Posts Tagged ‘law’

What is the point of the constitutional convention?

12 June, 2012 2 comments

See 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 (‘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.


Would the Treaty be inserted in our Constitution?

18 May, 2012 1 comment


This is a claim we’ve heard from the No side. What we are doing is allowing the state to ratify the Treaty, in the same manner as every previous Treaty. It was only last night when discussing this socially that the significance of their claim, and how it diverges from the actual amendment, became clear to me.

Let’s take Article 29.4 as it stands:

The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.
For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
The State may become a member of the European Atomic Energy Community (established by Treaty signed at Rome on the 25th day of March, 1957).
Ireland affirms its commitment to the European Union within which the member states of that Union work together to promote peace, shared values and the well-being of their peoples.
The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 (“Treaty of Lisbon”), and may be a member of the European Union established by virtue of that Treaty.
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—

  1. the said European Union or the European Atomic Energy Community, or institutions thereof,
  2. the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or
  3. bodies competent under the treaties referred to in this section,

from having the force of law in the State.

The State may exercise the options or discretions—

  1. to which Article 20 of the Treaty on European relating to enhanced cooperation applies,
  2. under Protocol No. 19 on the Schengen acquis integrated into the framework of the European Union annexed to that treaty and to the Treaty on the Functioning of the European Union (formerly known as the Treaty establishing the European Community), and
  3. under Protocol No. 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, so annexed, including the option that the said Protocol No. 21 shall, in whole or in part, cease to apply to the State, but any such exercise shall be subject to the prior approval of both Houses of the Oireachtas.
The State may agree to the decisions, regulations or other acts—

  1. under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity,
  2. under those treaties authorising the adoption of the ordinary legislative procedure, and
  3. under subparagraph (d) of Article 82.2, the third subparagraph of Article 83.1 and paragraphs 1 and 4 of Article 86 of the Treaty on the Functioning of the European Union, relating to the area of freedom, security and justice,

but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 42 of the Treaty on European Union where that common defence would include the State

A Yes vote would add a new subsection 10°:

10° The State may ratify the Treaty on Stability, Co-ordination and Governance in the Economic and Monetary Union done at Brussels on the 2nd day of March 2012. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of the State under that Treaty or prevents laws enacted, acts done or measures adopted by bodies competent under that Treaty from having the force of law in the State.

This follows the pattern of previous amendments allowing the state to ratify European Treaties (previous amendments allowed the state to ratify the Treaties of Paris, Rome, Maastricht, Amsterdam, Nice and the Single European Act were superseded by the Lisbon Treaty). The Treaty itself does not become part of the Constitution of Ireland; neither do its specific terms about budgetary constraints.

Take the Lisbon Treaty for example. In 2009, after the referendum, the Twenty-Eighth Amendment of the Constitution Act became law. This brought Article 29.4 to where it stands above. But had the government done nothing else, we would not be bound by the Lisbon Treaty. It was only when the European Union Act 2009 was subsequently passed that the Lisbon Treaty became part of Irish law.

It will very much be in a similar manner if the amendment passes the referendum on 31st May.

Cherishing the children of the nation

22 February, 2010 Leave a comment

Later this year, we are likely to be voting on a referendum to replace the current Article 42 of the Constitution of Ireland on Education with on Children.

There are some very welcome measures in the proposal, such as ensuring the representation of children’s interests in court and a recognition that parents can fail in their responsibilities towards their children.

It would mean that Article 41, acknowledging the Family as possessing “inalienable and imprescriptible rights” would be followed by Article 42 acknowledging “the natural and imprescriptible rights of all children”. Where a line is drawn between these may cause conflict, and is something that may be unpredictably defined in the courts.

What slightly irks me are the opening words of the proposal

Article 41.1.1°
The State shall cherish all the children of the State equally.

This clearly invokes the wording of the Proclamation of the Irish Republic. This reinforces the erroneous idea that these words were meant to refer to children as such. People often invoke the phrase when talking about the social provisions for children.

But it is clear from the whole paragraph in the Proclamation that the children of the nation is meant figuratively to mean all Irishmen and Irishwomen, and in the context, an inclusion of all those living on the island of Ireland.

The Irish Republic is entitled to, and hereby claims, the allegiance of every Irishman and Irishwoman. The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally, and oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past.

I think it’s a pity that this is being set in the Constitution under the new Article on Children. I was pleased, though, to hear it used in a correct context in one of the winning speeches in the 2010 Irish Times Final. The speaker, in a great section of a brilliant speech, mentioned the incongruency of this ideal of cherishing all children of the nation with Article 41.2.1° which talked of life within the home for women, rightly taking the phrase as about equality, not about minors.

Bias in constitutional criticism

25 January, 2010 Leave a comment

Civil rights lawyer and journalist, Glenn Greenwald writes today on the Supreme Court decision that removed certain limits on political campaigning my corporations, “Follow-up on the Citizens United case“, in which he makes the point on the reaction of political commentators to cases decided in constitutional courts. Commentators on both sides of an issue tend to respond on the basis of their policy preferences, rather than the constitutional merits of the case, which is what the court is there to decide.

I say that’s to be expected because, in our political discourse, it’s virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.). When a court invalidates Law X or Government Action Y on constitutional grounds, it’s always so striking how one’s views about the validity of the court’s ruling track one’s beliefs about the desirability of Law X/Action Y on policy grounds (e.g., “I like Law X and disagree with the Court’s ruling declaring Law X unconstitutional” or “I dislike Law X and agree with the Court’s striking down Law X”).