This is worrying stuff.
You’d hardly notice, but we’re being asked to change the Constitution this Thursday. Twice. Yet nobody is acting like this is much of a deal. The amendments are being thrown in with the Presidential election like some sort of democratic side order, and getting about as much attention. This despite the fact that a Constitutional amendment actually, you know, changes something, while a ceremonial President – in spite of the impression they try to create in their election campaigns – can change about bugger all.
These are not trivial matters either. One would remove the bar on reductions to the pay of judges, something placed in the Constitution deliberately to prevent the sitting government pressuring the judiciary. The other would allow the houses of the Oireachtas¹ to conduct their own quasi-judicial investigations. That would seem to give them quite a lot of power. How much? Well according to part of the proposed amendment:
4º It shall be for the House or Houses concerned to determine, with due regard to the principles of fair procedures, the appropriate balance between the rights of persons and the public interest for the purposes of ensuring an effective inquiry into any matter to which subsection 2º applies.’
So only the Oireachtas can say how much power it can give itself. Though it is of course restricted by law. Which the Oireachtas also creates.
Yes parliaments often have powers of investigation, but this seems very broadly drawn, and likely to make power in this country even more unbalanced. Government in a democracy is generally divided into three main branches: The executive, the legislature, and the judiciary. There is meant to be a measure of conflict between these roles, in order to ensure that everyone is watching what everyone is up to.
We’re a parliamentary democracy though; that immediately reduces internal contention because it means there is no effective difference between the executive and the legislature. Unlike countries with an executive presidency such as France or the US, the legislature elects the executive – which then pretty much dictates everything else the legislature does.
Another safety mechanism is a bicameral legislature; two houses each with oversight of the other – House/Senate, Commons/Lords, etc. Our upper house though is effectively the creation of the executive, which appoints the majority of its members. So no balance there either; whatever party wins most seats in an election just sweeps the board of executive and both houses.
That only leaves the judiciary as an independent power, and we are being asked to pass two amendments to our constitution, one of which will take away its chief protection against undue government pressure, the other of which will usurp some of its functions. Still wonder why I’m worried?
- UCD Constitutional Studies Group produces reasons for and against Oir Inq referendum (politics.ie)
- UCD Constitutional Studies Group produces reasons for and against Jud Pay referendum (politics.ie)
- Inquiries referendum (cedarlounge.wordpress.com)