997) 19 DULJ 33, at 49; Gerry Whyte,
Constitutional Protection for the Irish Language in Ireland (Academia: Research Paper, 2014)
> (visited 1 February 2015).
Ó Maicín v Ireland [2014] IESC 12 [hereinafter Ó Maicín].
Joshua Castellino provides an excellent analysis of the evolution of the “language rights as
human rights” discourse in “Affirmative Action for the Protection of Linguistic Rights: An
Analysis of International Human Rights Legal Standards in the Context of the Protection of the
Irish Language” (2003) 25 DULJ 1. Niamh Nic Shuibhne examines this evolution exclusively
through the prism of the Irish language, differentiating between the State’s positive and
negative Irish language obligations in Cearta Teanga mar Fhíorchearta Daonna? (Bord na
Gaeilge, 1999). See also Caoimhghín Ó Croidheáin, Language From Below: The Irish
Language, Ideology and Power in 20th Century Ireland (Verlag Peter Lang, 2006); Niamh
215 Trinity College Law Review [vol 18
particularly that given by Clarke J. It suggests that the decision is
constitutionally suspect, marking a retrograde step for Irish language rights,
and demonstrating the courts’ willingness to dilute the primacy awarded to
the language by Article 8.1 of the Constitution in the name of practicality.
I. Background
The appellant, Peadar Ó Maicín, comes from Ros Muc, a “Category A”
Gaeltacht area in Connemara, Co Galway.
He is a native Irish-speaker, not
having learned English until his adolescence. On 28th May 2008, in Béal an
Daingean, Leitir Mόir, Co Galway (also a “Category A” Gaeltacht area), he
allegedly produced a broken beer bottle and assaulted one Martin Whelan
(another native Irish-speaker). He is charged with offences under s.3 of the
and Offensive Weapons Act 1990, and will be tried in the Galway Circuit
Criminal Court. Pursuant to Article 38.5 of the Constitution, the trial must
take place before a jury.
Mr Ó Maicín intends to conduct his defence entirely through Irish, to
which he has a well-established right.
Mr Ó Maicín’s application to the
Circuit Criminal Court was made with the assistance of an interpreter. It is
uncontested that the standard of interpretation in that instance was very
poor, and that the defence counsel was required to assist the interpreter on
multiple occasions.
Therefore, he also asserts a right that the judge and jury
before whom he is to be tried are able to understand all trial proceedings,
whether in Irish or English, without the need for an interpreter. An
application was made to the Circuit Criminal Court to this effect. Groarke J
held that, while a bilingual trial judge was permitted, a bilingual jury, by
nature of the necessary selection and discrimination involved in its
compilation, was unconstitutional.
Nic Shuibhne, “The Constitution, The Courts and the Irish Language” in Murphy and Twomey
eds., Ireland’s Evolving Constitution, 1937-97: Collected Essays (Hart Publishing, 1998).
“Category A” is attributed to a Gaeltacht area where more than 67 percent of the population
speak Irish. See Acadamh na hOllscolaíochta Gaeilge, Ollscoil na hÉireann Gaillimh, Staidéar
Cuimsitheach Teangeolaíochta ar Úsáid na Gaeilge sa Ghaeltacht (Stationery Office, Dublin,
Attorney General v Joyce and Walsh [1929] IR 526; The State (Buchan) v Coyne (1936)70
ILTR 185; The State (Ó Conghaile) v Governor of Limerick Prison, The Irish Independent, 3
February 1937.
The difficulties that interpretation poses for defendants are discussed in Susan Berk-Seligson,
The Bilingual Courtroom (University of Chicago Press, 2013), where the author notes how
tone and unconscious bias can have an enormously negative effect on the defendant’s case.
2015] Irish Language Rights in Ó Maicín v Ireland 216
Mr Ó Maicín sought judicial review of this decision in the High Court,
requesting, inter alia, an order directing the Minister for Justice to specify a
new “Gaeltacht jury district,” and a declaration that a bilingual jury would
not be unconstitutional. Murphy J agreed with the State’s argument that the
requirement for a jury to be selected by a random process meant that a jury
selected on the basis of linguistic competency was legally impermissible.
This was appealed to the Supreme Court, where, giving their judgments in
Irish and English, Clarke (O'Donnell J concurring), O’Neill and
MacMenamin JJ upheld the High Court’s decision. Hardiman J, criticising
what he perceived as the failure of both the government and his Supreme
Court colleagues to adhere to its constitutional duty towards the Irish
language, dissented.
