Last week, we began our shadow constitutional convention with an essay on the dynamics of constitutional change. This week, we continue on the theme of constitutional change with this essay by Dr Conor O’Mahony, Lecturer in Constitutional Law, University College Cork, where he considers the case for reforming the mechanism for constitutional amendment.

Constitutional Reform: Reforming the Reform Process?

In debates on constitutional reform, it is customary for the discussion to focus largely on the substance of reform (ie discussing individual issues or constitutional provisions), with significantly less attention given to the process of reform (ie how we actually go about reforming our constitution). This is regrettable, since the latter is the gatekeeper to the former; the process will ultimately determine the form, quality or even the very possibility of any substantive changes to the constitutional text. In many jurisdictions, Ireland among them, the legal and especially the political hurdles that must be cleared in the constitutional reform process can sometimes act as a barrier to necessary reform. To the extent that this is so, it begs the question of whether the reform process itself is ripe for reform. Unfortunately, this issue seems to be outside the scope of the current Constitutional Convention; this brief essay will raise a few of the central issues that might have been debated.

The Irish Constitution provides just one method by which the text may be amended. Under Article 46, constitutional amendments must be initiated in the Dáil, and require the approval (by simple majority) of the Dáil, the Seanad and ultimately the people in a referendum. (Of course, as I have written elsewhere, significant constitutional changes also occur through judicial interpretation without any formal amendment of the text, but that is a debate for another day.) Article 46 lays down a less burdensome process than, say, Article V of the US Constitution, which requires constitutional amendments to be approved by a two-thirds majority of both Houses of Congress and subsequently ratified by the legislatures of three-quarters of the 50 States of the Union. Such is the difficulty of negotiating this process that almost everybody agrees that Article V is effectively defunct at present – all the more so given the polarised state of US politics. Nonetheless, in spite of Ireland’s comparatively frequent rate of constitutional amendment (26 amendments in 75 years), our political culture is such that there are several reasons to believe that Article 46 is not as responsive or flexible as perhaps it should be.

The first relates to the inherent conservatism that is generated by the lack of a clear left/right divide in Irish party politics. Constitutional amendments cannot even be put before the people in a referendum without the support of the government of the day, and the government has always been dominated by one of two centre-right parties, Fianna Fáil or Fine Gael. These two parties are competing within the same space on the political spectrum, and are generally unwilling to adopt anything resembling a real reformist agenda – especially on social issues – for fear of alienating conservative voters without whose support they cannot hope to win the next election. As the dominant coalition partner, this innate conservatism is projected onto the junior partner (and by extension onto the Dáil as a whole).

Second, there is the nervousness that has built up around the question of referendums and constitutional amendments over the past 30 years, beginning with the experience subsequent to the Eighth Amendment on the right to life of the unborn in 1983. This amendment, which was drafted in terms that the late Professor John Kelly described as trying to achieve the impossible, was enacted on foot of a highly divisive referendum campaign, and later led to a series of highly public and similarly divisive court cases, as well as two further referendums in 1992 and 2002 (one of which put three separate amendments to the people). All of this was the stuff of nightmares for Irish politicians, and is the direct cause of their abject failure to pass any legislation that remotely touches on issues concerning the unborn. In turn, this has generated further court disputes around frozen embryos and sperm donors and ultimately led to Ireland being found in breach of the European Convention on Human Rights (ECHR) in the A, B and C case in 2010.

In the past decade, the political embarrassment caused by the defeat of both the Nice and Lisbon treaty referendums, as well as the Oireachtas Inquiries referendum last Autumn (not to mention similar potential surrounding the pending Fiscal Treaty referendum) has given politicians further cause to dread the referendum process. Experience shows that it is easier to advocate a No vote than a Yes vote, particularly on complex issues: suspicious, confused or uninformed voters generally vote No, or at best abstain. The result of this is that governments generally do not pursue an amendment without the support of the main opposition party, and the scars of the aforementioned campaigns are likely to steer future governments away from most amendments other than easy-win issues such as the recent amendment on the reduction of judicial pay and referendums required to ratify European treaties. (It will be interesting to see what happens to the proposed amendment on children if the Fiscal Treaty referendum is defeated – in such an event, it is conceivable that the promised referendum will not be held at all, or at least that the wording of the amendment will be greatly diluted – all because of the result of a referendum on a completely unrelated issue.)

A prime illustration of the conservatism and nervousness discussed above can be seen on the question of reforming the definition of the family to reflect the dramatic change from 1937, whereby one in three births takes place outside of marriage, and many couples (both same-sex and opposite-sex) co-habit without marrying – but Article 41 of the Irish Constitution only protects families based on marriage. The European Court of Human Rights recognises family life for the purposes of Article 8 of the ECHR once appropriate family ties exist between the parties, focusing on function rather than form, and the Constitution Review Group in 1996 recommended that Article 41 be amended to similar effect. Simple demographics and prevailing norms make it overwhelmingly likely that a properly worded amendment on this issue would be passed, possibly by a large majority. However, in 2006, the All Party Oireachtas Committee on the Constitution, having described the Review Group’s proposal as “comprehensive, well-articulated and apt”, recommended that no change be made, on the basis that that “to extend the definition of the family would cause deep and long-lasting division in our society and would not necessarily be passed by a majority”, and stating that it did not wish to invite “such anguish and uncertainty.” In other words, the main political parties would rather duck and cover than pursue necessary constitutional reform on an issue that affects huge swathes of Irish society. The narrow scope of the current Constitutional Convention is further reflection of this reality.

