This so-called constitutional convention is a charade

Thu, Jun 7, 2012, 01:00

OPINION:The supposedly comprehensive reform will comprise a handful of relatively inconsequential issues

LAST YEAR, in an election that took place in the context of an unprecedented failure of our political system, all of the major political parties rushed to jump on the bandwagon of constitutional reform.

Different parties hung their colours on different issues: for Fine Gael, it was the abolition of the Seanad; for Fianna Fáil, it was the reform of the Dáil electoral system. In the end, the Coalition agreed a programme for government that identified five immediate priorities, and also adopted a proposal made by both Labour and Fianna Fáil of establishing a constitutional convention to consider “comprehensive constitutional reform”.

The term “constitutional convention” carries great historical resonance, conjuring up images of Thomas Jefferson, James Madison et al gathering in Philadelphia in 1787 to draw up a blueprint for constitutional democracy that has endured with only minor amendments for 225 years. Major constitutional change often takes place in times of great crisis, and advocates of reforming our 1937 Constitution might have been feeling optimistic upon hearing the Government’s plans.

Sixteen months later, now that plans are finally beginning to take shape, one thing has become quite clear: this so-called “constitutional convention” is a joke. The “comprehensive constitutional reform” that was supposed to be considered will comprise, in reality, a handful of relatively inconsequential issues, such as lowering the voting age by one year to 17; reducing the term of office of the President by two years to five; and removing the antiquated provision that requires making blasphemy a criminal offence. Only six issues will be considered in all – hardly a comprehensive review.

Of those six issues, the most significant ones, like same-sex marriage and the review of the Dáil electoral system, have been pushed down the agenda; it is unclear when they will actually be considered (if at all).

The proposed amendment on Oireachtas inquiries was rushed to a referendum last November before the convention was even established, with the result that a poorly drafted provision was rejected by the people. Ridiculously, the most significant constitutional change proposed by the Government – the abolition of the Seanad – will not be considered at all. Apparently, the Government does not need that issue to be discussed any further.

The composition of the convention is also a major cause of concern. It is admirable to include members of the public – 66 will be chosen from the electoral register – and of course it is proper that Oireachtas members will have an input, with 30 to be appointed from their ranks, along with three Northern Ireland Assembly members.

But where are the constitutional experts? I am leaving myself open to accusations of seeking “jobs for the boys” in saying this, but to put this in context, I doubt anyone suggested the group considering proposals for a national children’s hospital did not need the input of any doctors. To think the constitutional convention can make the best possible proposals without the involvement of political scientists, constitutional lawyers and others is simply ludicrous.

In any event, the sad fact is none of this is likely to make any difference, since it is highly unlikely that the Government will put any of the convention’s proposals to a referendum. There are multiple reasons for this.

First, the snail’s pace at which the convention is being moved along means it is unlikely to make many recommendations during the lifetime of this Government. Second, any such recommendations would not be acted on immediately – they would go through a meat grinder that includes Oireachtas committees, the Attorney General’s office and the Cabinet.

Even assuming that any solid recommendations get to the Cabinet table before the next general election, the Government simply will not risk losing a referendum in the run-up to an election. The Coalition is already battle-weary from referendums, having lost one on Oireachtas inquiries and having to battle hard to pass another on the fiscal treaty.

If it fulfils its promise to hold a referendum on the constitutional position of children during 2012, the political appetite for selling any further constitutional amendments to an angry electorate during the second half of the election cycle is unlikely to be strong.

We have travelled this road before. The Constitution Review Group in 1996 conducted a genuinely comprehensive review of the Constitution, drawing on the expertise of distinguished individuals from a variety of disciplines and backgrounds.

In the end, its report made dozens of recommendations – many of them admirable or even a matter of plain common sense – but only two relatively minor points were ever put to a referendum (the constitutional recognition of local government in 1999 and the constitutional prohibition of the death penalty in 2002).

If that was the outcome of a better conceived and executed process of constitutional review, it is fanciful in the extreme to expect anything different from this charade.

 DR CONOR O’MAHONYlectures in constitutional law at University College Cork.

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