Ireland is dancing at a constitutional crossroads

Donncha O’Connell. Pic: Mike Shaughnessy

Donncha O’Connell. Pic: Mike Shaughnessy

The Republic of Ireland stands at a crossroads, not only economically, but in terms of what it stands for, its values, and the entire make up of its political system and Constitution.

For NUI Galway law lecturer Donncha O’Connell this is “a Constitutional moment” for the State, one where politicians and the public agree that reform of the Consitiution is a key element of the renewal that is needed following the devastating blow of the economic collapse.

The need for Constitutional change and a desire to play a role and help in that renewal is what has prompted Mr O’Connell to stand for election to Seanad Éireann’s NUI Panel, and as well as Constitutional reform, he will also be standing on a platform of human rights and equality in the areas of disability, mental health, older people, women, homosexuals, immigration and asylum, housing, debt, and children; and for a “rational and fair approach to criminal justice”.

Mr O’Connell is well qualified to talk on and make contributions in all these areas, given that he lectures in constitutional law at NUIG; has served as Dean of Law from 2005-2008; and served on a number of important bodies.

From 1999-2002 he was the first full-time Director of the Irish Council for Civil Liberties; in 2002 he was appointed as the Irish member of the EU Network of Independent Experts on Fundamental Rights; In 2007 he tendered successfully with an international consortium that formed FRALEX, the legal expert group that advises the EU Agency for Fundamental Rights based in Vienna, and continued to work as the Senior Irish Expert until 2011.

He has also been a member of the National Council of the Free Legal Advice Centres Ltd and the National Executive Committee of Amnesty International - Ireland; and since 2006 has been on the Board of Directors of Druid.

Although a Labour party member, he is running as an Independent and if elected will remain so.

“It’s out of regard for the tradition of the NUI constituency that you declare what your politics are but you represent on an independent basis,” he says. “It means I would not have to accept the Government whip and so would have the freedom to represent the NUI electorate as an Independent.”

A new Constitution?

The implosion of the Irish economy has revealed how the State’s political systems and institutions were unwilling and unable to properly hold governments since 1997 to account. It also revealed how in many respects the political system contributed to that malaise which allowed for unsustainable economic practices, for the property boom to become a dangerous bubble, and for wasteful and incompetent governance.

In the long build up to February’s election and since then, people from all walks of Irish life have demanded of politicians that the Irish political system and the Constitution be reformed to ensure the political and governmental madness, arrogance, and incompetence of the Noughties never return.

“All the parties, including the Opposition, are all agreed that some Constitutional reform is required to achieve real political reform, so the ‘Constitutional moment’ has come,” Mr O’Connell says. “What has prompted me to run is that I would like to participate in this debate because I care about this dimension of the solution and I think I might bring to that a focus on the Constitutional roots of the problem.”

The Constitution was originally drafted in 1937 by the then Taoiseach Eamon deValera but is today seen as largely reflecting the values of its time. As such many, including Mr O’Connell, argue it needs to be drastically updated to reflect the Republic of the 21st century.

“If we reform the Constitution we need to be more open to the influence of international law, particularly in relation to human rights,” he say. “We need to embed human rights obligations in our domestic Constitutional law.”

One of the key areas in any reform of the Constitution will be in the area of marriage and the family, especially as one of the main debates in the State right now concerns gay marriage - for the gay community the right to marry is a human and civil right.

Many would have though that civil partnership would have solved issues regarding inheritance issues and legal recognition of gay relationships but, as Mr O’Connell points out, it fails to make provision for any children involved and issues of guardianship.

“The main problem with civil partnerships is that it does not provide legal recognition for the relationship that exists between a child and a non-biological parent,” he says.

“Say there are two women in a civil partnership. One is the biological mother of a child. The father is a donor who more than likely does not know the child or mother and has no relation with them at all. Its other mum has no biological relationship to the child.