The question of whether the Article 46 reform process is working properly is a large and complex one that would require far deeper consideration than I have given it; but if, for the sake of argument, we assume it is not working properly, what are the alternatives? One possibility – that would circumvent the political culture that I have described – is to adopt a form of direct democracy, whereby constitutional amendments could be initiated by petition of the people (through the collection of a set number of signatures) without any involvement of the Oireachtas. This sounds radical, but in fact it is quite a common procedure, employed in many individual States across the US for amendments of their State constitution (California being the prime example), as well as in other countries such as Switzerland. Indeed, a version of this was included in our previous Constitution, the 1922 Irish Free State Constitution (Article 48). So, for example, advocacy groups supporting reform on the definition of the family could formulate an amendment and have it placed on a ballot at the next election by the collection of, say, 100,000 signatures. The proposal would still require the support of a majority of votes (simple or qualified) in order to pass – but questions on which significant support exists could be posed to voters without that opportunity being denied simply because politicians would rather not publicly take a position on the particular issue.

Of course, direct democracy comes with its own disadvantages. Overly regular amendment campaigns may destabilise the constitution (which is intended to provide stability) or cause referendum fatigue among voters. Amendments might be poorly drafted, or at least less well drafted than if they came through the various processes of deliberation and scrutiny associated with passage through the Oireachtas. In a tense political atmosphere, the people might rush to judgment and enact a constitutional amendment without sufficient reflection or debate. The rights of unpopular minority groups might find themselves too easily trampled by a hostile majority – witness the passage of the constitutional ban on the construction of minarets on Mosques in Switzerland in 2009 as an example.

However, it is by no means clear that the Oireachtas does any better than the people at large on any of the above scores; and international experience shows that it is possible to construct procedural safeguards that mitigate such dangers. Initiative proposals could be restricted to occurring when another election is being held. The number of signatures necessary to initiate an amendment, and the number and margin of votes necessary to pass it, could be set higher. Approval at successive elections could be required to ensure that the commitment to reform is deep-seated and not just a symptom of inflamed passions. Some constitutional provisions could be made immune from the initiative process. The wording of amendments could be scrutinised by the Attorney General’s office before being finalised.

It is not my intention (at least at this point in time) to advocate the adoption of direct democracy constitutional amendment procedures in the Irish Constitution – but I would argue that at the least, they are worthy of detailed consideration. They have the potential to make constitutional reform in Ireland far more responsive and inclusive, and to give the people at large genuine ownership of the process – indeed, far more so than the somewhat tokenistic inclusion of randomly selected citizens on the current Constitutional Convention, whose report might never result in a single referendum being held (if the Report of the Constitution Review Group is anything to go by). We have seen governments avoid vital reform on issues such as the Family and string out reform processes that they claim to be committed to (like the proposed amendment on children, the first version of which was published as early as 2007), while simultaneously attempting to rush through other amendments without proper consideration or debate, like the Oireachtas Inquiries amendment. The primary causes of this have been party political ones. Is it not time to at least start discussing whether there is a better approach to constitutional reform, where the people, and not the political parties, set the agenda?

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At 9.15 am Strasbourg time today, the Grand Chamber of the European Court of Human Rights will hear a complaint relating to the extraordinary renditions programme for the first time. In El Masri v Macedonia the complainant, Khalid El Masri (left)—a Lebanese national but German resident—will claim that Macedonia’s refusal to instigate a full and proper investigation of his rendition, together with the state’s direct involvement in the rendition itself, constitute a breach of the Convention. The application claims breach of Article 3 (torture and inhuman or degrading treatment or punishment), Article 5 (liberty and security) and Article 13 (effective remedy).
Mr El Masri alleges to have been seized by Macedonian agents and held by them for 23 days, before being handed over to the Central Intelligence Agency in Skopje. He claims that he was then ‘rendered’ to Afghanistan where he was detained, interrogated, subjected to sustained violence, force-fed (having been on hunger strike) and denied access to doctors, lawyers, diplomatic representatives and so on. After four months detention in Afghanistan he claims that he was returned to Europe. El Masri has attempted on several occasions to uncover the truth of what happened to him. How did Macedonian agents know that he was travelling from Ulm (in Germany) to Skopje such that they intercepted his bus and removed him? On whose orders and based on what information was he identified as a suspected terrorist? The United States has admitted that it made an “error” in the case of Mr El Masri, but the full picture of what happened has still not emerged. Macedonia has been asked for information as to the rendition of El Masri and Macedonia’s involvement in it by Germany, Spain, the Council of Europe and the European Parliament but satisfactory responses have not been forthcoming. For this reason, one presumes, the Open Justice Initiative is framing this as a case about ‘the right to the truth’.
This is a monumentally important case for the Convention and for Article 3. In some senses it is the most straightforward case imaginable to bring to Strasbourg because the involvement claimed is direct (Macedonia had ‘hands on’ involvement), verifiable (passport stamps and scientific evidence verify location), and the fact of rendition is not denied. There are many more complex cases in which questions as to jurisdiction and complicity under the Convention raise serious questions, the answers to which re not entirely clear (particularly where indirect involvement is alleged, such as intelligence sharing and facilitation through over-flight and stop-over rights). What will, perhaps, be most interesting in today’s hearing is the approach taken by Macedonia to the claim. Article 3 is one of the few Convention rights categorised as “absolute”; these are precisely the cases that test that alleged absoluteness. The idea of a right to the truth is, of course, more or less a rhetorical one but the rhetoric here is powerful. If Article 3 is to be successful as a protective provision it seems that actions violating that article must be disclosed with disclosure being a cogent form of accountability here, especially as torture has always been said in the jurisprudence of the Court to carry a particular “stigma”. Domestic procedures can be circumvented or, indeed, simply not established such that accountability-based disclosure does not happen; today will test whether the European Court of Human Rights can effectively push back against that potential in the dark world of rendition.
Readers will be interested to see that the hearing is due to be webcast on the Court’s website; it ought to be possible not only to watch live but also to ‘listen back’ afterwards. Further background information on the case is available here.

Cross posted from IntLawGrrls

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We are delighted to welcome this guest post by Colm O’Gorman, Executive Director of Amnesty International Ireland. It considers the need for UN reform in light of the Syrian crisis. This piece first appeared in the Irish Examiner on May 3rd.

