LEGAL OPINION:IN CONSIDERING what constitutional conventions are for we cannot avoid the more fundamental question – what are constitutions for?
When I commenced studying law in 1985 we were taught that a constitution was the set of laws governing the government and that it defined the relationship of the citizen to the state. This was a limited characterisation of constitutions.
Nowadays, we teach students about the constitutive force of constitutions and talk about constitutions that shape the realities of statehood and citizenship. We talk about constitutions in political and legal terms as “negotiable” (Gregoire Webber). Drawing on the arid language of management pseudo-science, constitutions are compared to mission statements rather than operational plans. Their value comes from durability and endurance and, in the effort to avoid being dated and platitudinous, they must be timeless and high-minded. Carol Coulter, legal editor of The Irish Times, has made the astute observation that constitutions matter but not as much as constitutional lawyers and political and social campaigners think they do.
In Ireland, we can trace the constitutional tradition to the 18th century but that tradition has been complicated not just because it was trans-jurisdictional. It co-existed, until recently, with a “slightly constitutional” tradition focused mainly on what we call “the national question”. We are all, it appears, constitutionalists now even if some of us have arrived at this status by means of layered constructive ambiguities. The degree to which the Belfast Agreement of 1998 and the later St Andrews Agreement require a “re-constitutionalising” of both states on the island of Ireland is under-explored, particularly on this side of the Border, and will most certainly not be explored in the proceedings of the constitutional convention.
Since the early 1970s the Irish Constitution has existed within the evolving constitutional system of the European Union. Indeed, the increased number of constitutional referenda since then is largely attributable to the need to seek (and occasionally re-seek) popular approval from time to time for changes to European treaties. Constitutional developments at EU level have a transcendent quality that may, in time, make exercises like our constitutional convention seem parochial. Regrettably, referenda on EU matters (with the possible exception of the last one) seem to be about everything except the EU treaty reform under consideration.
It might be deduced from the frequency of EU and other referenda since the 1970s that Irish people are more in touch with their popular sovereignty than others but, absent a mechanism for popular initiative, this would be overstating things. In making that observation I am not calling for a power of popular initiative.
Prof Gerry Whyte of TCD, one of the leading scholars in Irish constitutional law, has pointed out that virtually all proposals for amendment of the Constitution resulting in referenda are government proposals. There is a formal parliamentary “filter”, in that referendum proposals require legislation, but the Dáil and Seanad have little or no impact on the content of proposals to amend the Constitution nor on the mechanisms associated with referenda.
The closest we have come to a “popular initiative” that, admittedly, yielded nothing until it gained the sponsorship of Fianna Fáil and Fine Gael was the infamous Eighth Amendment on the right to life of the unborn, passed in 1983. Arguably, the current proposal to amend article 42 of the Constitution to give explicit recognition to children’s rights is also the result of popular pressure over time. Hopefully, if passed, it will not cause as much grief by way of unintended consequences as the amendment of 1983.
Prof Whyte has also pointed out that periodic constitutional reviews rarely result in reform, instancing the fact that a mere two constitutional amendments resulted from the Report of the Constitution Review Group 1996 – inserting a reference to local government in article 28 of the Constitution and the final abolition of the already effectively abolished death penalty.
Are the conditions right for a major or radical review of the 1937 Constitution? In the period leading to the 2011 general election quite a lot of people seemed convinced that the time had come for such a review and any differences that existed among the political elite were differences of emphasis. I do not recall any party arguing for the constitutional status quo. But, in undermining the power of deliberative democracy offered by a meaningful citizens’ assembly, by imposing a strong representative democracy element in the membership of the proposed constitutional convention, in limiting its agenda away from the radical and excluding something as vitally important as the abandonment of bicameralism, in sidelining experts so as to avoid “capture” while capturing quite a slice of the action for politicians, and in depriving the process of sufficient resources, we have created a convention that seems like a compromise too far.
DONNCHA O'CONNELL
is a lecturer in law in NUIG