Martin McGuiness today offered to hold talks with anti-Good Friday Agreement Republicans who remain committed to violence. But could these talks occur and if so, where would they lead? McGuiness, once a firm proponent of violence, threw down the gauntlet to anti-GFA Republicans stating:

My message to those who remain committed to violence is that it is not much of an achievement to think that the only thing you have shown the capability to break are two fine women’s hearts.

This statement can be, and indeed was likely intended  to be interpreted in two ways. To most this is a simple  appeal to the humanity of those still supporting violence. However it must be born in mind that McGuiness is no soft hearted pacifist. At the 1986 PSF Ard Feis Martin McGuinness gave a speech in favour a motion to recognise Leinster House where he stated:

I reject any such suggestion and I reject the notion that entering

Leinster House would mean an end to Sinn Féin‘s unapologetic

support for the right of Irish people to oppose in arms the British

forces of occupation. That, my friends, is a principle which a minority

in this hall might doubt but which I believe all our opponents clearly

understand. Our position is clear and it will never, never, never change.

The war against British rule must continue until

freedom is achieved.

In this context, the important part of McGuinness’ statement is not his reference to the broken hearts of two mothers, the many victims of the Provisional IRA also had mothers, but his reference to their lack of capacity. The offer of talks must be viewed in the same light, an attempt to highlight the strategic weakness of the anti-GFA movement.

When PSF reaches out to anti-GFA Republicans, as it has done in the past, it is fully aware of the fact that talks would be nigh on impossible. In the unlikely event that PSF were able to talk one group out of violence, the near impossibility of this strategy to bring about an end to violence is entrenched by the fact that there is no one dominant violent group.  A negotiated end to violence would have to involve the representatives of  all of the various factions, something which seems highly unlikely. The existence of so many groups makes it difficult to negotiate with one, as if any group unilaterally entered negotiations then there is a menu of other organisations to which their members could potentially flock.

So this latest offer of talks is unlikely to lead anywhere, and is instead an attempt by McGuinness to paint those using violence into a corner, highlighting their intransigence and disunity, and reaffirming PSF’s Republican credentials in the process.

Related Posts

• August 30, 2011 -- Marian Price: Internment without trial? (7)
• April 3, 2011 -- Why the ‘dissidents’ kill (5)

Labour Women are calling for a  ’Yes’ vote in the Fiscal Stability Treaty Referendum. Women, they say, have something of a duty to vote in favour of the Treaty because the Treaty speaks to concerns and values peculiar to women, and important to our sense of identity as good women:

• Women are ‘good housekeepers’. (The national economy is like a household or a family)
• Women are good mothers. We care about providing a safe future for our children.
• Women are committed to the social protection agenda. We feel a sense of solidarity with poor women, who depend on the state for significant portions of their income.
• Women know that the state is committed to gender equality programmes, and that without a rich state, meaningful gender equality is impossible.
• Women are responsible. We are not risk takers and so we will not want to throw away the ‘insurance policy’ of the ESM.
• Women avoid conflict and will identify with the message of collaboration central to the Treaty.

This gendered presentation of the pro-Treaty agenda is of more than passing interest. I only have time to say one quick thing about it, which is that it might be worth reading  Labour Women’s pro-Treaty materials alongside some of Lauren Berlant’s writing. She talks about the ways in which we become attached to abstractions in which the state is invested,  like  ’equalities’ , capitalism, the currency or the European Union. Women are bound to these things by feeling  ’feminist’/responsible/co-operative/prudent/European together.  But these attachments are sometimes sources of great suffering. We may cling to fantasies of the state which clash violently with the actual conditions of being in society. In recent work Berlant has written about the notion of ‘cruel optimism’.  She says that a relation of cruel optimism exists “when something you desire is actually an obstacle to your flourishing”. The Austerity state we are invested in may not be for us.

In the course of the economic crisis, it has become clear that the state is no longer sovereign; that, as Berlant says, it is ‘ in the same abject and contingent relation to private capital that ordinary people are‘. Elsewhere, she says that the the ‘Euro-American state is a cowardly lion, a weeping bully, a plaintive lover to finance capital. It cannot bear to admit that, having grown its own administrative limbs to serve at the pleasure of the new sovereign of privatized wealth, that the wealthy feel no obligation to feed the state.’

Berlant argues that, in order to ensure its own survival, the state must reattach our collective fantasy to  essential abstractions. But it must orchestrate that process of reattachment in ways which do not require that the state admits its fundmental weaknesses and failures. So we are told that our previous attachments – to a version of the equalities agenda, to ‘social protection’, to decent wages – are (temporarily?)  too expensive and must be revised.  The state demands that women find satisfaction and pleasure in the austerity agenda.  Berlant writes: ‘[a]usterity sounds good, clean, ascetic: the lines of austerity are drawn round a polis to incite it toward askesis, toward managing its appetites and taking satisfaction in a self-management in whose mirror of performance it can feel proud and superior. In capitalist logics of askesis, the workers’ obligation is to be more rational than the system, and their recompense is to be held in a sense of pride at surviving the scene of their own attrition.’

That’s what Labour Women’s rhetoric of the prudent, risk-averse, hard-working Irish wife and mother is about.

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In the first two essays of the series, our shadow constitutional convention has focused on the dynamics of constitutional change. This week, our contributor turns to the question of the Constitution's republican ethos, and its seeming contrast with institutional realities - specifically, the issue of executive dominance. This essay is yet another contribution to this site by Dr Tom Hickey, of the School of Law, NUIG.

The Dominance of Cabinet and the Irrelevance of Parliament:  Is Our Constitution Really Republican?

I. Introduction

De Valera’s assertion in the Dàil in the early summer of 1937 is striking: “if there is one thing more than any other that is clear and shining through this whole Constitution,” he insists, “it is the fact that the people are the masters.”[1] His use of this language is interesting in light of our present question: can our constitution, despite the relatively unimportant fact that it stopped short of formally using the term, be coherently described as “republican”?

