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Posts Tagged ‘Constitution of Ireland’

Yes to Court of Appeal and change to One-Judgment Rule

2 October, 2013 Leave a comment

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.)

Yes to Abolition of Seanad Éireann

2 October, 2013 Leave a comment

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.

Concerns about Protection of Life During Pregnancy Bill

The Protection of Life During Pregnancy Bill is within the constraints of Article 40.3.3° and it is right that thirty years after its insertion into the Constitution, there will be legal clarity for women and for doctors. It was not good enough that this was simply regulated by Medical Council guideline. As Justice McCarthy wrote in 1992 in a concurring judgment to Attorney General v. X,

I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled. In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.

I do have a concern about the effect of the provisions for suicide. I do think that a woman whose pregnancy is contributing to her suicidal ideation should be allowed to have an abortion. But it is also possible that someone could overcome their feelings of suicide while still being in a condition of severe mental or physical distress. Both she and her doctor might still believe it the best thing for her well-being that she receive an abortion, but it would no longer be an option.

The provision of abortion in the case of suicide ideation means that a woman would end up confirming to herself, to her own GP, to two consultant and to an obstetrician that she may her take her life. This burden means that in most instances, a woman would most likely still feel it preferable to travel obtain an abortion. What has not received enough focus is the mental effect it would have to confirm this feeling again and again, that it could worsen the impact, and knowing that if she were to find that she was no longer suicidal, she could no longer obtain an abortion. Her GP would ordinarily attempt to alleviate her condition of suicidal ideation; but in this case, while he believed that an abortion was in her best interest, he would feel conflicted as to whether he should do so.

This situation is a result of the constraint the legislature is in, to act within Article 40.3.3°, specifically as interpreted by the Supreme Court in Attorney General v. X. Reading the judgment, which includes extracts from the oral proceedings, it did seem clear to me from a number of instances that the girl in question had entertained serious thoughts of suicide, but it also struck me that it was not primarily on that condition of suicide ideation that John Rogers, representing X, made his defence. It was on her more general case and circumstances that he made the case against an injunction preventing her from travelling to England to obtain an abortion.

This effect then reinforces for me a need for a referendum to remove Article 40.3.3°. This bill, and what I believe to be a generally unsatisfactory position, is within that provision.

Removing this Constitutional provision would not introduce abortion; it would rather remove the constitutional prohibition on doing do. I do not imagine that any likely government in the near future would introduce a liberal regime, but it would be a matter for Dáil debate and party negotiation as it is in most other countries. The Oireachtas would have the freedom then to consider various provisions, and review and revisit these laws after perceiving their application.

Outcome of the abortion bill

The Heads of the Protection of Life During Pregnancy Bill seem to fulfill minimal requirements of legislation in line with the ruling in Attorney General v. X.

In the wording of the first paragraph of Article 40.3.3°,

The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

there are two clauses that the government had to consider in drafting this legislation, ‘equal’ and ‘as far as practicable’. It also had to be considered the ruling of the Supreme Court that ‘the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide’.

In all cases, the meaning of Constitution is what the Supreme Court says it is. Article 34.4.5°–6° is itself explicit in this regard. Their ruling in 1992 meant that a risk of suicide has been grounds for abortion, not just from that date, but from the insertion of 40.3.3° into the Constitution in 1983. A doctor could have taken it upon themselves to administer an abortion in response to a diagnosis that there was a real and substantial risk that a woman might commit suicide. This legislation does not grant or remove additional rights to either the mother or the unborn; legislation tightly within the framework of Supreme Court interpretation of the Constitution cannot do this.

It may not have been the only measure permissible; someone might reasonably ask whether the government’s defence in D. v. Ireland, that there could be a recourse under Irish law for a termination in the case of fatal foetal abnormalities, could have been included in this bill. There might also have been flexibility in terms of the nature and composition of panels in the bill.

There will be some members of Fine Gael who break ranks to vote against this. The debate in the coming weeks will show how many they are, but I expect that the bill will come into law in a form not that far from this.

