Constitutional Reform in Ireland

CONSTITUTIONAL REFORM IN IRELAND
Legal Memorandum

February 2014
Constitutional Reform in Ireland, February 2014


Executive Summary

The purpose of this memorandum is to provide an overview of Irelands
ongoing constitutional reform process. Ireland has had two separate constitutions
since it obtained independence from United Kingdom (UK) in 1921. The UK
Parliament passed the first constitution in 1922. Prime Minister amon de Valera
established a special review committee to examine the 1922 Constitution section
by section. This Committee recommended keeping some aspects of the 1922
Constitution and recommended changes for other aspects, such as replacing the
position of governor-general with the position of president. In a simple majority
referendum, the citizens of Ireland voted to pass the new Constitution in 1937.

Over the years, the 1937 Constitution has been amended many times.
However, recent economic and social changes have prompted the Irish government
and political parties to begin constitutional reform in Ireland. Despite multiple
amendments, the 1937 Constitution left some human rights issues unresolved. For
instance, when Ireland ratifies an international treaty, such as one that addresses
human rights, the 1937 Constitution requires additional legislation before those
treaties become domestic law. As a result, Ireland does not automatically
implement its human rights treaty obligations. Other unresolved human rights
issues in the 1937 Constitution include the equality of women and childrens
rights.

The current constitutional reform process began in 2009 when the
Parliament Joint Committee on the Constitution issued a report proposing the
establishment of a citizens assembly to consider the question of electoral reform.
This initiative received support from some political parties. In 2010, the Fine Gael
party also called for a citizens assembly to consider electoral reform. By 2011,
the main political parties platforms included proposals for constitutional reform.

In 2012, the Irish Parliament established a Convention on the Constitution
(Convention) to consider reform proposals and provide recommendations to
Parliament. Parliament mandated that the Convention address eight specific
reform proposals: (1) reducing the presidential term of office to five years and
aligning it with local and European elections; (2) reducing the voting age to 17; (3)
reviewing the Dil electoral system; (4) granting Irish citizens residing outside of
Ireland the right to vote in presidential elections; (5) adding a provision for same-
sex marriage; (6) amending the clause on the role of women in the home and

encouraging greater womens participation in public life; (7) increasing womens
participation in politics; and (8) removing the offence of blasphemy from the
Constitution.

The 100-delegate Convention includes Members of the Parliament,
representatives from Northern Ireland, and 66 Irish citizens that represent the
general population. The Convention held meetings over a period of one year,
which ended in December 2013. It continues to release reports outlining its
recommendations. The Prime Minister and his Cabinet will consider the
recommendations and decide which proposals will be subject to referendums
within four months of receiving the recommendations.

The Convention is a highly collaborative effort. Although excluded from
the Conventions deliberations, public interest groups have had opportunities to
present their viewpoints through live presentations and online report submissions.
Furthermore, after a lack of transparency in earlier stages, the Conventions later
meetings were streamed online and its reports are publicly available.

However, some concerns remain. Frequent referendums may lead to
referendum fatigue among the voters. Some critics believe that individual
amendments may not go far enough to address systemic issues. Other critics claim
that single proposals that would be considered and voted upon separately may be
comparatively easier to pass than adopting an entirely new constitution. However
if individual reform proposals fail to garner enough public support, the future of
those reforms would remain uncertain. The Irish government has not announced
its plan for those reforms that do not pass public referendums. Additionally, some
public interest groups believe that the government did not engage the public
enough during the formation stages of the Convention. The interest groups believe
that the government should educate the public about the process and seek greater
publics input. In contrast, others believe that too much public input may inhibit the
Conventions ability to adequately consider each proposal.

The Irish constitutional reform process provides lessons for states
considering similar efforts. The Convention and its processes, while unique to
Irelands history and culture, provide an example of 21st century constitutional
reform. Each proposal has been considered individually and will be voted upon in
separate referendums, a format that prevents controversial provisions from
delaying much-needed reform on other issues. The government has already
scheduled votes on several reform efforts for 2015.


TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Irelands Path Towards Constitutional Reform 2
The Irish Free State Constitution Act of 1922 2
The 1937 Constitution 4
The Years of Change 7

The Convention on the Constitution 10

Public Participation in the Reform Process 14

Topics of Reform and Reform Proposals 16
Topics of Reform: The Conventions Differing Approaches 17
Additional Possible Reform Proposals 19

Challenges to Reform 22
Referendum Fatigue 22
Individual Amendments Versus a New Constitution 23
Public Input 23
Failed Referendums 25

Anticipated Next Steps 25

Lessons Learned from Irelands Constitutional Reform Process 26
Consideration of Individual Reform Proposals 27
The Conventions Diversity 27
Public Input and Transparency 28

Conclusion 29

Annex A: Major Political Parties in Ireland 30
1

Statement of Purpose

The purpose of this memorandum is to provide an overview of Irelands
ongoing constitutional reform process.

Introduction

Constitutions are created and revised in complex and distinctive historical
contexts closely intertwined with the national identity of people.
1
Irelands two
constitutions, for instance, have been shaped by external and internal conflicts.
Although the 1937 Constitution has served Ireland for many years, recent
economic and societal changes have driven the impetus for constitutional reform.
By 2010, the idea of constitutional reform gained enough momentum that Irelands
two leading political parties included constitutional reform as part of their party
platforms. When these political parties formed a coalition government in 2011,
they included constitutional reform in the 2011-2016 Programme for
Government. One year later, the Irish Parliament approved the establishment of
the Convention on the Constitution to lead the constitutional reform process. Of
the 100-person body, 66 Convention members are Irish citizens not working in the
government.

Although Irelands constitutional reform process is still ongoing, the Irish
process contains lessons to be learned by other states engaging in constitutional
reform. Irelands constitutional reform process may not necessarily translate into
constitutional reform in Bosnia and Herzegovina (BiH); nevertheless,
organizations and individuals interested in constitutional reform can learn from
common challenges of Irelands constitutional reform process.
2
As one
constitutional law scholar observed, Irelands constitutional reform process has
become a microcosm for assessing the future of constitutionalism around the
world.
3
Because problems that seem unique are often rather typical,
4
this
memorandum provides background on the Irish constitutional experience for civil
society organizations and independent policy advisors in developing options,

1
Vicki C. Jackson, Symposium, Comparative Constitutional Law: Methodological Challenges in Comparative
Constitutional Law, 28 PENN STATE INTERNATIONAL LAW REVIEW 319, 324, 325 (2010).
2
See Mark Tushnet, Constitution-Making: An Introduction, 91 TEXAS LAW REVIEW 1983, 2013 (2013), available at
http://http://www.texaslrev.com/wp-content/uploads/Tushnet.pdf.
3
Francis X. Beytagh, CONSTITUTIONALISM IN CONTEMPORARY IRELAND: AN AMERICAN PERSPECTIVE x (1997).
4
Mark Tushnet, Constitution-Making: An Introduction, 91 TEXAS LAW REVIEW 1983, 2013 (2013), available at
http://http://www.texaslrev.com/wp-content/uploads/Tushnet.pdf.
2
opportunities, and potential frameworks for constitutional reform in BiH.
Specifically, this memorandum surveys how constitutional reform has progressed
in Ireland and the challenges the reform process has faced. It also examines
Irelands lessons learned from the constitutional reform process, and the Irish
governments anticipated next steps in the process.

Irelands Path Towards Constitutional Reform

Ireland has had two separate constitutions since it obtained independence
from the United Kingdom (UK) in 1921.
5
The UK Parliament passed Irelands
first constitution, the Irish Free State Constitution, in 1922. The 1922 Constitution
remained in effect for only 15 years.
6
After the Irish civil war ended in 1923,
Ireland gained its independence from the UK and decided to draft a new
constitution. In 1937, the people of the Republic of Ireland approved a second
constitution. Although it has been amended nearly two dozen times since its
adoption, the 1937 Constitution remains in effect today. In the past several years,
however, the Irish government has initiated a movement to reform the 1937
Constitution and make it more attuned to the 21st century. This section provides
the historical background behind the current constitutional reform process.

