Constitutional Law Question

Gunslinger92

Hey everyone,

I am a first year law student and today I say my Constitutional Law exam. A question on amending the Constitution came up, and when everyone was talking about it afterwards, it emerged that some people answered it completely differently to others.

I'd really appreciate it if anyone could have a look at the question (which is fairly long, sorry!) and tell me what they think?

Question:

In 2017, following a period of extended civil strife and political turmoil in Ireland, a consensus develops, in certain quarters, that the Government and Taoiseach need to be awarded greater powers to restore order. In particular, some suggest that the Government should be able to amend the Constitution without having to hold a referendum. The thirty-fifth Amendment to the Constitution Bill 2017 proposes to add a new Article 46.6 to the Constitution which provides the following:

"The President may, at his absolute discretion, dispense with the requirement of holding a referendum under Article 46.2 on the request of the Taoiseach, and determine, where the exigencies of the common good so require, that an amendment of the Constitution instead be promulgated by order of the Taoiseach".

The thirty-fifth amendment is passed by a majority of 3,000 votes. During the campaign, the Chair of the Referendum Commission had commented several times on RTE television that "this amendment will allow the Taoiseach to effectively restore order in Ireland". State buildings and vehicles are festooned with "Vote Yes for Order!" paraphernalia, although the Taoiseach defends the constitutionality of this on the grounds that the posters and banners were in fact printed using private funding. Following its passage into law, the President agrees to several requests of the Taoiseach to amend the Constitution by order rather than through the referendum process. A series of amendments curtail, and in some cases, completely remove the freedoms of expression, association and assembly, while Article 15.2 is amended to allow the Oireachtas to delegate broad legislative powers to the Taoiseach.

Comment on whether the thirty-fifth amendment of the Constitution is, in fact, legally valid.

Any insight, opinions etc would be greatly appreciated

XxMCRxBabyxX

Gunslinger92 wrote: »

Hey everyone,

I am a first year law student and today I say my Constitutional Law exam. A question on amending the Constitution came up, and when everyone was talking about it afterwards, it emerged that some people answered it completely differently to others.

I'd really appreciate it if anyone could have a look at the question (which is fairly long, sorry!) and tell me what they think?

Question:

In 2017, following a period of extended civil strife and political turmoil in Ireland, a consensus develops, in certain quarters, that the Government and Taoiseach need to be awarded greater powers to restore order. In particular, some suggest that the Government should be able to amend the Constitution without having to hold a referendum. The thirty-fifth Amendment to the Constitution Bill 2017 proposes to add a new Article 46.6 to the Constitution which provides the following:

"The President may, at his absolute discretion, dispense with the requirement of holding a referendum under Article 46.2 on the request of the Taoiseach, and determine, where the exigencies of the common good so require, that an amendment of the Constitution instead be promulgated by order of the Taoiseach".

The thirty-fifth amendment is passed by a majority of 3,000 votes. During the campaign, the Chair of the Referendum Commission had commented several times on RTE television that "this amendment will allow the Taoiseach to effectively restore order in Ireland". State buildings and vehicles are festooned with "Vote Yes for Order!" paraphernalia, although the Taoiseach defends the constitutionality of this on the grounds that the posters and banners were in fact printed using private funding. Following its passage into law, the President agrees to several requests of the Taoiseach to amend the Constitution by order rather than through the referendum process. A series of amendments curtail, and in some cases, completely remove the freedoms of expression, association and assembly, while Article 15.2 is amended to allow the Oireachtas to delegate broad legislative powers to the Taoiseach.

Comment on whether the thirty-fifth amendment of the Constitution is, in fact, legally valid.

Any insight, opinions etc would be greatly appreciated

I haven't really got a chance to read and think about the Q properly but if I were you I'd avoid doing post mortems on your exam. It can really get into your head and you don't need that :-)

coylemj

Gunslinger92 wrote: »

I'd really appreciate it if anyone could have a look at the question (which is fairly long, sorry!) and tell me what they think?

