1:Need for Change
There has been much public discussion as to whether or not our Constitution is in need of replacement. Various attempts at reform including those conducted by the Constitutional Review Group and the Labour-Party-promoted Constitutional Convention have led to little change.
The recommendations merely unleashed a great deal of well-intentioned hot air, all of which is largely ignored by our political classes. When there is a referendum to amend the constitution it is often dictated by Europe or is a result of a political spat or a flavour-of-the month response. None of these cosmetic, sometimes ill-considered referendum proposals have constituted fundamental solutions. It was a diversion to institute referenda on judges’ salaries and the age of the president, for example, when there were much more important and pressing issues at hand. In fact, our state-sponsored referenda to the existing text often skirt away from important issues of structural reform and hijack a designer, populist issue, like gay marraige. In the interests of clarity such a remark is not intended to diminish the importance of substantive equality, but simply to question what the motives behind the referendum were.
I am of two minds as to whether a new constitution is needed to present us with a fresh vibrant document for the 21st century or whether we can tinker with the old one in such a fashion as to effect the requisite structural change. The South African Constitution is the model here but it derived from a new societal dispensation. I am, however, absolutely convinced that structural change is needed.
Of course the document has been developed historically by the judiciary through creation of unspecified rights from 1965 until about 2001. This process of modernisation to the construction of the document – a ‘living instrument’ approach – led the judges to ‘read in’ rights that were not there – dividing academic opinion. This practice, mirrored in the general current interpretation of the US Constitution, freshens up the document. Its merits are that such fundamentally important rights as privacy, the protection against inhumane and degrading treatment and the prohibition against torture, were read into a dated document by an expansionist judiciary. The document was modernised by judicial construction largely to mirror international-humanrights instruments. The problem is that this process of teleological (aims-based) construction has been aborted and, since 2001, no new rights have been created, with neo-conservatives having taken over the judiciary. Little is left of judicial activism or progressivism.
Ideologically-conservative judges are in general anxious, above all else, to uphold the status quo, to mask judicial inaction as deference to the separation of powers. We are therefore unlikely to see a modernisation of the Constitution by the judiciary, unless some liberal judges are appointed to balance what is an unrepresentative and unbalanced, conservative judiciary.
For example, many important Constitutional cases are heard by Judge Gerard Hogan, now of the Court of Appeal, formerly of the High Court and one-time Trinity academic – probably Ireland’s leading Constitutional expert and in some respects the most progressive of the existing bench. He starts from the self-restrained vantage point of literalism and a textualistic approach to the document. He is against adding new rights, confining himself to the precise language of the text. In effect he sees innovations as an overstepping of the judicial function and an interference in executive decision-making processes: a breach of separation of powers with the courts acting as quasi-legislators. Though in his case such language can often be manipulated to achieve socially just outcomes, the language restrains and prevents the expansion of the document, literally.
Judge Hogan and indeed former Chief Justice Keane (in the TD case) have in effect brought into question the whole power of the courts to declare unspecified rights. Judge Hogan, with other members of the Court of Appeal, sought to revive an under-utilised section of the document, in Article 40.3 the protection of the person clause, most noticeably in their judgment in Fleming (the right-to-die euthanasia case), to suggest that such obviously important rights as privacy and bodily integrity, rather than being separately declared as unspecified rights, could be adequately embraced within the specified rubric of protection of the person. Though these views were not in substance endorsed by the Supreme Court, nor were they specifically rejected. Thus, there is judicial inertia about modernising the document to create new rights prompting questions about whether we need a new constitution. If our new breed of judges won’t do it out of constitutional necessity, it must be done through political initiative.
2: The Reform of The Existing Provisions
I propose to go through the document from beginning to end, highlighting what I believe needs to be revamped and also what needs to be added, making some salient points about the incompatibility of aspects of the document with our present fragmented, divided, mildly chaotic and multi-cultural society.
The preamble, which is non-binding, starts off as a declaration of the aims of the document and invokes “Our Divine Lord Jesus Christ” and “The Most Holy Trinity”. The preamble cannot be amended as it is not an official part of the text, but a new constitution would, of necessity, delete these unmandated phrases. We are not all Christians. Some of us are agnostic or atheist. Some of us deeply distrust the effect organised religion has had on our society. Some of us might regard religion, as Christopher Hitchens did or Richard Dawkins does, as evil. Some of us are Islamic, for example, and might be somewhat perturbed at the words of the preamble being as confined as it is to the Christian religion. The Trinity is a particular focus of the Roman Catholic, not other Christian churches.