I do not expect that without further constitutional amendment, this bill lead will lead to more than a minimal increase in the number abortions performed in Ireland. Unlike measures in Britain and California from 1967, this bill refers only to situations that threaten the life, as distinct from the health, of the mother. It is not a small thing for a woman to declare that she is suicidal, and it is not something that the medical system takes lightly. The consequences for her personal freedom after such a declaration would be such that for many women seeking to terminate their pregnancy, travelling to Britain would be a preferable outcome.

While campaigners against abortion have resisted legislation in line with the X Case till now, and sought to amend the constitution in 1992 and 2002 to overturn it, I would expect that to largely die away as a focus, given the small scale of the change. Similarly, while legislation for the X Case has served as focus point for those seeking for more widespread access to abortion, that will shift to an amendment to remove 40.3.3, as advocated this week by Labour Cllr Jane Horgan-Jones, which would make legislation on abortion a matter for the Oireachtas, and not a constitutional matter. However, I cannot imagine that referendum occurring for quite some time.

How the Fine Gael lost the Dáil vote on abortion in 1983 while in government

23 November, 2012 2 comments

The events of the past week prompted me to look back to see how Article 40.3.3° was proposed in the Dáil, knowing that there was an odd circumstance in its passing as the only constitutional amendment that was not a government amendment. The speeches are interesting to read as a snapshot into Ireland of 1983, and Oliver J. Flanagan’s contribution stands out in that respect, as does the speculation from Fianna Fáil’s Dr Seán McCarthy as to whether the Taoiseach had been influenced by the “pro-abortionists in Young Fine Gael”.

Though further amended in 1992 to protect the freedom to travel and receive information, the substantive clause as still exists was inserted by the Eight Amendment to the Constitution Act, 1983,

3º The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Dr Garret FitzGerald was then leading a coalition government of Fine Gael and Labour, but only 13 TDs from the two government parties actually voted for that wording.

The wording above was drafted by the Pro-Life Amendment Campaign. There had been fears since the US Supreme Court had found a right to abortion in Roe v. Wade in 1973, and the Pro-Life Amendment Campaign was further mobilised in the aftermath of Pope John Paul II’s visit to Ireland in 1979. By the third election between June 1981 and November 1982, they had secured commitments from both Fine Gael and Fianna Fáil to introduce this amendment. The Eighth Amendment to the Constitution Bill was first moved in the dying days of the Fianna Fáil government in November 1982.

Fine Gael initially accepted this wording and in the Programme for Government with Labour, it was agreed that Labour would have a free vote on the bill. It was moved by Michael Noonan as Minister for Justice in February 1983.

Fine Gael’s alternative wording

Peter Sutherland, the Attorney-General, subsequently advised of problems with the wording, and in April, Michael Noonan moved an alternative amendment,

Amendment One

3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.

This wording would have meant that the current legislation prohibiting abortion, the Offences Against the Person Act, 1861, could not be deemed unconstitutional, and similarly for any possible subsequent legislation on abortion. This would thereby prevent a Roe v. Wade–like decision in the courts.

At the same time, a law to allow for abortion would also be consistent with this alternative amendment. This led to splits in both government parties. In Fine Gael, TDs who maintained their support for the original wording abstained in the vote on the alternative amendment. Labour allowed a free vote, and split three ways, between those who supported the original wording, those who opposed any amendment, and those who accepted that there would be a referendum and saw the Fine Gael alternative as at least better the the Pro-Life Amendment Campaign original wording.

Michael Noonan’s reasons for opposing the original wording seem chillingly prescient in the current context. This was on 27 April 1983,

Briefly, those defects are twofold: first, that the expression “the unborn” is very ambiguous; second, that the reference to the equal rights of the mother is insufficient to guarantee that operations necessary to save the live of the mother but resulting in the death of the foetus may continue.

On the first point, it is scarcely necessary to say that objection is not being raised simply on the basis that there is a certain degree of ambiguity. Some ambiguity is probably inescapable — language is not a precise instrument. The criticism in this case is the extent of the ambiguity, a criticism which is strengthened by the fact that it was obviously accepted in order to avoid argument.