II. Analysis
A. The Status of Irish in the Constitution: An Introduction
The Irish Constitution is written in both Irish and English. As far as this
bilingualism is concerned, it is not unusual: a number of constitutions and
official charters enjoy a multilingual existence.
However, the Irish
Constitution is practically unique among multilingual documents in its
unequivocal establishment of a linguistic hierarchy: Articles 8.1 and 8.2
give the Irish language, as “the national language,” the status of “the first
official language,” while English “is recognised as a second official
Article 25.5.4 states that, in cases of conflict between the
Ó Maicín v Ireland [2010] IEHC 179.
Other multilingual documents include the constitutions of Canada and South Africa, the
United Nations Charter, the European Convention on Human Rights and the present Treaty on
European Union. The experience of other multilingual jurisdictions in relation to language
rights is often compared to that of Ireland. See Daithí MacCárthaigh, “Interpretation and
Construction of Bilingual Laws: A Canadian Lamp to Light the Way?” (2007) JSIJ 211;
Clayton O’Neill, “The Languages Acts in the Republic of Ireland and Canada: Lessons to be
Learnt by Northern Ireland” (2013) TCLR 115. However, in Ó Conaire v MacGruairc [2009]
IEHC 430, at para. 44, O’Neill J cautioned against direct comparison between the Irish and
Canadian jurisdictions, noting that the legal bases for language rights differ substantially.
That the Irish language is awarded a higher status is generally viewed as aspirational rather
than reflective of any dominance of Irish over English. See [2014] IESC 12, at para. 50. The
Report of the Constitution Review Group described this primacy as “unrealistic, given that
English is the language currently spoken … by 98% of the population of the State.” It
recommends that Article 8 be replaced with the provision that: “The Irish language and the
English language are the two official languages. Because the Irish language is a unique
expression of Irish tradition and culture, the State shall take special care to nurture the language
217 Trinity College Law Review [vol 18
English and Irish text of the Constitution, the Irish version is to take
This Irish language supremacy is in stark contrast to the 1922
Constitution of the Irish Free State, in which Article 4 expressly placed the
two languages on an equal footing.
Various commentators identify the
linguistic inequality found in the revised 1937 Constitution as a
representation of the nationalist aspirations of the founders of the fledgling
Irish state, for whom independence and the Irish language were inseparably
and irrevocably intertwined.
Indeed, Éamon de Valera is quoted as having
said that, if forced to choose “between political freedom without the [Irish]
language, and the language without political freedom … [he] would choose
the latter.”
Further, he believed, “we cannot fulfil our destiny as a nation
unless we are an Irish nationand we can only be truly that if we are an
Irish-speaking nation.”
B. The Status of Irish in the Constitution: Clarke J’s Opinion
Clarke J divides the State’s obligations towards the Irish language into two
categories: one, which he terms a “general obligation” towards the language
itself; and the other, the State’s “specific obligation” towards those who
wish to carry out their business with the State through Irish. Clarke J’s
opinion of the State’s general obligation is that it cannot be expressed at a
level any higher than the obligation to “encourage” the use of the language.
While this may be alarming for those who support the promotion and
and to increase its use.” Constitution Review Group, Report of the Constitution Review Group
(The Stationery Office, Dublin, 1996), at 15.
Although, in practice, courts seek to reconcile apparent differences between the two versions,
as “[i]t is not to be thought that those who framed or enacted the Constitution would knowingly
do anything so absurd as to frame or enact texts with different meanings in parts.” See
O’Donovan v Attorney General [1961] IR 114, at 131. This in spite of the fact that the Irish
version of the constitutional text is generally considered to be a direct translation of the English,
not vice versa. See Richard Humphreys, “The Constitution of Ireland: The Forgotten Textual
Quagmire(1987) 2 Ir Jur 169.
Article 4, Free State Constitution 1922.
Diarmait Mac Ghiolla Chríost, “A Question of National Identity or Minority Rights? The
Changing Status of the Irish Language in Ireland Since 1922” (2012) 18 Nations and
Nationalism 398, at 401; Enda McDonagh, “Philosophical—Theological Reflections on the
Constitution” in Litton ed., The Constitution of Ireland, 1937-1987 (Institute of Public
Administration, 1988), at 196; Stephen May, Language and Minority Rights: Ethnicity,
Nationalism and the Politics of Language (2nd ed., Routledge, 2011), at 150.
John Edwards, Multilingualism (Routledge, 1994), at 129. See also Seán Ó Riain, Pleanáil
Teanga in Éirinn 1919-1985 (Carbad, 1994).
Maurice Moynihan ed., Speeches and Statements by Éamon de Valera 1917-73 (Gill and
MacMillan, 1980), at 365.
