THE CONSTITUTION’S REPLACEMENT IS DESIRABLE
THE CONSTITUTION’S REPLACEMENT IS DESIRABLE
Des O’Malley, former Minister, former Leader of the Progressive Democrats
I feel that I should start by considering the effect which the Constitution, our fundamental law, has on the political system in the wider sense. This year we mark, but scarcely celebrate, its 75th anniversary. When we approached its 30th anniversary Seán Lemass thought the time had come for a fundamental re-appraisal – it didn’t happen. I ask how much greater must that need be now, 45 years later.
The Constitution’s greatest flaws lie in its unnecessary length and detail and in its close reflection of the values of the 1930s. It contains a large number of provisions that are not fundamental and which should instead be dealt with by ordinary legislation. As a result it becomes unavoidable to have to amend it quite regularly. This diverts the attention of the government and the Oireachtas from important matters. Things tend to grind to a halt as we endure yet another excruciating referendum campaign.
We have had 31 amendments proposed so far, of which 26 have been passed. It seems we will require regular further amendments from now on. Because of Supreme Court decisions it is very likely that all EU treaties of a fiscal nature will require a referendum. Even a relatively modest proposal such as the recent fiscal compact resulted in a constitutional referendum here.
I have believed for more than 25 years that our constitution requires fundamental reform for a variety of reasons. The passage of time and recent events make reform more necessary and more urgent. The more one considers it, one inevitably comes to the conclusion that a long succession of minor reforms will not be adequate. Tinkering with an outdated document like this will not solve any of our real problems. Its replacement is desirable, and if it is intended to abolish the unnecessary and undemocratic Seanad, the constitution’s replacement is essential. There are over 100 direct, indirect or consequential references to the Seanad. It is impossible to amend this without making a complete mess of the whole document.
We are informed that there will be a referendum before the end of this year to amend the constitution in order to protect children. I wonder what kind of a constitution have we, that we need to amend it to protect children? Sadly it reflects an attitude to parental rights widespread in the 1930’s. So sacred is the family regarded that whenever the constitution mentions it, it merits a capital letter.
When will we have a referendum to remove the provision which in effect says a woman’s place is in the home?
When that happens, the Referendum Commission, foisted upon us by the Supreme Court, will have the interesting task of arguing for its retention. The government will have to ensure that an equal amount of public money is spent in support of its retention as is spent on its repeal.
RTÉ will presumably feel it has to give equal prominence to both sides of a rather one-sided argument. Wouldn’t it be better if common sense were allowed to prevail for a change?
It is disappointing that the proposed Constitutional Convention is being given an agenda of items of minor significance. Lowering the voting age by a year, or reducing the Presidential term to five years are of no real consequence and will solve nothing. Blasphemy is not a great problem here, either.
A Constitutional Convention should really study in depth the Dáil electoral system. This, in my opinion, is the root of various difficulties but is not easily solved. Our present system appears to throw up an increasing number of parochial ward healers who have no interest whatever in the national interest. The so- called straight vote, or first past the post system used in Britain, gives disproportionate results. A list system potentially gives too much power to shadowy, back-room party activists. It is hard to achieve an ideal.
It is, however, necessary to remind people again that they get what they vote for. Some very dubious characters seem to have no trouble getting elected and re-elected. Their criminal or other records do not appear to matter. Their questionable suitability as legislators and as public representatives is ignored. That is not the fault of the electoral system.
Over the past decade or so there has been a development in the political system which I regard as somewhat sinister, but which gets little or no public or media attention. This is the manner in which politics is now funded. As a result of bribery and similar corruption scandals, political parties and political activity are now predominantly funded from the public purse. At first sight this seems sensible and unavoidable. But it has some serious consequences. Most of the funding is distributed to political parties on the basis of electoral performance at the previous general election. One of the principal effects of this in practice is to inhibit the formation of new parties and to strengthen the predominant position of the existing parties.
It has, and will continue to have, the effect of propping up and prolonging the status quo. That is hardly good for Ireland.
There has to be a danger that if the formation of new parties and the advocacy of new ideas in an electoral forum becomes unduly difficult, then some people will feel forced to resort to undemocratic means to make their point or to sell their policies. Autocracy forbids new parties; why should we actively discourage them?
In our constitutional theory the Dáil is supposed to be supreme. It is after all, apart from the presidency, the only directly elected institution. The government is answerable to it. The courts have to respect its primacy in expressing public policy. That is the theory. After 75 years the practice is somewhat different.
The Dáil is in fact totally dominated by the government and seems to accept that. Almost all its business is ordered by the government of the day. If the government doesn’t want it, it doesn’t happen. Debate is severely curtailed. Very many bills are guillotined by government motion, even if they are important. Even purely procedural motions agreed by the relevant committee, in practice can only be moved by or on behalf of government.
The Dáil in my experience had too many members who did not care very much or at all about these matters. Re-election is paramount. There is a very weak parliamentary sense as such. Office is all important.
