Vote NO to the 29th and 30th Amendments

Contrary to all expectations and to the evident anger of Government Ministers the 30th Amendment giving extraordinary inquiry powers to the Oireachtas was resoundingly defeated.  Also contrary to expectations a sizeable minority understood that judicial independence rather than judicial pay was the target of attack in the 29th Amendment.  Both referendums were marred by a lack of meaningful debate.  It is our view that there were 3 primary causes.

1. The Government chose to conduct these two amendments in the minimum time allowed by legislation for the conduct of a referendum.  They satisfied the technicalities (barely) but without enabling the People, who are responsible for the Constitution, time to engage in discussion.
2. When the final wording was first revealed the handful of concerned academics who independently and individually attempted to engage in debate met a media response that the 29th Amendment on judicial pay was a foregone conclusion so it was not worth debating.  With regard to the 30th amendment on Oireachtas Inquiries it was not until certain members of the media themselves saw that there was a possibility of inherent dangers in the 30th amendment that it was possible to engage in any debate.  There were and are complex issues underlying both constitutional changes.
3. The stock response to any attempt to develop an argument for voting No to either amendment was the word “Nonsense”; or “It’s only lawyers: they would say that” or a meaningless unsubstantiated mantra:”it’s fairness”.

Not everybody who opposed the amendments is a lawyer but to disparage the very people who ought to understand the potential legal consequences of constitutional change because they are lawyers has been the greater nonsense.

Politicians when in power want more power, when out of power want to be in power. That is the nature of politics. 

Our democracy and form of government is based on a system of checks and balances between the Government, the Oireachtas and the judiciary. The wording of the two proposed Referendums is, in each case, a direct attack on that balance.  The 29th Amendment (judicial pay) represents an erosion of judicial independence and will rely on actions to be implemented “before or after” relevant laws are passed. The second firmly excludes the judiciary from its role as a guarantor of individual rights against the use of oppressive State power.  Moreover, the wording of that 30th amendment (Oireachtas Inquiries) renders one of the two Houses redundant should either the Dáil or the Seanad on its own account decide to proceed with an inquiry. One house alone may decide on the balance between individual rights and that single House’s interpretation of what is the public interest.  An independent judiciary does not interpret the public interest in a partial way.  However, experience is that politicians make decisions based on party political ideologies and self-interest.

Between the two Referendums we are being asked to compromise the hard won constitutional principles of judicial independence, no retrospective or retro-active legislation, a bi-cameral legislature, court protection of individual rights .. The list goes on.  Whilst elsewhere in the world people are dying for want of the benefit of these universal principles, we are drifting backwards into political majority tyranny, a return to the Star Chamber.  These Referendums must be rejected.

VOTE NO … TWICE

The Attorney General is the most senior law officer of the State and is always a political appointment by the Government of the day.  This morning a letter signed by 8 (eight) former attorneys general is published in the daily newspapers.  The political hue of the governments which appointed each attorney general crosses all political party boundaries.

“We are strongly opposed to the current proposals to amend the Constitution for the following reasons.

The proposal in relation to Oireachtas inquiries seriously weakens the rights of individual citizens, firstly to protect their good names, and secondly to have disputes between themselves and the Oireachtas concerning their constitutional rights (especially their rights to fair procedures) decided by an independent judiciary.

The proposal to allow proportionate reductions in judicial remuneration (which we support in principle) provides insufficient protection for the independence of the judiciary. – Yours, etc,

PATRICK CONNOLLY,

PETER SUTHERLAND,

JOHN ROGERS,

HAROLD WHELEHAN,

DERMOT GLEESON,

DAVID BYRNE,

MICHAEL MCDOWELL,

PAUL GALLAGHER, 

C/o The Law Library,Dublin 7.

The Government’s response to this reasoned opinion from among the most experienced legal minds and practical constitutional experts in the country is to retort “nonsense” (Minister for Justice, Alan Shatter, on RTE radio today as reported in news headlines) and hurriedly to erect posters calling for a Yes vote.  Hardly informed debate!

We publish further considerations of two highly respected commentators on constitutional matters.  Both articles were submitted to the Irish Examiner but we have been unable to find the online links.

Tom O’Malley on the 29th Amendment published on October 19: We are being asked to amend the Constitution to allow the Government to control the salaries of less than 150 people. (We have the lowest number of judges per capita in Europe). We have been told nothing of the cost effectiveness of this measure, but considering the cost of holding the referendum and bearing in mind that more than 80 per cent of judges are clearly willing to take voluntary pay cuts, the saving to the exchequer must be minimal, if not non-existent. 

