Home > Commentary, Constitution of Ireland > Is Constitutional Revolution Nigh in Ireland?

Is Constitutional Revolution Nigh in Ireland?

constRecent weeks and months have seen a seemingly endless stream of proposals emerge for constitutional change in this jurisdiction and reading today’s Sunday Times I noticed that Enda Kenny—the leader of Fine Gael and quite likely to be Ireland’s next Taoiseach [Prime Minister]—has now added another proposal to the list: that the President’s term would be reduced to five years. As far as I am aware we are now in the midst of a number of debates with constitutional implications:

  1. The Fine Gael proposal for the abolition of the Seanad
  2. The Fine Gael proposal for the reduction of the Presidential term
  3. The commitment in the renewed programme for government to hold a constitutional referendum to recognise the role of parents in the home rather than that of mothers and wives (I blogged about this here)
  4. The commitment in the renewed programme for government to hold a constitutional referendum to introduce a Court of Civil Appeal
  5. The debate about a constitutional amendment on children’s rights (about which Aoife blogged here)
  6. The renewal of the debate around a Charter of Rights for the Island of Ireland as contemplated by the Belfast/Good Friday Agreement and under consideration by the Joint Committee of the Northern Ireland Human Rights Commission and the Irish Human Rights Commission

There may even be more proposals than this floating around, but these are the ones that come immediately to mind. Other matters have arisen recently for discussion where the government has committed to pursuing a particular course of action in order to avoid the perceived need for constitutional reform; I am thinking here in particular about the Civil Partnership Bill 2009 (about which we blogged here, here, here and in a guest contribution from Andrew Hayward) and the inclusion of a crime of blasphemy in the Defamation Act 2009 (about which Colin blogged here). In addition, there may be developments in the near future that will require us to at least consider whether constitutional reform would be appropriate in other areas such as the right to life of the unborn, depending on the outcome of ongoing litigation in the European Court of Human Rights (about which Máiréad blogged here).

This is beginning to look remarkably familiar, especially to people who took an interest in the constitutional reform programme undertaken by New Labour since their election in 1997 which involved, among other things, the introduction of the Human Rights Act 1998 and the creation of the UK Supreme Court. The Irish Constitution will celebrate its 75th birthday in 2012 and as that time quickly approaches one is tempted to ask whether the momentum towards constitutional reform is essentially a push towards retirement for the Constitution as we know it. What is particularly interesting to me, however, is that Enda Kenny seems to be especially prone to recommending constitutional change and the abolition or reform of constitutional offices and institutions without necessarily reasoning out his proposals particularly well. In fact, they smack somewhat of populism, which is disappointing to those of us who might generally welcome a change of government in the near or medium future.

The fact that we have the great privilege in Ireland of amending our Constitution by means of popular referendum means that there is always a risk of the introduction of populist referenda. Indeed, the Citizenship Referendum would, in my view, have fallen into this category. The introduction of a constitutional discourse into election-related canvassing and the promise—as Kenny has made—of a package of reform being put to the people for referendum within one year if Fine Gael goes into government carries a serious risk that constitutional reform, which should be principled and reasoned and framed by considerations of necessity and of whether the constitution is fit for purpose, will become an electoral pledge resulting in populist referenda and enormous constitutional change that is insufficiently reasoned.

There are arguments for the kinds of constitutional reform that Kenny has suggested, however there are also arguments against same or for other alternatives. The Constitution ought not to be up-for-grabs in a general election, not least because fundamental rights rarely fare well in populist discourses and referenda. Constitutional reform needs a far more reasoned process of debate and consideration than can be afforded within an election (or ‘election ready’) milieu.

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  1. Fergal Davis
    November 8, 2009 at 3:37 pm

    Fiona,
    Great blog. You make a good point about populist amendment of the Constitution – the bail referendum being a classic example.

    I think 2 points might need consideration.

    1. the de valera government of the 1930’s was able to engage in populist reform of the Constitution without a referenda process. In other words referenda on their own do not lead to populist reform of constitutions.