I propose as part of an overall metric of considerations, that we adopt a strict severance of Church and State and that such phrases in the preamble be deleted. This disentanglement or disestablishment is what the architects of constitutionalism, the Americans and the French, settled on.
In the preamble there is also a further antiquated provision that is the territorial claim to the north of Ireland in itself, in effect negated by the new, referendum-implanted Articles 2 and 3 of the document. That also must go. No other major issues arise from the rest of the preamble other than the appropriate and express invocation of dignity.
Article 5 expresses the view that we are a sovereign and independent state. It is obviously an important anchoring even if it is ultimately meaningless. In practical terms, both to the EU and the encroachments of multinational capitalism, we have in effect lost economic sovereignty but, no matter, the clause in itself might encourage a brave judge to put a halt to some of the more nefarious initiatives of global capitalism and the manner in which it is denuding our sovereignty. We also declared ourselves a ‘Republic’ in 1948.
The powers of the President are scattered throughout the document (Article 13 in particular) and amount in substance to very little. The office is a ceremonial role, though President Robinson defined it a self-regulating one, and both she and President Higgins in particular have used the office to form and influence public opinion in an often courageous way.
Nonetheless, certain structural reforms could usefully be made. First, I do think it would be an important innovation if the President were allowed to initiate legislation. The objection is that the office should be above politics, but it never has been and never will be. The Presidency is a political office, albeit an independent one, and in the national interest should be able to use the weight of the office to initiate legislation for the consideration of the Oireachtas. A further potential change would be for the Presidency to be given the power to order reconsideration, as is in effect in France. Of course after a second vote the Presidency would be bound by that vote and I am not in any meaningful way suggesting that the President should be given the power to veto legislation.
The President should be allowed if enough signatures garnered to initiate a direct democratic referendum procedure. The country is crying out for Habermasean or Swiss-style Direct Democracy and a populist referendum. In effect the government are stymieing the will of the people by failing to initiate adequate referendum procedures in the national interest. Such a direct-democracy initiative modelled on the 1922 constitution provision, and currently being promoted by the ‘Reinstate 48’ campaign is an attempt to give democracy back to the people. If, say, 250,000 signatures were collected then either through the office of the Presidency or through the Oireachtas, which could draft a bill for submission to the people, reforms, which touch on important national issues could be facilitated. This Direct Democracy initiative could radically aid in the modernisation and democratisation of the document.
The separation of powers clauses are fine as they stand (Articles 6, 15, 34, 37), but the real question is how they have been interpreted and the undue deference that the courts are showing to the executive, leading to the concomitant non-enforcement of rights.
As far as international issues are concerned (Article 28) I recommend the immediate insertion of a clause, which demands compliance with our international obligations. We sign international treaties but do not always incorporate them into our domestic law unlike, say, Germany. We should move from being a dualist state to being a monist state where international rights are complied with in national practice and are incorporated into domestic law.
We have of course incorporated, albeit in a sub-standard way, the European Convention on Human Rights. The problem is that the courts have developed an option or discretion on whether or not to follow decisions of the European Court of Human Rights and any declaration of incompatibility between Irish law and the convention does not result in the repeal of the provision of Irish law in question.
The emergency power clause (Article 29) is both over-broad and over-narrow. It is over-broad in that it allows for the declaration of a national emergency in a time of war and armed rebellion in which the state is not a participant.
Thus, if the US invaded yet another part of the planet our glorious legislatures could declare a national emergency and leave it forever. We did so when Hitler invaded Poland in 1939 and and did not undeclare the emergency until 1975 (when World War II ended?) and when a new state, less draconian admittedly, of national emergency was declared. As is the case with the Spanish parliament (Cortes) there is a need to periodically review the existence and operation of a national emergency.
Counterintuitively, the clause is also too narrow. The Hungarian Constitution accommodates workaday examples of what can constitute a national emergency; economic meltdown which I think we are in the process of facing or for example a very contagious flu with no defined vaccine.
Of course, I also believe that if a national emergency were declared then although certain civil and political rights could be suspended crucial ones would have to be maintained. We could not countenance indefinite internment or indeed the over-broad diminution of the protection of freedom of speech.