You and your fellow students attended the same lectures so you know the lecturer who set the question, surely the opinions of your classmates is infinitely more informed and worthy of consideration than those of anonymous posters here?

Victor

Its largely down to the adoption of the constitution, the McKenna Judgement, The Coughlan case, the Hanafin appeal and the Referendum Acts (and how the differ from the Electoral Acts).

You need to argue both ways. Deciding one way would be premature and you have insufficient information - only a few paragraphs - to come down on one side or the other.

NoQuarter

Looks more like a question on the separation of powers with some free speech thrown in that amending the constitution.

The issue in the question is giving the government more control over the legislature and in turn breaching the sep. of powers.

NoQuarter

NoQuarter wrote: »

Looks more like a question on the separation of powers with some free speech thrown in that amending the constitution.

The issue in the question is giving the government more control over the legislature and in turn breaching the sep. of powers.

Struck me as a jurisprudence question actually. Very odd question for a Constitutional Law exam anyway.

johnnyskeleton

What a bizzare question for a law exam. If the people vote for an amendment to the constitution then it is legal.

Is this really a constitutional law question? Is it part of a politics course or something? Does the lecturer hold any legal qualification at all?

impr0v

In my view the amendment is not legally valid. Per Hamilton CJ in McKenna v An Taoiseach (No 2):

The use by the Government of public funds in a campaign designed to influence the voters in favour of a "Yes" vote [in the second divorce referendum] is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State

Per Denham J in the same case:

There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum.

"Festooning" state buildings and vehicles with banners advocating one result over the other infringes this principle, regardless of who paid for the banners.

The pronouncements by the Chair of the Referendum Commission are likely also to have breached the McKenna principles. In Coughlan v Broadcasting Complaints Commission the Supreme Court found that RTE had breached the principles by allowing more broadcasts in favour of a "Yes" vote than against. The mechanics are marginally less clear in this instance given the stated independence of the Referendum Commission from the Government. In my view, however, it is ultimately still an emanation of the state (including because it is funded with public money) and therefore subject to the principles.

Ironically, the Commission was set up as a direct result of the fall-out from the second divorce referendum.

johnnyskeleton

impr0v wrote: »

In my view the amendment is not legally valid. Per Hamilton CJ in McKenna v An Taoiseach (No 2):

The use by the Government of public funds in a campaign designed to influence the voters in favour of a "Yes" vote [in the second divorce referendum] is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State

Per Denham J in the same case:

There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum.

"Festooning" state buildings and vehicles with banners advocating one result over the other infringes this principle, regardless of who paid for the banners.

The pronouncements by the Chair of the Referendum Commission are likely also to have breached the McKenna principles. In Coughlan v Broadcasting Complaints Commission the Supreme Court found that RTE had breached the principles by allowing more broadcasts in favour of a "Yes" vote than against. The mechanics are marginally less clear in this instance given the stated independence of the Referendum Commission from the Government. In my view, however, it is ultimately still an emanation of the state (including because it is funded with public money) and therefore subject to the principles.

Ironically, the Commission was set up as a direct result of the fall-out from the second divorce referendum.

That is a matter for objecting to the funding of the referendum campaigns. Once the amendment is passed it cannot be struck down by the courts.

impr0v

johnnyskeleton wrote: »

That is a matter for objecting to the funding of the referendum campaigns. Once the amendment is passed it cannot be struck down by the courts.

In Hanafin v Minister for the Environment O'Flaherty J referred to the 'awesome undertaking' of setting aside the referendum result - this seems to acknowledge that an amendment that was procured illegitimately, or unconstitutionally, could be set aside.

According to Kelly, the Court decided not to reverse the fifteenth amendment because the people had been aware for a week before the referendum, when the McKenna judgment was given by the Court, that the State had acted unconstitutionally. The public nevertheless voted in favour of the amendment by a margin of about nine thousand votes in a turnout of some one point six million, thereby presumably curing the prejudice, or potential prejudice, introduced by the Government's actions. Not a very courageous or consistent decision in my view, and one that could be argued effectively to represent policy-making by the Court.

