Constitution could benefit from radical reappraisal


ANALYSIS:WILL THE recently announced constitutional convention be a genuine attempt at deliberative democracy or a quasi-therapeutic encounter between a selection of politicians and a glorified focus group of citizens?

The Government eventually acted on its intention of establishing a convention by announcing, at the end of February, that a 100-person assembly was to be established comprising a chairman, 33 Oireachtas members (including political representatives from Northern Ireland) and 66 citizens to be selected from the electoral register.

This convention is to exist for no more than 12 months and is to consider an agenda that stretches from the prosaic to the controversial, including: review of the Dáil electoral system, reduction of the voting age, the presidency, same-sex marriage, participation of women in politics and public life and blasphemy. Significantly, it cannot consider two issues on which referendums have already been promised: the amendment of the Constitution to include an explicit reference to children’s rights and the abolition of Seanad Éireann. Both of these issues have read-across implications for other provisions of the Constitution.

So how is this initiative to proceed in any kind of a coherent and worthwhile manner? There are as many models of constitutional reform and renewal as there are constitutions. The Constitution itself provides for a process of periodic reform by way of referendums dealing with singular amendments. The imminent referendum on the EU fiscal treaty is somewhat hybrid in that it entails an enabling amendment to the Constitution – with implications stretching beyond the treaty – without entailing changes to the foundational EU treaties.

It is clear that in establishing the constitutional convention the Government is seeking to create a discursive space in which reform and renewal of the 1937 Constitution can be advanced. This happens to coincide with the 75th anniversary of the Constitution but it also follows on pre-election promises about the need for radical political reform. What has emerged is far from identical to what was promised.

The initial disappointment of some of those who are critical of the Government’s proposal probably reflects a desire to replace or, at least, more radically reform the Constitution. Alternatively, it may just indicate a disappointment at the participatory architecture suggested for the convention that privileges politicians and a sample of citizens to the exclusion of civil society groups and “experts”.

Unless there is some clarity and sincere consensus about what is expected of the convention – without predetermining its deliberations – it will not succeed and will add to the sense of futility and hopelessness felt by those who are open to the possibilities of political renewal by way of constitutional reform. This will not be achieved by political parties chatting among themselves before engaging with a selection of the citizenry in an orchestrated rumination on aspects of the Constitution that may well, for reasons other than pressures of time, be little more than an exercise in shallow intensity.

Rather than going through a list of constitutional topics as planned it might make more sense to organise the deliberations of the convention into thematic modules dealing with, for example: structures and division of powers, human rights, ongoing processes of constitutional renewal and the relevance of the European constitutional framework including the international legal system. Doing it in this way would take longer than one year but that, in itself, is not important.

As we embark on a decade of centenary anniversaries it is regrettable that big republican themes like equality and distributive justice are not explicitly on the agenda of the convention. Prof Colin Harvey of Queen’s University and a former member of the Northern Ireland Human Rights Commission has pointed out that equality should be the foundation of any republican constitution. The demonstrable weakness of equality in the current scheme of constitutional things is only tangentially referenced in the list of topics for consideration by the convention.

There is no proposal to discuss the current weakness of core socioeconomic rights in the Constitution as if this was not an issue of real concern to real people. Nothing could be further from the truth. This is an area in which the Labour Party, in particular, could do something useful to connect the broad range of international obligations assumed by the State to meaningful and robust principles enshrined in the Constitution.

Many commentators lament the degree to which power is over-concentrated in the executive and some have even linked this and the related issue of executive underperformance to the economic and political crisis that has gripped the country in recent years. Again, this is not explicitly on the agenda of the convention, thus undermining the possibility of discussing a reconfiguration of State architecture.

The people might well settle for executive-centred government but there should at least be some discussion about that and the alternative options for dispersing and balancing State power.

Radicalism is about addressing the root causes of problems. It is not, despite common misuse, synonymous with extremism or even, necessarily, with idealism.

Eschewing a more radical approach to an assessment of our Constitution means we are avoiding a more truthful look at the nature of our State and the value of our citizenship.

The conclusion of such an assessment might well be that the 1937 Constitution has served us well but we should not presume such an answer when there is ample evidence to justify a more radical appraisal.

Donncha O’Connell is a lecturer in law at NUI Galway where he teaches constitutional law and European human rights. The views expressed in this article are personal.

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