The Irish Free State Constitution Act of 1922

The Irish Free State Constitution was enacted in 1922 following the end of
the Irish War for Independence and the signing of the Anglo-Irish Treaty of 1921
(Anglo-Irish Treaty).
7
Although the Anglo-Irish Treaty served as the impetus for
the creation of the Irish Free State and the 1922 Constitution,
8
it did not receive
wide support from the general population due to both procedural and substantive
issues.
9

5
Hugh OFlaherty, Essay, An Introduction to the Relationship Between European Community Law and National
Law in Ireland, 20 FORDHAM INTERNATIONAL LAW JOURNAL 1151, 1151 (1997), available at
http://http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1537&context=ilj.
6
Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43
WASHBURN LAW JOURNAL 225, 23233 (2004).
7
IRISH FREE STATE CONST. (1922), available at http://www.irishstatutebook.ie/1922/en/act/pub/0001/print.html;
Richard S. Kay, Comparative Constitutional Fundamentals, 6 CONNECTICUT JOURNAL OF INTERNATIONAL LAW
445, 455 (1991).
8
Anglo-Irish Treaty (Great Britain and Ireland, 1921), available at http://treaty.nationalarchives.ie/document-
gallery/anglo-irish-treaty-6-december-1921/.
9
Sarah Frazier, Note, Liberty of Expression in Ireland and the Need for a Constitutional Law of Defamation, 32
VANDERBILT JOURNAL OF TRANSNATIONAL LAW 391, 395, 396 (1999).
3
The Irish populations procedural dissatisfaction stemmed from the 1922
Constitutions parallel enactment process. Both the Irish Parliament and the
British Parliament passed statutes enacting the 1922 Constitution.
10
As a hybrid
legal document, the 1922 Constitution simultaneously served as the foundational
document of the Irish Free State and as an Act of British Parliament.
11
This
procedure increased rather than decreased the existing tension between Ireland and
the UK because each state viewed the statute enacted by its respective Parliament
as supreme to the other states statute.
12
The Irish government believed that it had
created its own state, but the British viewed the Free State of Ireland as one of its
dominions, similar to Canada or Australia.
13

The Irish population also objected to substantive provisions within the 1922
Constitution. The Irish Parliament had wanted the Irish Free State to be
autonomous from Britain, but the 1922 Constitution contained an oath to the
Crown and the procedural provisions of a dominion.
14
Additionally, each statute
enacting the 1922 Constitution included a repugnancy clause that voided any
new law passed by the Irish Parliament that was inconsistent with the Anglo-Irish
Treaty.
15
As a result, the repugnancy clause limited Irelands autonomy by not
allowing Ireland to freely amend its constitutional provisions involving the Anglo-
Irish Treaty.
16
For instance, a provision within the Anglo-Irish Treaty allowed the
counties in Northern Ireland to remain under UK control.
17

The 1922 Constitutions enactment ultimately instigated a civil war in
Ireland between the Anglo-Irish Treatys supporters and its detractors.
18
This
conflict divided Ireland into two parts: Northern Ireland, which would remain
within the UK as a self-governing entity, and southern Ireland, which would leave

10
Thomas Mohr, The Statute of Westminster, 1931: An Irish Perspective, 31 LAW AND HISTORY REVIEW 749, 763
(2013).
11
Patrick Hanafin, Constitutive Fiction: Postcolonial Constitutionalism in Ireland, 20 PENNSYLVANIA STATE
INTERNATIONAL LAW REVIEW 339, 352 (2002).
12
(2013).
13
(2013).
14
VANDERBILT JOURNAL OF TRANSNATIONAL LAW 391, 396-97 (1999).
15
(2013).
16
See Raymond J. Friel, Brown v. Board of Education: An Irish Perspective: The Better Angels of Our Nature, 43
17
VANDERBILT JOURNAL OF TRANSNATIONAL LAW 391, 395, 396 (1999).
18
4
the UK but retain governmental ties as a dominion, similar to Canada and
Australias connection to the UK.
19

As these events were unfolding, however, the British Parliament passed the
Statute of Westminster of 1931,
20
which permitted dominions to amend or repeal
any British statute that applied to them.
21
For Ireland, this meant it could repeal
the 1922 Constitution and adopt a new one.
22

The 1937 Constitution

The 1937 Constitution,
23
known in Gaelic as Bunreacht na hireann, was
the first constitution ever adopted by a popular vote.
24
The drafting process began
in 1934, when Prime Minister amon de Valera established a special review
committee to examine the 1922 Constitution section by section.
25
The committee
included the Legal Adviser at the Department of Foreign Affairs, the Legal
Assistant to the Attorney General, the Assistant Secretary in the Department of the
President of the Executive Council, and the Secretary of the Department of
Justice.
26
Although it recommended that the new constitution retain the
fundamental rights provisions from the 1922 Constitution, the committee also
suggested a number of specific changes.
27
For instance, the committee
recommended creating the position of president to replace the position of

19
20
Statute of Westminster (United Kingdom, 1931), available at
http://www.legislation.gov.uk/ukpga/1931/4/pdfs/ukpga_19310004_en.pdf.
21
22
WASHBURN LAW JOURNAL 225, 233 n.39 (2004).
23
IRELAND CONST. (1937), available at https://www.constitution.ie/Documents/Bhunreacht_na_hEireann_web.pdf.
24
Hon. Gerard Hogan, The 1937 Constitution, Address to the Constitutional Convention, THE CONVENTION ON THE
CONSTITUTION, 2 (Dec. 1, 2012), available at
http://www.constitution.ie/AttachmentDownload.ashx?mid=d0e7d26f-283e-e211-a5a0-005056a32ee4.
25
26
Hon. Mrs. Justice Susan Denham, Some Thoughts on the Constitution of Ireland at 75, 6 (Jun. 28, 2012),
available at
http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/5AB5F205384E7EEF80257B27003C2768/$F
ILE/Some%20thoughts%20on%20the%20Constitution%20of%20Ireland%20at%2075.pdf.
27
5
governor-general. The authority of the president would supersede the British
kings power regarding Irish domestic matters.
28

The review committee relied on other states constitutions as models, and
the 1937 Constitution in many ways resembles the constitutions of numerous other
states, including the United States (US), France, Switzerland, Portugal, and
others.
29
For instance, the review committee used the German Weimar
Constitution of 1919 and the British constitutional practice as a model for
organizing its Parliament, governmental system, and control of state finances.
30

The review committee adapted the 1937 Constitutions separation of legislative,
executive, and judicial powers, as well as its system of judicial review from the US
Constitution.
31
It used the US and British Constitutions as models for the criminal
trial system.
32
The review committee adopted the duty to protect fundamental
rights from the Polish Constitution.
33

Different opinions on politics and economics gave rise to disagreements
during the drafting process. For instance, the Catholic community, particularly the
Jesuits, wanted the state to promote private land ownership and to redistribute land
so that as many people as possible could become landowners.
34
On the other hand,
the Department of Finance did not believe that land redistribution and ownership
were topics that should be addressed in a constitution.
35
As a result, land
ownership was not included as a right in the Constitution, but was given the

28
History Ireland, The Catholic Church and the Writing of the 1937 Constitution (May/Jun. 2005), available at
http://www.historyireland.com/20th-century-contemporary-history/the-catholic-church-and-the-writing-of-the-1937-
constitution/.
29
CONSTITUTION, 2-3 (Dec. 1, 2012), available at
30
31
32
33
34
Thomas Murray, Credit and Constitution-Making, Irish Style, UNIVERSITY COLLEGE DUBLIN, 11 (2012), available
at http://historyhub.ie/wp-content/files_mf/1364570578Tom_Murray_Credit_and_Constitution2.pdf.
35
6
status of a Directive Principle.
36
The difference between a right and a Directive
Principle is that the right carries a legal remedy where a Directive Principle is a
guiding principle.
37

The 1937 Constitution contains several provisions addressing governance.
38

Article 5 proclaims that Ireland is a sovereign, independent, democratic state.
39

Article 6 establishes that all the powers of government derive from the people.
40

Article 12 provides for the position of President of Ireland and Article 13 specifies
the Presidents powers.
41
Article 15 creates the Parliament, which consists of a
House of Representatives, the Dil ireann, and a Senate, Seanad ireann.
42

Article 28 creates the Executive branch, allows the President to appoint seven to 15
ministers, and restricts the Executive Branch to acting consistent with the
Constitution.
43
Article 34 establishes independent courts.
44

The 1937 Constitution also provides for an amendment process. It requires
all amendments to be approved through popular referendum and sets forth the
following amendment procedure: (1) the House of Representatives initiates a
proposal for an amendment;
45
(2) the House of Representatives and the Senate pass
the proposal, which can only contain one amendment;
46
(3) the President then signs
the amendment if he/she is satisfied with the proposal;
47
and (3) every amendment
proposal is submitted to a popular referendum, which requires a majority vote for
approval.
48