As far as institutional powers and structures are concerned the first thing to me that is clear is we need a reformed upper house, possibly modelled on Tony Blair’s reformed House of Lords where opinion-makers, captains of industry, cultural and artistic figures, representatives of the professions (including the legal profession) etc may add weight and independence to counteract the short-sightedness of elected populists.
Much ink has been spilt about the need for a Special Criminal Court. I have, through personal experience in my Innocence Project, a profound distrust for the jury system and its effectiveness in certain types of cases. My over-arching recommendation is that a clause be inserted that, in the particular circumstances of a case, that a non-jury court can be applied for, by either the state or the defence. This would obviate the permanent embedding of the Special Criminal Court but also recognise that on occasion there are deficiencies in the jury system where jurors risk being intimated or bought, or where a particular matter is beyond their competence so that a non-jury court is acceptable.
The most significant innovation of De Valera’s document is that at a time of great European crisis with the advent of Fascism he created a document which outlined the fundamental rights of the citizen. However, rights should now be afforded to non-nationals as well as citizens.
The rights begin in Article 40.1 with the equality clause and the truly bizarre human-persons doctrine, which has led to the exclusion of judicial consideration for questions of economic or educational discrimination. This needs to be immediately amended. A clause should also be inserted stating that there should be no unreasonable discrimination based on mental disability, sex, nationality or religious and/or political affiliation. Many of our equality decisions have been disgraceful – not least Nicolaou and the constitutional discrimination sanctioned by the courts against the unmarried father.
Article 40.3 outlines four specific rights: the right to life, the right to protection of the person, the right to property and the right to a good name. In my view the right-to-life clause should be broadened to encompass quality of life. Such a broadening would make express that the crucial social and economic rights (absent specific text incorporating them) such as the rights to food, shelter, health care, water and a minimum standard of living are justiciable.
Within the structure of the right to life there is of course the protection of the right to life of the unborn child though, of course, such protection is not untrammelled but subject to limitation in that the state need only protect as best it may. This clause was of course interpreted in the historic X case as justifying the prioritisation of the right to life of the mother, over the right to life of the unborn child. In my view it is entirely possible as a method of judicial construction that such a balancing exercise could also be embarked upon with respect to a rape victim who had become pregnant or to a case of fatal foetal abnormality. If our unduly conservative judiciary would not embark on such an enterprise then my suggestion is that the issues of abortion and fatal foetal abnormality be put to the people by way of referendum.
The phrase that the State “in particular protects” the four above-mentioned rights has inspired the doctrine of unspecified or unenumerated rights of which there are – so far – about 20. In particular Judge Kenny in Ryan said that as a matter of construction the words “in particular” suggested that there were rights other than those specifically enumerated.
To tidy the text it is perhaps desirable that the existing recognised unspecified rights, including, the recently established right to dignity be textually incorporated. Certain of those rights, privacy perhaps above all else, are significantly more important than many existing textual rights. Perhaps though it is better in the interest of constitutional clarity that such rights are appended to Article 40.3 and put to the people by way of referendum.
The right to liberty and the right to the protection of the inviolability of the dwelling (under 40.4 and 40.5) do not in substance need to be changed though it should be made clear that liberty also applies to non-nationals. A particular clause should be inserted making it clear that the right to liberty specifically prohibits, save in the most exceptional circumstances, preventive detention.
Article 40.6 recognises three rights: expression, association and assembly. In my view the restraints (public order, morality, the authority of the state) are excessive. Freedom of expression should be protected in a bright line way in almost all circumstances outside of such matters as racist speech or holocaust denial, as the European Court of Human Rights has decided. In particular I am deeply sceptical, in a society of many different and competing moralities, of a moral restriction on freedom of speech and I am certainly in favour of the immediate repeal of our blasphemy laws.
On the other hand, press freedoms, which have been bitterly fought for, have been misused by the gutter media.
I recommend the specific inclusion of privacy as a balance and counterweight to freedom of expression in press matters. I also recommend in this context, and perhaps in this clause, the right to have inaccurate and false information removed from the Internet or, as the German Constitutional Court has recognised, the right of information-retrieval from the Internet.
Insofar as the other two rights are concerned, we need specific recognition under the head of “association” of the rights of political parties to associate and also under “assembly” of the right to protest and demonstrate, subject to normal limitations.