2015] Irish Language Rights in Ó Maicín v Ireland 218
preservation of the language, it is obiter, and attracted no support from his
Supreme Court colleagues.
Indeed, Hardiman and O’Neill JJ disagreed
vigorously with Clarke J’s stance on the State’s general obligation. The
latter preferred a test of “non-feasibility,” whereby the State must always
provide for the use of Irish unless it is impossible in the circumstances to do
Clarke J’s opinion is, however, more noteworthy both for his adherence
to the decision in MacCárthaigh v Éire,
and his declaration as regards the
State’s specific obligation.
Similarly to Ó Maicín, the issue in MacCárthaigh concerned a request
for a bilingual jury. Although Irish was Mr MacCárthaigh’s first language,
he was raised in English-speaking Dublin, where the alleged offence took
place. The Supreme Court focused on the necessity of representative juries
resulting from the meaning accorded to Article 38.5 in De Búrca v Attorney
General, and concluded that the fairly small number of fluent Irish speakers
in the Dublin district would exclude most potential jurors from serving.
Clarke J devotes a large section of his judgment explaining why he is unable
to differentiate the MacCárthaigh decision from the Ó Maicín facts, while
Hardiman J does the exact opposite.
Mark De Blacam, while not expressly
advocating either position, describes Clarke J’s decision as one rooted in a
perceived practicality.
As Clarke J portrays it, given the relatively small
number of fluent Irish-speakers and the requirement that juries be randomly
selected, it would simply be too difficult to compile a bilingual jury. This is
debatable: while MacCárthaigh was based in predominantly English-
speaking Dublin, where it may have been challenging to assemble a
representative bilingual jury, the offences at issue in Ó Maicín allegedly
occurred in a Gaeltacht region, and the jury would be drawn from a pool in
which there would be a far higher proportion of fluent Irish-speakers. In any
case, as Carey notes, the “representative” and “randomly selected” nature
of Irish juries is “more myth than reality.”
However, it is Clarke J’s comments on specific language obligations
that merit closer analysis:
[2014] IESC 12, at para. 16.
[2014] IESC 12, at para. 67.
MacCárthaigh v Éire [1999] 1 IR 186; [1998] IESC 11. MacMenamin J also follows the
MacCárthaigh principle in his judgment.
De Búrca v Attorney General [1976] IR 38.
[2014] IESC 12, at para. 29.
Mark De Blacam, “Official Language and Constitutional Interpretation,” (2014) 2 Ir Jur 90,
at 111.
Gearóid Carey, “Criminal Trials and Language Rights: Part I” ICLJ (2003) 15, at 22.
219 Trinity College Law Review [vol 18
That the State has a constitutional obligation to respect the language
wishes of a citizen, who wishes to use Irish in their communications
with the State or its agencies, cannot be doubted. This does not,
however, mean that, at a constitutional level, there is an absolute
obligation on the State to ensure that persons wishing to so do can
conduct all official business through Irish without translation. An
assessment of whether … the State has complied with its obligations
in respect of the Irish language, will … involve an analysis of the
rights of those who wish to conduct their affairs through Irish but also
the language rights of those wishing to use English and, where
appropriate, any competing interests or constitutional obligations that
may arise … [T]hose wishing to conduct official business in Irish do
have a [constitutional] right to have their business conducted in
Irish. However, it equally follows that that right is not absolute and
must be balanced against all the circumstances of the case (not least
the fact that the great majority of the Irish people do not use Irish as
their ordinary means of communication) …
Hardiman J disagrees with this reasoning, declaring that requiring the
consideration English language rights would serve to qualify Irish language
rights “almost out of existence.”
Hardiman J also criticised Clarke J’s
opinion for its apparent vagueness and imprecision and maintained that the
above quoted passage “… is an enormous dilution and a marked writing
down” of the status of the Irish language and the rights of those who wish
to use it.
C. The Question of English Language Rights
The question of the right of English-speakers to use English while
communicating with the State marks the most significant point of conflict
between Clarke and Hardiman JJ. The existence of English language rights
can, as Niamh Nic Shuibhne notes, be taken for granted.
comprise the overwhelming part of the Irish population, with a mere 77,185
people speaking Irish daily outside the education system.
In all practical
[2014] IESC 12, at paras. 15-18. Emphasis added.
[2014] IESC 12, at para. 215.
[2014] IESC 12, at para. 215.
Niamh Nic Shuibhne, Cearta Teanga mar Fhíorchearta Daonna (Bord na Gaeilge, 1996),
at 6.
