Submission to the Members of the Convention on the Constitution from Two Rights Now!
(1) General matters relating to the Constitution;
(2) Lowering the age of eligibility for voting to 17 years from 18 years;
(3) Reducing the Presidential term from seven years to five years, to coincide with local elections and elections to the European Parliament.
1. We are three senior, Irish citizens; we are also parents and grandparents. We have a 25- year track record (shared with many others) in pursuing human rights issues, notably dealing with abuses at the hands of Church and State, sometimes in collusion with each other. We also have life-long involvements with voluntary activity such as scouting, utility cycling, consumer representation and lobbying, local government, an Taisce, etc. We got together formally recently to campaign against the “Children’s Referendum”, mainly because we believe that the State couldn’t be trusted to pursue children’s rights, seeing as it has failed to meet its two child-specific obligations to children in the Constitution already. These are (i) the right to free primary education and (ii) the right of any child to attend any school which is publicly funded without being indoctrinated in a religion, if that is the wish of its parents, and to do so in a way which is not to the child’s disadvantage.
2. We have a website, www.tworightsnow.org, where you may read detailed CVs and related information.
General Matters relating to the Constitution
3. We are very conscious that the members of the Convention are privileged to embark on what is a first in modern Irish history – a prompter of reform and refreshing of our 75 year old Constitution. When one considers how undemocratically De Valera’s Constitution was composed by a very elite group, quite untypical of Irish society, it has served society remarkably well, due in no small measure to judicious and perhaps too-sweeping interpretations by our superior Courts. We wish all the members well in their work in the time ahead. We hope that you will chart the way to a Constitution fit for a real Republic (in place of a State more akin to a neo-theocracy), where the Constitution is reduced to a minimum, leaving ordinary laws to take care of changing social mores, demographics, and technology. The excess detail contained in the original Constitution is exemplified by the 30 referenda held since 1937, (with mean turnout of only 51%) together with over 30 changes made to the original document by Parliament during the transitional period, 1937 – 1941.
4. With a republican approach in mind, we call on the Convention to endorse the recommendations of the United Nations Human Rights Council and the Whittaker Commission on the Constitution (1996) to require a similar change in Articles 34.5, 12.8 and 31.4, in each case to allow a person who does not believe in God to become a judge, President, and a member of the Council of State, without making a false declaration in the manner now laid down. The existing provisions in these Articles are in themselves in breach of another Article, 44.2.3, which states that “The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.” We contend that the fraction of the adult population of Ireland who are not religious in disposition is considerably greater than that purported to be the case by the CSO’s statistics as determined in quinquennial censuses, for reasons which we shall not go into here.
5. We would urge you to make decisions to reduce, rather than add to, the Constitution, because
- The Constitution is hard to change once a matter is included. In contrast, ordinary (aka Statute) laws, and regulations derived from them, are easily changed by the people we elect to Dail and Seanad.
- Court judges are the final arbiter of what the words of a Constitution mean; we can be surprised, especially if we put short sentences into it, of the meaning put on phrases by judges, all of whom are appointed by governments and none of whom are elected by, or accountable to, us. An example: the 8th Amendment to the Constitution.
- With the flow of time, there can be very considerable cultural, technological and demographic changes, dating laws or principles made in another era. By doing legal business through ordinary laws, it is easier to accommodate change.
- The Constitution is very wordy and very long. The English language version is over 80 pages long; by comparison, the English language version of the 1922 Constitution is only 34 pages.
6. We invite the Convention to give consideration to the recommendations made by the Whittaker Commission on the Constitution (1996) in respect of those elements it is charged with considering. It should also consider the Colley Commission’s recommendations of ca 1969 on the Constitution. The latter would strongly indicate why provisions should not be included in the Constitution which would have the effect of putting future generations in a cultural headlock.
7. We would urge you to ‘think outside the box’! If your focus entirely on that which is written in the existing 1937 Constitution, you will be drawn into focussing on the latter alone.
