Friday 28 October 2016

Dumping chamber could see precious Constitution being ripped to shreds

Published 03/10/2013 | 05:00

Professor Diarmaid Ferriter, left, Senator Feargal Quinn and Senator Katherine Zappone at a Democracy Matters press conference for a No
Professor Diarmaid Ferriter, left, Senator Feargal Quinn and Senator Katherine Zappone at a Democracy Matters press conference for a No

It is sad to see a proposal for the abolition of the Seanad being put forward in such a sour fashion. We are told a sum of money will be saved – how much is disputed – the number of politicians will be reduced, as they were a form of disease; we are to get rid of "elitism" as if to strive to be elite was not desirable.

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But sadder still is the fact that if this referendum is passed the Constitution will be dismembered: it will become a thing of shreds and patches. Article 46 of the Constitution provides that any provision may be amended by way of variation, addition or repeal. A bill containing a proposal or proposals for the amendment of the Constitution shall not contain any other proposal. To abolish the Seanad involves umpteen other amendments to the Constitution. This referendum may be within the strict letter of what is permitted. But it very contrary to the spirit of the Constitution.

This is because there is a definite symmetry in the document. It provides for two houses: Dail and Seanad; it delineates the powers of government; it provides for the separation of powers into legislative, executive and judicial. It has a very advanced bill of rights section and it speaks in the present sense. In other words the Constitution does not bind us to what was right when it was enacted in 1937 but what is right for today. So it is a living document. By cutting off a limb, you threaten the whole.

There has been much talk of the need to reform the Seanad; why it has not been attempted has not been explained. A task that could easily be assigned to the Seanad would be the holding of inquiries which are so much beloved by some members of Government. The Supreme Court judgment in the Abbeylara case is constantly trotted out as inhibiting inquiries. It is important to stress what Abbeylara decided: it decided that people could not be found guilty of criminal offences except in a court of law. In other words legislators could not act as judge and jury and find people guilty of offences; but that was always understood to be the position.

There is nothing to prevent inquiries making findings of fact and recommendations for the future. The members of such inquiries do not have to act like old-style prosecutors baying for blood.

There is a lot to be said for the old Roman style of making findings by way of periphrasis, which is to use a softer phrase instead of a more wounding one. Thus the Romans would say not that a man had been killed but that he had lived.

That is just one suggestion. Nearly everyone agrees that it nearly impossible for TDs to leave their partisanship to one side and act judicially but senators have a much better opportunity to do so.

The courts themselves provide an example of how constitutional rights can be expanded. Until the 1960s there was not much judicial activism. On their appointment – Cearbhall O Dalaigh as Chief Justice and Brian Walsh to the Supreme Court – the then Taoiseach, Sean Lemass, said to them that he would like the Supreme Court to become more like the United States Supreme Court. Lemass wanted the court to be more active in its interpretative role. So it came to pass. As Walsh put it: "From 1961 onwards, the Constitution became very much part of life and its impact could be felt among the ordinary people, who . . . became conscious of the fact that they had a Constitution, that it could be implemented and that, in fact, many parts of it were self-executing and did not require any supporting legislation."

So in matters of access to the courts, personal liberty and admissibility of evidence the courts were able to show the power of the Constitution.

The object of this digression into the court role is to point out that the Seanad could be given a similar dynamic; I have instanced the matter of inquiries which could be simply done. Others could follow – extending the franchise would not take much effort. The thing is to make a start: tosach maith, leath na hoibre.

Irish Independent

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