Central Statistics Office, Census 2011 Profile 9 What We Know (Stationery Office, 2012),
at 25.
2015] Irish Language Rights in Ó Maicín v Ireland 220
senses, Ireland could be described as a monolingual Anglophone country.
However, Clarke J argues that requiring the State to communicate through
Irish, if they would prefer to do so through English, would place this English
language right under threat. It is submitted that this is a flawed position.
First, it is unclear how the compilation of Mr Ó Maicín’s bilingual jury
(who, by definition, would also need to be fluent in English) would have
any effect whatsoever on English language rights. Mr Ó Maicín does not
seek to restrict or in any way affect the rights of monolingual English-
speakers to conduct business with the State through their preferred linguistic
medium. He asserts only a benefit that can be presumed for those
monolingual citizens.
Secondly, and crucially, Clarke J’s qualification of Irish language
rights by English language rights is only constitutionally sound if the
English and Irish languages have an equal constitutional status. Only then
would the question of which language right bears more weight would arise.
If it were the case that Irish and English were indeed constitutionally equal,
there would be little argument against the tempering of Irish language rights
with English language rights.
The judgment of Clarke J does not only
recognise the right of English-speakers to communicate in English with the
State: it transforms this right into what is effectively an obligation on the
part of Irish-speakers to communicate in English with the State, a position
which appears to have a weak constitutional foundation.
Irish language speakers would have cause to feel aggrieved, but little
to protest by way of legal recourse were it indeed the case, as Clarke J’s
judgment presumes that the Constitution places Irish and English on an
equal footing. However, as stated above, in the Article 8 linguistic
hierarchy, it is Irish that is “the national language” and the “first official
language.” English is merely “a second official language.”
In the course
The lack of Irish language competency within the civil service, and the failures of the Official
Languages Act 2003 to adequately promote the language within government are analysed in
Verona Ní Dhrisceoil, “Irish Language Rights in the Era of Austerity” (2012) 30 ILT 72. See
also Michael Cronin, “This Side of Paradise—The Constitution and the Irish Language” in
Murphy and Twomey eds., Ireland’s Evolving Constitution, 1937-97: Collected Essays (Hart
Publishing, 1998), at 270. It is also significant that, at the time of writing, the Official
Languages (Amendment) Bill 2014 seeks, inter alia, to reduce the costs of translating
government documents. If passed, the requirement in s.10(a) of the 2003 Act that all documents
setting out public policy proposals be made available in both Irish and English would be
amended. The Minister for Public Expenditure and Reform would have the power to prescribe
which, if any, public policy proposals require translation into Irish.
The Official Languages Act 2003, a legislative attempt to strengthen and protect the Irish
language, was, in its drafting stages, known as the Official Languages (Equality) Bill.
However, the ‘Equality’ reference was removed, as it did not reflect the status awarded to the
221 Trinity College Law Review [vol 18
of a detailed analysis of the constitutions of both 1922 and 1937, Hardiman
J describes this as a constitutional affording of “a special, unique and
paramount position to the Irish language.”
Case law certainly tends to
support the view of the Irish language’s constitutional supremacy. In Ó
Foghludha v McLean,
Kennedy CJ held that:
The declaration by the Constitution that the national language of the
Saorstát is the Irish language … did mean … that the State is bound
to do everything within its sphere of action … to establish and
maintain it in its status as the National language. None of the organs
of the State, legislative, executive or judicial, may derogate from the
pre-eminent status of the Irish language as the National language of
the State without offending against the constitutional provision of
Article 4.
Although Ó Foghludha v McLean dealt with Article 4 of the 1922
Constitution of the Irish Free State, the above statement is equally applicable
to case law with Article 8 of the 1937 Constitution as its focus. Indeed,
O’Hanlon J in Ó Murchú v Cláraitheoir na gCuideachtaí
stated that the
provisions of Article 8 in fact provided stronger recognition to Irish as the
first official language than did Article 4. In Ó Gríbín v An Chomhairle
Murphy J maintains that the Article 8 declaration of
Irish as the State’s first official language, while not identifying any explicit
rights, does “[place] implicit duties on the State.”
He then cites with
approval the above-quoted passage from Ó Foghludha v McLean, leading
to the conclusion that the State is implicitly constitutionally obliged to do
everything in its power to promote and protect the Irish language. Clarke J’s
requirement to balance English language rights against Irish ones abolishes
these duties. If the State is no longer required to communicate with speakers
Irish language by the Constitution. Nic Shuibhne, in predicting this deletion, identified it as a
desire not “to contrive an alternative model which bears little resemblance to the relevant
constitutional roots” in “Eighty Years A’Growing—The Official Languages (Equality) Bill
2002” (2002) 20 ILT 198, at 200.
