Citizen’s Assembly

citizens-assembly

Hilary Hogan


The Citizens’ Assembly is comprised of ninety-nine members of the public, led by a judge, tasked with making suggestions for the reform of aspects of Irish law and policy. The first of those issues for consideration is the Eighth Amendment, the provision which has lead to  limiting abortion procedures in Ireland to cases where the woman’s life is at risk. A cynic could argue, with a good deal of truth, that the government are trying to avoid tackling a divisive area themselves by giving the task to an extra-parliamentary group. Ninety-nine citizens who have heard every side of the debate provide a useful sounding board to ascertain what type of reform would be most popular with voters, and the lengthy process of the Assembly makes it unlikely that the issue will be tackled in the lifetime of the government.[1]

Those criticisms may ring true; however it is submitted that they do not serve to undermine the entire Assembly. The creation of the Citizens’ Assembly is a positive step in many respects, as it allows ordinary people to play a concrete role in the reform of certain pivotal areas of law. Ireland – much like other liberal democracies – suffers from the ‘paradox of constitutionalism’ whereby the people are credited as being ‘sovereign’[2] but in practice they have little say in how the branches of government act on their behalf.[3] Although the public vote to elect representatives in the Dáil and Seanad, the party whip system places heavy limits on the ability of individual TDs and Senators to influence the development of policy, which leaves a great deal of power to senior officials within established political parties.[4] When it comes to referenda, one of the clearest ways of exercising popular sovereignty, Irish people do not have the ability to initiate them. The paradigm of constitutional reform is decided by the government who propose the wording of the referendum, which leaves the public with the choice of the status quo or an alternative pre-decided by the government (who have an incentive to only run referenda that they know are likely to pass). The Citizens’ Assembly marks a departure from this format, as members of the public are part of the discourse on reform and recommend what form it should take. Whilst there is no guarantee their proposals will be adopted by the Oireachtas committee, it is hard to imagine that they will not be a weighty part of the reform process.

However, greater collective agency by the public in constitutional reform is not a universally welcomed prospect. As O’Cinnéide points out, there is a danger that recourse to the will of the popular vote in constitutional governance can descend into a form of majoritarian rule.[5] Relying on the popular viewpoint of the time can drastically harm historically oppressed minorities, who rely on rights enshrined within the constitutional structure to protect them from populist prejudice.[6] Liberal constitutionalism argues that popular majorities can abuse their power, and that the will of the people should not be enough to justify state authority – it should also be assessed by reference to human rights values.[7] In the context of Eighth Amendment, access to abortion is considered to be an implied right in a number of international human rights treaties. Women, despite making up roughly half of the world’s population, are a historically oppressed group within the legal system, and a minority group in terms of representation in the political sphere and public life generally.[8] Why should the scope of female reproductive rights depend on the views of the general public – or the ninety-nine members of the Citizens’ Assembly? Arguably, it undermines human rights protection if the extent of a right is dependant on the views of the majority, as rights are designed to act as a bolster against popular will.

Whilst cultural relativists argue that the determination of human rights should be context sensitive and cautious of suppressing cultural practices on the basis of Western values, it is difficult to sustain this argument in the context of liberalising Ireland’s abortion laws. Donnelly argues that to allow cultural relativism to trump human rights, one would have to demonstrate that the underlying cultural vision of human society is both incompatible with the implementation of the ‘universal’ human right in question and morally defensible.[9] The Eighth Amendment was certainly a byproduct of a socially conservative religious culture in Ireland, but the introduction of divorce and same sex marriage are just two examples which demonstrate that that culture has diminishing relevance to a country which is growing evermore liberal and secular. This suggests that a more liberalised right to abortion is not, by any means, fundamentally incompatible with Irish culture. Furthermore, arguments against repealing the Eighth Amendment are rarely framed in the context of preserving Irish culture; the vast majority relate to ethical and moral grounds.[10] Moreover, given that Ireland’s abortion regime has been heavily criticised by a number of international human rights bodies and organisations, it is questionable to what degree the Eighth Amendment remains morally defensible in a human rights context.[11]