A couple of months ago I was watching a BBC report from the city of Homs, in Syria. At the end of the clip, a small group of young men dashed across rocky ground at night. They were burying a seven-year-old girl who had been killed that day. They were doing it at night because it was too dangerous to bury the dead in daylight.

Since the uprising in Syria began in March 2011 the images and testimonies coming from victims and survivors have been graphic and disturbing. But somehow, this stood out. A nameless young girl killed, but no time to mourn, instead a hurried burial under fire by young men risking their lives for a dead child.

This little girl was just one of the victims of the fighting in Syria. Peaceful protests for reform in February 2011 were met by guns and thugs. Amnesty International identified numerous cases of attacks on civilians by the Syrian security forces and an epidemic of the most brutal use of torture against anyone suspected of opposition sympathies. Hundreds, including children as young as 12, were tortured to death in detention centres, and even hospitals

In response, many protestors took up arms and the resulting conflict has left at least 6,000 people dead, though the real figure is likely to be far higher. Tens of thousands have fled the fighting to seek refuge in Turkey or Lebanon.

And for most of this the United Nations has proved able to do little more than issue pleas to both sides for the fighting to stop. They were ignored. The conflict worsened, becoming more intense, more brutal.

It is important to understand the United Nations did not fail to act in Syria because of indifference. It did not fail because of a lack of resources. It failed, and is in danger of failing completely, because powerful nations on the UN Security Council put their political interests ahead of human rights and, more particularly, ahead of the interests of the Syrian people.

Russia and China together used their veto on the UN Security Council to protect the Syrian government, giving President Assad immunity at the international level.

Instead of a forum where the world’s most powerful countries come together to ensure peace, stability and the protection of fundamental human rights, the UN Security Council has become a battlefield for the major powers. Each protects their allies, regardless of the crimes they committed. Days after one of the vetoes on Syria, the United States used its veto to block a resolution condemning the construction of illegal Israeli settlements in the West Bank.

The UN’s record of failures presents us with a hard question – do we abandon a system that so many people believe is discredited and feeble, prevented from doing its job by the machinations of the major powers?

But if we do, what is there to replace it with? UN peacekeepers have failed in many places, but they have also succeeded in others. Without the United Nations there is no global organisation acceptable to almost all the countries of the world. Abandon it, and we are even more at the mercy of power politics.

The reality is that we must continue to work within the UN system, not because it is perfect or even because it works most of the time, but because there is no alternative.

The UN can be reformed. What is broken can be fixed. But it will require courage to challenge those who want to maintain their veto power, to find ways of working around them if they refuse to enter the 21^st century.

Ireland can play a role in this. We are a small nation, but one with a proud reputation within the UN for peacekeeping and support for human rights. UN reform might not be a domestic political priority for many governments, but it traditionally has been for Ireland. It may take decades to achieve change. But without it, we will watch other countries collapse on our TV screens and wonder why so little is being done.

None of this however, will help anyone in Syria today.

They cannot wait for UN reform. They are dying now. They are being tortured now. We need to do what we can with the tools available to us today, however imperfect.

The UN must move quickly to establish a larger presence on the ground to report on implementation of the Kofi Annan peace plan. They need a lot more than the bare 30 observers already deployed. The decision of the Irish Government to send Irish soldiers to Syria as unarmed military observers should be welcomed, but more countries need to follow this example, and do so quickly.

Since the UN mission began its work on 16 April Amnesty International believes more than 360 people have been killed. Reports have come in steadily of people who give evidence to UN observers being arrested or even killed by Syrian security forces. Violence surges in towns and communities directly after UN observers leave.

Unless a fully resourced team is sent immediately serious human rights violations will continue. The UN must also find a way to ensure that those who come to them are not targeted afterwards. Russia and China, who supported the sending of observers, must put pressure on Assad’s government to abide by the Annan plan and not retaliate against people who speak to the UN mission.

Right now, what is needed most in Syria is peace. But ultimately, the Syrian people need something else. They need, they deserve, justice.

Syrian security forces have deliberately shelled civilian areas, shattered communities and torn families apart. Reliable reports indicate armed opposition groups were involved in the execution of prisoners and in attacks that killed civilians.

Those responsible for what has happened in Syria must be punished.

When the UN Commission of Inquiry on Syria reported in February 2012, it gave the UN High Commissioner for Human Rights a sealed envelope containing the names of those responsible for crimes against humanity.

Last week saw former Liberian head of state Charles Taylor convicted of war crimes. The month before, the International Criminal Court delivered its first conviction – a Congolese warlord.

Many of those who committed war crimes in the former Yugoslavia and in Sierra Leone and who thought themselves safe from prosecution have been sent to prison. The same must happen, however long it takes, for the war criminals of Syria – regardless of whether they killed to protect, or to overthrow, the Assad government.

The international community has a habit of promising, in the aftermath of atrocity and disaster, ‘never again’. We heard the same empty promises after the massacre in Srebrenica and the systematic slaughter in Darfur.

But it has happened again. And unless the people responsible are brought to justice and seen to be punished –  unless the United Nations is reformed to put human rights and the protection of civilians first – it will happen again. And again. And again.

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The Surrey European Law Unit (SELU) is proud to host an interdisciplinary workshop on the theme of ‘A Europe of Rights: the EU and ECHR’. The workshop is aimed at young as well as established scholars and practising lawyers with an interest in human rights law and policy.

 Dean Spielmann, Judge of the European Court of Human Rights and President of Section V of the Court will deliver the keynote address on 8 June 2012.

If you would like to attend the workshop please register your place at http://www.surrey.ac.uk/SELU/

If you would like to attend the keynote address on Friday 8th June only please register your place at fbelevents@surrey.ac.uk. Registration for the keynote address is free.  

Please visit our website for more information http://www.surrey.ac.uk/SELU/

The Programme of the Workshop:

Friday, 8 June 2012

17:00    Registration.  Wine Reception.