Public confidence in the independence and impartiality of the judiciary is crucial to the maintenance of a healthy constitutional democracy. It is also crucial to the international reputation of the state as a place in which business can be conducted and investment made with the assurance that the rule of law will be upheld at all costs. By adopting the proposed amendment, we run a serious risk of diminishing our collective reputation in this regard, and at a time when we can least afford to do so.  full text

Gerry Whyte on the 30th Amendment published on October 18: Diminishing the power of the courts to review decisions of Oireachtas Committees is a serious matter because failure to comply with fair procedures increases the possibility that parliamentary inquiries will come to erroneous conclusions of fact, inflicting serious reputational damage on innocent members of the public and yet those individuals may be unable to have recourse to the courts to correct any such mistakes. 

The vast majority of voters have probably more pressing concerns than the prospect of being called before an Oireachtas Committee. However any proposal that weakens constitutional protection of our fundamental rights should receive the most exacting scrutiny from voters and should be rejected unless justified by the most compelling reasons.  full text

THE DEBATES that have begun belatedly on the two constitutional referendums next week – on judicial pay, and the right of the Oireachtas to conduct inquiries – have focused on maintaining the right balance between the powers of the pillars of the State, the executive, legislature, and judiciary. For some critics the proposals represent an almost sinister, linked attempt to expand the power of the executive at the expense ultimately of the citizen.

That is to overstate the case, but there is rightly concern that Government discretion over judges’ pay would undermine their independence. And, fears that political control of inquiries, their remit and procedures, without effective review by the courts, may give politicians and the executive, through its tight control of the legislature, both the power to trample on individuals’ rights to a good name and draconian powers of search and seizure. Politicians being politicians, the argument goes, they will abuse such powers, and have shown as much in their conducts of the Abbeylara and Callely inquiries.

In a climate of deep hostility to the political class, however, such an argument should be treated with caution. Restoring faith in politics by reforming the political system will require enhancing the role of backbench TDs and senators to allow them to take on a role of holding institutions, the executive, and individuals, to account through a more independent committee system and parliamentary inquiries. Senator Ronan Mullen’s view in these pages recently that the politician’s job is merely “to consider policy and legislation” is far too limited. Parliamentary inquiries, common to most jurisdictions, are not only likely to be a cheaper and more expeditious means of examining issues of public concern than our traditional tribunals of inquiry, but can also be an important means of transforming the credibility of parliament and public accountability.

Such inquiries will inevitably come to findings of fact about individuals and their reputations (although, unlike a court, such “political” findings will not carry with them the threat of punishment). But the right to a good name and fair procedure need not be sacrificed.

The question is whether, as Minister for Public Reform Brendan Howlin insists it will not, the amendment compromises those rights allowing the Oireachtas itself to define an inquiry’s mandate and modus operandi. The section of the proposed amendment states that it “shall be for the House or Houses to determine the appropriate balance between the rights of persons and the public interest” in such an inquiry. In judicial review, Howlin argues, the courts will still have “to be satisfied with the manner in which Oireachtas inquiries have struck this crucial and delicate balance ”.

Unfortunately many legal experts take issue with Howlin and there is little doubt that the amendment does raise the threshhold on protection or rights. In the end, although a pity to throw the baby (of parliamentary inquiries) out with the bathwater, it would be better to reject this badly drafted amendment. It would be with us for ages – amend in haste, repent at leisure.

on line reference www.irishtimes.com/newspaper/opinion/2011/1020/1224306124757.html

On RTE1 Frontline programme on Monday 17 October retired Chief Justice Ronan Keane strongly criticised the proposed amendment of Article 35.5 as “difficult, problematic and dangerously vague”.   Chief Justice Keane has also contributed an article for the Special Issue of the Irish Law Times on the Judges’ Remuneration Referendum in which he concludes:

“But this is not temporary legislation: it is a power entrenched in the Constitution permanently and available to any government with a Dáil majority, who can use reductions in pay effected many years before, for specific reasons and in a particular economic context, to reduce the salaries of judges to levels drastically lower than the present. That could bring about the situation which Art.35.5 as it stands is there to prevent: a judiciary dangerously subservient to the wishes of the Executive whose control over their pay is so alarmingly increased. If we have learned anything from history, it should be that such powers should not be lightly entrusted to the Executive in the optimistic belief that they will never be exercised.”

The full text of this article is at this link

On the same Frontline programme Estelle Feldman said of the Oireachtas Inquiries amendment [which does not allow appeal to the Courts] that talk of enabling legislation was a red herring.  “If the words are not inserted into the Constitution then they will have no effect.”  She continued that both of these Referendums “are being put to the people without the People having had a chance to consider and debate them.”

The Frontline podcast link is www.rte.ie/news/av/2011/1017/thefrontline.html#

The Irish Times report on Chief Justice Keane’s comments is at www.irishtimes.com/newspaper/ireland/2011/1018/1224305995868.html

The Irish Times report on Chief Justice Keane’s article is at www.irishtimes.com/newspaper/ireland/2011/1019/1224306074381.html

Justice Bryan McMahon was interviewed this morning, Thursday October 13th, in the second hour of Morning Ireland, RTE1 radio.  He was answering questions sent in by the public.  Justice McMahon is obviously behaving in an impartial manner.  He could not have been clearer that the guarantee of judicial independence will be weakened and it is for the people to say whether this is an acceptable weakening or whether it will open the floodgates.

