Keeping these Isles free Several parts of the content of the proposed European Constitution, as well as some significant omissions, represent a threat to the existing freedoms of the people of the Republic of Ireland and the United Kingdom (England, Northern Ireland, Scotland and Wales). To claim otherwise would be either naive or dishonest. A fundamental guardian of freedoms The importance of trial by jury is often underestimated by the people of Ireland and the United Kingdom. It is often regarded as some old tradition which has survived through to the present. But no matter what the law, or how government or an unscrupulous prosecution may wish to misapply a law in a given instance, a jury of twelve citizens can refuse to apply the law if they feel this is inappropriate. Juries are not just a procedural element in law courts, they are a fundamental guardian to basic freedoms. Juries, irrespective of whether the judiciary are independent or not, in their role of deciding the facts of a case and deciding on the verdict, keep the judiciary in check. EU member states Other European countries have a mixed role for juries. These range from no role at all, to small juries dominated by judged elected by political parties to systems which approximate the British and Irish systems. Part of the reason is the use of codified or Roman law where there is essentially a legal constitution which has written down every case issue and prescibed punishments. The judge's role is to apply this "by the book". Such systems are easily abused by unscrupulous judges and governments and can be used to knowlingly harm people. The European Constitution proposal It is notable that, within the European tradition, the European Constitution sets out to codify much of the relationship between the people and administration and to set this under European Courts which do not make use of juries. Indeed, even the European Court iof Human Rights does not make use of juries but rather a vote of a panel of judges, many of whom are not politically independent. Nowhere within the European Constitution proposal are juries mentioned. This deficiency is serious but has a simple historic explanation. Europe's history of constraining freedoms It is now over seventy years since the rise of Fascism in Europe. However, many of the actions taken by fascist regimes to limit freedom and democracy, persist in their influence in the modern Europe. A characteristic of fascist regimes was to introduce decrees and laws to severely restrict human freedoms and rights. Invariably the first step taken to prevent any possible questioning or legal vetoes was media censorship and the termination of the right of people to trial by jury. The fascist regimes in Portugal (1927), Spain (1923), Italy (1931) and Germany (1924) all terminated the right to trial by jury. The Bolsheviks, in Russia, also terminated the right of the people to trial by jury 1n 1917. Under the parallel rise of fascism in Japan in the 1920s the right to an abused system of trial by jury was terminated in 1943. With no juries, judicial excesses took off By removing trial by jury there was no longer any means whereby the community conscience could bring common sense to bear on legal judgements. The communities lost the means of preventing possible excesses in legal decision making, they lost their ability to protect others. As a result, in all such countries, the disconnect between "leadership", so-called, and the influence of any conscience of the people, in most cases, lead to a range of horrific disasters from which Europe has not fully recovered. In Russia under Stalin, the prosecutors of those who did not agree with the regime, took the next step and simply ignored their own law books. They passed arbitrary judgments on "offenders" including their banishment to work in the Gulag slave camps or to be summarily executed. Hitler was so impressed at the effectiveness of Stalin's system he introduced it in Nazi Germany as the foundation of so-called "peoples' courts" at which the judge harangued the accused (anyone judged to be against the regime), embarrassed them, made little of them and from there they were often led off to their death. Arbitrary law in a regime of fear The inevitable conclusion to this removal of the ability of citizens to each protect the freedoms of the other, as is the case with juries, was the uncontrolled rise in arbitrary power, militarism and a fanatical forms of nationalism and racism. This had nothing to do with whether the politics of the regime in question was to the right or to the left. This was fundamentally related to a breakdown in democracy and the exercise of power over people which depended upon the rape of peoples' fundamental freedoms. It increasingly relied upon a mounting regime of fear in which people, to avoid harm, dared not criticize nor think aloud. Leaders, at that time, faced a range of complex social and economic problems which were exacerbated by the worldwide economic recession at the end of the 1920s. These circumstances were used to blame easily identified and innocent scapegoats. People targeted in this way, such as the Jews and the Roma were excluded, ghettoized, imprisoned, used as slave labour and eventually exterminated in the Holocaust. Even as late as the 1960s with the rise of the military dictatorship in Greece, one of their first acts was the termination of the right to trial by jury in 1967. And today? One can, without fear of contradiction, state that under those former regimes there was definitely a democratic deficit. This led to a reassertion of hierarchies, elitism and, in areas of the law, the taste for an excessive and arbitrary power over the lives of people resulting in large proportions of the European population fearing to question legal matters. Imperfect re-introduction of juries, some still without Since 1945, in the Europe of today, we have still not yet seen the full re-establishment of jury systems as a fundamental human right. This is because the judiciary in many countries, rather than lobby for the full reintroduction of juries, jealously defended