Because the Constitution is the basic law of Ireland, any changes require a
referendum in which citizens over the age of 18 are eligible to participate.
49
The

36
37
38
IRELAND CONST. (1937).
39
IRELAND CONST. art. 5 (1937).
40
41
IRELAND CONST. arts. 12-13 (1937).
42
IRELAND CONST. art. 15(1) (1937).
43
44
45
46
IRELAND CONST. art. 46(2), 46(4) (1937).
47
48
49
Department of the Taoiseach, Constitution of Ireland (last visited Jan. 13, 2014), available at
http://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/.
7
first constitutional referendum occurred on July 1, 1937.
50
Over 685,000 citizens
voted in favor of the referendum and approximately 527,000 citizens did not
approve the referendum.
51
As a result of a majority vote in favor, the Constitution
passed the referendum.
52

Although the differences between the 1922 and the 1937 constitutions
primarily related to the issues of Irelands sovereignty in relation to the UK rather
than fundamental rights, internal governance, or the rule of law,
53
enacting a new
constitution was an important step in further shaping Irelands sovereign identity.
It was a visible outward symbol of nation-building, something to set Ireland apart
from its colonial past.
54
As such, the 1937 Constitution was a validation of
values established over fifteen years of Irish independence.
55

The Years of Change

Over the last several decades, Ireland has seen many economic and social
changes. For instance, Ireland joined the European Union (EU) in 1973.
56
It also
achieved a peaceful settlement to the conflict in Northern Ireland, which was
accompanied by a period of great economic prosperity.
57
Recently, however, this
period ended abruptly with a sudden dramatic collapse.
58
In addition to the
economic turbulence, Ireland has undergone social changes. In order to adapt to

50
Department of the Environment, Community and Local Government, Referendum Results: 1937-2012, 16 (last
visited Jan. 13, 2014), available at
http://www.environ.ie/en/Publications/LocalGovernment/Voting/FileDownLoad,1894,en.pdf.
51
Department of the Environment, Community and Local Government, Referendum Results: 1937-2012, 16 (last
visited Jan. 13, 2014), available at
http://www.environ.ie/en/Publications/LocalGovernment/Voting/FileDownLoad,1894,en.pdf.
52
53
http://http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1537&context=ilj.
54
Hon. Mrs. Justice Susan Denham, Chief Justice, Some Thoughts on the Constitution of Ireland, THE SUPREME
COURT OF IRELAND, 12 (June 28, 2012), available at
http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/(WebFiles)/5AB5F205384E7EEF80257B27003C2768/
$FILE/Some%20thoughts%20on%20the%20Constitution%20of%20Ireland%20at%2075.pdf.
55
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1537&context=ilj.
56
European Commission, Ireland in the EU (Aug. 17, 2013), available at
http://ec.europa.eu/ireland/ireland_in_the_eu/index1_en.htm.
57
William Binchy, The Irish Legal System: An Introduction, 11 LEGAL INFORMATION MANAGEMENT 151, 151
(2011).
58
William Binchy, The Irish Legal System: An Introduction, 11 LEGAL INFORMATION MANAGEMENT 151, 151
(2011).
8
these social and economic changes, the 1937 Constitution has been amended
multiple times.
59

Ireland has amended its constitution over 25 times since 1937, mostly within
the last 30 years.
60
In the first 35 years since the 1937 Constitutions enactment,
there were only two amendments.
61
One amendment allowed the state to institute a
state of emergency to protect the publics safety during a time of war or armed
rebellion.
62
To clarify portions of the Constitution, the second amendment
addressed a range of articles.
63
During the 1970s and 1980s, there were nine
amendments, two of which related to Irelands membership in the EU.
64
Other
amendments reflected changing values in the Irish society, such as the right to vote
for certain non-Irish citizens who have not been legally disqualified and are in
compliance with the provisions in the law relating to Dil elections.
65
The
amendments also reduced the voting age from 21 to 18, removed the special
position of the Catholic Church, and created new policies relating to adoption and
the protection of unborn children.
66

The pace of amendments increased in the 1990s and into the new
millennium. Many of the amendments arose from Irelands new status as an EU
Member State. Others reflected further change in social values, including the
passage of a divorce referendum; the removal of the death penalty; and the Good
Friday Agreement, which was a major development in the Northern Ireland peace
process.
67
As Prime Minister Enda Kenny has argued, these amendments
demonstrate that as the pace of Irish life increasesand values of society with

59
IRELAND CONST. (1937).
60
61
62
63
64
65
66
67
Taoiseach, Mr. Enda Kenny, T.D, Speech at the Launch of Constitutional Convention, THE CONVENTION ON THE
CONSTITUTION, 1-2 (Dec. 1, 2012), available at
http://www.constitution.ie/AttachmentDownload.ashx?mid=f02defe5-583d-e211-a5a0-005056a32ee4.
9
itthere is a need more than ever to keep our Constitution under review, to keep it
relevant and inspiring.
68

For each constitutional amendment that passed, other potential issues have
remained unresolved. Critics have pointed out several unresolved constitutional
issues, including many human rights issues, such as the non-incorporation of
treaties into domestic law, the equality of women, and childrens rights.
69
For
instance, some criticize Ireland for not immediately implementing its human rights
treaty obligations. When Ireland ratifies a treaty, the 1937 Constitution requires
additional legislation before international treaties become domestic law.
70
As a
result, Ireland does not automatically implement its human rights treaty
obligations.
71

Additionally, Article 41.2 has been criticized as treating women as inferior
to men.
72
Article 41.2 provides that the State recognizes that by her life within
the home, woman gives to the State a support without which the common good
cannot be achieved.
73
Critics believe this provision is sexist, male-oriented, and
promotes a stereotype, inconsistent with the United Nations Convention on the
Elimination of Discrimination Against Women, that women are homemakers.
74

Other critics disapprove of the Constitutions silence with regard to the rights of
children, and they believe that it has negatively impacted government policies and
social work practices.
75

Against this backdrop of economic challenges and societal changes, the
political consensus for constitutional reform has been steadily increasing. The
reports of the Joint Committees of the Parliament in 1967, the 1996 Constitution
Review Group, the 1998 All-Party Committee on the Constitution, and the Joint

68
CONSTITUTION, 2 (Dec. 1, 2012), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f02defe5-
583d-e211-a5a0-005056a32ee4.
69
Maurice Manning, The Constitution: Human Rights Challenges, IRISH HUMAN RIGHTS COMMISSION, 3-6 (Jun. 30,
2012), available at
http://www.ihrc.ie/download/pdf/dr_maurice_manning_ihrc_president_address_on_constitution_ucd_school_of_law
_30_june_2012.pdf.
70
71
Maurice Manning, The Constitution: Human Rights Challenges, IRISH HUMAN RIGHTS COMMISSION, 3 (June 30,
2012).
72
2012).
73
IRELAND CONST. art. 41(2) (1937)
74
2012).
75
2012).
10
Committee on the Constitution preceding the 2011 general election all
demonstrated an interest in constitutional reform.
76
In 2011, the government made
a commitment to constitutional reform as opposition parties, and many civil
society groups indicated that they support change to the Constitution.
77

The Convention on the Constitution

These economic and societal changes and the support for constitutional
reform culminated in the creation of the Convention on the Constitution in 2012.
The Conventions origins date back to late 2009, when the Parliaments Joint
Committee on the Constitution issued a report proposing the establishment of a
citizens assembly to consider the question of electoral reform.
78
These efforts
coincided with a major policy review by the leader of Fine Gael, Irelands then
largest opposition party.
79
Fine Gaels March 2010 proposal also called for a
citizens assembly to consider electoral reform.
80

For the February 2011 general election, the main political parties platforms
included proposals for constitutional reform.
81
In addition to the creation of a
citizens assembly, Fine Gael promised to hold a Constitution Day.
82
This would
allow the voters to have an opportunity to consider making changes to the
Constitution with respect to state institutions, such as the executive, the Dil, the
presidency, and the judiciary.
83