Republicans, of course, have traditionally understood liberty by reference to this image deployed by de Valera: that of the master and his slave. The slave – even where he happens to have a “kindly” or non-interfering master – epitomizes the situation of unfreedom.[2] He lives in potestate domini: in the power of a master. His choices are reliant entirely on his master’s will. His master enjoys unchecked powers of interference, which amounts to domination. Hence, the distinctive republican understanding of liberty: liberty as non-domination. Liberty as resilient, equal, and publicly apparent protection – through law – from the arbitrary power, or the sheer will, of others.

So this is the test for our Constitution then, in the present context. Does it check those who wield power such that we can be satisfied that that power is not arbitrary? There is interference in our lives, of course, in the form of laws and regulations. But, is it plausible to argue that we, the people, ultimately control that interference? Are those who wield political power our masters, or do we control their control, such that de Valera’s assertion rings true: we, the people, are the masters?

These questions are impossibly broad of course, and so I propose to consider here just one aspect: the institutional framework established by the Constitution for the purpose of the making of laws and of the exercising of public power. Specifically, I propose to consider the relationship between the Executive (“the Cabinet” or “the Government”) and the Parliament (“the Oireachtas” or “the Legislature”).[3]

Beware of the legal constitutionalists!

This is an aspect of our constitutional system that has not attracted all that much attention amongst legal academics, with certain notable exceptions. The bulk of the work seems to have been left to political scientists and public affairs commentators. The concern is that scholars engaged in the legal, human rights and related fields may tend towards the dangerous misapprehension that the task of protecting the citizen against the abuse of public power – so far as the Constitution is concerned – is for the courts alone, by way of the fundamental rights provisions and judicial review. This may give way to a version of what the republican-minded public law scholar Adam Tomkins describes as “legal constitutionalism,” which refers – amongst other things – to a tendency to see law as an enterprise that is to take place only in the courts.[4] Such an approach is problematic for all kinds of reasons, not least those relating to participation and access (think of the concerns around expense, delay, standing etc.), as well as the vexed questions on the representativeness of judges and the legitimacy of judicial activism.

The Constitution is a concern of the courts, but by no means of the courts alone. This general debate cannot ignore the ways in which our Constitution mandates a broader democratic culture, as well as specific political institutions, with a view to protecting the citizen from arbitrary power.

In any case, the institutional framework for the making of laws and the checking of public power is established by the text of the Constitution itself, and so that is an appropriate place to begin our analysis. Restricting ourselves to a strictly textual analysis, however, would produce a hopelessly incomplete account. In order to get an adequate understanding of our Constitution, we must assess the concrete practice that it has prompted. Specifically, we must consider how our political and democratic culture, in the law-making and public-power-checking contexts, has developed, and how well or poorly it has approximated to republican ideals.

II. A Theoretically Republican Constitution…An Un-Republican Institutional Practice?

There is much in the strict text of the Constitution that might be deemed, at least in the superficial sense, “republican.” Basil Chubb suggests that the provisions relating to the popularly-elected President, the “symbol of republican status,” might be understood in that way.[5] The traditional “separation of powers” theory counts as republican, and various provisions, when taken together, embrace the idea: Article 6 refers to “all powers of government, legislative, executive and judicial…” Article 15.2.1. provides that “the sole and exclusive power of making laws for the State is…vested in the Oireachtas.” Article 13.1 provides that the Dáil nominates the Taoiseach and approves the members of government, while Article 28.10 asserts that the Taoiseach shall resign upon ceasing to retain the support of a majority of the Dáil. Article 28.2. insists that “the executive power of the State shall be exercised…by or on the authority of the Government…,” while Article 28.4.1 declares that “the Government shall be responsible to Dáil Éireann.” Finally, Article 26 and Article 34, in different contexts, grant powers to the courts to invalidate legislation that is deemed repugnant to the Constitution.

This dispersion or separation of powers idea appeals to republicans insofar as it is concerned essentially with the checking of public power. It prevents any one body or institution from ruling arbitrarily. The role of the Legislature is to develop policies and to make laws. The role of the Executive is to execute those policies and laws. The role of Judiciary is to adjudicate. Hence, no one agency enjoys arbitrary power, or governs at will.

Similarly, the Preamble, despite the reference to the “Most Holy Trinity” and to “our obligations to our Divine Lord, Jesus Christ,” seems essentially republican. It refers to the notion of “the common good,” and grounds the whole constitutional order on the idea of popular sovereignty: “we the people of Éire…do hereby adopt, enact, and give ourselves this Constitution.” The authority to enact the constitution, and to change it, is enjoyed by the people.

These provisions seem at one with de Valera’s assertion concerning the citizens as masters. Article 15.2.1., Article 13.1. and Article 28.4.1., in particular, present an image of the citizens electing representatives to the Oireachtas specifically for the purpose of the making of the laws that are to govern them. Dáil Éireann, in turn, is to elect a Government that is to be accountable, on an ongoing basis, to the Dáil, as the monotonous process of government and politics unfolds. The citizens are thus in command, through their representatives in parliament: they control the control. And so all is quiet on the republican front.

The three dissonances

While this overview may capture the essentials of the strict constitutional position, the institutional practice is very different. Indeed Article 15.2.1. might reasonably be described as our constitution’s greatest myth. The Oireachtas “makes” virtually none of our laws, at least not in any real sense, despite it enjoying – constitutionally – the “sole and exclusive” power to do so. This is the first of three “dissonances” between constitutional theory and institutional practice. The second is that the Government is only barely responsible to the Dáil: the real powers of the latter to hold the former to account are negligible. The third is that the Dáil controls the identity of the Taoiseach and of the members of the Government in only a very formal sense. Accordingly, the institutional practice of our political and democratic culture might be deemed, to coin a phrase, “only slightly constitutional.” It may, in a very broad and formal sense, follow the text of the Constitution, but it deviates considerably from its spirit.

Damningly, this institutional practice tends the power-wielder in the position of master; the citizen in that of slave.[6]

There are all kinds of reasons, no doubt, for these tensions between theory and practice: too many to assess them all to any satisfactory degree in this forum. Perhaps the most essential reason relates to the seemingly unerring tendency of power to be consolidated and advanced over time. Another reason, more tangibly, relates to the extent to which the political and democratic culture is controlled, or at least dominated, by highly organized political parties.