[2014] IESC 12, at para. 190.
Ó Foghludha v McLean [1934] IR 469.
[1934] IR 469, at 483.
Ó Murchú v Cláraitheoir na gCuideachtaí [1988] IR 112, at 115.
[1988] IR 112.
Ó Gríbín v An Chomhairle Mhúinteoireachta [2008] 3 IR 266, at 289; [2007] IEHC 454.
Tomás Ó Máille also demonstrates the courts’ understanding that the Article 8 declaration
places obligations on the State in The Status of the Irish Language: A Legal Perspective (Bord
na Gaeilge, 1990), at 1-19.
2015] Irish Language Rights in Ó Maicín v Ireland 222
of the first and official language in that language, if they would rather do so
in English, it is difficult to envisage any governmental obligation that
survives in the speaker-State relationship.
Hardiman J quoted from his own judgment in Ó Beoláin v Fahy:
[T]he Irish language … cannot be excluded from any part of the
public discourse of the Nation or the official business of the State …
Nor can it be treated less favourably in these contexts than [English].
Nor can those who are competent and desirous of using it as a means
of expression or communication be precluded from or disadvantaged
in doing so in any national or official context.
In a thinly veiled criticism of his colleagues’ failure to adhere to the
constitutional text, he declared:
The answer to [the question of the status of the Irish language] does
not depend on the private opinion of the judges asked to decide it
about the desirability or the feasibility of the widespread use of the
Irish language for official purposes. It depends, rather, on the
interpretation of the Constitution and the laws of Ireland which the
judges … must take as they find them.
It is difficult to disagree with this. The text of the Constitution yields only
one view; namely that Irish is the first, the national and the official language
of the Irish nation, and that the rights and duties that this status creates ought
logically and inevitably triumph over the rights of English-speakers.
Hardiman J also discussed the requested order for the creation of a
Gaeltacht jury district in detail. While clearly convinced that the creation of
such a district is both possible and necessary, displaying a characteristic
respect for the separation of powers, he stopped short of granting the order.
In response to Hardiman J’s articulation of the constitutional linguistic
hierarchy, one may argue that case law exists prohibiting Irish-speakers
from compelling others to use the Irish language, Henchy J’s opinion in Ó
Monacháin v An Taoiseach
appears to support this contention. However,
if the principle in Ó Monacháin is applied in the Ó Maicín decision, it is
unclear who, exactly, is being compelled. Monolingual English-speakers
O’Beoláin v Fahy [2014] IESC 12.
[2014] IESC 12, at para. 65.
[2014] IESC 12, at para. 141.
Ó Monacháin v An Taoiseach [1986] ILRM 660.
223 Trinity College Law Review [vol 18
and those with only an inexpert knowledge of the Irish language would be
excused as of right from a bilingual jury, and it is unlikely they would feel
compelled by the State to learn or improve their knowledge. Those who
already speak Irish fluently clearly need not be compelled to use the
language. In this instance there would exist no compulsion, and thus, the Ó
Monacháin reasoning simply does not apply to the Ó Maicín facts.
It is submitted that the decision in Ó Maicín is far from convincing. It is
arguably both constitutionally unsound and runs against various dicta from
an otherwise settled body of case law. For those opposed to the emergence
of a monolingual state and the further marginalisation of the Irish language,
the decision is unwelcome. Its stripping of any effective governmental
obligation towards the language has the potential to reverberate within the
Irish language sphere for decades.
It would seem that, at the very least, the constitutional primacy of the
Irish language requires the provision of public services through the language
(including, but not limited to, the courtroom). Although, in reality, this
would represent mere equality with English and not its deserved primacy,
such developments would mark a step towards the realisation of the
Constitution’s vision for our linguistic heritage. The compilation of a
bilingual jury would have been in full accord with this vision.
At the time of writing, Mr Ó Maicín intends to bring the case before
the European Court of Human Rights.
Regardless of how the ECtHR
decides, the words of Ó Tuathaigh seem as relevant now as they did when
they were written:
[T]he position of comprehensive disadvantage under which Irish-
speakers currently operate in this state ought to be a source of grave
concern to all those seriously concerned with the protection of
minority rights or with any real commitment to the concept of cultural
pluralism in Ireland.
Timpeall na Tíre, TG4, 14 June 2014.
Gearóid Ó Tuathaigh “Irish Nation-State in the Constitution” in Farrell ed., De Valera’s
Constitution and Ours (Gill and Macmillan, 1988), at 50.

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