their, sometimes, arbitrary powers. This anti-democratic prevarication, on the part of the judiciary, has in most cases been explained as a way of maintaining judicial "independence". It is true that some countries have re-established juries, but in a limited form and normally only for criminal matters where there is a capital offence (someone's life is at stake). Lack of judicial independence In many European countries, judges continue to have over-bearing influence on legal matters because the civilian input is restricted by a variant on the jury system. The independence of judges remains questionable in many European jurisdictions because the appointment of judges is often a political act related to party or factional group interests. Law, for some, rather than being a fundamental construct of democracy designed to protect people's freedom, is rather a basic weapon in the armoury for government control and enforcement of its wishes. In other words the law can be, and is, still used to harm individuals on no more than the word of a judge, or a group of judges, on the basis of various arbitrary motivations, including politics, racism and other forms of bias. It is against this background that the European Constitution proposal has been drafted. Laws can never be perfect About 60% of European national laws are European laws initiated and drafted, it is assumed, in favour of the people of Europe. It is developed specifically to address issues of concern to Europeans. But administrators, legal experts and those citizens involved in the drafting of laws are fallible and the process can never have a universal applicability. This is clearly the case as more people with different traditions, cultures and circumstances join the European Union. It is only natural that some laws will be badly designed, that omissions, errors and oversights will occur. It is not beyond expectation that on occasions laws will be applied to circumstances which were never envisioned by the drafters. Indeed innocent people can be harmed by bad laws as well as through the malicious misapplication of the law. There is the risk that a judge will "interpret" the law according to his or her prejudices and intent in the case in question. It is vital that in the application of the law there is consistency between the purposes and justification, or spirit of that law, when it was conceived and drafted, with any specific application or enforcement now. The only way to achieve this, and prevent arbitrary decisions and possible harm to innocent people, is to expand, re-establish or introduce the right of all Europeans to trial by a jury of juries. Unfortunately, the European Constitutional proposal overlooks this basic need and does not mention juries. Extending jury applications A tribunal of citizens, in a jury, has a fundamental role in legitimising legal decisions, just as that great tribunal of citizens, called an election, legitimises the very governments who propose and write such legislation. If people are not good enough to ensure fair application of the law, they are not good enough to elect the governments who propose and draft such laws. As legal and statutory civil cases involve heavier punishments it is apparent that Europe would benefit from an extension of juries so as to include the area of civil law as well, especially in those cases where enforcement can result in any loss of income, possessions or liberty. Reducing the democratic deficit Juries can prevent law being used as an indirect form of political coercion or even political punishment. Unfortunately, in spite of extensive debates about European Governance and the democratic deficit, Europe today, has not implemented, across the territory, those fundamental safeguards which prevent abuse of individual freedoms. The democratic deficit is indeed significant and it relates in good measure to the lack of, and use of appropriate juries. This deficit is to some extent reinforced by people's reluctance, in some countries, to question the law. This helps maintain an exclusivism in the judiciary which is further reinforced by hierarchical and elitist administrations. It encourages politicians and administrations to do things to which they are not entitled, but do so because "it is legal". Europe, still has far to go before the legal system is brought back within the bounds of the community conscience. Europe has far to go before it becomes a better democracy. It is a question of human rights Administrations are supposed, under today's politically correct declarations of what constitutes democracy and freedom, to be writing laws under the guidance of people's tribunals such as local, national and European parliaments. If a law is bad, misapplied or abusive, of course people must be protected. The way to achieve this is a broader adoption of the right of trial by jury. Of fundamental importance in the broader discussions on freedoms and non-discrimination, it is apparent that juries can provide universal protection for all individuals against abuse. Indeed, in Europe, jury rights need to become a fundamental human right. The European Constitution proposal The European Constitution should, as a fundamental condition on the applicability of any of its content, provide the people of Europe with the unalienable right to full independent juries Without this, and reliance on jury-less courts for enforcement, the European Constitution offers nothing to the people of Ireland and the United Kingdom, indeed it endangers their freedom. If referenda be called on the Constitution, for this reason alone and for the sake of future generations, the European Constitution, as it now stands, should be rejected. Sources: Europe's News Jury Systems, Stephen C. Thaman, in World Jury Systems, Edited by Neil Vidmar (OUP, 2000) Reviving the Criminal Jury in Japan, Lester W. Kiss, in World Jury Systems, Edited by Neil Vidmar (OUP, 2000) The European Democratic Deficit in Perspective,Hector W. McNeill, in European Campaign for Jury Rights, 2003. Delivering European Human Rights,Hector W. McNeill, in European Campaign for Jury Rights, 2003.