This is the link to the podcast of the relevant part of Morning Ireland.  The section begins before the end of the 22nd minute.

pod-v-pod1310112ndhour40m12smorningireland-pid0-2412120.mp3

If you have read the pages and posts on this website you will know that our concern is that passing this amendment will open the floodgates to the possibility of political control of judges.  Remember that the reason judicial independence must be guaranteed in our Constitution and in all democratic constitutions is to protect the people from abuse of power by the Government i.e. politicians. Independent and impartial judges are our protection against Government breaching our rights whether these breaches are by unfair laws or by the maladministration of public agencies.  We can only rely on the independence and impartiality of our judges when the Constitution contains the cast-iron guarantee that Article 35.5. represents.

Our Constitution was written carefully to ensure that there are proper checks and balances to prevent any of the organs of power, the Government (Executive), the Oireachtas (Legislature) or the Judiciary from becoming too powerful.  To ensure that these checks and balances are in equilibrium guarantee clauses have been included in the text. Article 35.5 is the guarantee clause ensuring the independence of the judiciary.  Article 15.10 is the guarantee clause ensuring that there can be no interference with the representative role of the Oireachtas. Articles 40.3.1 and 40.3.2 guarantee the protection of personal rights of the citizen.  These guarantees did not originate in 1937 but have their origins many centuries earlier and are accepted as fundamental articles of faith in a representative democracy.

No single Constitutional provision is as easily identifiable as providing guarantees for the exercise of Executive power without interference. In fact, Article 28.4.1 states that the Government shall be responsible to Dáil Éireann.  Why is that?  Is it because in drafting the Constitution it was recognised that the Government, which controls the public purse and the Garda Síochána and the Defence Forces, needed to be kept within bounds in order to protect the People from potential abuse of power?  Is that why the other two powers required Constitutional guarantees to protect their position?  Yet, the Oireachtas has long since been bent to the will of majority Governments of all shades abusing their power through curtailing debate (Bills passed under the guillotine) and forcing Oireachtas committees to vote in accordance with party whips no matter what the abuse of fair procedures and justice (e.g. as happened to the Lost at Sea Scheme Report of the Ombudsman www.ombudsman.gov.ie/en/PressReleases/Name,12900,en.htm )  And now it is the turn of the Judiciary to be brought under the control of the Government.  If the 29th Amendment were genuinely about judges’ pay the wording would specify an independent commission.

The Referendum Commission, an impartial body appointed by statute, has confirmed our view that the 29th Amendment is about “one of the more significant guarantees of judicial independence”.  It has confirmed our view that the 30th Amendment will exclude an appeal from a parliamentary inquiry for “judicial review as we know it”. Unfortunately, their website does not make this clear enough but these were the words spoken by the Commission chairman, Justice Bryan McMahon, at the press launch and have been reported by RTE news. Of even greater concern is the that the documentation that will be distributed to every household will not clearly reflect the Chairman’s stated views.

www.referendum2011.ie/

The Referendum Commission is limited in what it may say or may speculate.  Its role is to encourage people to vote in a Referendum.  It most certainly can not, may not and will not advise people how to vote.  But we can.  Vote NO. Twice.

Recent media reports have revealed that Government special political advisers, appointed without open competition, are paid well in excess of the recommended €100,000 cap on public remuneration.  The Government considers this is justified despite the many highly qualified senior civil servants in each of the Departments in question.   The Government considers this is justified despite the guarantees it gave that it would root out croneyism and that it would not waste public funds.  On the other hand, the Government considers that it is acceptable to hold a Referendum, the 29th Amendment, to coerce around 150 individuals to bend to its will.    This Referendum is supposedly about reducing the pay of these individuals, the class known as judges.  It has become normal practice for there to be open discussion about pay issues, discussion involving representatives of the target group who can present their views,  and employment and industrial relations experts who give facts on productivity, not merely the one-sided, dominating view of the paymaster.  If this were any other small unrepresented group there would be public outcry. But because it is judges, whom politicians have demonised for many months, there is little open public debate.  With this Referendum the Government is giving itself, not an independent commission, the sole power to control judges’ salaries.  By this Referendum the Government is consolidating more and more power to control the State and its people into its own hands thereby destroying the necessary checks and balances of a parliamentary democracy. And why are judges not represented in this debate? Because, ironically, to preserve judicial independence they may not engage in public controversy.   That is obviously not the case with politicians who generally thrive on controversy.  So why did not a single Government T.D. or Senator accept the invitation of the Law Society, National University of Ireland Galway, to discuss these and other issues arising from the proposed 29th Amendment with Professor Tom O’Malley, UCG, and Estelle Feldman, TCD, yesterday evening?