Our power as citizens is at stake in Seanad referendum

A Yes vote would render some of the most powerful people in our society more untouchable than ever

I should be in favour of abolishing the Seanad – I railed against it long enough. A decade ago, I debated the elitism of its electoral system on radio with David Norris, who declared me "jealous" because I hadn't been to Trinity and thereby wasn't entitled to vote for him.

But there’s a difference between criticising the Seanad and wanting an end to it. The Taoiseach claims the Upper House has shown itself incapable of reform, yet no serious attempt has been made to take reform beyond the level of framing proposals and promptly shelving them.

There have – yet again – been some troubling and even suspicious aspects relating to the adequacy of the public debate about the present amendment proposals. The impression has been conveyed by both combatants and hosts of the debate that nothing of great significance hangs upon the outcome – that the headline issues relate to reducing the number of politicians and saving €20 million. In fact, the change will have considerable impact on the capacity of our democratic systems to call some of its most powerful actors to account, and will erode some of the most fundamental democratic powers currently residing with citizens.

The proposed change to Article 35.4.1, for example, will significantly raise the threshold of difficulty to be encountered in seeking to impeach a judge. At present, a judge may be impeached on grounds of stated misbehaviour or incapacity on a simple majority of members present in both Dáil and Seanad. We know from some relatively recent cases that, even under these constitutional conditions, removing a judge poses significant challenges. If the Seanad is abolished, the impeachment bar will be raised even higher, requiring a majority of “not less than two-thirds of the total membership” of the Dáil, in effect changing the odds of removing a miscreant judge from evens to two-to-one against.

The public mindset on this issue has been manipulated to in effect bring about a 180 degree about-turn from the position of just over a decade ago. The oversight of judges became a hot-button issues in the late 1990s as a result of the “Sheedy affair”, although politicians were reluctant to tackle the issue for fear of offending against the separation of powers governing the relationship between politics and the judiciary.

The 22nd Amendment of the Constitution Bill 2001 was introduced with the intention of establishing a body to investigate judges. Against the grain of public opinion, this proposed to change the rules governing the impeachment of judges to require a two-thirds majority of either house, instead of the existing simple majority of both. The proposal provoked indignation from senior members of the then opposition, not least Ruairí Quinn. Eventually, the government withdrew the referendum Bill.

Political embarrassment
When Judge Brian Curtin was charged with possessing child pornography in 2002, the question of his judicial position became a major political embarrassment, in no way mitigated when the trial judge ruled that a search of Curtin's home had been illegal, and the matter was disposed of only when Curtin resigned on grounds of ill-health.

Subsequently, politicians kicked the accountability of judges issue into touch. The present amendment, however, proposes to reinstate one of the key measures of the abortive 2001 amendment, under cover of abolishing the Seanad. Hitherto, it would in theory have been sufficient for a government to operate the whip to remove a delinquent judge. The amended position will in effect require that a large part of the Dáil opposition combine with the government in removing such a figure. It is conceivable, therefore, that a judge seeking to contest his impeachment could use political influence to successfully mount a campaign to resist his or her removal from office.

There are other issues also. At present, the Constitution provides that Bills may be referred to the people for a referendum if a majority of the Seanad and at least a third of Dáil members request the President to refer the Bill to the people on grounds of its national importance. The President has power to implement or disallow such a request. If the present amendment is passed, these provisions will be dispensed with.

One doesn’t have to be a conspiracy theorist to wonder why such fundamental changes were tacked onto what is presented as a straightforward proposal to abolish the Seanad, and why several weeks of intensive campaigning have passed without them becoming the major issues of the debate. In the cunning disguise of a cynical populism we are to be confronted next week by a radical attempt to reduce permanently the democratic powers of citizens, and make some of the most powerful actors in our society more untouchable than ever.