On the second point, I would like the record to show very clearly what is being said by way of criticism — and what is not being said. It is not being said that the wording would be held to make the operations in question unlawful. Nobody could say with certainty what interpretation a court might put on the words. What is being said is that, on the ordinary meaning of words, that should be the interpretation and that therefore there must be a definite risk.

Of the opposition parties, Fianna Fáil maintained a strict whip against the alternative and in favour of the original wording and the two Workers’ Party TDs were against any amendment.

With this division between the parties, the amendment proposed by Michael Noonan was defeated by 65 votes to 87.

Between the parties:

  • of the 74 Fianna Fáil TDs, 73 voted against;
  • of the 70 Fine Gael TDs voted in favour, 60 voted in favour;
  • of 16 Labour TDs, 5 TDs voted in favour (Liam Kavanagh, Barry Desmond, Michael Moynihan, Seamus Pattison, Dick Spring) and 10 TDs voted against (Michael Bell, Joe Bermingham, Frank Cluskey, Eileen Desmond, Seán Treacy, Toddy O’Sullivan, Frank Prendergast, Ruairí Quinn, John Ryan, Mervyn Taylor);
  • both Workers’ Party TDs voted against, and;
  • both Independents, Neil Blaney and Tony Gregory voted against.

Workers’ Party amendments

The Workers’ Party proposed further amendments, but as there weren’t sufficient numbers in the voice vote, the house wasn’t divided, and all these were lost. Even tho they opposed the amendment altogether, they proposed them to make the amendment a lesser harm or clearer in its meaning, and these proposed changes to the original wording highlighted show the nuances to the discussion at the time.

Amendment Two

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Amendment Three

3º The State acknowledges the right to life of the unborn and, subject to the right of the mother to life and bodily integrity, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

Amendment Four

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right.

Amendment Five

3º The State acknowledges the right to life of the unborn human being and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable without interference with any existing right or lawful opportunity of any citizen, by its laws to defend and vindicate that right. This subsection shall not be cognisable by any Court except in a case seeking to have section 58 of the Offences Against the Person Act, 1861, declared unconstitutional or contrary to any provision of this Constitution.

Original Pro-Life Amendment Campaign wording passes

After all attempts to change the wording had failed, the Dáil then proceeded to vote to retain the initial wording. This was a very strange vote; a vote to amend the constitution in which no Government Minister from the senior party voted. Nearly all the Fine Gael members who voted for the alternative wording abstained on this vote, while those who had abstained on the alternative voting in favour of this one. This motion passed by 87 vote to 13.

Between the parties:

  • of the 74 Fianna Fáil TDs, 73 voted in favour;
  • of 70 Fine Gael TDs, 8 TDs voted in favour (Michael Begley, Liam T. Cosgrave, Michael Joe Cosgrave, Joe Doyle, Oliver J. Flanagan, Alice Glenn, Tom O’Donnell and Godfrey Timmins), while 2 TDs voted against (Monica Barnes and Alan Shatter);
  • of 16 Labour TDs, 5 voted in favour (Michael Bell, Frank McLoughlin, Frank Prendergast, John Ryan and Seán Treacy) and 8 TDs voted against (Joe Bermingham, Frank Cluskey, Barry Desmond, Eileen Desmond, Toddy O’Sullivan, Ruairí Quinn, Dick Spring and Mervyn Taylor);
  • both Workers’ Party TDs voted against;
  • and of the Independents, Neil Blaney voted in favour and Tony Gregory voted against.

The Bill proceeded to the Seanad where, after the three Trinity Senators, Catherine McGuinness, Mary Robinson and Shane Ross, were unsuccessful in pursuing amendments, it passed, with only Fianna Fáil Senators voting in favour.

Referendum

The referendum was held on 7 September, 1983. The leaders of the two government parties, Dr Garret FitzGerald and Dick Spring, both called for a No vote; the leader of the opposition, Charlie Haughey, called for a Yes vote. It was passed by 67% of the electorate, carried in all  but five constituencies (all in Dublin), on a turnout of 54%.

What is the point of the constitutional convention?

12 June, 2012 2 comments

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.

Letter to the Editor: Preparing for European treaty vote

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,

WILLIAM QUILL

Bray, Co Wicklow.

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