18:00    Key Note Address – Judge Dean Spielmann (European Court of Human Rights)

Saturday, 9 June 2012

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A Master’s level student is required for a 10 week summer research project (Lost Lives), with work to be remunerated to the sum of €2,500.  The project will be looking at the intersection of natural disasters and human rights focussing on the events (during and after) of Hurricane Katrina in New Orleans, USA.   There are two parts to this project; the first of which will include archival and secondary literature searches on topics that arise from this question, including but not limited to unequal access to assistance, enforced relocation, discrimination (in provision of assistance), sexual and gender based violence, unsafe or involuntary return or resettlement and issues related to property restitution.   The research student would be required to build a bibliography or relevant material and then to turn to the particulars of Hurricane Katrina.  The second aspect of the summer project would be to build a data base of academics and organisations that are currently looking at this issue with a view to establishing links.  Finally, this information is to be incorporated in to preparing a research grant.

Whilst a student who has a law background, preferably in public international or human rights is desirable, a student coming from the social sciences would also be considered.  Importantly, the student must be able to undertake independent research and be familiar with database and other research tools.  Along with assembling the relevant legal requirements, a secondary research component will be collecting information regarding data base assemblies and ongoing historical records compilations that are ongoing in New Orleans.  Fluency (oral and written) in English is essential, good computer skills a plus. Interested students should email me their CV and a brief cover letter to Kathleen.cavanaugh@nuigalway.ie by no later than May 15^th.   Please note that the project must be completed by the end of August so students must be ready to begin the project by June 11^th, at the latest.

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Recently, we announced a "shadow constitutional convention", an essay series on the Constitution and political reform running through this summer. In this first post, we are delighted to welcome a reflection by Dr Carol Coulter on the dynamics of constitutional change. This is the text of a paper Dr Coulter recently delivered at the Burren Law School.

The Dynamics of Constitutional Change

In February 2010 The Irish Times ran a series called “Renewing the Republic” in which a number of individuals from the worlds of politics, the arts, economics and comment outlined their diagnosis of the situation in which we had found ourselves and their suggested solutions.

Among the contributors were political commentator Naoise Nunn, writers Declan Kiberd and Theo Dorgan, Fiach MacConghail, Gary Joyce, and half a dozen others, and the series provoked hundreds of written responses from readers wishing to engage with the issues raised.

Naoise Nunn was the first to raise the issue of a new Constitution, proposing that the existing reports on the Constitution, relating particularly to Seanad Éireann, the President, the courts and the judiciary, abortion, the referendum, parliament, government, private property and the family, should form the basis for a series of public meetings and debates about how we want to imagine our society for the future. Such a debate should culminate in a constitutional convention, he suggested.

He continued: “Some of the questions we might ask ourselves could include the following: Should we have a full separation of church and State that acknowledges a secular approach to governance while guaranteeing rights to all faiths and none? Do we need a fundamental reform of the electoral system that delivers a streamlined and efficient legislative assembly whose members are not slaves to parochial issues that are better dealt with by local government?

“Does local government need to be rationalised and strengthened with local tax-raising powers and elected members and officials held responsible and accountable for local budgets and policy? Does the Civil Service need to be radically overhauled to deliver real progress and results that respond to the needs of a modern state?

“Does the Seanad need to be reformed to provide an expert consultative role in a range of modern disciplines as an assembly of, for example, world-class engineers, financial and banking experts, environmental specialists, physicists, geneticists and creative people drawn not just from this country but from its vast diaspora?” he asked.

Declan Kiberd questioned the ethos and practice of the current crop of senior civil servants, comparing them unfavourably with their predecessors who tore up a postage stamp in order to reimburse the State whenever they made a call on the office phone to a member of their family.

“The salary-proofed group of senior public servants must include many who facilitated or propounded some of the weirder policies of the Tiger years: a reliance on taxes generated by a short-term property bubble to fund basic structural and social spending, and a serious undercapitalisation of education from primary schools to universities,” he said.

He also challenged the structure of our Dail. “Better by far to reduce the number of TDs to about 75; to bring in new kinds of leaders with experience in various walks of professional life; and to pay such people a competitive salary (but with no frills or extras) for running a country rather than a local clinic.

“It seems unlikely that a political class which allowed so many problems to germinate in the days of plenty could offer many real answers in a time of austerity. Only a completely new political movement, perhaps in tandem with youth sections of the current parties, could tackle the challenges.”

Gary Joyce speculated on what a happy and prosperous state might look like: “It might mean low unemployment, a free and fair health service, a good education system that starts at pre-school, a vibrant cultural life, proper supports for the most vulnerable, healthy and safe communities, low levels of crime, and so on . . .

“Do we want an Ireland that’s based on the principles of equality and inclusion for example, or would we prefer to build an engine for economic growth, in the hope that – in 1960s Taoiseach Seán Lemass’s famous words: “a rising tide will lift all boats”?” she asked.

“The consideration of the questions that matter – rather than the formulation of the answers – might lead to a useful national conversation about our goals and ambitions and the trade-offs that we are willing to make to achieve them.”

Summing up the debate, an editorial in The Irish Times pointed out that there was no consensus on the details, but that four broad themes had emerged.

“The first and most obvious (obvious, that is, to everyone except the Government) is that there is a deep crisis, not just in our economy, but in our democracy. The implications of this perception are radical: there is no great confidence that a mere change of taoiseach from Brian Cowen to Enda Kenny would in itself be an adequate response to our situation.

“The second common theme is the need for radical institutional reform. Especially from those who are not veterans of the system, there is a sense of utter disillusion with the nature of the Dáil, or what Declan Kiberd called ‘160 high-maintenance ward-heelers who open their main shop for business on just 96 days a year’. Our political institutions need to be reshaped both to bring democracy closer to the people through real local government and to create a parliament that actually holds government accountable.

“Yet – and this is the third theme – no one seems to believe that institutional reform will work on its own. The political culture has to change. And that is a challenge to the electorate as much as to politicians.

