The source of authority in a referendum democracy Summary We are the source of all governmental authority and power in this Republic, as set out in Article 6.1 of our Constitution. Why is that the Dáil can close the door against the guardians of the Constitution? the Irish state has slipped, quite unselfconsciously, into being a referendum democracy To widen the scope for the development of a referendum democracy, I propose the number of signatures needed to have an issue presented to the people, directly, for decision in a referendum be set a 1% of the Total Valid Poll at the preceding general election. As the TVP is the means by which we give authority to TDs, it is important to keep the link between this well established institution and the creation of a new organ of state, which is what bringing in direct democracy into our way of governing ourselves would mean. This link would reinforce the complementarity of direct democracy to our evolving representative democracy. A well designed and carefully implemented form of modern direct democracy would promote greater understanding of issues which we face. Referendums are not redundant, as the liberal model of democracy claims, but can serve as important instruments for correcting misrepresentation in specific political issues To mark the 80 th anniversary of the adoption of our Constitution, I ask this Assembly to continue the movement to build direct democracy into our way of governing ourselves by recommending new organs of state that make it easy for us to assert our rights as citizens, rather than be governed on the basis that we only have the liberties of subjects. Donal O Brolcáin 22 December 2017
The source of all governmental authority and power in this Republic derives from us, as Article 6.1 of our 1937 Constitution states All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good. Through general elections, we designate the rulers of the State. We transfer our power to our fellow citizens who present themselves to us as candidates during elections. For this purpose, we are grouped into constituencies, from which we elect our fellow citizens to the Dáil. We directly elect all the members of the main part of our national legislature. Our electoral system (Proportional Representation using a single Transferable Vote PR STV) is regarded as fair. This is because the results in terms of who is elected is usually very close to the proportion of the vote that each candidate got, once preferences are counted. Why is that the Dáil can close the door against the guardians of the Constitution? In 1987 in Crotty v An Taoiseach, the people described by Walsh J. as the guardian of the Constitution. Despite that, it is somewhat ironic that the Irish people do not themselves have the power to instigate constitutional amendments. They merely express approval or disapproval of an amendment put to them. The 1937 Constitution may be amended only in accordance with arts. 46 and 47. These provide that a referendum can only be initiated by Dáil Éireann. The Dáil must vote to put a proposal for an amendment to the people in a referendum. If the Dáil does not do so, contrary to the wishes of the people, the people s only recourse is at the ballot box, at the next election.why is it that the Dáil can close the door against the guardians of the Constitution?1 1 Ruane, Bláthna Democratic control and Constitutional Referenda the failure of the popular initiative mechanism for Constitutional Referenda under the Irish Free State Constitution. In B. Ruane, J. O Callaghan, D. Barniville (eds) Law and Government a tribute to Rory Brady. Round Hall. Dublin 2014. v p.185, 186
A referendum democracy? Since 1969, we have only re elected an outgoing government once. That was in 2002, when the Fianna Fáil Progressive Democrat government resumed office, having first taken power in 1997. This suggests that we are using our power to limit the power of government in general elections The 1996 constitutional review group and the 2001 Oireachtas committee on the referendum expressed satisfaction with the referendum. The view expressed by some members of the 1967 committee that the referendum was a logical extension of the principle of, and of the people s power to give themselves a constitution, still prevails. The record since 1969 has been a classic example of a system maintaining institutional continuity while accommodating crisis and change.yet the range of topics has widened, and in the 1990s alone ten amendments were voted on. The procedure has moved from being an auxiliary procedure to a component of a system in which its use, or possible use, is fully integrated into the decision making apparatus of Irish democracy. Hence the Irish state has slipped, quite unselfconsciously, into being a referendum democracy Trying to differentiate between fundamental from non fundamental constitutional changes which would not require referendums runs the risk of undermining the authority of the constitution, and was rejected by the 1996 committee. Ultimately, the Irish experience of the referendum has been determined by that constitution, and while its norms remain respected, a purely