Article 41 deals with the family. In this context there is no doubt in my mind that the family clause should be extended to deal with the rights of the unmarried family, and of unmarried fathers in particular. These constitutional prohibitions are obsolete and ideologically skewed. As far as the decision-making authority of the family is concerned, my view is to leave well alone, not perhaps to recognise the family as the fundamental unit of society but to defer to parental wishes. We have far too much governance and semi-literate interference by social workers in family affairs. They should be kept at arms length. The role of the non-national family, particularly of EU spouses, needs to be harmonised to deal with current EU law. Effectively it needs to be recognised that an EU or EEA national married to a non-EEA national has defined rights of residence as a family, as does an EEA child citizen.
The education clause should include an obligation on the government to progressively realise the right to education. There should be a strict disestablishment of the church in educational matters and the recognition of the rights to education of persons who have autism, through life. The Sinnott case, which interpreted the right to education as ending at the age of 18, was immobilising.
Article 43 is the second (Art 40.3 also) invocation of the property clause. We do not need two property clauses and the language of both should be blended in one clause so that it is clear that the courts’ obligation is to balance the right to private property against unjust attack, with considerations of the common good and social justice. In the interests of clarity it should also be inserted that property can be confiscated in the public good and for public works, subject to the payment of reasonable compensation. This is topical in circumstances of a housing crisis.
I am in favour of the wholesale revision of the religion clause. First, we need to become strictly disestablished as a state and the church’s power over schools (and indeed hospitals) should be removed, constitutionally and practically. It is, despite what the courts have declared, in fact ‘endowment’ to give money to the church to runs our schools and hospitals. Further, we need to recognise, in an increasingly militant age of extremes, that the state has some right to ban or regulate religious extremism and that includes the banning, or regulation in workplaces or in public places, of the wearing of garments such as the Burkha or Hijab. This tallies with the jurisprudence of the European Court of Human Rights and is simply a by-product of tolerance, pluralism and broadmindedness, the hallmarks of a secular state. We should also insert a specific clause that the protection of religion does not extend to the protection of extremist religious sects such as Opus Dei or the Westborough Baptist Church. Religious fanaticism should also be curtailed and there should be specific recognition of the right of non-belief.
3: New Innovations and Additions
It is necessary to insert new rights flowing from the need at adapt the document to changing social and economic circumstances.
First, it is absolutely clear that the Internet is both a force of liberation and enlightenment and a source of danger not least in uninhibited casual defamation and the presentation of factually inaccurate information. This all led for example the German Constitutional Court to establish the right of information retrieval from the Internet.
In our surveillance age, many people are uncomfortable with fame or temporary celebrity which has generated the need for the right to be forgotten and to simply live a private life unwarranted by intrusions. The right to be forgotten is distinct from the right to privacy which embraces information that is not publicly known.
There are other privacy and personal issues flowing from our new consumerist age, such as the right of control over image, name and likeness, and celebrity privacy rights, recognisable in such cases as Van Hannover.
The biggest goal is social and economic rights. In a world divided by disparities of wealth, fairer allocation of the following is urgently needed, subject to realisation progressively the availability of resources and some deference to state choices being exercised reasonably. These include: the right to water, the right to food, the right to healthcare including the specific obligations to have a healthcare plan and to provide for emergency healthcare, the right to housing or shelter (which includes the immediately enforceable minimum requirements of a housing plan and a prohibition against forced or arbitrary evictions). There is also a need for the fountainhead of all social and economic rights: the right to dignity, the right to a minimum standard of living and the concomitant rights to social security and social assistance. In our world of pension cuts, welfare cuts and the ascendancy of neo-liberalism, such matters are pressing. The right to a healthy environment is also of pressing consideration. There are more. The battle is for democracy and justice, a battle for a socially just Rawlsean, social, democratic society. The courts should be pathfinders for that.
4: Conclusions
Bunreacht na hÉireann needs spring-cleaning and freshening up, though perhaps not yet dumping. Modernisation is required whether by way of a new constitution or by the wholesale reform of the existing one.
Above all we need a constitution for the people and not for the state, a rights-driven charter which mandates judges to grapple with questions of social and economic justice.
It might, dare I say, also need some new judges intellectually and temperamentally equipped to deal with those challenges.
By David Langwallner