“Finally, Renewal will not be driven from above – it can only come on a wave of civic engagement with the task of constructing a democracy, as if from scratch. The call for a National Citizenship Forum, as suggested by Fiach MacConghail, or a ‘citizen assembly’ as proposed by David Farrell and sketched out by Helena Kennedy, may well offer a concrete way forward.”

In other words, those engaged in the debate were concerned with a kind of moral regeneration, and also with a root and branch reform of the political and administrative system, tackling clientelism in politics, changing the relationship between politicians at all levels and the people and making the executive, including the permanent government, accountable.

Similar sentiments were expressed on a number of websites and in radio programmes around this time.

In April 2010, month after the conclusion of the series, Labour leader Eamon Gilmore, addressing the Labour Party conference, said: “It is time, in my view, for a fundamental review of our Constitution. There is much about the Constitution that has served us well, but it is document written in the 1930s for the 1930s, a time when one church was considered to have a special position and women were considered to be second-class citizens. And if we are to truly learn from the experience of the last 10 years, then we need to look again, in a considered way, at the fundamental rules that bind us together.

“Our Constitution belongs to the people, not just to political institutions. So, this must be a people’s process. What I propose is a constitutional convention: a coming together of all strands of Irish society to redraw our Constitution.

“The constitutional convention would include experts and specialists, but would also include individual citizens, randomly chosen to serve in much the same way that we choose juries.

“Charged with the task of keeping what is best in our constitutional tradition and to develop a new constitution, fitted to our times and our aspirations.

“Let us set ourselves the target to have it ready for the 100th anniversary of the 1916 Rising, that seminal moment when our State was conceived.”

I point this out, not to claim Irish Times provenance for the idea, but to point to the contrast between what those previously engaged in the debate had hoped for and what finally materialised as a proposal from the new Government, elected 10 months later, and four months after the arrival of the EU/IMF.

The Programme for Government included a commitment to establish a constitutional convention stating that such a convention would:

Review the Dail electoral system;

Reduce the Presidential term;

Provide for same-sex marriage;

Amend the clause on women in the home;

Remove blasphemy from the Constitution;

Possibly reduce the voting age;

And consider other amendments that may be recommended.

These were substantially the proposals unveiled last February when the government announced its plans for a constitutional convention.

What is striking about all of these proposed reforms is that none of them, with the possible exception of reviewing the Dail electoral system, could have the slightest impact on the issues of accountability and executive decision-making that led to the financial crisis, and that were identified by a wide range of commentators as needing profound reform.

Equally striking is the fact that not a single one of the items on the agenda of this convention were issues raised in the public debate on the need for such reforms that took place two years ago.

When we consider the circumstances in which profound constitutional change takes place, it is not surprising that the Fine Gael/Labour coalition that succeeded the Fianna Fail/PD/Green government is so unambitious. Despite the pre-election rhetoric, there were never any serious plans on the part of the two parties to bring about profound change in the political or economic system that had led to the crisis.

The drawing up of new constitutions is relatively rare. If we look at recent examples – a selection would include South Africa, Spain, Portugal, the Czech Republic and other former communist countries of Eastern Europe – they all followed periods of political upheaval that could truly be described as revolutionary. The constitutions that came into being marked a fundamental break with the past and guaranteed citizens new political, civic and personal rights.

They were also the product of the balance of political forces at the time. This can give rise to its own problems, as the balance of power shifts over time and the constitution does not meet the needs of the new situation.

I do not propose to conduct a survey of recently-enacted constitutions, but a quick glance at a few is instructive.  For example, a new constitution came into force in Portugal in 1976, following the 1974 revolution which toppled the Caetano regime, itself the continuation of the long Salazar dictatorship.

That revolution had the support not only of students, workers, many rural poor and many of the educated middle class, but also of the lower ranks of army officers. The 1976 constitution reflected this, committing Portugal to socialism, providing privileged status to the revolutionary army committee and putting in place a dual presidential-parliamentary system. The first president, elected with more than 50 per cent of the vote, was an army officer.

Land and enterprises were nationalised and workers' committees were given the right to supervise the management of enterprises and to have their representatives elected to the boards of state-owned firms.

However, as the balance of political forces changed, so did the constitution, and there were numerous revisions: in 1982, 1989, 1992, 1997, 2001, 2004, and 2005. These placed the military under strict civilian control, trimmed the powers of the president, de-nationalised land and nationalised firms and removed the media from government tutelage.

Similarly, the end of the Franco era in Spain ushered in the drafting of a new democratic constitution by a constituent assembly. The constitution was overwhelmingly adopted by the people in 1978. It marked a fundamental departure from the Francoite constitution in numerous ways, including the rights it afforded to the regions of Spain.

It defines Spain as “a social and democratic state, subject to the rule of law”, and provides for social rights. These are seen as the principles and directives of economic policy, they are not justiciable by individuals.

It has stood the test of time much better than its Portuguese equivalent, largely because its terms, though inspired by similar political forces (with the exception of the military), were less prescriptive.

The end of the apartheid regime in South Africa laid the basis for a new constitution there based on equal rights for all citizens, irrespective of race or colour.

It contains an extensive Bill of Rights, including what are regarded as social and economic rights. Among the rights guaranteed are the right to equality before the law and freedom from discrimination. Prohibited grounds of discrimination include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The right to human dignity and the right to security of the person are guaranteed, along with the right to life, which does not include a prohibition on abortion.

The social and economic rights cited include the right to housing; the rights to food, water, health care and social assistance, which the state must progressively realise within the limits of its resources; children's rights, including the right to a name and nationality, the right to family or parental care, the right to a basic standard of living, the right to be protected from maltreatment and abuse, the protection from inappropriate child labour, the right to education, including a universal right to basic education.

This constitution has been widely praised by people in what has been derisively described as the “human rights community”, and its aspirations are admirable.