However, even if a universalist approach is to be adopted in this context, it is worth noting that extra-parliamentary groups can be used in defence of minority rights. The proposal for the referendum on marriage equality, for example, came via a recommendation from the Constitutional Convention.[12] Fredman has argued that human rights can only be properly addressed within a democracy through deliberative means.[13]

She draws on Habermas’ distinction between two kinds of co-ordination: ‘interest-governed’ and ‘value-oriented’ co-ordination to argue that the latter is preferable in a human rights context. The relevant decision making parties do not have fixed interests, and they aim to reach their decisions based on reasons on which the parties have consensus. Fredman suggests that the courts can facilitate this type of deliberative process as the arguments of the parties, as well as both majority and dissenting judgments are taken into account, and decision makers are required to substantiate their arguments by reference to valid reasons and evidence.

In this instance, as the issue is not justiciable (i.e. the courts cannot hold that an amendment to the Constitution is unconstitutional[14]) it is submitted that the Citizens’ Assembly can serve a similar purpose. As a deliberative forum, it allows for submissions from the wider public and interest groups which feed into the decision-making process by the members of the Assembly. Its conclusions will have to be drawn from expert evidence, which steers the deliberation away from interest bargaining. The format of the Citizens’ Assembly ensures that the recommendations to the Oireachtas will be the product of balanced debate, and that the narrative surrounding reform is less likely to be dominated by inaccuracy or misinformation by interest groups. The 1983 referendum which introduced the Eighth Amendment was spearheaded by Catholic and socially conservative interest groups, and political instability led to the major parties readily agreeing to a constitutional referendum on abortion without an in-depth consideration of the legal conundrums that might arise as a result.[15] The discourse surrounding the referendum was dominated by those interest groups, who were met with a swell of support from an overwhelmingly Catholic population.[16] The ‘hard cases’ which came about as a result of the Amendment demonstrate how harmful public decision making can be without consultation to other sides of the spheres.[17] Naturally, there is no guarantee that a referendum on the Eighth Amendment will not be affected by misinformation, but it is important that the premise of reform will have come from a carefully balanced perspective.[18] The Assembly ensures that whilst interest groups are able to participate via submissions, they are doing so on the terms of the Assembly and cannot dominate the discussion in the way that organisations such as PLAC and other interest groups have done in the past.[19]

It could be argued that the Citizens’ Assembly will struggle to reach a consensus on how reform might best be achieved, as Habermas admits that in complex societies, interests are so diverse that consensus might not be possible.[20] If the Assembly cannot fundamentally agree on the scope of the right to abortion, for example, how can the group make a meaningful contribution to the debate? Sunstein’s theory of incompletely theorised agreements is helpful here.[21] This theory argues that consensus is possible, even where a fundamental principle is contested. Participants might reach a unified consensus, i.e. that the Amendment be put to referendum, although they might have varying ideas as to why that should be. An outcome is reached, although individuals are not required to have a unified justification for their decision. Most importantly, there is an underlying emphasis on mutual respect, which reduces the political cost of enduring disagreements but allows greater consensus to evolve over time.[22] The Citizens’ Assembly is a welcome means of tackling Ireland’s paradox of constitutionalism, and allows for non-justiciable rights to be addressed in deliberative forum which prioritises reasoned evidence over interest bargaining.

[1] ‘Abortion assembly a “pointless exercise” in democracy’ The Irish Times July 15 2016, ‘TD slams citizens’ assembly as a charade’ The Irish Examiner July 14 2016.

[2] In Hanafin v Minister for the Environment [1996] 2 ILRM 61, Denham J (as she then was) described the Constitution as “grounded in the will of the people”.

[3] C. O’Cinnéide, ‘“The People are the Masters” The Paradox of Constitutionalism and the Uncertain Status of Popular Sovereignty within the Constitutional Order’ The Irish Jurist (2012) 249.