76
David M. Farrell, The 2013 Irish Constitutional Convention: A Bold Step or a Damp Squib?, Apr. 3, 2013, draft
chapter for inclusion in COMPARATIVE REFLECTIONS ON 75 YEARS OF THE IRISH CONSTITUTION, 2 (2013), available
at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.
77
Chairman, Mr. Tom Arnold, The Inaugural Meeting of the Convention on the Constitution, THE CONVENTION ON
THE CONSTITUTION, 4 (Dec. 1, 2012), available at
http://www.constitution.ie/AttachmentDownload.ashx?mid=30a2b070-563d-e211-a5a0-005056a32ee4.
78
79
80
81
Noel Whelan, Constitutional Convention Will Have Its Remit Severely Pruned, IRISH TIMES, Feb. 25, 2012,
available at archive.is/kFDdb.
82
83
11
The platform of the second largest party, the Labour Party, went even further
in pushing for Irish citizens involvement in the constitutional reform process. It
proposed a constitutional convention consisting of 30 members of the Parliament,
30 members from civil society organisations and other people with relevant legal
or academic expertise and 30 ordinary citizens chosen by lot.
84
The partys
platform promised these individuals would review the Constitution and draft a
reformed one within one year, which suggested that an entirely new constitution
could be written.
85

When Fine Gael and the Labour Party formed a coalition government in
2011,
86
a variation of their respective proposals for constitutional change became
part of the so-called Programme for Government.
87
In this programme, titled
Government for National Recovery 2011-2016, the government promised to
establish a constitutional convention to consider comprehensive constitutional
reform . . . and report within 12 months on a list of issues.
88

The coalitions programme focused on six specific constitutional reform
issues, including (1) reviewing of the Dil electoral system; (2) reducing the
presidential term to five years and aligning it with the time frame of local and
European elections; (3) adding a provision for same-sex marriage; (4) amending
the clause on women in the home and encouraging greater participation of women
in public life; (5) removing blasphemy from the Constitution; and (6) reducing the
voting age.
89
The programme left open the possibility that the Convention could
recommend other relevant amendments.
90
However, the programme did not

84
85
86
Peter Taggart, Irish Parties Agree to Form Coalition, CNN, Mar. 6, 2011, available at
http://www.cnn.com/2011/WORLD/europe/03/06/ireland.government.
87
Social Justice Ireland, Government for National Recovery 2011-2016, 18 (Mar. 6, 2011), available at
http://www.socialjustice.ie/sites/default/files/file/Government%20Docs%20etc/2011-03-06%20-
%20Programme%20for%20Government%202011-2016.pdf.
88
89
90
12
explain what it meant by a constitutional convention, was silent on its likely
composition, and did not indicate what would happen to any recommendations.
91

Despite this lack of particulars, many expected that the Convention would
begin working on reform shortly after the election, because the parties election
platforms indicated that they wanted to begin the constitutional reform process as
soon as possible.
92
In an effort to influence this process, several representatives of
the Irish political science community started an initiative to highlight the benefits
of deliberative approaches to constitutional reform.
93
They were able to secure a
donation from a philanthropic organization, which allowed them to hold a number
of events and conduct surveys under the banner We the Citizens.
94
At its
conclusion, the initiative presented a report, which included survey evidence
demonstrating the importance of involving citizens in the constitutional reform
process, to the Parliament.
95

Although there is no evidence that the initiatives report influenced the
Parliaments actions, the ultimate composition of the Convention suggests that it
might have. In July 2012, the nature and the structure of the reformative body
emerged as both houses of the Parliament voted without debate
96
to establish what
is formally known as the Convention on the Constitution.
97
The Convention was
largely composed of citizen members. Out of 100 members total, the Convention
consisted of an Executive branch-elected chairman, members of Parliament to be

91
92
93
chapter for inclusion in COMPARATIVE REFLECTIONS ON 75 YEARS OF THE IRISH CONSTITUTION, 4-5 (2013),
available at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf.
94
95
at http://www.openpolitics.ro/wp-content/uploads/UCD_Mar13_final1.pdf; see We the Citizens, We the Citizens:
Final Report (Dec. 2011), available at http://www.atlanticphilanthropies.org/sites/default/files/uploads/We-the-
Citizens-2011-FINAL.pdf.
96
Dil Debates: Constitutional Convention: Motion, THE HOUSES OF OIREACHTAS (Jul. 12, 2012), available at
debates.oireachtas.ie/dail/2012/07/10/00026.asp; Seanad Debates: Constitutional Convention: Motion, THE HOUSES
OF OIREACHTAS (Jul. 12, 2012), available at debates.oireachtas.ie/seanad/2012/07/12/00008.asp; see also Jimmy
Walsh, Establishment of Convention Motion Passed Without Debate, IRISH TIMES, Jul. 13, 2012, available at
archive.is/Nm2qK.
97
Convention on the Constitution, Convention on the Constitution Terms of Reference, 1 (last visited Dec. 12,
2013), available at http://www.constitution.ie/Documents/Terms_of_Reference.pdf.
13
impartial representatives of the Houses, four Executive branch-invited
representatives of Northern Ireland political parties, and 66 randomly selected Irish
citizens to represent the broader population.
98
This composition ensured that the
ordinary citizens had a voting majority on all issues, including those issues directly
impacting the Parliament.

The Parliament identified the purpose of the Convention as discussing
proposed amendments to the Constitution of Ireland.
99
It mandated the Convention
to consider eight specific issues:

reducing the presidential term of office to five years and aligning it with
local and European elections;
reducing the voting age to 17;
reviewing the Dil electoral system;
giving citizens residing outside the state the right to vote in presidential
elections;
adding a provision for same-sex marriage;
amending the clause on the role of women in the home and encouraging
greater participation of women in public life;
increasing the participation of women in politics; and
removing the offence of blasphemy from the Constitution.
100

Additionally, the Parliament announced that after the reports for the initial
eight issues were complete, the Convention may consider other potential
constitutional amendments.
101
The Parliament indicated that it was not obligated to
proceed with any amendment proposal, but promised to respond formally to each
recommendation and to debate it in the Parliament within four months of
submission.
102
Aside from the inaugural meeting on December 1, 2012, the
Convention held nine meeting sessions in 2013 through December 1, 2013.
103
The

98
Convention on the Constitution, Convention on the Constitution Terms of Reference, 1-2 (last visited Dec. 12,
99
100
101
102
103
Convention on the Constitution, Constitutional Convention-Calendar for 2013 (last visited Jan. 14, 2014),
available at https://www.constitution.ie/AttachmentDownload.ashx?mid=873ff73a-11c9-e211-a5a0-005056a32ee4.
14
Convention also held nine regional meetings in October and November of 2013.
104

The Convention completed its work within the 12-month deadline.
105

Public Participation in the Reform Process

To increase public participation in the constitutional reform process,
Parliament included 66 randomly selected citizens in the Conventions
membership. To create a representative sample of the Irish public, a polling
company chose the citizen members of the Convention at random.
106
The pollsters
ensured that the demographic make-up of the group reflected that of Ireland
generally by selecting a fixed number of members from each age group, including
a representative sample of sexes and regions of Ireland.
107
The citizen members
voluntarily participate in the Convention, and they are not paid for their time, but
they do receive reimbursement for expenses they incur in attending the
Conventions weekend meetings.
108

Although some view the inclusion of these randomly selected citizens as
democracy in its purest form, others criticized the Parliaments decision.
109

Concerns included the 66 citizens anonymity, their ability to influence the
outcome of deliberations, and the absence of expert involvement in the deliberation
process. Initially, the Convention kept the names of its citizen members secret
because many of the selected citizens feared that if their names were made public,
they would be targeted by lobbying groups and journalists.
110
A leading Irish
newspaper criticized this approach and claimed that democracy does not function
in secret and that the public should know who is making decisions on their