But it is a good example of the gap between aspiration and reality. Despite the guarantee of the right to personal security, South Africa is one of the most dangerous countries in the world; despite the guarantee of equal rights for all regardless of sex, age, sexual orientation etc, and the extensive list of children’s rights, women and children are in grave danger of rape and sexual exploitation. While there have been a handful of successful legal challenges to evictions, the vast majority of people do not appear to have benefited greatly from the constitutional guarantee of the right to housing.

This gap between aspiration and reality begs the question – do constitutions matter? Do they change anything? Should we bother with a constitutional convention at all?

I think constitutions do matter, though perhaps not as much as constitutional lawyers – and indeed many political and social campaigners - think they do.

They matter in a wide variety of ways: they are symbolic of a break with the past and lay out aspirations for the future; they are permissive of a range of democratic activities; they can be both descriptive and prescriptive of the checks and balances in the organs of government of the state; they provide parliaments with a framework of principles within which to legislate; they provide judges with a philosophical and legal framework for the administration of justice; they provide political parties and civic organisations with a political framework in which to couch their policies … in short, they define the political and judicial culture of the state.

For the individual citizen they can provide a bulwark of protection for him or her against the excessive power of the state; they can assert his or her fundamental rights, both as individuals and as members of communities, which may be justiciable.

But constitutions have no meaning except within a fully functioning democracy. The world is full of finely-worded constitutions – that of the Soviet Union sounded splendid – that are totally devoid of real content.

The words on a page mean nothing in themselves. Some campaigners invoke constitutional rights as if the words in themselves can achieve something. They only have meaning when, to use the biblical term,  they are made flesh.

Fundamentally, therefore, constitutions are political. They are political in the manner in which they come into being; they are political in their content; and they are political in the use to which they are put by citizens through the political process both in the narrow sense of parliamentary democracy and in the broader sense of engagement in civil activity.

Therefore one of the most important things in a constitution is the framework it offers citizens to participate in their democracy, and the extent to which it permits – or limits – a concentration of executive power, to the detriment of citizens’ participation and democratic accountability.

It has often been pointed out that our political system, as it has evolved since the enactment of the Constitution, concentrates power in the hands of the Executive to an exceptional degree. While the Constitution declares that the sole law-making authority in the State is the Oireachtas, in practice the Executive, through the whip system, draws up legislation and can force through anything it likes. The ability of members of the Oireachtas to influence legislation, except under licence from the government of the day, is minimal.

What has emerged in recent years is that this power of the Executive is bolstered by the power of senior civil servants who provide the ministers of the day with advice. Again and again the previous government told us that its disastrous economic policy was based on the best advice available from officials, and which they did not question.

Why this deference?

One of the many fascinating things in Gerard Hogan’s recently-published book on the origins of the Irish Constitution is the implacable opposition of senior civil servants, especially the secretaries general of Finance and Justice, to many of de Valera’s proposals for the Constitution, and the equally implacable refusal of de Valera to countenance them. Can we imagine a government minister today rejecting the strongly-expressed views of a secretary general?

Yet no effective mechanism exists whereby those officials can be held to account for their advice or their stewardship. Even when they leave office they find soft berths elsewhere in the public service, prestigious positions in international organisations which are in the gift of the government, or, indeed, employment in areas they were previously regulating.

We even had the shocking spectacle, under the last government, of a humiliating climb-down on its part in its commitment to reduce the pay of senior civil servants, arguing that their pay had already been reduced by a reduction in bonuses. What on earth were public servants, already among the best paid senior public servants in the world, doing with bonuses?

All of this points to the development of a layer of senior public servants who are deeply embedded in the fabric of the state, who have a central role in the formation of policy but who have evolved a separate set of interests to that of the public, by virtue of the permanence of their positions and their privileged pay and conditions, and whose self-interest is in maintaining that position. This is not to denigrate the commitment to public service of many individual public servants, including those in leading positions, but the caste as a whole has developed its own “group think” - conservative, hostile to criticism, defensive of its reputation and position.

The ability of the Oireachtas to have a meaningful input into policy and legislation is severely curtailed by this layer and its symbiotic relationship with the ministers of the day. Some small steps have been taken towards recruiting people into it from outside, but these are insufficient.

There should be consideration of whether the public interest is served by having the top layer of the public service both extremely well-paid and permanent. It is arguable they should be one or the other – permanent, but paid more modestly as was the case in the heyday of the Irish public service, when the quality of our leading public servants was arguably better than it is now (where can we find a Sean Lester or a T K Whitaker today?); or open to replacement with a change in government, and paid in a way that compensated for this impermanence (as is the case in the US).

These suggestions are institutional rather than constitutional, but they are issues that need to be addressed when discussing the renewal of our democracy.

Any proposals for constitutional reform must consider increasing the ability of the Oireachtas, as distinct from the Government using the Oireachtas to scrutinise legislation, formulate policy and oversee its implementation. It must also consider other layers of government, especially local government, and how they interact meaningfully with people at local level.

Yet what is being proposed by this government is lessening the power of the Oireachtas by abolishing one of its houses, making Ireland one of the few unicameral parliaments in the world. New Zealand, which abolished its second chamber in 1951, is now considering how to reinstate it.

No-one contests that the Seanad needs reform. But we need more parliamentary scrutiny, not less. A smaller Seanad, directly elected by the people with PR, with a national rather than a constituency ballot on the same day as a general election (thereby removing its role as a retirement home for failed Dail candidates) could produce a vibrant second chamber that was not dominated by the government of the day.

The other branch of government is the judiciary. It has often been said, and I agree, that we have generally been well served by our judiciary, particularly its higher levels.

But our method of judicial appointment does carry the danger of undue influence by the Executive, given that it is the Government that nominates all members of the judiciary. No-one seriously contends that the establishment of the Judicial Appointments Advisory Board has altered the fundamental reality that judges are political appointees. Even if all decisions taken by the judiciary are untainted by political sympathy and outlook – which I would argue is a psychological impossibility – the perception of their independence would be enhanced by a system of appointment at arm’s length from the government, such as now exists in the UK and Northern Ireland.