[4] D Ferriter ‘Blame Parnell for the Citizens’ Assembly’ The Irish Times, October 29 2016, ’Show up and shut up’ – the story of a government backbencher’ thejournal.ie July 13 2013.

[5] C O’Cinnéide, ‘“The People are the Masters” The Paradox of Constitutionalism and the Uncertain Status of Popular Sovereignty within the Constitutional Order’ The Irish Jurist (2012) 249 at 262.

[6] S Fredman, ‘From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote’ (2013) Public Law 292.

[7] M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship Between Constitutionalism in and Beyond the State’ in J.L. Runoff and J.P Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Governance (Cambridge, Cambridge University Press, 2009) 315.

[8] International Parliamentary Union, ‘‘Women in Parliaments: World and Regional Averages”. ipu.org. 1 November 2016.

[9] J Donnelly, ‘Cultural Relativism and Universal Human Rights’ 6 Human Rights Quarterly 400 at 417.

[10] W Binchy ‘Human Dignity and the Unborn Child—A Comment’ (2014) 20(2) Medico-Legal Journal of Ireland 82.

[11] ‘UN says Ireland’s abortion ban “cruel, inhuman or degrading”’ The Irish Times June 9 2016, ’UN: Irish abortion law treats women as “vessels”’ Irish Examiner July 16 2014, ‘Amnesty criticise Irish abortion laws’ UTV February 25 2015.

[12] ‘Ninth Report of the Convention on the Constitution: Conclusions and Final Recommendations’ March 2014. Available <https://www.constitution.ie/AttachmentDownload.ashx?mid=55f2ba29-aab8-e311-a7ce-005056a32ee4>

[13] S Fredman, ‘From Dialogue to Deliberation: Human Rights Adjudication and Prisoners’ Rights to Vote’ (2013) Public Law 292.

[14] This argument was made, unsuccessfully, in Re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1 [1995] 2 ILRM 81.

[15] The Attorney General at the time, Peter Sutherland, described the Amendment making the law uncertain and practically unusable. See, Memoranda of Attorney General Peter Sutherland to Government of 15 February 1983 and 1 March 1983 (National Archives Ref 2013/100/557-569).

[16] B. Girvin, ‘Social Change and Moral Politics: the Irish Constitutional Referendum 1983’ (1986) 34 Political Studies 61, 67-80.

[17] Among them, ‘… the confinement of a 14-year-old rape victim in Ireland so that she could not access an abortion in the UK, the death of a Galway dentist from sepsis during a protracted miscarriage,the subjection of a suicidal asylum seeker, pregnant through rape, to unwanted Caesarean section, the maintenance of organ function of a deceased woman in order to prolong her pregnancy’ M Enright & Ors, ‘Abortion Law Reform in Ireland: A Model for Change’ (2015) 5 feminists@law < http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/173/630>

[18] The Children’s Right Referendum, for example, has been criticised as stemming from a fundamental misunderstanding or mischaracterisation by a number of legal academics on constitutional caselaw, see O Doyle and D Kenny, ‘Constitutional Change, Referendums, and Interest Group Politics: Ireland’s Children’s Rights Amendment’ working paper, available on tcd.academia.edu/davidkenny, 10-14.

[19] It has been argued that interest groups dominated the narrative in the lead up to the Children’s Referendum, which lead to misinformation as to the core issues at hand and compounded confusion amongst voters. O Doyle and D Kenny, ‘Constitutional Change, Referendums, and Interest Group Politics: Ireland’s Children’s Rights Amendment’ working paper, available on tcd.academia.edu/davidkenny

[20] J Habermas, Between Facts and Norms (Polity Press,1997) 166.

[21] C R Sunstein, Designing Democracy What Constitutions Do (OUP Oxford 2001) 50-65.

[22] S Fredman, Human Rights Transformed (OUP 2008) 37.

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