I propose, in what follows, to consider each of these three “dissonances” in turn, beginning – perhaps because it is the least objectionable – with the last one mentioned.

III. The first slightly constitutional practice

Article 13.1.1. and 13.1.2. are sharp and to the point: “The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach…” and “The President shall, on the nomination of the Taoiseach with the previous approval of Dáil Éireann, appoint the other members of the Government.” The Constitution envisages the primary agent to be the House of Representatives: Dáil Éireann. The citizens’ directly elected representatives control the government: we the people control the control.

In the real world, of course, we know that the Dáil only rubber-stamps both of these decisions. The real decisions are made by the political parties, or, more specifically, by the leader of the political party that emerges from the General Election with the strongest hand (not necessarily the party with the most popular support), and the leader of the other party that is entering coalition (a party that will not necessarily have won much popular support), along with their closest advisors.[7]

This stems from the fact that the 166 members of the Dáil are by no means 166 atomized individuals. Most are members of professional and highly organized political parties to whom they are, generally speaking, intensely loyal. This loyalty may be attributable to anything from family tradition, to political conviction, to ambition (it is almost inconceivable that any individual would ever gain high political office in the system established by the Constitution without being a faithful member of a political party). And yet the Constitution – at least in the formal, textual sense – knows nothing of these entities.

This is not to argue that there is a kind of party political despotism: of course no party can dominate without strong popular support from the citizens, whose votes determine – albeit quite indirectly – which amongst the two or three prominent political groupings commands a majority in the Dáil. The point, for now, is that the political parties wield a great deal of power, yet the Constitution doesn’t even mention them, never mind check their power in any way.

The same point can be made with respect to Article 28.10 and the power of the Dáil to break a government. Because of the solidity of political parties within the political structure and culture, generally a government will either last a full term, or will choose to “go to the people” at whatever time the leaders of a government and their advisors deem it most advantageous electorally. Government backbenchers will toe the line because to do otherwise would likely end their prospects of gaining high political office. Their constitutional power is essentially formal.[8] The citizens, therefore, have virtually no control over the control of their government in between elections. The control of the Cabinet is virtually uncontrolled, so far as the making and breaking of government is concerned.[9]

It is not that the very existence of political parties is objectionable from a constitutional or indeed a republican point of view. Far from it: organized parties are surely essential cogs in the engine of democracy. Indeed, in their absence, the constitutional structure would be chaotic and unworkable. In a system of 166 atomized parliamentarians, or even one with only casual ties amongst them, governments would be made and broken much too regularly, and usually, no doubt, on the basis of populist and unworthy reasons.[10] Similarly, there is a clear democratic connection between the citizens and the Taoiseach/Government. Leaving aside outright dishonor on the part of particular political parties, it is inconceivable that anyone would be nominated as Taoiseach without at least a significant level of popular support amongst the national electorate.[11]

The point, ultimately, is that although they may be vital cogs in the engine of democracy, political parties should not be in control of the vehicle to the extent that they are in practice. This section has aimed only to draw some attention to this one aspect of a general, and very complex, problem.

IV. The second slightly constitutional practice

This brings us to the second of the three tensions between constitutional theory and institutional practice, and a more troubling one: that the Government, despite the vision of Article 28.4.1, is only barely responsible to the Dáil. It is as though the latter – in that purely formal sense – approves the former on the first day, and may as well be idle for the following five years, for all the scrutinizing of government that is done. This indirect and momentary democratic connection between the citizens and the power-wielders once every five years is surely not enough to vindicate de Valera’s assertion with which we began.

There are two primary mechanisms established by the Dáil standing orders (as envisaged by Article 15.10 of the Constitution) for the holding of government to account. The first is that of Parliamentary Questions (PQs).[12] The second is the Committee system.

Many scholars and commentators have outlined the extent to which the PQs process is utterly unfit for purpose, and so a few words here should suffice.[13] The scholarship points to an essential culture of secrecy and obfuscation. The aim, shared both by ministers and senior civil servants, is to prepare answers to questions that give as little as possible away.[14] The findings of the Beef Tribunal perhaps capture the problem most starkly: Mr. Justice Hamilton’s report suggests that if questions had been answered in the Dáil as comprehensively as they had been in the Tribunal, the Tribunal would never have been necessary.[15] The report found evidence of deliberate vagueness and a culture of evasiveness amongst civil servants, whose primary concern was to protect their minister and department.[16]

On the other side of the Dáil, there is a tendency amongst TDs to submit PQs relating to some constituency-specific issue.[17] Very often, the purpose is to generate a press release for the local newspaper proclaiming the fact that they had secured some grant or social welfare payment which had already been legally available without any input from the particular TD.[18] In any case, it is quite clear that this aspect of the Dáil’s role of holding government to account, as mandated by the Constitution, is dysfunctional.

Similarly, the analysis on the committee system suggests that, despite considerable improvements in the 1990s, it too is inadequate so far as checking the power of the government is concerned. Since 1992, the committees are structured to match or “mark” government departments.[19] Each committee monitors a government department, discusses its estimates, and deals with the third stage of legislation that has been introduced by the relevant Minister.[20]

The potential of the committee system is clear: it could afford government backbenchers and the opposition a meaningful parliamentary role. Because the committees concentrate on particular policy areas – Education, Justice, Health etc. – policy-minded parliamentarians are afforded the opportunity to focus on particular areas, and to develop expertise in those areas.[21] The “small group psychology” may challenge the intense party loyalty that, so often, undermines the constitutional vision of accountability. The additional remuneration for office-holders on committees is surely to be applauded, as it suggests a career structure for ambitious Oireachtas members other than ministerial office.[22]

Again though, the system, in practice, falls far short of realizing this potential. MacCarthaigh suggests that the problem is one of culture rather than a lack of powers: “if the committees used all their powers to look at such issues as secondary legislation, departmental strategy statements or the work of state agencies under the aegis of various departments, they could contribute significantly to a culture of parliamentary accountability” but “the attraction of media attention rather than the obligation of democratic accountability” is such that “the committee experiment to date leaves much to be desired.”[23] Gallagher points to familiar reasons for pessimism, with the lack of powers to the fore.[24] First, Government ministers are like everyone else: they don’t like scrutiny. Second, those most likely to benefit from a strong committee system have reasons not to push for one: they aim to be ministers themselves some day, and don’t wish to make their jobs more difficult should they be successful. Third, the government parties tend to hold a majority of seats on the committees. The “whip” system apples and so party loyalty and discipline is as entrenched as ever, to an extent inimical to the accountability required by the constitution.