104
Convention on the Constitution, Regional Meetings-October & November, 2013 (last visited Jan. 14, 2014),
available at https://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.
105
Convention on the Constitution, Convention (last visited Jan. 14, 2014), available at
https://www.constitution.ie/Convention.aspx.
106
TheJournal.ie, Constitutional Convention Aims to Begin Discussions Next Month, Sep. 21, 2012, available at
http://www.thejournal.ie/constitutional-convention-to-begin-in-october-604453-Sep2012.
107
TheJournal.ie, Constitutional Convention Aims to Begin Discussions Next Month, Sep. 21, 2012, available at
http://www.thejournal.ie/constitutional-convention-to-begin-in-october-604453-Sep2012.
108
Eolas Magazine, Reviewing the Constitution, Aug. 2, 2013, available at http://www.eolasmagazine.ie/reviewing-
the-constitution; Mary Regan, Citizens to Be Selected to Constitution Convention, IRISH EXAMINER, Jun. 6, 2012,
available at http://www.irishexaminer.com/ireland/citizens-to-be-selected-to-constitution-convention-196395.html;
Fionnan Sheahan, Seven Leave Think-Tank Over Naming of Members, INDEPENDENT, Dec. 3, 2012, available at
http://www.independent.ie/irish-news/seven-leave-thinktank-over-naming-of-members-28942592.html.
109
chapter for inclusion in COMPARATIVE REFLECTIONS ON 75 YEARS OF THE IRISH CONSTITUTION, 12 (2013),
110
Comms Team, Anonymity for Citizen Participants in the Constitutional Convention, EUROPEAN MOVEMENT
IRELAND (Nov. 19, 2012), available at http://www.europeanmovement.ie/anonymity-for-citizen-participants-in-the-
constitutional-convention.
15
behalf.
111
The National Union of Journalists called on the Conventions leaders to
end the secrecy surrounding the names of citizen members.
112

In response to public criticism, the Convention members reached a
compromise regarding the identities of the citizen members.
113
About one week
after the Conventions inauguration, the Convention released the names of the
citizen members and the area where they lived, but not their exact addresses.
114

The names of the citizen members can be viewed on the Conventions website.
115

There were also public concerns about whether the combination of ordinary
citizens and elected politicians would promote collaborative discussions.
116

Skeptics believed that politicians may attempt to control the discussions and
pressure the citizen-members to follow the opinions of the politicians.
117
This fear
appears to have been unfounded because, as evident from the streamed video feed
of discussions, the members are distributed in small groups and engage in
discussion with the assistance of a trained facilitator.
118

Another early criticism of the Conventions composition was that it did not
include experts.
119
But, as the Conventions research director David Farrell points
out,
[t]his criticism misses the point behind deliberative
approaches . . . . The objective behind selecting a
random group of ordinary citizens is to ensure that there
is a decent sample of citizens (as representative as
possible) who are selected as members purely on the

111
Irish Times, The Faceless Sixty-Six, Nov. 16, 2012, available at archive.is/NrIXN.
112
Mary Minihan, Unionist Parties Decline Invitation, IRISH TIMES, Dec. 1, 2012, available at archive.is/eRUEz.
113
114
115
Convention on the Constitution, Members of the Public (last visited Dec. 12, 2013), available at
http://www.constitution.ie/Documents/ListOfMembers.pdf.
116
117
118
119
chapter for inclusion in COMPARATIVE REFLECTIONS ON 75 YEARS OF THE IRISH CONSTITUTION, 9 n.16 (2013),
16
basis of chance and not because of representing any set
of vested interests of [sic] because of any particular area
of expertise that they may have.
120

Farrell acknowledged that the Irish Constitutional Convention had broad
representation
121
He believed that the Convention represented the political elites
attempt to include the rest of society in the reform process.
122
Farrell also
suggested that including the rest of society would lead to a democracy that relies
on citizens inputs.
123
Convention Chairman Tom Arnold acknowledged at the
launch of the Convention that the Convention as a citizens assembly is a good
starting point to gain support from the Irish public.
124

Topics of Reform and Reform Proposals

The Parliament gave the Convention the task of considering specific
amendments to the Constitution.
125
Within several weeks of each meeting, the
Convention released reports that provided extensive background on each reform
proposal it discussed during the meeting.
126
The meeting reports included
summaries of each meeting; Convention recommendations; internal voting results;
meeting agendas; expert presentations; and summaries of Convention discussions
on particular reform proposals.
127
As of January 27, 2014, the Convention has
released six reports covering all of the original eight reform proposals that
Parliament identified.

120
chapter for inclusion in COMPARATIVE REFLECTIONS ON 75 YEARS OF THE IRISH CONSTITUTION, 9 n.16 (2013),
121
122
123
124
Chairman, Mr. Tom Arnold, The Inaugural Meeting of the Convention on the Constitution, THE CONVENTION ON
THE CONSTITUTION, 2 (Dec. 1, 2012), available at
http://www.constitution.ie/AttachmentDownload.ashx?mid=30a2b070-563d-e211-a5a0-005056a32ee4.
125
126
Convention on the Constitution, Meetings: Reports (last visited Dec. 12, 2013), available at
http://www.constitution.ie/Meetings.aspx#minutes.
127
17
Topics of Reform: The Conventions Differing Approaches

The Convention used several different approaches in considering reform
topics and in preparing its own recommendations. For instance, in its fourth
report, the Convention outlined its consideration of amendments to the Dil
electoral system.
128
This was a complex issue within a wide mandate. In response
to the issues complexity, the Convention planned a longer period of time for
consideration of this issue and used the ballot system to focus the discussion.
129

After expert testimony, the Conventions delegates eliminated some options and
focused on the remaining options to create a list of final proposals.
130
A structured
procedure aided in the development of a specific recommendation from virtually
infinite options.
131

During the first meeting on Dil electoral reform, the Conventions delegates
considered and entertained expert presentations on the current voting system and
three alternatives.
132
At the end of the session, they voted to continue considering
the current system and one alternative, along with four separate issues relating to
the Dil electoral system: constituency size, number of Dil members, non-
parliamentary Ministers, and ways to increase citizen engagement in the
democratic process.
133
The second meeting included more expert testimony, as
well as two additional votes.
134
The Convention voted in favor of amending the
current voting procedures through changes to the system in place rather than

128
Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System
(Aug. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-
005056a32ee4.
129
005056a32ee4.
130
005056a32ee4.
131
005056a32ee4.
132
Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 13-
43 (Aug. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-
005056a32ee4.
133
Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 7-8
005056a32ee4.
134
Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 44-
64 (Aug. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=fdf70670-030f-e311-a203-
005056a32ee4.
18
through whole-scale adoption of a new electoral system.
135
Two specific changes
to the system included arranging candidate names alphabetically on the ballots and
establishing constituency sizes that are no less than five seats.
136

For other reform proposals, the Convention began its deliberations with a
specific proposal. For instance, one of the reform proposals was reducing the
voting age to 17.
137
Following expert testimony and presentations, the Convention
broke into small group discussions.
138
During these discussions, many delegates
wished to debate a National Youth Council of Ireland recommendation to reduce
the voting age even further to 16.
139
The Convention ultimately broke the vote
into three parts: (1) whether the voting age should be reduced; (2) whether it
should be reduced to 17 or 16; and (3) whether candidacy ages should be reduced
as well, and whether the age should be reduced for only some elections.
140
The
Convention voted to reduce the voting age to 16.
141
The Parliament accepted this
recommendation and announced that it would schedule a referendum on this issue
before the end of 2015.
142

In this instance, rather than simply vote yes or no on the initiative, the
Convention opted to make a new recommendation based on the opinions of outside
stakeholders. Although public interest groups are excluded from the Conventions

135
Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 7-8
005056a32ee4.
136
Convention on the Constitution, Fourth Report of the Convention on the Constitution: Dil Electoral System, 7
005056a32ee4.
137
138
Convention on the Constitution, First Report of the Convention on the Constitution: (i) Reducing the voting age
to 17; and (ii) Reducing the Presidential term of office to five years and aligning it with the local and European
elections, 10, 14 (Mar. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-
2496-e211-a5a0-005056a32ee4.
139
elections, 9, 11 (Mar. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-
2496-e211-a5a0-005056a32ee4.
140
elections, 6 (Mar. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-2496-
e211-a5a0-005056a32ee4.
141
elections, 6 (Mar. 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=e1f8e128-2496-
e211-a5a0-005056a32ee4.
142
Michel ORegan, Referendum on Voting Age Before End of 2015, IRISH TIMES, Jul. 19, 2013, available at
http://www.irishtimes.com/news/politics/oireachtas/referendum-on-voting-age-before-end-of-2015-1.1468162.
19
deliberations,
143
the National Youth Council of Ireland was allowed to present at
one of the meetings, thereby impacting the Conventions discussions and shaping
the ultimate recommendation.
144

The Conventions approaches to these two specific amendment proposals
illustrate the flexibility in Irelands constitutional reform process. The
Conventions approaches are also consistent with Parliaments resolution that
established the Convention, which broadly words the Conventions mandate to
consider issues of constitutional reform and to create recommendations for those
issues.
145
The Parliament could have limited the Conventions ability to make
amendments, but instead decided to allow flexibility.
146
This flexibility allowed
the Convention to not only work within the eight recommended themes, but also to
propose other constitutional reforms.
147
At the same time, the Parliament remained
free to accept or reject the Conventions proposals, because the Convention is an
advisory, rather than declaratory, body.
148
For instance, the Parliament chose to
reject the Conventions recommendation that citizens be given a voice in the
presidential nomination process.
149