representative system will not return.2 To widen the scope for the development of a referendum democracy, I propose the number of signatures needed to have an issue presented to the people, directly, for decision in a referendum be set a 1% of the Total Valid Poll at the preceding general election. As the TVP is the means by which we give authority to TDs, it is important to keep the link between this well established institution and the creation of a new organ of state, which is what bringing in direct democracy into our way of governing ourselves would mean. This 1% of the TVP is one and half times the average quota for each General Election held here over the past 40 years. See Figure 1 The results of elections to the Dáil (and also Councils, Senate) involves 1. Establishing the Total Valid Poll (TVP) in each constituency, by excluding spoiled votes; 2. Calculating the quota the number of votes a candidate should reach to be elected to the Dáil. The basis for the quota is the TVP and the number of seats in each 2 Kissane, Bill New Beginnings Constitutionalism & Democracy in Modern Ireland. University College Dublin Press Dublin 2011. P. 117
constituency. The aim of the quota is to ensure that each candidate elected has attracted sufficient support once all seats in that constituency have been filled, after transfers of preferences if necessary. Over the last 40 years, the average quota ranged from just over 10,000 votes (in December 1989) to just under 13,500 (in February 2016). Figure 1 General Election 1977 2016 Average quota per TD and 1% of Total Valid Poll 0 5,000 10,000 15,000 20,000 25,000 2016 2011 2007 2002 1997 1992 1989 1987 Nov 82 Dec 82 1981 1977 13,499 13,457 12,520 11,260 10,777 10,454 10,041 10,771 10,235 10,092 10,413 10,905 16,030 21,329 22,204 20,658 18,579 17,890 17,249 16,568 17,772 16,887 16,651 17,182 Average Quota for each TD elected 1 per cent of Total Valid Poll At the last General Election, 65 TDs were deemed elected without having reached the quota in their constituencies. This is just over 40% of the 157 TDs elected, as the outgoing Ceann Comhairle of the Dáil does not have to contest a General Election, assuming that he/she is not retiring from the Dáil. This suggests that it is not easy for candidates to attract sufficient support to reach a quota, even after transferred votes have been counted, even if they do become TDs. This link would reinforce the complementarity of direct democracy to our evolving representative democracy. A well designed and carefully implemented form of modern direct democracy would promote greater understanding of issues which we face. (see Appendix 1)
Given that our way of governing ourselves has already evolved from being a purely representative system, it is timely to bring in direct democracy (ie. citizens initiatives) which the Constitutional Convention voted for 3. Acting on these recommendations of the Constitutional Convention would encourage much more deliberation and discussion on issues, which arise regardless of the outcomes of general elections. Referendums are not redundant Swiss researchers pointed out that Our analysed gap underlines the fact that preferences represented by elected representatives do not match preferences of citizens very well when it comes to specific issues. The gap is even greater when important issues are at stake. Our results suggest that the elected representatives do not always formulate policies that the citizens want, if these policies are not induced by referendums. In other words: referendums are not 3 Constitutional Convention. Report. Dáil Electoral System. 28 August 2013 https://www.constitution.ie/attachmentdownload.ashx?mid=fdf70670 030f e311 a203 005056a32ee4
redundant, as the liberal model of democracy claims, but can serve as important instruments for correcting misrepresentation in specific political issues. Our results suggest that only for a few voters does the party platform match perfectly with individual preferences. Thus, at least for some issues, party representation due to electoral choices does not match with the issue preferences of the voters. In direct democratic systems this mismatch can be solved on an issue by issue basis 4 Our experience of referendums suggest that we can use them sensibly The very fact that the Irish Constitution can only be amended by referendum has led to many controversial issues becoming the subject of a specific vote and, what inevitably goes with it, detailed public debate. I think that too has come to be part of our identity. The fact that people see a degree of ownership in the constitution by their regular involvement in voting on its contents seems to me to be an important part of the current Irish identity 5 I ask the Assembly to continue the movement to build direct democracy into our way of governing ourselves by recommending new organs of state that make it easy for us to assert our rights as citizens, rather than be governed on the basis that we only have the liberties of subjects Back to the Future The first constitution of our state provided for direct demoracy. For inspiration on continuing the development of our way of governing ourselves, we