On this front too, then, de Valera’s republican rhetoric turns out to have been a deception. It is almost as though Article 28.4.1. were never drafted.

V. The third slightly constitutional practice

The familiar pattern is repeated in the area of law-making. Despite the words of Article 15.2.1., the representatives of the people have a purely formal role, and have little or no impact on the laws that emerge. Once again, the government is in control; they are the masters, and for the same reasons. The process reveals how this is so.[25]

When a government minister wishes to introduce new law, she (or he) brings a “memorandum for government” to the cabinet outlining the essentials of the proposed law.[26] Essentially, once she has the approval of her colleagues in cabinet, the bill will become law, more or less in the same form. It goes through a number of formal “stages,” but the grip of the governing parties is such that, notwithstanding the power of the courts to invalidate laws that are deemed unconstitutional, it is only barely an exaggeration to argue that the Minister’s expressed will amounts to law.

The legislation goes through the Office of the Parliamentary Draftsman to the Oireachtas, and then through five stages, after which it formally becomes law. The second and third stages might be described as the most important, but only in a comparative sense. The second stage is the debate on the broad principles of the bill. Although the Constitution might envisage this as the great event in the life cycle of the law (i.e. the Dáil exercising the power which it enjoys solely and exclusively) it is, of course, all a formality. The Minister reads out a script: the opposition reacts, generally negatively, and the bill is passed. There is little point in the opposition reacting positively by offering an alternative approach, as there is virtually no prospect that government backbenchers will breach the code of loyalty out of political conviction, and place their own political careers in jeopardy.

The third is the “committee stage.” Notably, once the bill has passed through the second stage, the relevant committee cannot amend the essential principles. In other words, the committees are left to tease out minor amendments and technical details, utterly undermining the committee concept and process. Gallagher points to the significance of the sequence of these two stages and suggests that if the sequence were reversed, the role of parliament in law-making would likely increase considerably.[27]

There is provision in the standing orders for “private members’ bills” which ostensibly provide an opportunity for opposition members to introduce bills. There was a relative glut of them that succeeded in the 1950s (five!), but since then they are almost always unsuccessful: defeated by the government parties. Even if passed, they do so only, of course, because the government has directed its own backbenchers to support them.[28]

Once again, the dominance of government – and the irrelevance of parliament – is clear. Article 15.2.1. may envision parliamentary control, but the institutional practice has deviated far from the text.

VI. Towards a republican response

This post has attempted to submit what is a very familiar pattern to a specifically republican analysis. The snappiest of all republican phrases might be deployed: James Harrington’s retort that a republic is an “empire of laws and not of men.”[29] The Constitution may envisage a republic of this kind: one in which the sheer will of particular individuals or a particular group cannot amount to law. But, while government ministers in this polity cannot rule in that unconstrained way – that is, in the manner of an absolute monarch – it is clear nonetheless that quite radical reform is required to satisfy the republican account of liberty.

There are direct or textual constitutional reforms that could address the problem of executive dominance. The revival of the “extern ministers” idea from the Free State Constitution, for instance, has certain appeal. This concept – included in stronger form in the original draft submitted to the Constituent Assembly, and in weaker form in the approved Free State Constitution – was designed specifically for the purpose of strengthening the checks on the power of the cabinet.[30] In other words, to combat an acknowledged shortcoming (excessive cabinet control) of the Westminster system that was essentially being imported.[31]

In the original draft, the idea was that cabinet collective responsibility would be restricted to four ministers, covering what were deemed vital, and therefore particularly “political,” areas (Defence, Home Affairs, Foreign Affairs and Finance).[32] The remaining ministers would be “extern” and were to be freed from the strictures of collective cabinet confidentiality. They were to be elected by the Dáil for the length that that Dáil existed and were thus to be responsible directly and individually to the Dáil. These individuals – in words of the draft that resonate with the republican concern for the common good and abhorrence of factionalism – “should so far as possible be generally representative of the Irish Free State as a whole rather than of groups or of parties.”[33] The thought was that they would be expert in particular areas, and less vulnerable to the populism and posturing that inevitably goes along with electoral politics.

The concept was watered down in the approved Constitution: there was no requirement (as had initially been envisaged for all but three) that the extern ministers would resign Oireachtas seats if they held them. In any case, the concept relied almost entirely on a parliament that was not controlled by powerful political parties. Notably, such a system was envisaged by the major political players of the era. Chubb points out that the likes of W.T. Cosgrave and Kevin O’Higgins, and the government more generally, favoured “at least in principle in the early days”[34] a wide use of the ‘free vote’ and “the maximum of individual liberty for the deputies” as well as a system of  “small groups of seven or eight” rather than “parties on definite lines of political cleavage.”[35]

As it transpired, of course, the two great post-independence political parties emerged forcefully following the civil war, with intense loyalty from grassroots through to leadership levels. The “extern ministers” concept therefore never worked in practice. Three were appointed in Cosgrave’s first government, four in his second: all were loyal party men and members of the Dáil. Far from exercising their constitutional right to criticize the Executive Council on policy matters, the convention emerged that they would abide by cabinet collective responsibility.[36] The concept was effectively removed from the Constitution by ordinary amendment in 1927. The government then had the discretion to not appoint any, and none was appointed subsequently.