Additional Possible Reform Proposals

The Parliament authorized the Convention to consider additional reform
proposals,
150
which were discussed during its final plenary sessions.
151
Prior to

143
Irish Council for Civil Liberties, Developing a Model of Best Practice for Public Participation in Constitutional
Reform, 6 (Jun. 20, 2012), available at http://www.iccl.ie/news/2012/07/10/dozens-of-civil-society-groups-protest-
exclusion-from-constitutional-convention-.html.
144
Convention on the Constitution, The Convention on the Constitution January 26
th
27
th
, 2013 (last visited Dec.
12, 2013), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=6306d6f7-df66-e211-a5a0-
005056a32ee4.
145
146
147
148
149
Michel ORegan, Referendum on Voting Age Before End of 2015, IRISH TIMES, Jul. 19, 2013, available at
150
151
Convention on the Constitution, Constitutional Convention Calendar for 2013 (last visited Dec. 12, 2013),
available at http://www.constitution.ie/AttachmentDownload.ashx?mid=873ff73a-11c9-e211-a5a0-005056a32ee4
(The final plenary sessions took place on November 30 and December 1, 2013).
20
these sessions, the Convention had conducted a series of meetings across Ireland
152

to obtain regional input on additional reform topics.
153
Stakeholders publicly
released a variety of suggestions for additional reform topics, including
suggestions regarding human rights; economic, social, and cultural rights; domestic
implementation of treaties; and a more secular constitution. In December 2013,
the Convention announced that its final two sessions will focus on Dil reform and
economic, social, and cultural rights. Members of the Convention chose these
topics based on regional meetings in November 2013 and hundreds of public
submissions collected through the Conventions website. These meetings will take
place in February 2014.
154

Irish human rights organizations believe that the 1937 Constitution does not
sufficiently integrate human rights developments into Irelands domestic legal
framework.
155
For instance, the Irish Human Rights Commission (IHRC) believes
that the 1937 Constitution, which predates the United Nations Universal
Declaration of Human Rights by 11 years, has not adequately adapted to evolving
international views on human rights.
156
The IHRC is a government-created,
independent body that oversees the promotion of human rights in Ireland.
157
The
IHRC urged the Convention to consider amending the Constitution to incorporate
treaties automatically into domestic law so that the human rights protections of
treaties could be enforceable by Irish courts without further action by

152
Convention on the Constitution, Regional Meetings October & November, 2013 (last visited Dec. 12, 2013),
available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.
153
Convention on the Constitution, Public Meeting (last visited Dec. 12, 2013), available at
www.constitution.ie/AttachmentDownload.ashx?mid=321dcc98-1e42-e311-8571-005056a32ee4.
154
Convention on the Constitution, Convention on the Constitution chooses (i) Dil Reform and (ii) Economic,
Social and Cultural rights for discussion at their final two meetings in February 2014 (Dec. 2013), available at
https://www.constitution.ie/AttachmentDownload.ashx?mid=922d30df-2067-e311-877e-005056a32ee4.
155
Maurice Manning, The Constitution: Human Rights Challenges, IRISH HUMAN RIGHTS COMMISSION, 1 (Jun. 30,
2012), available at
_30_june_2012.pdf.
156
2012), available at
_30_june_2012.pdf.
157
Citizens Information, Irish Human Rights Commission (Apr. 28, 2008), available at
http://www.citizensinformation.ie/en/justice/law_and_rights/irish_human_rights_commission.html.
21
Parliament.
158
Other possible human rights amendments include strengthened
gender equality provisions and language on the rights of children.
159

Additionally, some have called for the inclusion of economic, social, and
cultural rights into the Irish Constitution. A poll conducted by Amnesty
International Ireland and Red C Express found that 78 percent of those asked
believe the Constitution should be amended to include the rights to housing and
access to healthcare.
160

The 1937 Constitutions pro-religious stance has also received attention.
Because the Catholic Church in Ireland was heavily involved in the development
and passage of the 1937 Constitution,
161
it includes provisions on divorce, abortion,
and marriage.
162
Some groups have called for a more secular approach.
163
Same-
sex marriage is one issue currently under consideration that would contradict
Catholic traditions. Access to abortion, by contrast, remains heavily limited, even
after the passage of new laws on the issue in 2013.
164

In addition to the issues considered by the Convention, the general public
proposed a list of additional issues for the Conventions consideration. The
general public made its submissions through the Conventions website.
165
Some of
those submissions include environmental protection and the prohibition of

158
2012), available at
_30_june_2012.pdf.
159
2012), available at
_30_june_2012.pdf.
160
Amnesty International Ireland, Poll Shows Irish People Back Health and Housing Rights (Apr. 13, 2012),
available at http://www.amnesty.ie/polling.
161
Elizabeth OMalley, (Re)Constitution, THE UNIVERSITY OBSERVER, Oct. 20, 2011, available at
http://www.universityobserver.ie/2011/10/20/reconstitution.
162
163
164
RTE News, Ireland President Michael D. Higgins Signs Protection of Life During Pregnancy Bill into Law, Jul.
30, 2013, available at http://reproductiverights.org/en/press-room/ireland-president-michael-d-higgins-signs-
protection-of-life-during-pregnancy-bill-2013-i.
165
Convention on the Constitution, Frequently Asked Questions: How Can I Make a Submission? (last visited Jan.
24, 2014), available at https://www.constitution.ie/Search.aspx?kw=submission.
22
hydraulic fracturing (fracking), contributions to developing nations, pensions, and
issues related to the European Union.
166

Challenges to Reform

Although the Irish Parliament and the Convention have engaged in a
comprehensive reform process, substantial challenges remain. For instance, some
critics believe that the public may suffer from referendum fatigue. Other critics
have suggested that passing individual amendments will be easier than passing a
new constitution. The Convention has also received criticism regarding its
approach to gathering public input. Constitutional referendums have been
criticized because they can be successfully adopted through a simple majority vote
and because there is no definite process for handling failed referendums.

Referendum Fatigue

Because the Constitution requires a public referendum to pass any
constitutional amendments,
167
critics believe that amending the 1937 Constitution,
rather than proposing a new one, may leave the public with referendum fatigue.
Some evidence suggests that frequent referendums may not be an effective
amendment process due to their sheer frequency. For instance, on October 4,
2013, the Irish electorate considered two separate referendums.
168
The referendum
aimed at establishing a new criminal Court of Appeal passed by a comfortable
margin.
169
However, the referendum to abolish the Seanad, the upper house of
Parliament, narrowly failed.
170
Over 1.2 million voters participated in both
referendums.
171

Following these and past constitutional reform efforts, some have cautioned
that voters may suffer from referendum fatigue that may impact turnout at

166
Convention on the Constitution, Submissions Search (last visited Dec, 12, 2013), available at
http://www.constitution.ie/Submissions.aspx.
167
IRELAND CONST. arts. 20, 27(5)-(6) (1937), available at
http://http://archive.constitution.ie/reports/ConstitutionofIreland.pdf.
168
Referendum Commission, Independent Guide to the Seanad & Court of Appeal Referendums, 3 (2013), available
at http://referendum2013.ie/Guide_Booklet_2013_eng.pdf.
169
Kitty Holland, Referendum on Court of Appeal Comfortably Passed, IRISH TIMES, Oct. 5, 2013, available at
http://www.irishtimes.com/news/politics/referendum-on-court-of-appeal-comfortably-passed-1.1551784.
170
Seanad Vote: Public Vote to Keep Irish Senate, BBC NEWS, Oct. 5, 2013, available at
http://www.bbc.co.uk/news/world-europe-24404157.
171
Kitty Holland, Referendum on Court of Appeal Comfortably Passed, IRISH TIMES, Oct. 5, 2013, available at
http://www.irishtimes.com/news/politics/referendum-on-court-of-appeal-comfortably-passed-1.1551784.
23
subsequent elections.
172
Voters may become tired with the voting process because
they find voting inconvenient or because a previous issue they felt strongly about
did not succeed or fail as they hoped.

