The legal system in Ireland, north and south, is operating a “permanent emergency” and people don’t even notice anymore that exceptional powers have become the norm, according to the UN’s counter-terrorism expert.

Fionnuala Ní Aoláin said both jurisdictions, along with many democracies, are “circumventing” the normal legal system by using emergency powers and non-jury courts.

The UN Special Rapporteur on Counter-Terrorism said the Special Criminal Court here, which is presided over by three judges and no jury, is a court “where the normal was not observed” in the same way as the ordinary courts.

She said while the SCC was initially set up to deal with terrorism, its jurisdiction has expanded to include serious crime, saying this “slippage” is a problem with emergency laws.

Ms Ní Aoláin, who was appointed to the position in August 2017, addressed the annual lecture last night of the Irish Council for Civil Liberties.

She said the Republic has functioned under a state of emergency both during the Second World War and after with the entrenchment of the Offences Against the State Act (1939 to 1998).

The 1998 act was introduced on the back of the Omagh atrocity in August of that year, in which 29 people, including a woman pregnant with twins, were killed by dissident republicans.

“The island of Ireland, more so than many parts of the world, has experienced emergency law, emergency practice, and the seepage of the exceptional into the ordinary system in ways that has not served the rule of law nor the protection of human rights well,” she said.

Ms Ní Aoláin said in the aftermath of 9/11, there had been a proliferation of counter-terrorism norms and practices across the world, spawning de facto and permanent emergencies in national practice.

Prof Ní Aoláin outlines the state of emergency which in Ireland began during the “emergency” and has continued all over the island in “on-again, off-again” form throughout the “Troubles” & today with use of special courts. The extraordinary seeps into ordinary. #StatesOfEmergency pic.twitter.com/KYxM0UXj8O — ICCLtweet (@ICCLtweet) November 21, 2018

“I underscore that de facto (meaning undeclared) emergencies and permanent emergencies are a violation of states’ treaty obligations.”

The university regents professor at the University of Minnesota said emergency powers involve “extensive and sustained human rights violations”, saying it isn’t just an issue in countries like Saudi Arabia, but also closer to home.

“In Ireland, the use of exceptional courts (Diplock Courts [in the North] and the Special Criminal Court) made exceptional trial process normal, and enabled and supported a broader system of rights negation in the criminal justice context.”

She said one of her “particular concerns” is the democracies with a strong rule of law capacity “circumventing” their regular legal system and using “exceptional legal systems” for security offences.

She said there has been “slippage” in the SCC now covering not just terrorism cases but also serious crime, particularly gangland violence.

Ms Ní Aoláin said that since the work of Mary Robinson in 1974, there have been “consistent and trenchant concerns” about the use of the SCC and the Offences Against the State Act as a “work-around” of the ordinary protection of the law and the full protection of the legal system.

She added: “That legacy of the Special Criminal Court is one that Ireland has still not fully acknowledged, a fact I hope to remedy in part next year by publishing a 10-year study of the court, based on access to the court files.”

She said she recognises terrorism may trigger the conditions of emergency but said that does not mean a state must use emergency powers to regulate terrorism, particularly when the ordinary law is sufficient and robust.

“I underscore my concern that there has been an ongoing rush to counter-terrorism regulation without adequate consideration of the capacity of the ordinary law of many states to function effectively.”