8. Article 25.5.4 of the Constitution requires the Irish version to prevail in any dispute as to its interpretation. As the Constitution was drafted in English, and Irish is not widely spoken or understood by the citizens at large and by the judiciary, and by the bulk of our burgeoning immigrants, we regret to feel compelled to recommend that the Convention recommend the removal of this provision of the Constitution.
9. You are free to make recommendations which would be implemented in law, regulations or guidelines which do not have to be inserted into the Constitution.
Lowering the Voting Age to 17 from 18 years
10. If you members typify Irish society, you won’t have a family copy of the Constitution (unless you were educated in a fee-paying private school, surveys show!), nor will you have studied it in school. So already, in our view, Irish citizens are very poorly educated in civics, knowledge of their Constitution, human rights and obligations, consumer law, employment and local government law. That situation will remain, in our view, until a comprehensive civics subject is examinable and obligatory in the latter years of all pupils’ primary education and in every secondary school. The necessity for this is all the more pressing given the large number of migrant scholars to Ireland from developing nations.
11. We advise that the Convention does not recommend a reduction in voting age to 17 years for the purposes of those elections covered by the Constitution.
12. However, if the Convention is so minded to lower the voting age, we suggest that it advise that this be done for local government elections only in the first, pilot, instance.
13. If the Convention is determined to recommend lowering the voting age for Dail and Presidential elections and for Constitutional amendments we recommend that its recommendation should not be brought into force until such time as a full cohort of students pass through compulsory civics courses in school.
Voting for other citizens
14. The growing migration into Ireland (and out of, in reciprocal fashion) of citizens of other States who find gainful employment here, raise families, participate in society and are, voting rights apart, essentially indistinguishable from native-born citizens, has created an unhappy and unhealthy alienation amongst them. We believe that it is time that these migrants were granted parliamentary voting rights in Ireland and that this might be done in reciprocal arrangements with their country of origin, using the EU and UN as the means of bringing this harmonisation about. This would be consistent with the several Articles of the Constitution which feature citizens and citizenship (Article 9, 16, 40, 44, 44, 47). It is a fact that Irish judges habitually accord to those immigrants (who don’t have voting rights) the attributes of citizenship in other matters heard before the Courts.
15. We advise the Convention to consider making recommendations to broaden or ease the entitlement of immigrants to vote in parliamentary elections (They have the vote in local elections already), and to recommend that this be done via ordinary laws and regulations rather than via a Constitutional amendment.
Reducing the Presidential Term of Office from Seven to Five years and harmonising it with EU and local elections
16. Some years ago the local elections were synchronised to coincide with the quinquennial EU elections, most likely because the turnout (percentage of the voters’ list who voted) was uncomfortably low in EU elections. The principal reason for the latter was that it did not matter much to the voter who was elected to the EU Parliament. The turnout in all elections has been falling because the register of voters is inaccurate: voters who died, moved on elsewhere or emigrated are not being removed as they once were from registers. This is extremely difficult to do in urbanised rural areas, for the reason that nobody has an official house number in old streets and only town councils are empowered to legally assign house numbers to old streets! Secondly, county councils are no longer calling door to door to compile the register and thirdly neither are political party activists who used do this, for the reason that there are fewer activists now. Thirdly, computation of the turnout is usually based on the total number of voters in a constituency; the growing number of ineligible voters (ca 2%, of foreigners etc) is ignored.
17. Voter turnout can be increased if Government alters the procedure for compiling registers. Turnout in elections can be increased if voting is made compulsory, with modest fines for not voting. Australia is a country which has such a system and secures very high turnouts as the norm. Synchronising elections helps cut costs of running elections. However, these costs can also be cut if the number of voters per station is increased to reflect the lengthened voting hours and to reflect the most efficient local authority areas. (Recently, Dublin had 1,000 voters per polling station, whereas an adjoining county had 500 voters per station, even in urbanised areas; this is pure waste in the latter case.) At present the determination of this is a matter for a legal personage, the County Registrar. It should be reassigned to the County Manager.