“Say the biological mum dies, the non-biological mum is now the sole parent but has no legal relationship to the child. However its donor father has a relationship in legal terms, even though he does not know of the child’s existence and may not want to.

“There are many couples in such situations and it is a legal situation that needs to be resolved. The previous justice minister, Demot Ahern, has acknowledged that this is something which needs to be tackled but the key obstacle is the Constitution.

“The Constitution currently only recognises marriage as being between people of the opposite sex and it needs to be amended to take account of more pluralist forms of the family and I would support for Constitutional and legal reform so as to achieve that.”

The Seanad - abolish or keep?

Seanad Éireann was created under Article 18 of the Constitution and, while it is often the most ignored body of the Oireachtas, it has become central in recent times to the debate on political reform in Ireland.

The Seanad is a strange entity in Irish politics. It is the most unrepresentative, indeed elitist body, in the State, as only Senators, TDs, councillors, and NUI and Trinity graduates are allowed to vote in its election, thus excluding all other citizens of the State from having a say in the make-up of the Upper House of the Oireachtas. Mr O’Connell believes this needs to be changed.

“Election to the Seanad by vocational panels is elitist and undemocratic,” he says. “I would favour a Seanad elected by universal suffrage - that is by all the people - within regional constituencies, different from Dáil constituencies.

The usefulness of the Seanad has come under intense scrutiny in recent times. Its main ability is to delay laws rather than abolish them. A bill approved by the Dáil which has not received approval by the Seanad within 90 days may, after a further 180 days, be ‘deemed’ by the Dáil to have been approved by the Seanad - showing how toothless a body it is.

Mr O’Connell disagrees that the Seanad is “toothless”, arguing that it is often “initiates a lot of legislation”. Nonetheless the Seanad’s days could be numbered as An Taoiseach Enda Kenny has called for its abolition as part of major reforms of the Irish political system.

Mr O’Connell argues, though, that abolishing the Seanad would be little more than a populist move to allow politicians to say they have engaged in reform while simultaneously avoiding carrying out the equally much needed reform of the Dáil.

“Talk of abolishing the Seanad fuelled the perception that it’s not important and is a waste of time,” says Mr O’Connell. “I believe you should have a bi-cameral parliamentary system and both the Dáil and the Seanad require reform. My feeling is that if you just focus on reform of the Seanad than you won’t do the necessary reform of the Dáil.

“We need to redistribute the balance of power between the Government and the legislature, that is between the permanent government - the civil service - and the transient government - the political parties in power. There is too much power at that level in Irish politics and reform in that area would lead to a stronger Dáil and Seanad that can properly hold the Government to account.”

Combating disadvantage

While Constitutional reform and human rights are key aspects of Mr O’Connell’s campaign, he is also focused on a “rational and fair approach to criminal justice”, including the idea of “early intervention” - ensuring young people and disadvantaged communities support, education, and opportunities their socio-economic situation might not always allow them.

“We need to develop systems that lead to intervention in areas where criminality is more likely to happen,” Mr O’Connell said. “We need to target disadvantaged areas and resource them so as to divert them from the problems of involvement in crime.

“We need to invest in youth and social clubs and leadership clubs and programmes for young people, particularly for young men, and public education on the risks of drug use. We need to give young people a sense of social responsibility and build it into education programmes. The problem is that such programmes are always the first things to get cut and when they are carried out they are sometimes only experimental or incremental.

“There is some fantastic work being done here in the university by Prof Pat Dolin and engaging with communities on such issues is to my mind what a university should be involved with, but it requires to be sustained and maintained.

“This sort of work won’t yield dramatic headlines for the press, gardaí, or politicians, but over time it will be effective and make a difference. It’s a long term investment. The difficulty is in selling this to a politician but it’s a better way than more legislation and more police. It’s more sensible to address it in this way over time and have much more affective results in the long term.”

For more information on Mr O’Connell’s campaign see www.donnchaoconnell.ie/

 

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