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The referenda – for and against

The referenda – for and against

Áine Ryan

THE media circus around next Thursday’s election of the ninth President of Ireland has meant that two significant amendments to the Constitution have largely been ignored. Now as polling day looms, an eleventh hour focus on the 29th and 30th Amendments to the Constitution – with the unprecedented intervention by eight former Attorneys General – highlights their importance, particularly the amendment regarding inquiries by the Oireachtas.
The separation of powers of the executive and judicial arms of the Irish State are enshrined in the Constitution. The Executive arm makes judicial appointments but has no influence on the judiciary.  

Referendum on inquiries by the Oireachtas
THIS referendum proposes to give the Houses of the Oireachtas express power to conduct inquiries into matters of general public importance and, in doing so, to make findings of fact about any person’s conduct.
Some commentators believe this would obviate the need for costly tribunals and would better balance the rights of people with the requirements of public interest.
This is often simplistically referred to as the proposal to reverse the Abbeylara judgement – a Supreme Court judgment that ruled that the Oireachtas only had limited powers to investigate the personal culpability of a garda involved in the famous stand-off in April 2000 when John Carthy was shot dead in controversial circumstances.
Since the Supreme Court judgment the Oireachtas has put in place a more efficient form of Commissions of Inquiry legislation, which was the vehicle, for example, under which the Murphy Report into clerical abuse allegations was conducted.
Minister Brendan Howlin has argued that the passing of this referendum will allow for the possibility of ‘an effective and cost-efficient parliamentary scrutiny of issues of significant public importance’, which is ‘essential in facilitating more open, transparent and better Government.’
However, many opponents argue it is an attempt by the Oireachtas to usurp the independence and power of the judiciary and – with reference to both Abbylara and the Ivor Callelly cases – the Supreme Court.
Mayo Barrister, Lisa Chambers, a Fianna Fáil candidate in the last General Election, has questioned the ability of the political appointees on such an Oireachtas Committee ‘to detach themselves from their political constraints whilst performing quasi-judicial functions’.

“The public have been crying out for common sense to prevail in how we conduct enquiries into matters of general public interest. This will allow elected representatives to thoroughly investigate matters of public importance without engaging in long and hugely expensive tribunals, which to date have cost the State €315 million.”
Deputy Michelle Mulherin, Fine Gael.

“The amendment is too enabling and too permissive and there is no additional guarantee to protect against the abuses by mendacious politicians in the future. The use of anti-lawyer rhetoric to promote the amendment merely indicates the lack of substantive arguments.”
Donncha O’Connell, NUI Galway.
Referendum on the pay of judges
LESS controversial than the 30th Amendment, the proposed 29th Amendment to the Constitution is about whether the pay of judges can be reduced in certain circumstances. At present the Constitution does not allow for the reduction of the remuneration of sitting judges. The proposed amendment would make judges subject to the Public Service Pension Levy.
Article 35.5 of the Constitution states: “The remuneration of a judge shall not be reduced during his continuance in office.” The proposed amendment will modify this statement with provision to reduce judges’ pay if that of another ‘class of persons’ receiving pay from public funds was being reduced.

“I feel that anyone who is paid out of the public purse should have to make the same adjustments in light of the ongoing economic crisis. It is unfortunate that such a proposal has to go to a referendum. I feel this should not be discretionary and appreciate the choices made by many members of the judiciary to already take cuts.”
Mairéad Bourke, Solicitor, Westport.

“The proposal to allow proportionate reductions in judicial remuneration (which we support in principle) provides insufficient protection for the independence of the judiciary.”
Eight former Attorneys General: Patrick Connolly, Peter Sutherland, John Rogers, Harold Whelehan, Dermot Gleeson,  David Byrne, Michael McDowell, Paul Gallagher.

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