    On a related point deV’s reforms were similar to those proposed by Kenny (ironically enough) in that he wrought significant Constitutional reform without considering the impact of that reform – eg the ab0lition of the Governor General had a significant impact on the Irish legal landscape which was not fully considered – similar to the abolition of the Seanad which would be far more complicated than simply deleting an Article or two.

    2. in 1958 the Irish people rejected a referendum proposal to shift to first past the post. The was proposed by FF and de Valera. While rejecting this they voted for FF and de V as President – thus showing an ability to divorce the Constitutional issue from the party politics.

    Perhaps we need to engage the public more (in a non-elitist fashion – as active researchers make the argument accessible) to ensure they appreciate the difference between an issue of immediate popular interest and long term constitutional significance – We must not surrender the constitutional to the politician but we can retain the popular input. At this point it should be possible for the informed expert to connect with the public like never before thanks to the blogosphere and the publis distrust of politicians and formal institutions.

  2. November 8, 2009 at 5:05 pm

    Fergal,

    Thanks for your comment. I agree that referenda are not necessarily populist. But in the case of, for example, the dialogue (if one call it that) around the abolition of the Seanad–it has emerged and been engaged in within the context of a ‘all politicians are wasters who are not earning their money and sre abusing expenses regimes’ which is what largely influences calls for abolition instead of the much needed reforms that could be introduced while maintaining all of the beneifts of a bicameral legislature.
    I also think that people can divide constitutional issues from party politics I think the above point holds in this context as well. The proposals coming from Enda Kenny are not generally motivated by any kind of constitutional need or crisis or any demonstrable faults with the constitutional system as it stands (esp. re reducing the presidential term). They are, in my eyes, extremely opportunist and motivated by populist concerns or, at the very least, tapping into them. That is really what worries me.

    Now, as for your connect point, I agree (surprised!?). The blogosphere as well as conventional media outlets do provide a serious opportunity for non-elitist engagement. I hope we do that at least to some extent here too on HRinI. But there is, of course, scope for more.

  3. November 10, 2009 at 3:42 pm

    Fiona,

    You are absolutely right to raise the fact that the recent history of the Irish constitutional amendment procedure raises a number of interesting questions and challenges. The particular issue you raise here relates to the use of the constitutional amendment as part of a party manifesto and the associated danger of populism. It is ironic, however, that this danger of populism has arisen from the interposition of a representative element (in the form of the necessity of an amendment first being approved by the Oireachtas) between the people and the ultimate decision in the referendum. The intention of this procedure is to avoid the populist dangers associated with pure direct democracy. Compare, for example, with the 1922 Free State Constitution, which provided in Article 48 for referenda to be initiated by the people upon a petition of 75,000 voters.

    Ordinarily, the need to go through the Oireachtas is criticised for frustrating the views of the people, where the main political parties shy away from a controversial amendment because of the potential backlash from a vocal defeated minority. The All Party Oireachtas Committee on the Constitution Tenth Progress report on the Family is the most recent and perhaps clearest example of this. As you have pointed out, however, the nature of party politics and regular democratic elections is such that the reverse can also occur, whereby political parties seek to exploit the public mood at a particular time by promising constitutional reform that might ultimately prove to be short sighted. I would see the proposal to abolish the Seanad as just such a case.

    How to strike the balance on this is an enormously complex question, not that we should shy away from it for that reason. Ultimately, however, we need to acknowledge that every constitution is dependent upon popular support for its long term survival, and the amendment procedure will always have to be at least a little bit populist in nature. As Christopher Eisgruber puts it at p. 120 of Constitutional Self-Government: “Because constitutions must leave people free to govern themselves, any constitution – no matter how good – must leave people free to enact bad provisions. Of course, constitutions can incorporate safeguards to discourage bad amendments…But no system is foolproof. A constitutional procedure that enables people to entrench good rules and institutions will also enable them to entrench bad rules and institutions. A people must have the freedom to make controversial political choices, and that freedom will necessarily entail the freedom to choose badly.”

  1. November 8, 2009 at 1:35 pm
  2. November 23, 2009 at 5:28 am
  3. March 13, 2010 at 10:24 am
  4. March 20, 2010 at 12:17 pm
  5. March 21, 2010 at 6:42 pm
  6. March 23, 2010 at 8:33 am

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