Besides, the government fully controlled the purse strings. Unbelievably, the Attorney General used to advise the Dáil. Could there be a greater conflict of interest? A few of us finally got a parliamentary legal officer appointed.
The Ceann Comhairle lacks the standing of most Speakers in other parliaments because in the last 40 years or so he is seen as the choice of the Taoiseach rather than the nominee of the House as a whole.
These matters have led to a diminution in respect for the Dáil. The government of the day frequently makes policy announcements outside the House. There is no sense of deference to the Dáil. Doorsteps are just as good. Of course the press love this.
For instance recent budgets have been almost entirely leaked or disclosed directly in advance. The Dáil tries to compensate for its enforced impotence by making loud but ineffective noise. The Dáil’s position is further weakened by the open contempt shown to it by some of its own members in their very appearance, in their conduct, and in their subversive attitude to the laws of the land passed by the Oireachtas itself.
What one might expect in the traditional balance of power in a parliamentary democracy such as ours is upset by the relative weakness of the Dáil and dominance of the government. The compensation for that is the preference of the electorate in each election since 1981 to deny a single party a majority in the Dáil. The preference for coalition is likely to remain the case. In a sense, it is democracy protecting itself in new circumstances by appropriate adjustment. Division of powers within the government is now seen as a more effective balance or protection against the abuse of power.
The third leg of the traditional triangle of power is the judiciary. It is unquestionable that our courts and our court system need serious reform. The courts appear a great deal more interventionist than they were. They have become involved in more areas of civil, social and commercial activity than before. This is not necessarily a bad thing if all citizens have easy access to the courts. Unfortunately this is not the case.
You need not rely on my word for this. Earlier this year Mr Justice Michael Peart, a judge of the High Court, said that the cost of litigation was “a deterrent to any but the rich, the courageous and the foolhardy”. He said that up to recently the courts system “was not so exorbitantly expensive to access”. But, he stated that the cost of going to court now “may be a denial to many people of their constitutional right of access to justice, or at least a significant obstruction, and a deterrent to genuine plaintiffs who need to have their rights vindicated and protected”.
Likewise for defendants, one of the most serious aspects of the gross expense of litigation is that the super rich can litigate so easily against ordinary citizens who have a limited chance against high-cost legal firepower – regardless of the merits of their case.
The courts are a public service provided out of tax revenue for the benefit of the citizens. Remarkably some of our most successful litigants are the allegedly non-resident people –- sometimes referred to as oligarchs – who pay no tax here but who are fully facilitated by the Irish courts. Not all countries are as generous in this respect.
The super rich can usually prevail against the little man. There was a minor dispute some time ago involving a rich tax exile represented in a country Circuit Court by two former Attorneys General and a junior counsel, instructed by a fashionable firm of solicitors.
As a result of the court system pricing itself out of the reach of many, there is likely to be a further increase in the numbers of those who prefer to avoid the judicial branch altogether. Arbitration, mediation or other forums of alternative, non-judicial dispute resolution are increasingly used. A good example of this, which was finally endorsed by the state, is the Personal Injuries Board which now deals with most claims arising from personal injury caused accidentally. This saves a great deal of money and avoids a great deal of delay.
An expensive and inefficient courts system does not just deprive ordinary people of the opportunity to vindicate their rights. It also makes the country less attractive as a place in which to set up business or to invest. Both Irish society and the Irish economy suffer.
A particularly serious example of delay is the period it takes to hear an appeal from the High Court. Chief Justice Susan Denham stated a few weeks ago that it took up to 3½ years for an appeal to come before the Supreme Court. The judges say they want a new Court of Appeal to be established between the High Court and the Supreme Court. A few days ago the Minister for Justice indicated a constitutional referendum would be promoted by the government at some unspecified time in the future to accede to the request of the judiciary.
There are now eight Supreme Court judges so there is nothing to stop them sitting in two chambers of three judges simultaneously, which would help reduce the delay considerably. An extra new court is not necessary and would be very expensive. There are now no fewer than 38 High Court judges, some of whom can help out with the appeals.
One effect of this situation is that if a plaintiff gets a substantial decree in the High Court the defendant can appeal in the knowledge that he will not have to pay anything until he withdraws his appeal three or more years later.
Trade unions and some professionals are habitually resistant to change; but they are angels of enlightenment compared to certain legal institutions. Restrictive practices continue and only very reluctantly abate. Legal vacations in the higher courts still exceed four months in the year – the same as they were in the century before last.
Article 6.1 of the European Convention on Human Rights requires a fair and public hearing of cases ‘within a reasonable time’. There have been 20 adverse decisions against Ireland by the Court of Human Rights at Strasbourg. The majority of these, eleven in all, were in respect of delays by the Courts. And there were six other such cases of delay when the State paid up to avoid further adverse judgements against it. These easily avoidable delays are a deep source of injustice to citizens of this country and of loss to its economy.
Why is this tolerated?
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