Constitutional Convention — a missed opportunity for radical appraisal by citizens

Donncha O’Connell

Donncha O’Connell

At a critical stage in the evolution of the State, we failed to use our education system to address the question of constitutional illiteracy when it might have developed the capacity of citizens to engage critically with their State. We opted for different versions of unthinking nationalism when we might at least have opted for thinking nationalisms.

Even if this has since been addressed in curricular reform – however imperfectly and, arguably, at the expense of good education in history – the earlier neglect has an enduring adverse implication, particularly for people of my own generation. Our political spectrum is crowded in the middle with left-wing Christian Democrats and right-wing Social Democrats all competing for ownership of a confused and, at times, incoherent centrism. The ‘party of Government’ has almost always been Fianna Fáil, with Fine Gael acting as its ideologically indistinguishable understudy. Of course, smaller parties have played a disproportionately important role but the consistent pattern in Irish elections – albeit with diminishing numbers – has been that Irish people largely favour centrist parties. This pattern is confirmed if Labour is viewed as a centrist party – a debate, perhaps, for another occasion.

And, yet, we remain happy to acquiesce in the mythology of the Irish as ‘a politically sophisticated race’. This is nonsense. We may be politically cunning but we are demonstrably incapable of big political thinking or visionary politics. We are operators rather than thinkers, pragmatists who adapt and sometimes subvert political systems rather than design them. The ‘amoral localism’, so well described by the late Professor Peter Mair, defines Irish politics in a way that simply cannot be excused or explained away as a feature of politics in any small country.

The story of the 1937 Constitution and its emergence from the messy dispensation that existed from 1922 illustrates this point, although it would be churlish not to acknowledge that the drafting of the Constitution was a borderline visionary moment. De Valera seized the opportunity of the abdication crisis – that arose from one of those periodic British constitutional crises that erupts when the love lives of significant royals becomes more complicated than their unwritten Constitution can bear (the so-called ‘Abdication Crisis’ resulting from the relationship of King Edward and Wallis Simpson ) – to hasten the creation of a context requiring a new Irish Constitution that was, in many respects, similar to its predecessor.

Minimal innovation

There was minimal innovation with the cabinet or ‘Executive’ remaining at the centre of power answerable, in theory, to a Dáil and a restored but weakened Seanad. The list of recognised fundamental rights was extended and Natural or ‘Higher’ Law language was used in various parts of the text of the Constitution. The practical consequences of including such language – which became very apparent in controversial cases in the 1960s, ‘70s and ‘80s – may have been unintended. De Valera’s fond hopes of territorial reintegration and Irish language revival were also, of course, inserted as suspended realities, assertions about an imagined future written in the present tense. God was given more than one decent mention and, critically, popular sovereignty was made more meaningful than it had been under the previous dispensation by providing that the text of the Constitution could only be amended by popular referendum with simple majority voting. It would seem, according to Mr. Justice Gerard Hogan’s magisterial study on the history of the 1937 Constitution, that De Valera did intend that the explicit power of judicial review of legislation would be used and, despite concerns expressed by civil servants, that he even considered establishing a constitutional court to give greater effect to this intention.

A bare majority of the people voting in 1936 approved De Valera’s Constitution and most women voting did not. Seventy-five years later it remains the Constitution of this state – it is as enigmatic as Ulysses: everyone knows about its existence but few people know anything about it.

The Constitution has been subjected to various forms of review that usually coincide with its significant anniversaries. Thus, having reached its 30th birthday, it was reviewed by an All-Party Oireachtas Committee that made worthy recommendations some of which were well ahead of their time. It was subjected to a more forensic review in 1996 by the Constitution Review Group chaired by T.K. Whitaker just prior to its 60th birthday. The report of that group spawned numerous reports by the Oireachtas Committee on the Constitution, many of which made sensible recommendations most of which were ignored. Its 70th birthday was marked by some academic conferences and now, on the occasion of its 75th anniversary, the Constitution is to be subjected to the scrutiny of a Constitutional Convention made up of politicians and citizens. The Convention starts with the formidable challenge of dealing with the following items of potential constitutional reform within a tight timeframe:

• Reducing the term of the Presidency to five years;

• Reducing the voting age to seventeen;

• Same-sex marriage;

• Reviewing the Dáil electoral system;

• Blasphemy; and

• The position of women in the home.

