The Dynamics of Constitutional Change

The Dynamics of Constitutional Change

Saturday 5th May 2012
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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