There are several proposals for reform in the Programme for Government 2011 document, published by Fine Gael and Labour in advance of their coalition government taking office, many of which are worthwhile, so far as they go.[37] There are commitments, to, for example, the granting of powers to the Ceann Comhairle to intervene where a Minister has “failed to provide reasonable information in response to a question,” to giving “key committees constitutional standing” and powers to introduce legislation, and to the introduction of a new 10 Minute Rule (following the Westminster rule of the same name) designed to allow TDs to introduce their own Bills.[38]

Given the impact of control of the parliamentary timetable, the new Friday sittings which are to be “given over exclusively to committee reports and private members business” is not entirely insignificant.  Similarly – and harking back to Michael Gallagher’s argument about the importance of the sequence – there is a commitment to “amend[ing] cabinet procedure instructions so as to allow government to publish the general scheme of a Bill so that Oireachtas Committees can debate and hold hearings at an early stage.”

However, useful as many of these might be, the lesson of the “extern ministers” project in the 1920s is surely that innovative and well-intentioned reforms will be of little practical use should the Dáil continue to be controlled, to the extent that it has been, by professional and highly organized political parties. What matter a 10 Minute Rule if an unthinking majority, blindly loyal, rejects whatever proposed laws emerge? To return to the clunky metaphor presented earlier: political parties may indeed be vital cogs in the democratic machine established by this or any other constitution, but they cannot be permitted to sit in driving seat of that machine, controlling where it goes. Checking the dominating power of political parties may be achieved through direct provisions in the text of a new constitution: through provisions dealing with restrictions on any whip system, for instance, or on a requirement of ‘free votes’ on all but the most important of bills, on reforms of the electoral system, or through a weakening of the requirement for cabinet collective responsibility. It may be achieved through ordinary law, through amendments to the standing orders, through a rudimentary shift in the political culture, or through combinations of these approaches. This task of identifying particular reforms comprehensively is much too onerous in the present context.

This post has had modest aims.

It has gestured towards the dangers of excessive focus amongst legal and human rights scholars on the courts and on the fundamental rights provisions so far as the checking of public power, and the protection of citizens from domination, is concerned. Without endorsing Mark Tushnet’s contention that we ought to take the Constitution away from the courts, we should at least appreciate that that arm enjoys no exclusivity so far as our grounding document of legitimacy and liberty is concerned.[39] Legal scholars must avoid the temptation of casting focus too narrowly.

It has suggested also that the strict textual amendments to our Constitution, or indeed a new document altogether, is of very limited value in the absence of the development, through civic education amongst other things, of a genuine civic and democratic culture. This dissonance between the Constitution in theory and the institutional practice it prompts is not the fault of the established political parties alone. It is the fault, to a great extent, of we the citizens. In this sense, this post has followed the point made quite lyrically by Carol Coulter in her earlier contribution to this project: that many “campaigners invoke [the text of the Constitution] as if the words in themselves can achieve something. [The words] only have meaning when, to use the biblical term, they are made flesh.”[40]

The more precise aim has been to point to the alarming inconsistency between the Constitution in theory, and to the institutional practice that it prompts, and to the extent to which this dissonance renders our Constitution less, if at all, “republican.” The people are by no means the masters.

Related Posts

• May 17, 2012 -- Shadow constitutional convention #2: O’Mahony on reforming the reform process (0)
• May 10, 2012 -- Shadow constitutional convention #1: the dynamics of constitutional change (0)

During last night’s Frontline debate, a significant legal question came into dispute. Sinn Fein claimed that if Ireland rejects the Fiscal Treaty in next week’s referendum, it will retain the right to access the funds of the European Stability Mechanism. This claim is not accurate, and does not reflect the core principles of interpretation in international law. In this post I will also examine this Treaty’s provisions, which are important given its possible centrality to delivering a credible source of funding to Ireland in the event of a second bailout. I also want to consider some aspects of Deputy Thomas Pringle’s constitutional challenge seeking another referendum on Ireland’s membership of the ESM.

The ‘Blackmail’ “Clause”

No provision of the European Stability Mechanism Treaty has received more attention, and indeed has been the subject such vexed political rhetoric. The final draft of the Treaty was amended to insert into the recital section a provision making access to the ESM conditional on ratifying the Fiscal Treaty. I first noted some confusion in Sinn Fein’s position when Deputy Pearse Doherty appeared vexed in a recent Dail debate as to why the requirement is placed in the recital (preambular section) of the Treaty and questioned whether it actually was a legal obligation. This claim was reiterated yesterday by a statement by Sinn Fein, which claimed that Articles 3 and 12, and not the recital, were the grounds of Ireland’s obligation. As a result the Board of the ESM would be free to lend to us if necessary to preserve the stability of the Eurozone.

Significantly, Deputy Doherty’s statement in the Dail relied on a European Court of Justice ruling that recitals cannot ground obligations. However, in doing so he was incorrectly using EU law rather than public international law, which governs this intergovernmental treaty. There is not doubt that it is not a clause of the Treaty, and not a fresh obligation. Instead the recital functions as a specific example of the power to impose conditions on bailouts given to the ESM in Article 3. It fills out the interpretation of that Article, with the result that legally the ESM cannot give us funding without ratification. This reflects a common position in public international law which, when interpreting treaties, values not merely the text, but also the purposes for which the Treaty was laid down. A preamble in an intergovernmental treaty is given such a role in interpretation of the under Article 31(2) of the Vienna Convention of the Law of Treaties. The interpretation is further supported by the fact virtually ever State made it clear their intention was to establish such conditionality.

To keep things in perspective, however, with its blocking veto on the provision of funding, Germany could politically insist on this anyway.  For the pessimists amongst us, they are getting by law what they could have gotten by their economic muscle. The ESM framework foregrounds and formalises its conditionality in the form of the Fiscal Treaty – a strategy which is wildly different from that of the IMF – which traditionally eschews placing formal legal obligations on parties, preferring only a memorandum of understanding.