There will also be ‘fringe events’ that rather dwarf the birthday celebrations represented by the establishment of the Convention – including a referendum to insert an explicit reference to children’s rights in Article 42 of the Constitution as well as a referendum (or, presumably, referenda ) to abolish Seanad Éireann.

Court of Civil Appeal

As if that wasn’t enough, towards the end of July the Minister for Justice, Equality & Defence, Alan Shatter, T.D., floated the possibility of further constitutional referenda on the establishment of a Court of Civil Appeal, an enabling provision to allow for the establishment of, inter alia, Family Courts, various changes to the procedure whereby the President may refer legislation to the Supreme Court to test its constitutionality including, controversially, provision to allow the Supreme Court to refuse to accept such references and provision to allow the Government to refer international agreements to the Supreme Court prior to ratification to ascertain – by way of an advisory opinion – their compatibility with the Constitution.

Bearing in mind that three referenda have already been held in the term of this government since it came to power in 2011 we can, presumably, expect every record of attempted constitutional amendment to be broken by this administration before it leaves office in 2016. The late Garret Fitzgerald would not even have dreamed of such a constitutional crusade!

Much of the commentary about the proposed Constitutional Convention has been negative or sceptical and has focused on both process and substance. For some people who are keen on the idea of citizens’ assemblies and deliberative democracy as a supplement to representative democracy the inclusion of politicians in the membership of the Convention is a distortion. For others the proposed agenda of the Convention is disappointingly narrow and shallow and the time allowed for it to deliberate is inadequate. There are, of course, people who are just dismissive of the whole project – people who view most deliberative

processes as wasteful or pointless indulgences. While what has emerged by way of concrete proposal is a compromise between both parties in government following some consultation with Opposition parties it falls short of the rhetorical promise held forth by Fine Gael and Labour prior to their coming into office. This is a serious matter for those who believe in political renewal by means of constitutional reform.

Connecting reforms to a reconstituted Seanad

My own view is that a serious effort at a Citizens’ Assembly could be worthwhile. I think it could be especially worthwhile in considering models of radical reform of local government and perhaps even connecting such reforms to a reconstituted Seanad. Whether or not the Citizens’ Assembly model is suited to the subject of holistic constitutional reform is questionable. The Constitution cannot be avoided as an instrument of political reform or state rebuilding but it can be a rather technical part of that process. Admittedly, much could be done by way of legislation alone to reform local government and the Seanad.

If the view has been taken that a Citizens’ Assembly can handle constitutional reform in the broad sense it seems odd that it has not been asked to consider ‘big’ constitutional questions like Executive Accountability and Parliamentary Power as well as fundamental questions concerning what we call, rather quaintly, ‘Distributive Justice’ but what everyone else calls socio-economic rights. Perhaps the omission of these ‘big’ topics is because the citizens’ views might be quite noticeably out of step with Establishment views?

It might be possible for citizens to engage with the complexities known and understood better by the politicians participating in the Convention who deal with the challenges of accountability and realising socio-economic rights in the real world of politics. That may sound patronising but it is no more so than the omission of such issues from the remit of the Convention.

Exclusion of experts has disappointed

The exclusion of experts and civil society groups from membership of the Convention, but not from its processes, has also contributed to some of the disappointment attending the announcement of the Convention. A pragmatic way of dealing with this might be to view the many ‘official’ reports on reform of the Constitution – particularly the Report of the Constitution Review Group 1996 – as a starting-point for an expert knowledge base. This will require some work on the part of whatever secretariat is put in place to resource the Convention so as to provide an accessible synthesis of the various reform recommendations that have been made since the late-1960’s. If nothing else, this would focus the deliberations of the Convention and provide a familiar basis upon which civil society groups and individual experts might choose to engage with the Convention in a positive and productive manner.

However, unless the Convention can broaden its agenda so as to subject the 1937 Constitution to a more radical appraisal – even if the ultimate assessment resulting therefrom is, as it might well be, conservative – it will amount to little more that a gimmick that genuflects mockingly at the idea of citizen engagement, deliberative democracy and renewal through radical reform. The damage to public trust that would result from such an exercise is very real.

In undermining the power of deliberative democracy offered by a Citizens’ Assembly by imposing a strong representative democracy element in the membership of the 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 at NUI Galway. This article is extracted from a paper he presented at the MacGill Summer School in Glenties in July 2012.

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