In addition to scrutinising our existing branches of government, there needs to be room for popular input into decision-making, as existed under the 1922 constitution. For example, the provision to allow for the people’s constitutional amendments initiated by petition, say of 100,000 voters, should be considered.

The other issue that needs to be considered in any review of our constitution is whether the rights at present guaranteed are sufficient, and sufficiently protected (for example, the guarantee of freedom of expression is weakened by the caveat that it cannot be used to undermine public order or morality or the authority of the State); or whether we need to reconsider fundamental rights in the light of our international obligations and developing international jurisprudence.

But there is no suggestion in the plans being put forward at the moment that we can discuss any of these things in the constitutional convention. If this is truly the case, an opportunity will have been lost and another reason given to this this generation to view our politicians with cynicism and despair.

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On Thursday, June 7th 2012, the Public Interest Law Alliance and the PILS Project will host a conference in Belfast on Using international standards beyond the European Convention on Human Rights. The keynote speaker will be Asma Jahangir, an internationally recognised public interest lawyer, expert on international human rights law, and President of the Supreme Court Bar Association of Pakistan. Break-out sessions on socio-economic rights, equality and non-discrimination and NGOs and lawyer collaboration will include practitioners, activists, members of the judiciary and academics discussing how international human rights law can assist domestic rights litigation. The full conference programme can be accessed here, while those wishing to attend can register here.

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François Hollande is the first left-winger to be elected French President since Mitterand’s second term in 1988. In a semi-presidentialist constitutional system, Hollande will wield considerable influence over domestic policy, particularly if, as expected, the forthcoming two-round parliamentary elections enable him to appoint a socialist Prime Minister and Government. While the current focus of international scrutiny is primarily on fiscal policy, here I discuss the manifesto and ideology of the Socialist Party with regard to human rights in the broad sense, as well as its past record in office in this respect. This is particularly interesting given the recent rightward drift of French politics – notwithstanding the Left’s victory – on matters such as immigration and security, as well as the cultural politics of halal meat, street prayers, and – bizarrely – foreign flags. I will outline how the emancipatory ambitions of French socialism have shifted from the economic to the social and cultural realms, over the course of an anguished and ambiguous reconciliation with liberal economics.

The prevailing perception of the PS (Parti Socialiste) is often that of a relatively “unreconstructed”, “unreformed” centre-left party, the antithesis of Blair’s New Labour. This is only partly true. While this image is borne of policies such as the 35-hour week introduced during the Jospin government of 1997-2002 – and of course, Hollande’s recent campaign promise of a 75% tax band – the broader historical reality has been a marked evolution away from traditional socialist tenets on public ownership and control of the economy.

This evolution must be seen against the backdrop of the historical predominance of the radical left, which has been more or less kept from sharing in power due in part to the institutional structure of De Gaulle’s Fifth Republic – with its plurality voting and semi-presidentialist orientation.  In the post-war period, the centre-left PS only surpassed the once-powerful Communist Party (PCF) in terms of voter preference in the 1978 parliamentary elections.  This was a stage-post in the gradual but dramatic decline of the hard-left party since its hey-day of the late 1940s, when it regularly achieved a quarter of the popular vote as the largest party. Mitterand’s historic victory of 1981 was constructed partly through an alliance with the communists, initiated in 1972, and he came to power on foot of an ambitious array of sweeping economic and social reforms explicitly aimed at a “rupture with capitalism”. The “110 proposals” included plans for banking and insurance nationalisations and a wealth tax – just as Reagan and Thatcher were coming to power in the Anglophone world. While Mitterand’s government moved to implement these traditional socialist measures in 1981-1982, worsening economic conditions and capital outflow led to an about-turn in 1983-84. An austerity programme was introduced, signalling the beginning of the socialist party’s reconciliation with market economics. Thus, the global triumph of liberal economics in the 1980s reverberated in France and thwarted the emancipatory ambitions of European democratic socialism. And as Kedward noted, “the speed with which the socialists had abandoned their ambitions of 1981 encouraged a new level of scepticism about party politics in general, which spilled over into doubts about all long-established political and social institutions” [France and the French: A Modern History p 495]. The relative failure of the socialist project underpinned the more “pragmatic” trajectory of French politics in the subsequent decades; the more timid tenor of Mitterand’s 1988 re-election campaign accentuated the “end of ideology” sentiment of that period.

It is partly the very fact of this neoliberal volte-face on public ownership which explains why the legacy of Mitterand’s  14-year socialist presidency was defined  instead partly with reference to human rights – at least, a version of human rights that was reconcilable with capitalist political economy, albeit with a comparatively dirigiste orientation. The socialists never captured the commanding heights of the economy as promised, nor did Mitterand reform the executive-dominated, presidentalist structure of the Gaullist constitution of 1958 – whose introduction he had decried in the 1960s as a “permanent coup d’état”. Yet the emancipatory promises of French socialism found expression in other reforms. The death penalty was abolished, homosexuality decriminalised while poverty was attenuated due to sustained improvements in the welfare state. Mitterand’s government also created a new ministry for women’s rights. The political independence of public audiovisual communications was legally improved in relation to the Gaullist era.

The Mitterand presidency also saw an emphasis on “universal culture” through increasing state promotion of democratic culture and arts. Although some criticised a protectionist and paternalist cultural policy under the ministry of Jack Lang, culture represented one field in which the socialists aimed to deploy state power against the tyranny of dominating market forces, in the face of the earlier economic failures. The socialists were motivated by an acute awareness of culture as a site of bourgeois domination. Thus, the socialist concept of “freedom” was not abandoned in the face of Chirac’s conservative project, but re-configured to adapt to the global triumph of liberal economics.