While some of my writings regarding the legal absurdities of the Fiscal Treaty may have seemed to benefit the ‘No’ side, it is important to note the potential benefit to the ‘Yes’ side of that Treaty’s incoherence. I still wait for a  ‘Yes’ advocate, who, while making their usual arguments, will promise continual and all out war on the Fiscal Treaty – a legal document compromised by poor economics, a lack of direct effect and a Russian doll structure of exceptions. We should continually dare the Commission and Member States to go right ahead and complain to the ECJ, we should make legal reservations and be careful in our design of the national debt brake rules. That would mean more than inanities like being ‘for Europe’ or trains departing.

Deputy Pringle’s Difficult Challenge

This week, there was a further report regarding the progress of the Deputy Thomas Pringle’s attempt to prevent the Dail ratifying the ESM. This case would represent a chance for the Irish judiciary to look at again at the Crotty v An Taoiseach, a case recalled with admiration by the barrister Vincent Martin in today’s Irish Times.

I will focus on the ESM Treaty rather than the potential European Union law aspects of the action. I assume that Deputy Pringle does not wish to place Ireland’s membership of the IMF in doubt. It would therefore appear that the natural way to pitch this action is to argue that the powers of the ESM are distinct and of a more severe nature than the IMF. The constitution clearly contemplates the ability of Dail to bind us to committing money to international institutions (Article 29.3). Therefore the challenge will attempt to characterize Irish commitments under the ESM Treaty as being greater than ‘a charge on public assets’, but rather as being so large or open-ended as having the potential to remove or defacto influence the budgetary competence of the Dáil. It is worth noting that a similar challenge may be taken in Germany. In Estonia, a constitutional opinion is forthcoming centring on the right of larger states to impose their will on smaller states in the emergency context and on the scale of financial contribution involved. Deputy Pringle’s challenge to the ESM Treaty ratification by the Dáil will probably centre on:

-       The extent of the  potential contribution Ireland must make to the working capital of the ESM. The amount of paid in capital will constitute 1.273 billion (Ireland’s quota with the IMF is roughly set at 477 million euros but will soon increase due to quota reform). However, Deputy Pringle will point to the right of the Board of Governors to unconditionally and irrevocably call in 11 billion. A lot of focus has been placed on unconditionally and irrevocably but the point to remember is that it applies to authorised capital stock. The authorised capital can be increased, but after completion of national procedures for ratification.

-       Just like the Fiscal Treaty, there is a failure to provide for a right to unilateral withdrawal from ESM membership. I cannot overstate how frustrating I find this. Within the IMF’s Article’s of Agreement (Article XXVI) there is a perfectly rational and functional provision allowing withdrawal – so it is not an omission but a conscious policy to exclude withdrawal.

-       The Pringle action will rely on the open-ended statements of majority in Crotty which we have previously discussed, which condemn treaties which significantly impair sovereignty to a referendum. I have already discussed that the academic consensus that Crotty will be reined in, and complaints relying on a de facto transfer of competence may not be well received. I do not doubt that the judgments of Walsh and Hederman in particular do ground challenges such as the one Mr Pringle is considering.

-       However, appealing to these features ultimately, in my view, will likely not avail Deputy Pringle. The crucial issue as I see it is the lack of formalized sanctions for a non-compliant state. Unlike the Fiscal Treaty, which had the backstop of potential fines, the ECJ under this Treaty has a power similar to the arbitral tribunal under the IMF Articles of Agreement. There are no express provisions allowing for the fining of non-compliant States. Just as Ireland is open to reject the political bargain of a memorandum of understanding, we are fully empowered to refuse to contribute and effectively disconnect ourselves from the ESM. Counsel for the State can argue that the Treaty legally facilitates political co-operation rather than legally directing it through judicial power. As we’ve talked about regularly, Crotty is an abstract painting rather than a map, but I would wager that is how the High Court/Supreme Court could structure its reasoning.

Remaining Confusion

I accept that the reason for a referendum here, and no referendum there is confusing for people. We have had no clear statement from the Government as to why a referendum for the Fiscal Treaty was required. The Taoiseach’s statement that it wasn’t an EU Treaty so a referendum was required provided no significant insight.

I would like to praise Professor Gerry Whyte for pointing out before the Oireachtas EU Affairs committee that the current proposed amendment wording rules out the placing the debt brake in the constitution. It would appear, therefore, that the government did not regard Article 3 obligation to introduce a ‘permanent, preferably constitutional’ rule as the reason for the referendum. I think, therefore, it was the potentially extensive nature of the ECJ fining power that triggered our referendum. I would reiterate however, that the government’s determination that a constitutional debt brake rule is not required does present some risks – it remains possible (if politically unlikely) for a Member State to sue us arguing that a constitutional debt brake was required by the Treaty. It is a strange position for public understanding for us to remain unclear on why this referendum was ultimately required.

Responding to Criticisms of the ESM:

Ireland’s membership of the ESM involves two steps – ratifying the Treaty and the Dail passing an amendment to Article 136 of the EU Treaties. The amendment was demanded by Germany before a recent challenge to the temporary EFSF mechanism in its Constitutional Court. However, the EFSF survived the constitutional challenge. It remains possible to argue that ESM could proceed without the amendment. Certainly there would be attempted constitutional challenges around Europe, and even in the ECJ itself, but in effect, it remains possible to run arguments to enable the ESM to stay operational.

There has been some scaremongering regarding the immunity from legal process etc granted to the Governors of the ESM, but these mirror similar provisions within the IMF Articles of Agreement (Article IX). So what you say about the ESM, you must say about the IMF.  Furthermore I would stress the importance of terms such as ‘official capacity’ to the granting of immunity, and the fact that the ESM is subject to the judicial supervision (though not direct fining) of the ECJ. There is no doubt however, that as an institution there is a lack of oversight by national audit offices and parliaments, as well as by the European Parliament due to its position outside the EU framework.

Law and Technocracy: Debt-Restructuring and the Role of the ECB

The ESM Treaty fails to provide any effective legal commitment towards debt restructuring measures. Even at the political level, it provides the Board of Governors with little mandate to press for restructuring or private sector involvement, beyond goodwill, voluntary measures. For advocates of a selective and managed default, this Treaty merely underscores that the possibility remains largely unsupported, and recent events in Greece presented as entirely exceptional.