18. Turnout in Presidential elections has been falling. We suggest that this is because the election is widely perceived to be an honorary function, a perception aided and abetted by the media. So the election turns on who is the most personable candidate, the person who best did their last job, a post of honour. Once elected, the President is perceived to spend their time making bland speeches at social functions, receiving dignities from at home and abroad. This is gravely false. The most important job the President has is his or her right to consider, after consultation with the Council of State, of Bills which are referred to him or her for signing into law, whether they appear to be Constitutional or not. And if not, to refer them to the superior courts to test their Constitutionality or part of a Bill as the case may be. While the President is not accountable to the Oireachtas, we ask: why is the President not accountable, and indeed the Council of State for its advice to the President, to the public who elects him or her for this decision-making power? There is nothing in the Constitution as it stands to prevent the President from acting transparently in respect of his or her consideration of Bills. Why should we not expect informed citizens, or groups, to write to the President exhorting him or her to consider referring Bills to the Courts?
19. Presidents are slow to refer Bills to the Courts. This is because in July 1941, during the period of transition after the Constitution of 1937 had been passed in the plebiscite of the people, the De Valera Government exercised its power to amend the Constitution as it had been passed by an Act (2nd Amendment of the Constitution Act, 1941) to preclude the consideration ever again of a Bill (or part of one) the Constitutionality of which had been once considered and determined by the superior courts. This Act actually amended 30 parts of the Constitution, most in a minor way, but Article 34 was amended – at the prompting of one civil servant – to prevent going back on Bills which had been cleared. This was a major mistake which should be reversed. An example: the decision by the Court that the Act legitimising provision for the compulsory fluoridation of drinking water was taken on foot of allegedly false evidence sixty years ago and, in any event, modern research suggests that fluoridation isn’t as innocuous as it seems to all people. This amendment to Article 34 freezes the Constitution for all time, notwithstanding cultural, demographic, scientific and other developments in the meantime. An example of a Bill that ought to have been referred to the Courts includes the Planning and Development Bill, 1999, in respect of the powers given to planning authorities (ie, county councils) and the office of Public Works to be judge and jury of their own development proposals, without any right of appeal, such as exists to an Bord Pleanala for others developments.
20. We content that if the President was more accountable to the public for his/her important decision making and the amendment to Article 34 were reversed (enabling the President to do his or her job better) we, the public, would have more regard for that office holder when choosing one, and thus the turnout in Presidential elections would be higher.
21. At present we vote for them and then there is no accountability from them to the electorate until the next Presidential election. The election is now more akin to a ‘Rose of Tralee’ contest, or a plebiscite on the government in office.
22. A related issue in Presidential elections is the difficulty political parties have in securing nominations of candidates for the office. A Constitutional mechanism for enabling a large number of electors to nominate a non-party candidate should be explored.
23. At present elections to the Dail are held not less frequently than once every five years. The period has been set by ordinary or Statute law. However, constitutionally Dail elections need not be held until seven years have elapsed (Article 16.5). So it is merely a matter for a Government with a majority to change the Act from five to seven years or some other period less than seven years. There is merit in having governments in office for a period of longer than 3.5 (the typical period of office under the current strictures) years, particularly in difficult times such as the current one.
24. There is, in our view, merit in NOT have the Presidential term of office coincide with any other elected arm of government, local, national or international. (We may not always be members of the EU!). While not thought of often, a President may resign from office before his or her term expires. Two such Presidents have resigned in recent times – O’Dhalaigh and Robinson. We recommend that the Convention express support for the current term of seven years remaining as it is. We advise that the other changes we have advocated, namely accountability or transparency from the incumbent be created, either by Statute law or Constitutional amendment, or, indeed, by custom and practise, or perhaps by an amendment of the FOI Act and that the undesirable amendment made to Article 30 of the Constitution be revoked.
John Colgan johncolgan [at] iol.ie 01 6244631; 085 100 73 69
Mike McKillen mike [at] mckillen.com 01 269 4210; 087 231 46 13
Dick Spicer dickspicer [at] gmail.com 01 286 9870; 086 609 57 99
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