Nov 1, 2011
O’Mahony on defeat of 30th amendment
As part of our coverage of the aftermath of the recent referendum campaigns, we are pleased to welcome this guest post from Dr Conor O’Mahony, lecturer in law at University College Cork. This piece was first published as an op-ed in the print edition of the Irish Examiner on Monday, October 31, although it was not published online.
The defeat of the 30th Amendment to the Constitution on Oireachtas Inquiries has been greeted, perhaps predictably, by comments from Ministers Brendan Howlin and Alan Shatter that the electorate was confused, and perhaps even misinformed, about the proposal. Whether or not this is true in the case of some individual voters, attributing such a position to the electorate as a whole does voters a grave disservice. On the same day that the Irish people voted 80-20 to accept one constitutional amendment, they voted 53-47 to reject another. This suggests that they were well able to distinguish between the two, and to decide for themselves what they were willing to support and what they were not.
If voting “no” is a default position, as Minister Howlin suggested, why then did the judges’ pay referendum pass by a landslide? The count figures have a tale to tell here. The margin of defeat on Oireachtas Inquiries was remarkably consistent across the country. Only two constituencies out of 43 – Brendan Howlin’s Wexford and Enda Kenny’s Mayo – approved the amendment, and only by the narrowest margins. Perhaps more interestingly, there were 8,000 fewer valid ballots on Oireachtas Inquiries than on judges’ pay, and 30,000 fewer than the Presidential election. This suggests that a widespread reaction of people who didn’t understand the issue was to not vote at all.
The rejection of the amendment cannot be explained by a lack of understanding or misinformation; on the contrary, it can be attributed to robust arguments put across by the No campaign that it provided insufficient safeguards for the constitutional rights of individuals subjected to inquiries. Attempting to paint this as “misinformation” conveniently suggests that there was nothing wrong with the amendment, but such a view holds no water. There is no comparison with the fictions that were circulated about the Lisbon Treaty regarding issues such as conscription. The No campaign was spearheaded by professionals, academics and interest groups who were, in fact, best placed to understand the implications of the amendment. In the end, the people were more convinced by their arguments than by the Government’s.
Minister Howlin has complained that there was insufficient time to rebut the concerns raised by the eight former Attorneys General last Monday. This conveniently disregards the fact that the same arguments were publicly aired almost a month before the referendum by Gerry Whyte of Trinity College on the Vincent Browne Show and by Donncha O’Connell of NUIG in the Irish Times. I myself debated the issue with Minister Howlin on Newstalk Radio 10 days before the Attorneys spoke publicly. The legitimate concern about the exclusion of court supervision of the exercise of powers of inquiry by politicians cannot be said to have been sprung at the last minute; the issue was not new, either to the national media or to Minister Howlin himself.
Minister Shatter has complained that the No campaign presumed bad faith on the part of politicians, but this misses the point of having judicially enforceable constitutional rights in the first place. Such a system does not presume that politicians always act in bad faith – it guards against the possibility that in the long run, a minority of politicians might act in bad faith, or unintentionally disregard the rights of individuals while acting in good faith. Constitutional provisions need to be designed not with the best type of politician in mind, but the worst. In any event, given the events of the past decade, is it any surprise that public trust of politicians is rather shaky at present?
Some public commentary has suggested that the opposition came largely from lawyers who wanted to keep the spoils of the old Tribunal system to themselves, or from former Attorneys General who might have much to fear from future inquiries. This view disregards the level of opposition coming from academics and from the Irish Council for Civil Liberties, neither of whom have anything to fear from future inquiries, and who never have had (and never will have) anything to gain from expensive Tribunals.
Even if there really was insufficient opportunity to inform voters of the reasons to vote yes or to rebut the arguments for voting no, the Government have only themselves to blame. Minister Howlin has been at pains to stress that this amendment has not been picked out of thin air, and that work on it has been ongoing for a year – yet few people in the general public heard of it until very recently. Moreover, the proposal leap-frogged other amendments such as the constitutional amendment on children, which was first proposed 18 years ago and has been under active development for almost five years, but on which a final wording has yet to be agreed. It is impossible to escape the impression that the Inquiries referendum was rushed, and that its timing, alongside the Presidential election, was poorly judged (a point conceded by Minister Pat Rabbitte before the referendum).
The fact remains that the majority of vocal opponents of the amendment were not opposed in principle to Oireachtas Inquiries; their opposition was to an amendment which was worded in such a way as to limit the possibility of judicial supervision of such Inquiries. As one individual wrote on Twitter on Saturday night, this was not a vote against political reform, but a vote in favour of proper political reform. Minister Howlin has already suggested that he remains committed to establishing a system of Oireachtas Inquiries, which means he may well try again on this issue. If he is to succeed, he would do well to listen carefully to an electorate who made a decision on Thursday that was not based on misunderstanding or misinformation. This means adjusting the wording of the amendment to leave no doubt that individuals whose rights are trampled by Oireachtas Inquiries can seek the vindication of those rights in the courts.
Dr Conor O’Mahony lectures in Constitutional Law at University College Cork