The Treaty now states that in accordance with IMF practice, in exceptional cases, an adequate and proportionate form of private sector involvement will be considered in cases where stability support is provided, accompanied by conditionality in the form of a macro economic adjustment programme. Significantly, however, this provision was moved from an operative article, in the initial treaty, to a recital in the update treaty (recital 12). The main body of the treaty contemplates only one form of private sector involvement, the Collective Action Clause. A Collective Action clause allows a supermajority of debt holders (usually 75%-80%) to agree debt reduction which the remaining 20-25% are legally bound to go along with. The Treaty requires collective action clauses to be included, as of 1 January 2013, in all new euro area government securities with maturity above one year (recital 11 and article 12(3)). This doesn’t cover the existing stock of securities which are already out there. It is worth noting that only Member States, not private actors, can take an action to the ECJ to hold an ESM restructuring policy invalid. Earlier this year, Greece defaulted, by retrospectively inserting a collective action clause into its domestically issued bonds, and then effectively demanded collaboration, shaving off approximately 100 billion off its debt. Would that be constitutional under Ireland’s property rights’ scheme?

Also significant in the Greek case was the role of the European Central Bank. It refused to accept that it, as a debt holder, would have to take the haircut, alongside the private actors, in the Greek deal. It is possible this was due to the no bailout provision of Article 125 of the EU Treaties, which seems to prohibit EU institutions participating in debt forgiveness of eurozone states. This is an under-researched area, but it seems that allowing collective action clauses to force a write down of ECB debt may be regarded as a violation of its basic rules. The fact the ECB can’t (or won’t?) accept haircuts means that they are senior in the queue to recovering their monies (they do rank below the IMF per this ESM Treaty). This adds an additional layer of cost and risk to debt across the Eurozone – and must be counterbalanced by the increased co-ordination and intervention powers which the ESM should enjoy. Of course the ECB, in particular through Lorenzo Bini Smaghi, has virulently opposed sovereign debt restructuring as a matter of policy, arguing imposing haircuts on the private sector would have the knock on making further bank recapitalizations necessary.

Both candidates in the French Presidential election proposed an array of possible ways for the ECB to fund the ESM. The ECB has rejected this as legally impossible, given both Article 122 and 125 TFEU – which prohibit the pooling of debt and the giving of bailouts. However, compare and contrast these express positions with the enormous legal grey areas that exist in relation to the ECB legal mandates to engage in ‘Target 2’ liquidity injections for national banks. A superb post by Kenneth Armstrong on the Eutopia blog brings that oft-hidden, highly technical area into sharp relief. Today’s EU Summit will no doubt provoke further controversy regarding the legal ‘limits’ and policy ideologies of the ECB, when the issue of eurobonds arises.

It is time, I believe to extract clear statements from the ECB regarding its legal authority, and indeed for politicians in Europe to confront the nature of the roadblocks to action we are faced with. The ESM Treaty fails to disturb the default position that those countries who wish to manoeuvre for a unilateral, organised default receive no co-ordinated support from European institutions. For those who believe re-structuring is inevitable, it leaves Europe fragmented and vulnerable in the face of market power and private actors. I would remind all parties, that for all the talk of European union hegemony and German domination, all action remains structured by the animal spirits of the markets.

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Readers who are following the abortion debate in Ireland may also be interested in exploring the political conditions under which some reproductive rights advocates work abroad.  Last week, Amnesty International issued this Urgent Action in support of Monica Roa (pictured) and her colleagues at Womens’ Link Worldwide. In 2006 Roa persuaded the Constitutional Court of Columbia to overturn the country’s restrictive ban on abortion on grounds that the ban violated Colombia’s commitments to international human rights treaties that ensure a woman’s right to life and health (see interview here). She and her co-workers have been subject to a sustained intimidation campaign since 2005. On the evening of May 7, the power to the office was cut, and an unidentified person fired shots into the space where she and her colleagues were working.

The Womens Link Worldwide press release reads:

On the eve of the sixth anniversary of the historic decision that decriminalized abortion in Colombia, threats have escalated against human rights activist Monica Roa and Women’s Link Worldwide where she works as Programs Director. On the evening of May 7, at approximately 6:30 PM an unidentified person shot at the office in Bogota where Monica and two Women’s Link Worldwide colleagues were working. The bullet broke the office window security glass above Monica’s head. Fortunately, no one was injured.

 

Sadly this is not an isolated incident. This scare tactic comes at a time when the work to implement the right to an abortion in Colombia is under fierce attack. Just two months ago on March 1, Women’s Link learned that a criminal complaint had been filed against Monica by one of the country’s highest judicial officials, Ilva Miriam Hoyos, Deputy Procuradora.* To date, the complaint has not been made public.

 

Subsequently, the pattern of intimidation continued. On April 23, a computer was stolen through a window from the Women’s Link offices. This week’s violence only further affirms the escalating danger.

 

Women’s Link Worldwide is taking the necessary measures to secure the physical safety of Monica, the organization’s staff, and our office.  We request that the international community speak out NOW against these threats to a courageous human rights defender, our organization, and our efforts to implement a woman’s right to a safe and legal abortion. We also ask that the international community call on the Colombian government to investigate the criminal activity, effectively protect activists, and safeguard reproductive rights.

 

To donate to our emergency fund for assisting Monica and our efforts to defend the right to an abortion in Colombia, please donate online by clicking here.

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On Friday of last week a conference entitled “Building Restorative International Justice: the ICC of the Future” took place in the Royal Commonwealth Society in London to discuss the most pertinent issues regarding the present performance and future direction of the International Court. Taking place in the immediate aftermath of the Lubanga conviction, the conference arrived at a highly propitious time for assessing the Court’s record and prospects. Bringing together some of the great and the good in the academy and practice (and of course those with a foot in both fields), the papers presented represented some of the staunchest advocates of the Rome Statute apparatus and some very vociferous critics (the programme is here). As the Conference was organised by IC Publications who print the New African, there was a very strong African focus, reflecting the fact that all active cases are based there.