Although Parliament announced that it would present a package of the
Conventions reform proposals as part of a Constitution Day in 2015,
173
recent
reports indicate that Ireland likely will not hold any referendums in 2014. These
efforts may help combat referendum fatigue, as well as provide interested parties
with ample time to educate the public on their positions.

Individual Amendments Versus a New Constitution

Another challenge to constitutional referendums is that individual
amendments may not be capable of adequately addressing systemic constitutional
issues. The Constitution has been amended numerous times since its original
passage in 1937.
174
Single proposals that are individually considered and voted
upon may be comparatively easier to pass than adopting an entirely new
constitution; however, they may be inadequate to achieve wide-scale impact on the
Irish political system and economy.

Public Input

In late 2013, the delegates traveled across Ireland to obtain regional input
through open forums on additional reform topics.
175
The Convention held nine
regional public meetings in October and November 2013.
176
The Convention
maintains a Facebook page that was used to inform the public about when regional
meetings took place.
177

172
Stephen Collins & Genevieve Carbery, Referendum on Same-Sex Marriage to Be Held in 2015, IRISH TIMES,
Nov. 5, 2013, available at http://www.irishtimes.com/news/politics/referendum-on-same-sex-marriage-to-be-held-
in-2015-1.1584350.
173
Fionnan Sheahan, Gay Marriage Referendum in 2015 as Part of a Special Constitution Day, INDEPENDENT.IE,
Nov. 25, 2013, available at http://www.independent.ie/irish-news/gay-marriage-referendum-in-2015-as-part-of-a-
special-constitution-day-29728517.html.
174
CONSTITUTION, 1 (Dec. 1, 2012), available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f02defe5-
583d-e211-a5a0-005056a32ee4.
175
Convention on the Constitution, Regional Meetings October & November, 2013 (last visited Dec. 12, 2013),
available at http://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.
176
Convention on the Constitution, Regional Meetings-October & November, 2013 (last visited Jan. 14, 2014),
available at https://www.constitution.ie/AttachmentDownload.ashx?mid=f0e50a9f-f72c-e311-96d5-005056a32ee4.
177
Convention on the Constitution, Convention on the Constitution (last visited Jan. 14, 2014), available at
https://www.facebook.com/ConstitutionConvention.
24
Although the Convention and the Parliament created proposals that
addressed their own particular concerns, critics of the proposals suggested that they
did not consider how the proposals would impact the public. The Irish Council for
Civil Liberties (ICCL) criticized the Parliament for not engaging the public during
the formation stages of the Convention, not educating the public about the
constitutional reform process, and not seeking the publics input.
178
From the
ICCLs perspective, preventing civil society from engaging in the reform process,
randomly selecting citizens to represent the whole population, and forming
political representation based on party numbers in Parliament places the reform
process in danger of not appearing genuine.
179

Additionally, out of concern that public interest groups represent special
interests, Parliament has excluded them from participation in the Convention.
180

In protest of that decision, more than 60 organizations, including Amnesty
International, Concern, Irish Council for Civil Liberties, Irish Refugee Council,
National Womens Council of Ireland, and Transparency International, signed a
so-called Civil Society Charter for a Constitutional Convention.
181
Over 70
organizations have signed the Civil Society Charter.
182
They urged the Irish
government to create a constitutional convention that was participatory, inclusive,
and meaningful.
183
Although they are excluded from participating in the
Conventions deliberations,
184
public interest groups and other stakeholders may
provide their input through the Conventions website
185
or through encouraging
their supporters to submit petitions to the Convention.
186

178
179
180
181
Irish Times, Reform Body to Meet Next Month, Nov. 5, 2012, available at archive.is/OlDQt.
182
Irish Council for Civil Liberties, Hear Our Voices (last visited Jan. 14, 2014), available at
http://www.iccl.ie/hear-our-voices.html.
183
Irish Council for Civil Liberties, Civil Society Charter for Constitutional Convention (last visited Dec. 12, 2013),
available at http://www.iccl.ie/hear-our-voices.html.
184
185
Tom Arnold, Message from the Chairman, CONVENTION ON THE CONSTITUTION (last visited Dec. 12, 2013)
available at http://www.constitution.ie, (This website is designed to make participation by everyonemembers of
the public, interest groups, organisations and the Diasporaas easy as possible.).
186
Michael Nugent, Huge Surge in Submissions about Church and State to the Irish Constitutional Convention
(Nov. 6, 2013), available at http://www.michaelnugent.com/2013/11/06/huge-surge-in-submissions-about-church-
25

Failed Referendums

Another obstacle to reform is that some initiatives may fail to garner enough
public support, leaving the future of those reforms uncertain. Constitutional
amendment referendums in Ireland require a simple majority vote in order to be
approved.
187
However, if the referendum fails, the fate of those failed
referendums is not clear. For instance, the Seanad amendment referendum
conducted in 2013 did not receive enough votes to pass,
188
and the Irish Prime
Minister confirmed that this unsuccessful reform effort would not be presented
again.
189
Nevertheless, Parliament has the authority to either put the proposal up
for a second referendum vote or to set it aside for the foreseeable future and
propose it again when the political environment is more amenable.

Anticipated Next Steps

The Conventions final meetings occurred on November 30 and December
1, 2013.
190
The Convention released reports after the conclusion of each plenary
session, with its sixth and final report released on January 27, 2014.
191

The Irish government committed to presenting Parliament with its response
to each reform proposal within four months of each reports release.
192
If the
government decides to proceed with a referendum on a particular recommendation,
part of its response will include a timeframe for the referendum.
193
In accordance
with its promise, the government has already begun responding to the
Conventions recommendations. In July 2013, the government announced that it

and-state-to-the-irish-constitutional-convention/; Public Interest Law Alliance, Amnesty International Call[s] for
Submissions to the Constitutional Convention on Socio-Economic Rights (Sep. 25, 2013), available at
www.pila.ie/bulletin/september-2013/25-september-2013/amnesty-international-call-for-submissions-to-the-
constitutional-convention-on-socio-economic-rights.
187
IRELAND CONST. art. 47(1) (1937); Referendum Commission, Frequently Asked Questions (last visited Jan. 14,
2014), available at http://www.refcom.ie/en/Frequently-Asked-Questions/#wharef.
188
RTE News, Taoiseach Confirms No Re-Run of Seanad Referendum, Oct. 8, 2013, available at
rte.ie/news/2013/1007/478811-seanad-referendum-reaction/.
189
RTE News, Taoiseach Confirms No Re-Run of Seanad Referendum, Oct. 8, 2013, available at
rte.ie/news/2013/1007/478811-seanad-referendum-reaction/.

191
Convention on the Constitution, Meetings (last visited Feb. 5, 2014), available at
https://www.constitution.ie/Meetings.aspx.
192
Convention on the Constitution, FAQs: What Will Happen After the Convention Has Reported to the Oireachtas?
(last visited Dec. 12, 2013), available at http://www.constitution.ie/FAQs.aspx.
193
26
would hold a referendum during 2015 on reducing the voting age to 16.
194
On
November 5, 2013, the government made a similar announcement with regards to a
referendum on same-sex marriage.
195
Both referendums, along with other reform
proposals, will be put to public vote in mid-2015 on what has been called a
Constitution Day.
196

Respective stakeholders have and will likely continue to express their
reaction to the proposed amendments. For instance, the Catholic Church in Ireland
has indicated that it will oppose the same-sex marriage constitutional
amendment.
197
Campaigns supporting or opposing particular amendments could
also have an impact on other amendments, as advocates of either side will be
working to ensure their supporters participate in the voting process.

Ultimately, voter turnout could have a significant impact on the passage or
rejection of any particular referendum, especially if the vote is close. For instance,
the referendums considered in October and November 2013 reflected a 39 percent
turnout and a 33 percent turnout, respectively.
198
Although the votes were not
close for either measure on the ballot,
199
future campaigns could sway the
outcomes by better mobilizing supportive constituents to the polls.

Lessons Learned from Irelands Constitutional Reform Process

Irelands Convention process provides meaningful lessons on constitutional
reform in the 21st century. Several aspects are particularly well-suited for
adaptation to other reform efforts, including considering and voting on individual
proposals, rather than whole packages of reform; incorporating a diverse group of
individuals into the reform process; and emphasizing public participation and
transparency in both the design and the decision-making processes.

