Constitutional reform may be best achieved over time
OPINION:THERE ARE many reasons to review constitutions. In the same way that you decide to give a room a make-over to correct the vicissitudes of time, there is a need to cast a cold eye over a country’s constitution on significant anniversaries, such as the 75th anniversary of the Irish Constitution next year.
Alternatively, a constitution may be reviewed as an exercise in radical or structural reform of a state responding to certain crises in which the constitution is implicated legitimately or as a proxy cause of concern.
From a historical perspective, the more common context in which new constitutions are “born” is, unsurprisingly, that of a revolution in which the “order” of a new dispensation emerges from the “disorder” attending the demise of the old one.
The endurance of constitutions is taken as a sign of success, a form of concrete evidence of the rule of law. Yet few enduring constitutions would be recognisable to those who framed or drafted them, at least in the manner in which they are interpreted nowadays. This is part of the genius of constitutional design in which far-seeing framers deliberately used the present tense when drafting instruments of fundamental law. It also arises from the pragmatic genius of judicial interpretation that operates – differently and controversially in all jurisdictions – to make constitutions work.
In its programme for government the Fine Gael-Labour Coalition undertook to establish a constitutional convention to consider questions of constitutional and political reform. Endeavours such as this can be caricatured as requests by government to the great and the good to “lend us your long fingers” but the proposal to engage citizens in the convention is novel and full of potential.
In 1967 there was a worthy all-party review that made many decent recommendations, some of which were ahead of their time.
The 1996 Report of the Constitution Review Group, chaired by TK Whitaker, was a rigorous stock-taking but it was tame on most of the fundamentals.
Since 1996 there have been numerous Oireachtas committee reports on themes emanating from the review group’s report but action on foot of these has been lamentable.
Of course, legal scholars and other academics drawn from the worlds of political science and philosophy maintain a steady, critical eye on constitutional affairs but there is little popular engagement with such discourse, and it is even difficult to gauge the degree to which there is elite-level engagement where it matters.
For all of these reasons the proposed constitutional convention, involving the active participation of citizens, should be seized as an opportunity to deal with the real problem of popular disengagement from constitutional affairs. It will, predictably, be dismissed as a talking shop by people who have ready-made solutions for all constitutional problems but who lack the patience required to influence public opinion by means of a transparent deliberative process.
There is, however, a more essential argument for a constitutional convention. You cannot change a word of the Constitution without the consent of more than half the people voting in any referendum. Thus, a small number of people can effectively veto a constitutional amendment, for example the Nice 1 referendum of 2001.
It is vital, therefore, to engage the public not just when you need them to rubber-stamp a proposed constitutional amendment but also with the processes of constitutional reform and, indeed, with the Constitution itself. Knowledge is power but ignorance is not necessarily bliss for a government that cannot convince the “don’t knows” to vote Yes.
It is somewhat paradoxical that we vote so frequently in referendums (by comparison to some other countries) on a document that is hardly understood by the people voting. Popular ignorance about the Constitution is no accident. Like so many facets of the inchoate Republic that dare not speak its name, even in the Constitution itself, we carried on after 1937 as if the new Constitution was, like its British counterpart, unwritten. Consequently, it remained largely unread.
There is now an opportunity to correct this if the proposed constitutional convention is designed and operated as a genuine and open exercise in deliberative democracy. It should not proceed on the basis of any non-negotiables, such as abolition of Seanad Éireann. The framework for debate on vital issues of political reform – about which there was considerable talk prior to the last election – must be open to the possibilities of radical democratic renewal.
Equally, on the question of fundamental rights there should be no inhibiting parameters premised on entrenched positions about the role of judiciary as arbiters of rights or the justiciability of socio-economic rights or the domestic status of international human rights law.
In simple terms, the constitutional convention should offer the possibility of profound democratic renewal without promising it.
Expectations need to be adjusted so as to accept the reality that constitutional reform might best be achieved over time by a series of referendums. An evolutionary and consensual process of constitutional renewal is, for many reasons, preferable to a big-bang “constitutional moment”.
This must be framed with a strong consciousness of all-island considerations as well as developments in European constitutionalism.
Donncha O’Connell teaches constitutional law and European human rights in the school of law at NUI Galway