Between the starry-eyed idealists of the ICC who presume the simple initiation of cases can change the practice of warlords and dictators and the nay-sayers who argue the Court is incorrigibly imperialist (notwithstanding the fact it is freely entered into), there were a number of excellent papers on the main controversies that have surrounded the Court. The following are a selection of a few of the most interesting issues that were raised, but this is by no means exhaustive.

1. Security Council referrals are highly problematic

Many at the conference argued that Security Council referrals are legally and politically quite problematic. Because the Security Council can by executive fiat create jurisdiction it would not otherwise possess, international power politics are brought into the Court’s exercise. This is perhaps most apparent in the Gadhafi indictment application at a contentious time in the Libyan conflict or the Bashir indictment in the Sudanese peace processes, which can be contrasted with paralysis over Assad in Syria. In particular, the possibility that states not party to the Rome Statute can be brought before the Court or can be compelled by Security Council Resolutions to co-operate with the Court to the same or a lesser degree than States Parties may breach the principle of pacta sunt servanda, though there was much debate as to whether this was a ius cogens norm. Others by contrast argued that the Security Council link integrated the Court into the international legal system even where it creates a special jurisdiction by referral. Politically, most seemed to accept the Bashir indictment was unhelpful in a context where there was no realistic prospect of bringing him to trial.

1. Practice on admissibility is highly inconsistent

A number of speakers criticised the unwillingness of the court to defer to the jurisdiction of the generally democratic Kenya on the 2007 election cases and contrasted it with the growing willingness to leave the Saif Gadhafi prosecution to a seemingly authoritarian, rights breaching Libya. The difference in treatment is of course easily explained – Kenya largely does not want to prosecute those subject to ICC proceedings even though it could guarantee a high level of trial, while Libya are highly enthusiastic about trying Saif even though they appear unable to guarantee fair trial. The suggestion of some speakers that the UK and UK would be uncomfortable with Gadhafi testifying  in open court in Europe about his links with both governments (and particularly the UK) is one that garnered much assent.

1. Complementarity is not very complementary

In the DRC and Uganda, the Office of the Prosecutor actively solicited cases and were so pro-active that Moreno-Ocampo’s much vaunted claim that he would view it as a success if the Court never tried any cases seemed like cant. The courts of Ituri in the DRC were more than capable of delivering justice for Lubanga et al after significant EU finding and local work. A finding that local courts are unwilling or unable had a demonstrably demoralising effect on the local judiciary. Sarah Nouwen in a terrific paper noted three paradoxes in complementarity –

1)      Complementarity is viewed as the cornerstone of the Statute but on closer textual interpretation is merely decoration

2)      While the primary responsibility to investigate or prosecute lies with the state, there is no actual obligation on states to do so, with the consequence that Court has moved from being in theory a court of last resort to being one of first convenience in practice.

3)      Competition, not co-operation, has been the watchword thus far

1. Africa feels victimised….

At least a half of those present at the Chamber (and somewhere between a third and a half of those presenting papers or chairing) were from Africa. The overwhelming reaction to the Court was hostile, even allowing for the the high numbers who appeared to have been dragooned from the national embassies in London of states subject to investigations. A constant refrain was the tendency to focus on Africa to the exclusion of crimes by the major powers in Iraq and Afghanistan, the Columbian civil war or the Palestine-Israel conflict. The usual criticism of international justice precluding more traditional restorative processes (or impunity fudges, as they might also be called) was rehearsed a number of times – as the chair of a session on Africa put it, Mandela could get a Nobel prize for forgiving a white man but other African leaders and condemned for failing to punish black ones. As Prof Stephen Chan put it, if by our concentration on Africa the Court creates distrust, then it undermines the whole cause of justice, which will seem malign and misdirected.

1. …. But the critique of the ICC as neo-colonial is grossly oversimplified

As a few speakers pointed out with reference to Sudan and Uganda, the ICC is actually very weak with or without Security Council backing. The argument that it is an agent of colonialism requires a wilful blindness to the fact it is voluntarily entered into outside of Article 13 referral. If one looks at Uganda and the DRC where the Governments have been given free passes while forces antagonistic to the leaderships are subject to proceedings, it appears the Court is being manipulated by African countries and not the other way around. As such, it may entrench state impunity. The “Why Charles Taylor and not George Bush?” argument plays to sentiment and emotion, as Karim Khan put it, but ignores the fact that there are trials for Cambodia, Lebanon and the Balkans, as well as an intrusive subsidiarity regime in the more established regional human rights systems.

1. Everyone is glad Moreno-Ocampo is no longer prosecutor

One of the few arguments that gained almost universal assent was the fact that observers, practitioners, defendants and victims could never feel assured about the propriety of practice in the Pre-Trial Chamber or an Office of the Prosecutor largely characterised by bravado. In particular, the departure of Moreno-Ocampo, dubbed as “the cowboy prosecutor” was greeted with enthusiasm by advocates and detractors of the ICC in light of his inconsistency of practice as regards admissibility, his constant quest for the limelight, abuse of power and allegations of sexual misconduct. The election of an African woman, Fatou Bensouda, as new Prosecutor, was welcomed. However, comparisons were drawn with Barack Obama in that a symbolic appointment of a highly competent candidate may mean little given the scale of powerful opposition and institutional sclerosis she must face. Some opined that a nine-year term as prosecutor was too long.

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Date: Monday, 28 May 2012

Time: 2pm – 4pm

Venue: Radisson Hotel, Golden Lane, Dublin 2

The ICCL is delighted to host this event in conjunction with Justice for Magdalenes, whose representative will speak about their experience of using this important United Nations mechanism to enhance the impact of their advocacy.

Venue is fully accessible.

Tea and coffee will be served.

Please RSVP to Aoife Murphy at aoife.murphy@iccl.ie

* Ms. Gaer, who is the Director of the New York-based Jacob Blaustein Institute for the Advancement of Human Rights, is participating in this event in her personal capacity.

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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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