Anyway, the public wasn't made aware of the problems with the Government's actions in the scenario presented by the exam question and, given the fundamental constitutional surgery performed by the amendment, I think it would have to be set aside.

johnnyskeleton

impr0v wrote: »

In Hanafin v Minister for the Environment O'Flaherty J referred to the 'awesome undertaking' of setting aside the referendum result - this seems to acknowledge that an amendment that was procured illegitimately, or unconstitutionally, could be set aside.

According to Kelly, the Court decided not to reverse the fifteenth amendment because the people had been aware for a week before the referendum, when the McKenna judgment was given by the Court, that the State had acted unconstitutionally. The public nevertheless voted in favour of the amendment by a margin of about nine thousand votes in a turnout of some one point six million, thereby presumably curing the prejudice, or potential prejudice, introduced by the Government's actions. Not a very courageous or consistent decision in my view, and one that could be argued effectively to represent policy-making by the Court.

Anyway, the public wasn't made aware of the problems with the Government's actions in the scenario presented by the exam question and, given the fundamental constitutional surgery performed by the amendment, I think it would have to be set aside.

The challenge in hanafin to a referendum result is not the same as overturning an amendment to the constitution. If a challenge is brought after the referendum but before the bill is signed into law, that is fine. But once the constitution itself is amended, only another referendum (or in this scenario an order by the taoiseach) can change it. Think about this - the power to find an act unconstitutional is found in art 15.4 of the constitution. The power to challenge a referendum result before the act is signed comes from the relevant act. Where does the power to challenge the constitution in the courts come from? Also, bear in mind the judges duty to uphold all the constitution, not just those parts he agrees with.

Victor

impr0v wrote: »

In my view the amendment is not legally valid. Per Hamilton CJ in McKenna v An Taoiseach (No 2):

The use by the Government of public funds in a campaign designed to influence the voters in favour of a "Yes" vote [in the second divorce referendum] is an interference with the democratic process and the constitutional process for the amendment of the Constitution and infringes the concept of equality which is fundamental to the democratic nature of the State

Per Denham J in the same case:

There is a right to equal treatment in the political process. It is a breach of the concept and spirit of the constitutional right to equality for the Government to spend public monies in funding a campaign to advocate a specific result in a referendum.

Alternatively 'The people have spoken'.

dermot_sheehan

Although Mckenna states government partisan expenditure on a referendum could be unconstitutional, the burden on a petitioner seeking to have a referendum result overturned is heavy. Even in the McKenna case they failed to overturn the divorce referendum despite the narrow result.

A petitioner who brings a referendum petition must do so timely, has the burden of showing some breach or illegality, and that it had an impact on the result, a heavy burden.


Other cases which would have been useful would have been re: art.. 26 and the abortion information which makes it clear provided the procedure for amending the constitution is complied with, it can be amended in any way. There are no fundamental norms or natural law that controls the amendment process.

Also State (Ryan) v. Lennon made it clear under the 1921 constitution that an amendent which extended the time period in which the constitution could be amended by the oireachtas without a referendum was valid.

An ideal answer to that question could have explored the legalistic approach of State (Ryan) and the abortion information case with other case in whcih the courts explored the purpose of the constitution, natural law, and whether there are any fundamental norms that control governance.

impr0v

johnnyskeleton wrote: »

The challenge in hanafin to a referendum result is not the same as overturning an amendment to the constitution. If a challenge is brought after the referendum but before the bill is signed into law, that is fine. But once the constitution itself is amended, only another referendum (or in this scenario an order by the taoiseach) can change it.

If the constitution has been legitimately amended in accordance with the procedures described in the document for that purpose then yes, I agree, only a further referendum can reverse the amendment. If, however, the purported amendment was not properly procured, as was the case here, then surely the constitution has not in fact been amended at all and, as such, there is nothing to reverse?

dermot_sheehan wrote: »

Other cases which would have been useful would have been re: art.. 26 and the abortion information which makes it clear provided the procedure for amending the constitution is complied with, it can be amended in any way. There are no fundamental norms or natural law that controls the amendment process.