Accordingly, while socialism in power showed up the limits of direct state intervention in the economy, its raison d’etre shifted to progressive social measures. Its identity has been substantially re-configured along these lines since its last 1981 break-through. Similarly, the Jospin government of 1997-2002 – with whom President Chirac was forced to “cohabit” – pursued few traditional socialist aims, implementing privatisation policies, but built its legacy, again, partly around social reforms and human rights. In particular, it introduced civil partnership legislation for same-sex couples (PACS). While abandoning direct state control of key economic sectors, the socialists nonetheless pursued an ambition of checking the market economy through measures such as the 35 hour week. Expenditure on public health and social welfare has remained comparatively high, with modern socialism centring on the reconciliation of social democracy with a privately-controlled economy. As Kedward notes, “‘Jospin and his minister of employment, Aubry, challenged the inevitability of state withdrawal from the economic sphere” [p 580]. Thus, “‘regulation of capitalist enterprise was back on the agenda, but with the aim of creating an alliance between the state and the market … [this] did not deny the constraint of international market forces [pp 595-6].”

Again, the legacy of socialist governance in this later era arguably lay primarily in identity, sexuality and gender: in addition to the PACS, the Constitution was amended in 1999 to facilitate a parité law tying party funding to gender quotas for party candidate nominations. This led to a “crisis of universalism”, confounding the Jacobinist notion of abstracted, unitary citizenship transcending race, religion and gender – a conception that in some lenses at least, has been as integral to the centre left as the centre right – this being a distinctive feature of French politics. Benhabib has noted of the parité reform:

“The French parité movement was unique because it faced the crisis of representativity – namely, the absence in the public sphere of a robust representation of differences among the citizens-head on without forfeiting ideals of republican universalism. It attempted to integrate women into public life without advocating either an affirmative action model as in liberal feminism or an essentialized group understanding as advocated by theorists of female difference.”[i]

Hollande’s programme follows this general socialist trajectory.  His manifesto includes a commitment to introduce marriage and adoption rights for same-sex couples (the Conseil Constiutionnel rejected a claim of a constitutional right to such last year). He has also promised to revive the ministry for women’s rights and to include 50% female ministers. He has also committed to “guaranteeing a disability section in each law”, and increasing the financial penalties on parties who do not meet gender parité quotas. Continuing the “right to culture” theme of Mitterand’s presidency, he has committed to an interventionist cultural policy, including a plan for a national “art education” programme. His manifesto also proclaims: “I will guarantee all young people, disabled or otherwise, the right to practise sport in a club or association.”

More traditional socialist aims are evident, nonetheless, in his promises to invest heavily in social housing and education, create 60,000 teaching posts, and incentivising firms to avoid redundancies through public employer insurance. He has committed to reversing Sarkozy’s decreases of inheritance and capitals gain tax. “Fiscal niches” will be closed off.

On the other hand, his discourse has arguably been influenced by recent French preoccupations with Islam and secularism, and the concern at “provocative” and “ostentatious” religious expressions in the public square. Sarkozy’s discourse appropriated some of the terrain of the National Front in this respect. Hollande has committed to retaining the prohibition on the “full” face veil and inscribing the 1905 law of separation of church and state in the Constitution  – although this would have little practical effect, it panders to a sentiment of conflating insecurity with Islam. On the other hand, his manifesto promise to accord voting rights to  non-citizens in local elections has predictably elicited allegations of “communitarianism” on the right wing.

Intriguingly, Hollande’s programme has also committed to ratifying the European Charter on Regional and Minority Languages – confronting, perhaps, yet another taboo in the Jacobinist civil religion of republican “universalism”.

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Rory O’Connell of Queen’s University Belfast Law School has set up a website which will be of interest to people teaching UK or comparative constitutional law. The website includes a chronology of events and sources relevant to constitutional law. The resource focuses on evens in UK constitutional history though also includes references to Irish, European, International and comparative developments.

The chronology is intended to help students in a number of ways. First, it gives them a sense of constitutional developments over time. Students may come to constitutional law studies without a strong background knowledge of historical events which is important for understanding the context within which constitutional law develops.

Second, the chronology includes hyperlinks direct to primary legal sources where possible (eg the official UK legislation database version of the Bill of Rights or the Constitution of the Irish Free State).

Third, the chronology has references to the political and other developments that may influence constitutional law, thus assisting students in appreciating the wider social, political, philosophical contexts. These references include hyperlinks to material available on the web which may help the students develop some of the background knowledge their lecturers take for granted. The occasional links to Wikipedia entries may surprise some people though there is a clear warning that these should only be used for background knowledge and should not be relied on in academic work.

The resource focuses on UK constitutional law. Therefore much of it covers events in English constitutional history. Given the influence that English constitutional theory has had on western constitutionalism this is a valuable resource for comparative constitutional generally. The focus is not exclusively on English developments; there are references to events in the history of the other nations within the UK and in particular constitutional developments in Northern Ireland receive attention.

The chronology includes a section on legal and political events outside the UK. This should encourage students to think about the development of law in an international context. For instance, the English Revolution of 1688 should be seen in the political context of the Nine Years’ War (William of Orange’s struggle with France) as well as the constitutional struggles during the Stuart dynasty.

This chronology is the main resource on the website. There is also a twitter feed which includes tweets on constitutional law, human rights and equality, and a blogroll  – unsurprisingly, this last includes Human Rights in Ireland.

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The Criminology Association of Ireland would like to welcome new members to join the association and to get involved in developing a network which links academics, researchers and practitioners both nationally and internationally. The CAI invites Irish and international members who share an interest in Irish criminology to participate in the association.

CAI Membership is free, and provides members with direct engagement with a wide body of professionals who are involved in the field of criminology and criminal justice in the Irish case. The CAI is linked with CRIMSOC: the Journal of Social Criminology.

The CAI organises the annual Irish Penology Conference and it plans to publish a periodical newsletter, CAI News, with information on relevant issues and events.

To find out more about the Criminology Association of Ireland interested parties are requested to contact CAI Chair Dr. Liam Leonard at liam_leonard [at] yahoo.com

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