I will then vote Yes to establish a Court of Appeal (the Thirty-third Amendment of the Constitution Bill). Over the past decade, there have been considerable and growing delays in the Supreme Court hearing of appeals from the High Court. Our Supreme Court deals with much more than its equivalents in other countries. In our constitutional system, questioning pertaining to constitutional interpretation must take precedence there, such that many civil matters are delayed in their appeals from the High Court for up to four years. Ireland has been found liable in both the European Court of Human Rights and European Court of Justice on the grounds of unreasonable delay. Having a speedy process in civil cases will set us in line international obligations on issues such as extradition and child abduction, while also making us more attractive to multinational firms, who often have concerns about lengthy litigation. These problems were detailed by Susan Denham, now Chief Justice, in 2006 in the Judicial Studies Institute Journal.
The same amendment will also remove the requirement on the Supreme Court to deliver only one judgment in cases challenging the constitutionality of laws. In cases not relating to the constitutionality of laws (e.g. high-profile cases AG v. X. on abortion or AG v. Hamilton on cabinet confidentiality), and in cases relating to laws enacted before 1937 (e.g. Norris v. AG), dissenting judgments do contribute to an understanding and development of the law, without undermining the authority of the majority judgment. These development and the value of dissenting could not have been foreseen when de Valera proposed this change as one of many in the Second Amendment in 1941. (It will not amend this in the case of referrals by the president before a bill is signed, presumably on the grounds that as such a law cannot after be challenged on constitutional grounds, diverging or dissenting judgments would not be beneficial.)
I will be voting Yes this Friday to abolish the Seanad (the Thirty-second Amendment of the Constitution Bill). I have tried to encapsulate across different platforms the various reasons I have for doing so over the course of this campaign, over different platforms. In short, in these closing days, I hold that in a country like Ireland, without clear and sharp cultural or geographical divisions, we should have a single parliamentary chamber composed of representatives elected by us to pass laws on our behalf. This is something I first considered around ten years ago, and since then it had always seemed like a common sense proposal. We hear of many ideas for its reform, but that casts it as a house in search of a purpose. What reforms are proposed are ones that should be delivered for the Dáil, as our house of representatives. And even though I don’t believe political reform should stop here, I think it is a worthy reform in itself, to remove a house elected by a privileged section of society in a proportion of university graduates, of senators I’d barely recognise elected by Oireachtas members and councillors, and 11 who may or may be not be decent senators depending on the whim and needs of the Taoiseach.
I was delighted when Enda Kenny announced this policy soon in 2009, not long after I joined Fine Gael, and that he stuck with this commitment through the election campaign and into government. I would not have had the primary focus on cost that we saw from Fine Gael posters, but I think we have had a broad debate. Whatever the result on Friday, at least the people will have had their say.
See Constitution.ie for the Constitution of Ireland and articles referenced. Tho for some reason, the downloadable version is missing Amendments passed since 2004.
I unfortunately have to agree with most of what Conor O’Mahony wrote in The Irish Times (‘This so-called constitutional convention is a charade’) and with Matthew Wall in agreement with him on PoliticalReform.ie (‘Confessions of a demoralised political scientist’). The proposed constitutional convention is a far cry from the Philadelphia convention in 1787 O’Mahony references. At this convention, delegates from the thirteen states rewrote the Articles of Confederation into an entirely new constitution, which though subject to 27 Amendments since its adoption in 1787, in the elements of the divisions and roles of the branches of government, has remained the broadly the same since then.
The Programme for Government agreed in March 2011 specified a number of issues for the convention:
- Review of our Dáil electoral system.
- Reducing the presidential term to 5 years and aligning it with the local and European elections
- Provision for same-sex marriage.
- Amending the clause on women in the home and encourage greater participation of women in public life.
- Removing blasphemy from the Constitution
- Possible reduction of the voting age.
- Other relevant constitutional amendments that may be recommended by the Convention.
Of course, the last item leaves the convention wide open, but there has been little to suggest that this will be a wide-ranging overview of the Constitution. This seems clear from the two items first on the agenda: whether to reduce the voting age from 18 to 17; and whether to reduce the presidential term from 7 years to 5 years. Satire could hardly devise two less pressing amendments.
I would vote against a reduction in the presidential term, unless it was in the context of a redefinition of the role. Reading Tom Reddy’s The Race for the Áras, I was reminded of the whole drawn-out distraction of last year. There are reasonable proposals for amendment on the president, making it one term only, or changing the nomination process, but having more frequent elections is not one.
I have an open mind on the voting age, though I think it would make sense to lower the voting age for local elections first, which does not require a referendum.
I would obviously welcome a referendum on same-sex marriage, and if it’s to have an airing in the constitutional convention first, so be it. But ultimately, it will be a fairly simple amendment, adding a subsection, “No two people may be excluded from marriage by reason of their sex”, to Article 41.3.
Section Article 41.2, “… her life within the home …”, should be deleted. Let’s not try to devise a statement on family life and the roles of parents that could in turn seem out-dated in a few decades’ time. This is really not the sort of thing for a constitution in any case. And delete the word “blasphemous” in Article 40.6.1° i.
So what should it discuss?
So of all the enumerated issues, that leaves the electoral system. This is the only one of these proposals that to my mind merits discussion by a convention, rather than a simple yes/no proposal that could be people to be debated like any other referendum.
Our system of election to the Dáil of proportional representation by single transferable vote is often blamed for clientelism and localism in Irish politics, leading to a subordination of national concerns to local issues. Would the Convention will reach a conclusion other than that of the Joint Oireachtas Committee on the Constitution two years ago, to keep the current system? Perhaps, as the membership of that committee inevitably had a status quo bias, having been elected under the current system.
What I don’t understand is why the abolition of the Seanad is not on the agenda. This is the sort of issue that would actually benefit from being discussed in a convention. There are references to the Seanad throughout the Constitution. Of the 141 Fine Gael and Labour Oireachtas members, I’m sure there is a considerable number, even if a minority, who would have doubts about the merits of this proposal. I would be in two minds on whether we need a second chamber. Finland, with a comparable population to Ireland’s, has a unicameral chamber; Sweden and Portugal with twice our population also survive with just one chamber. Yet surely there is a benefit to legislation being heard in more than one chamber. There are problems with the current Seanad and I have problem with the democratic legitimacy of the current membership.
I would certainly be against any abolition of the Seanad without a corresponding reform of the role of the Dáil and its committees. The idea behind last year’s failed amendment to allow the Oireachtas to conduct inquiries was not without merit at some level. But it made no sense to rush it within it in the first few months of the government when this constitutional convention was due to happen. The Convention should also consider ways in which the balance of power between the executive and the legislature might be rebalanced.
I understand that Enda Kenny has a personal attachment and commitment to putting the abolition of the Seanad to the people, but we would surely benefit from considering this proposal in the context of the other institutions of government.
The Constitutional Constitution is a good idea, but let’s have one that matters, where none of the fundamental institutional issues which are being discussed in amendments to the constitution are left out of its consideration.
Published in The Irish Times, 29 May 2012
A chara, – Seán L’Estrange (May 28th) voices concern about the wording of the amendment. He will be reassured to know that the wording is no different to the form that has routinely been used to allow the State to ratify European treaties. In 1972, we voted to insert a new Article 29.4.3°, “The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.”
On Thursday, we are being asked to ratify only the treaty agreed on March 2nd of this year. Any further changes which would conflict with our Constitution would have to be put to the people, as was done seven times between 1972 and this year’s referendum, on each occasion with a similar form of words. – Is mise,
Bray, Co Wicklow.