need look no further than these statements 1. Kevin O Higgins, Government Minister, when he opened the debate on the Initiative in the constitution of our emerging state. As he spoke in the Dáil in October 1922, Irish society was deeply divided with the civil war raging. This is an excellent summary of the case for citizens initiative, at local, national and transnational levels. In moving the adoption of this Article, I may say it will still further associate the people with the forging of the laws of the country, and it puts the power in the hands of the people of even initiating legislation. If a large section of the people 4 Sager, F. and Bühlmann, M Checks and Balances in Swiss Direct Democracy in M. Setälä and T. Schiller (eds) Referendums and Representative Democracy Responsiveness, accountability and deliberation. p.201 202 5 The Hon. Mr. Justice Frank Clarke. The Constitution: Nationality, and the Language. Speech at Burren Law School 5 th May 2013 https://www.burrenlawschool.org/law/constitution nationality identity and language
feel that a certain law is desirable; and if Parliament fails to introduce the desired legislation, power is given here to the people to initiate legislation themselves. It is the direct complement of the Referendum, and pretty much what can be claimed for the Referendum can be claimed for the Initiative that it keeps contact between the people and their laws, and keeps responsibility and consciousness in the minds of the people that they are the real and ultimate rulers of the country. [1214] The text of the Article as it stands is permissive; it is not mandatory. It is permissive of Parliament to institute the initiative, but it is mandatory if Parliament, having failed to introduce it, is so requested by a petition within two years. I think it is better not to speak of the amendments that are on the paper until they are moved. 6 2. Eamon de Valera, then leader of the Opposition, speaking in the Dáil on the legislation to remove direct democracy from the Constitution of the Irish Free State As regards this question of direct legislation by the people, there are two sides to it. First of all there is the Referendum, which is nothing more than a veto by the people. It is a check and a curb on the Legislature lest they would move too fast. If some laws are passed in the Legislature that are regarded as revolutionary or too advanced, those who think that they would be supported by the people in stopping it get the Referendum. As a rule that is the way in which the Referendum works. It works as a veto and as a check. It is also used very often to settle disputes where you have two chambers under the Constitution. If we are going to have the Referendum, which is admittedly a check, a clog, if you like, something that hampers progress, it is only natural and it is only right that the people should have the opportunity of moving forward if they are in advance of the Legislature. Remember that this power of direct legislation is an old one. In [1507] the early democracies you had it. It is now being reverted to because of the people's distrust of some of the representative assemblies. It is because representative government has not worked out as it was hoped it would that you have these two checks, this form of direct legislation by the people. There is, first of all, the power to veto and to decide disputes as the ultimate court of appeal. Then you have the other corresponding and complementary right of the people to move faster than the Legislature, if a reactionary Legislature is standing in the way of progress 7. 6 Dáil Debates 5 October 1922 Cols 1213 http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1922100500016?opendocument 7 Dáil Debates. 16 May 1928 Cols 1506 7 http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail1928051600040?opendocument
Appendix 1 Extracts from presentation by Dr. Andreas Gross (then a Swiss MP, now retired) on Governing with the people* The impact of Direct Democracy and it s design requirements A short presentation at the Hearing Citizen Participation organised by the Committee on Constitutional Affairs(AFCO) of the European Parliament Brussels, September 18th, 2012 *Governing with the People. The Impact of Direct Democracy and is design requirements at day long hearings held by the Constitutional Affairs Committee of the European Parliament in Bruxelles on 18 September 2012. The topic was Method for citizens direct participation in EU Member States model for a more democratic Europe. A European Union of, by and for the citizens. How can Europe provide better possibilities for the participation of its citizens? A podcast of Dr. Gross presentation (22 minutes) is available here https://www.youtube.com/watch?v=cjbptf3ohao The full hearing can be listened to on the European Parliament web site Morning session https://tinyurl.com/8v8ym7o Afternoon session https://tinyurl.com/9cowfw9 The full set of slides are available in Appendix 1 in another submission which I made to this Citizens Assembly on 21 December 2017 at 17.56 https://www.citizensassembly.ie/en/submissions/the manner in which referenda areheld/submissions Received/