Agreed, but isn't the point here that the procedure was not complied with.

The procedure is obviously that described in Article 46. As per the quote above from Hamilton CJ in McKenna, the exertion of influence by the Government in favour of one outcome is an interference with the process described in Article 46, and therefore a failure properly to operate it.

dermot_sheehan wrote: »

A petitioner who brings a referendum petition must do so timely, has the burden of showing some breach or illegality, and that it had an impact on the result, a heavy burden.

I can't take issue with any of that.

Nobody seems to disagree with my assertion that there has been a breach of the constitutional right of equality and/or fair procedures. Accepting that there has been, then the tiny margin of three thousand votes should surely be sufficiently tiny to give rise to a presumption of an impact upon the result.* However, it certainly seems as if a substantial period of time has expired since the amendment was introduced, without anyone bringing a challenge of any description. Perhaps that is enough to mean that the amendment is effectively rendered valid.

Again though, I think there is an argument to be made that such a fundamental change to the architecture of the constitution must be impeccably procured and must unquestionably reflect the will of the people. In circumstances where there is, in my opinion, a very good argument that it has not and does not, then perhaps the Court could be convinced that the mere passage of time is not sufficient to render it legitimate.

* The margin in McKenna was also very tight but, as I stated above, the Court relied upon the fact that the unconstitutional nature of the Government's behaviour had been revealed to voters a week in advance of the referendum to assert that there had not been an impact upon the result in that instance.

johnnyskeleton

On a very basic procedural level, what power does the court have to challenge the constitution? What kind of order can they make? They cannot declare a part of the constitution invalid.

When a bill is proposed to amend the constitution, it cannot be signed into law until a referendum is held permitting it to be amended. Once the referendum result is out a provisional certificate is signed. This can be challenged in about a week under the referendum acts. It is not an amendment to the constitution, it is merely a decision which allows the amendment. If it is not challenged within time the referendum results can never be challenged. The amendment is then passed into law, and the only way it can be reversed is by another amendment

so there is no procedure to litigate the validity of the constitution. It is non justifiable and to do something like that would be to take the "inherent jurisdiction" of the high court to a new and worrying level.

Victor

impr0v wrote: »

* The margin in McKenna was also very tight

I think you are thinking of Hanafin.

dermot_sheehan

Victor wrote: »

I think you are thinking of Hanafin.

My mistake.

dermot_sheehan

Victor wrote: »

I think you are thinking of Hanafin.

johnnyskeleton wrote: »

On a very basic procedural level, what power does the court have to challenge the constitution? What kind of order can they make? They cannot declare a part of the constitution invalid.

When a bill is proposed to amend the constitution, it cannot be signed into law until a referendum is held permitting it to be amended. Once the referendum result is out a provisional certificate is signed. This can be challenged in about a week under the referendum acts. It is not an amendment to the constitution, it is merely a decision which allows the amendment. If it is not challenged within time the referendum results can never be challenged. The amendment is then passed into law, and the only way it can be reversed is by another amendment

so there is no procedure to litigate the validity of the constitution. It is non justifiable and to do something like that would be to take the "inherent jurisdiction" of the high court to a new and worrying level.

You can however bring a Referendum petition if you get leave from the High Court within 7 days of the provisional certificate of result being published in the official gazette. Th court heading such a petition could direct that the provisional certificate be amended or that the poll be retaken nationally or in particular constituencies.

johnnyskeleton

dermot_sheehan wrote: »

Victor wrote: »

I think you are thinking of Hanafin.

johnnyskeleton wrote: »

On a very basic procedural level, what power does the court have to challenge the constitution? What kind of order can they make? They cannot declare a part of the constitution invalid.