194
Michael ORegan, Referendum on Voting Age Before End of 2015, IRISH TIMES, Jul. 19, 2013, available at
195
Henry McDonald, Ireland to Hold Referendum on Gay Marriage, GUARDIAN, Nov. 5, 2013, available at
http://www.theguardian.com/world/2013/nov/05/ireland-referendum-gay-marriage.
196
Henry McDonald, Ireland to Hold Referendum on Gay Marriage, GUARDIAN, Nov. 5, 2013, available at
http://www.theguardian.com/world/2013/nov/05/ireland-referendum-gay-marriage.
197
198
Election Guide, Referendum: Oct. 4, 2013 (last visited Jan. 12, 2014), available at
http://www.electionguide.org/elections/id/213/; Election Guide, Referendum: Nov. 10, 2013 (last visited Jan. 12,
2013), available at http://www.electionguide.org/elections/id/199/.
199
Election Guide, Referendum: Oct. 4, 2013 (last visited Jan. 12, 2014), available at
http://www.electionguide.org/elections/id/213/; Election Guide, Referendum: Nov. 10, 2013 (last visited Jan. 12,
2013), available at http://www.electionguide.org/elections/id/199/.
27

Consideration of Individual Reform Proposals

In Irelands constitutional reform process, government officials and
members of the public consider each constitutional reform proposal individually,
rather than as a package. The Parliament made specific, individualized requests
for prioritizing reform proposals.
200
The Conventions structure has allowed for
each reform proposal to be considered and voted upon individually. Each report
addresses one or more of these individual reform proposals, and the government
decides whether or not it will support each report on an individual basis.
201
Each
reform proposal also requires an individual referendum vote.

By considering these reform proposals individually, the Parliament, the
Convention, and the government prevent a negative vote on one issue from
blocking the entire reform proposal package. For instance, given the Catholic
Churchs opposition to same-sex marriage
202
and its likely efforts to campaign
against the referendum, the proposal may not pass. However, the passage or
failure of the same-sex marriage referendum will not have a direct impact on
amendments to the minimum voting age. Each reform proposal will stand or fall
on its own, rather than as a group. This contrasts with constitutional reform
processes aimed at the passage of a package of proposals, where continued
disagreements on one initiative may delay or halt the reform process completely.

Reviewing proposals individually also allows for a two-step approach.
Completely replacing a constitution is a complicated process. By passing several
individual controversial or complicated provisions first, the Convention could ease
future efforts for a more comprehensive constitutional reform process. The
Convention is considering more urgent reform proposals first. Next, a separate
program could consider whether Ireland should adopt an entirely new constitution.

The Conventions Diversity

The Convention consisted of a widely diverse group of people who
developed the recommendations ultimately considered by the government and the

200
201
202
28
voters. Members of the Parliament only accounted for one-third of the total
participants.
203
The 66 citizen members of the Convention held a voting majority
over all reform proposals, including those directly impacting Parliament
members.
204
Members of the public came from a variety of backgrounds and thus
brought their unique experiences to the decision-making process. Furthermore,
because the citizen delegates did not hold positions within the government, they
did not make decisions aimed at preserving their own political power.

Public Input and Transparency

Despite the criticisms mentioned above, the Conventions structure has
allowed for substantial public input into the constitutional reform process, as well
as for the transparent release of information to interested parties. For instance the
Conventions structure meant that the majority of delegates came from the
electorate.
205
Additionally, outside stakeholders could submit proposals and
reports directly on the Conventions website,
206
where they were available for
public review.
207
Outside experts could also conduct presentations during the
plenary sessions.
208
Furthermore, the Conventions delegates traveled throughout
Ireland to receive regional input on what other reform proposals should be
considered. Together, these avenues ensured that the Conventions delegates were
receiving information from a variety of sources and had access to a number of
viewpoints, reports, and ideas.

In addition to engaging with the Convention, members of the public were
able to observe the decision-making process in a variety of ways. The
Conventions website offered an excellent resource for plenary agendas,
recommendation reports, and schedules.
209
The website also included live
streaming of the plenary meetings open sessions, as well as archived copies of

203
204
205
206
Convention on the Constitution, Make a Submission (last visited Dec. 12, 2013), available at
http://www.constitution.ie/SubmissionCaptcha.aspx.
207
Convention on the Constitution, Submissions (last visited Dec. 12, 2013), available at
http://www.constitution.ie/Submissions.aspx.
208
Convention on the Constitution, Meetings (last visited Dec. 12, 2013), available at
http://www.constitution.ie/Meetings.aspx.
209
29
past meetings.
210
The recommendation reports provided a detailed account of
proposals, expert testimony, votes, and the Conventions conclusions and
rationales.
211

These practices can boost public support for reform proposals. Rather than
coming down as decrees from the government, these proposals come directly from
the people. The public can then feel ownership over the Conventions
constitutional reform proposals and believe that its processes are legitimate.
212

Since the recommendations come after much public input and oversight, voters
may be more likely to support such proposals.

Conclusion

The constitutional reform processes established and followed in Ireland,
while unique to its history and culture, offer valuable lessons for parties
considering similar efforts elsewhere. Irelands current reform process is distinct
not just for the breadth of its mandate, but also for its detailed structure. The
Convention has progressed along its declared timetables, a variety of parties have
contributed, and the government has, as promised, responded with plans for
referendums. Although the Convention merely prepares recommendations and the
government ultimately decides whether and what the Irish electorate will vote
upon,
213
the government is taking constitutional reform seriously. As a result of
the Conventions efforts, at least some of these proposals will become referendums
for public consideration.

210
211
212
Robert Rook, Irish Constitution Long Overdue for an Overhaul, Says ICCL, EPOCH TIMES, Jun. 25, 2012,
available at http://www.theepochtimes.com/n2/ireland/irish-constitution-is-long-overdue-for-an-overhaul-says-iccl-
255939.html.
213
30
Annex A:
Major Political Parties in Ireland

Political Parties in the Republic of Ireland
Fianna Fail: Centrist-republican party that supports reunification through
peaceful means.
214

Fine Gael: Right-wing nationalist party that supports united Ireland.
215

Green Party: Green party that focuses on the environment and sustainability
of natural resources.
216

Irish Republican Socialist Party: Republican-socialist party that opposes the
Peace Process.
217

Labour Party: Social-democratic party that supports reunification through
peaceful means.
218

Sinn Fin: Left, socialist party.
219

Workers Party of Ireland: Left-wing republican party.
220

Political Parties in Northern Ireland
Democratic Unionist Party: Right-wing, Protestant party.
221

Green Party: Green party that focuses on the environment and sustainability
of natural resources.
222

Irish Republican Socialist Party: Republican-socialist party that opposes the
Peace Process.
223

Sinn Fin: Left, socialist party.
224

214
John Crowley, A Guide to Irelands Political Parties, WALL STREET JOURNAL (Nov. 23, 2010) available at
http://blogs.wsj.com/dispatch/2010/11/23/a-guide-to-irelands-political-parties/.
215
Irish Conflict, Irish Nationalist & Irish Republican Political Groups (last visited Jan. 13, 2014) available at
http://irishconflict.webs.com/nationalistparties.htm.
216
Green Party, About (last visited Jan. 13, 2014), available at http://www.greenparty.ie/about.html.
217
218
Michael Gallagher, POLITICAL PARTIES IN THE REPUBLIC OF IRELAND 92 (1985), available at
http://wwwha.tcd.ie/Political_Science/staff/michael_gallagher/PolPartiesIreland85.pdf; Irish Conflict, Irish
Nationalist & Irish Republican Political Groups (last visited Jan. 13, 2014) available at
219
220
221
Irish Conflict, Unionist & Loyalist Political Parties (last visited Jan. 13, 2014) available at
http://irishconflict.webs.com/unionistparties.htm.
222
Irish Conflict, Other Parties (last visited Jan. 13, 2014) available at
http://irishconflict.webs.com/otherparties.htm.
223
31
Social Democratic and Labour Party: Social-democratic political party that
favors reunification of Ireland.
225

Socialist Workers Party: Socialist party that supports the working class.
226

Ulster Unionist Party: Moderate right-wing unionist party.
227

Workers Party of Ireland: Left-wing republican party.
228

224
225
226
227
Irish Conflict, Unionist & Loyalist Political Parties (last visited Jan. 13, 2014) available at
http://irishconflict.webs.com/unionistparties.htm.
228

Constitutional Reform in Ireland

Transféré par

Informations du document

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Constitutional Reform in Ireland

Transféré par

Droits d'auteur :

Formats disponibles

CONSTITUTIONAL REFORM IN IRELAND

Vous aimerez peut-être aussi