independent

Monday 20 October 2014

A dangerous amendment

Published 25/10/2011 | 14:22

ON THURSDAY the people of Ireland will be asked to elect a President and to vote on two proposed amendments to the Constitution. The proposed amendments to the Constitution are of huge importance but have received little examination and people are largely ignorant of their content or significance.

Many regard one of the two proposals as plain dangerous. The 30th Amendment of the Constitution proposes to give the Oireachtas power to conduct inquiries into matters they deem to be of public importance and to make findings of fact about a person's conduct.

As things stand, the Dail or Seanad can hold inquiries but can't make findings of fact which impugn anybody's good name – unless, in most cases, the inquiry concerns one of their own. The reason the government now wants to amend the Constitition is to give the Oireachtas more power so it can carry out effective inquiries rather than, in the words of Fianna Fail's Sean Fleming, 'outsourcing investigations to tribunals' that went on for decades and cost hundreds of millions.

Given the level of public discontent at spending so much on tribunals that cost so much and achieved so little, it's clear that most people would like to have a more effective way of carrying out public inquiries. However, the proposed amendment is a dangerous way of dealing with this because it is far too vague and open to abuse.

If this amendment is passed, the Oireachtas will have the power to decide what is and is not of public importance. This might be well and good if it wants to inquire into the banks or the health services, but it could also extend into any area the Oireachtas sees fit and there is little room for redress if individuals feel a probe is unjustified.

The Oireachtas would also be able to make findings of fact about people who are the subject of an inquiry. This wouldn't mean they could fine or jail anybody, but they could decide a person's conduct was corrupt and in so doing damn their reputation. And the Oireachtas would have the power to determine the balance between the rights of individuals involved in an inquiry and the requirements of the public interest.

We would all like to see the bankers and their cronies who ruined the country brought before this kind of inquiry – and before investigators with far sharper teeth. The problem though, is that this ill thought out amendment wouldn't just be for the bankers, it would be there for everybody, for as long as it remains part of the Constitution, and there is no telling how it might be used in the future.

Voters should ask themselves if they would be happy to give such sweeping powers to the Oireachtas if we had a government of the extreme right or extreme left, which wanted to use this amendment to create a quasijudicial oireachtas. Some might say this could never happen, but who would have thought a decade ago that the IMF would be effectively running the country.

The government argues that it needs to be able to investigate wrongdoing in an efficient and cost-effective way and that this amendment is the only solution. Unfortunately, it isn't. Another way would be to make it obligatory for legal eagles to serve, free of charge, on tribunals in the same way as ordinary people are required to leave work to perform jury service. There need be no doubt that tribunals would be then conducted at a rather more urgent pace than we have in the past.

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