When a bill is proposed to amend the constitution, it cannot be signed into law until a referendum is held permitting it to be amended. Once the referendum result is out a provisional certificate is signed. This can be challenged in about a week under the referendum acts. It is not an amendment to the constitution, it is merely a decision which allows the amendment. If it is not challenged within time the referendum results can never be challenged. The amendment is then passed into law, and the only way it can be reversed is by another amendment

so there is no procedure to litigate the validity of the constitution. It is non justifiable and to do something like that would be to take the "inherent jurisdiction" of the high court to a new and worrying level.

You can however bring a Referendum petition if you get leave from the High Court within 7 days of the provisional certificate of result being published in the official gazette. Th court heading such a petition could direct that the provisional certificate be amended or that the poll be retaken nationally or in particular constituencies.

yes but as I said that's not what the question is. The question is whether the amendment is unlawful and an amendment or the constitution cannot be challenged in the courts

impr0v

johnnyskeleton wrote: »

When a bill is proposed to amend the constitution, it cannot be signed into law until a referendum is held permitting it to be amended. Once the referendum result is out a provisional certificate is signed. This can be challenged in about a week under the referendum acts. It is not an amendment to the constitution, it is merely a decision which allows the amendment. If it is not challenged within time the referendum results can never be challenged. The amendment is then passed into law, and the only way it can be reversed is by another amendment

so there is no procedure to litigate the validity of the constitution. It is non justifiable and to do something like that would be to take the "inherent jurisdiction" of the high court to a new and worrying level.

I've checked out the relevant provisions in the Referendum Acts and you seem to be right; if one doesn't challenge the provisional referendum certificate within seven days of it being published in Iris Oifigiúil, the result of the referendum is unimpeachable - no matter what irregularities occurred during the course of the referendum.

Obviously, the questioner was looking for a discussion of all the issues that we have spoken about but it was a pretty tight question if, ultimately, the answer depended upon knowledge of the procedure to follow for challenging a referendum result!

impr0v wrote: »

As per the quote above from Hamilton CJ in McKenna, the exertion of influence by the Government in favour of one outcome is an interference with the process described in Article 46, and therefore a failure properly to operate it.

Just for the sake of good order, the above is wrong. The exertion of influence, per se, is not in fact the problem. Instead, it is the expenditure by the Government of public money in advocating one outcome which is unconstitutional. In practice, however, that might be an almost meaningless distinction given that anything that the Government does will have been paid for with money from the central exchequer.

dermot_sheehan

johnnyskeleton wrote: »

yes but as I said that's not what the question is. The question is whether the amendment is unlawful and an amendment or the constitution cannot be challenged in the courts

The amendment can not be challenged for unconstitutionally once the president signs it and it becomes promulgated a part of the constitution pursuant to Art. 46.5.

It can be challenged for unconstitutionally before this. The consideration by the Oireachtas can not be judicially reviewed, but the conduct by the government of the referendum campaign can be and the result can be challenged by petition.

johnnyskeleton

dermot_sheehan wrote: »

The amendment can not be challenged for unconstitutionally once the president signs it and it becomes promulgated a part of the constitution pursuant to Art. 46.5.

It can be challenged for unconstitutionally before this. The consideration by the Oireachtas can not be judicially reviewed, but the conduct by the government of the referendum campaign can be and the result can be challenged by petition.

The amendment cannot be challenged, only the referendum result.

dermot_sheehan

I'd say the amendment can.

The constitution has certain other requirements of acts to amend the constitution other than that they be put to referendum.

One is that the act in question be entitled "An Act to amend the constitution", another is that the said legislation only contains a proposal to amend the constitution and nothing else (this was to expressly abolish the doctrine of implicity amendment that had been established under the free state constitution).

I'm not sure you'd challenge such a violation by a referendum petition since that assumes that the proposal is subject to the referendum acts and is a valid proposal to amend the constitution. I suppose you could judicially review the minister for the environment from holding the poll.

Whether a challenge could be brought after the poll and after it has been signed and promulgated is unclear. in Re: Abortion Information Bill this was attempted, but failed on other grounds and not due to the fact that the constitutional amendment was challenged (in the court of art. 26 proceedings) after the poll and the result and been certified and the amendment promulgated.