THE BAR COUNCIL of Ireland is urging Irish people to vote no in both the referendums on 27 October.
Both referendums propose changes to the Constitution of Ireland – one concerns judges’ pay, and the other concerns powers of inquiry for the Oireachtas.
The Bar Council said it is particularly concerned about two aspects of the proposed amendment on powers of inquiry for the Oireachtas.
Its first concern “relates to the manner in which the proposed amendment would impact on the rights of the individual citizen”.
The council explains that the wording states that the rights of a citizen called to appear before such an inquiry would be determined by the Houses of the Oireachtas and not the Courts.
At present, a citizen who is aggrieved about any restriction on the level of fair procedures afforded to him or her by a public inquiry can challenge that decision before the courts.
However, the Bar Council says that the Referendum Commission stated that “…It is not possible to state definitively what role, if any, the courts would have in reviewing the procedures adopted…”
Says the Bar Council:
The right to fair procedures is one of the most basic rights afforded to the citizen. … To remove the oversight of the Courts would be to render such inquiries free to trample, without fear of censure, over the rights of the citizen and leave the citizen without the most basic protection against attack by the State or an arm of the State which is available at present, namely, the right to apply to the courts to prevent it.
The Bar Council is also concerned about the nature of parliamentary inquiries, saying it does not believe that it is appropriate that members of the Houses of the Oireachtas should be allowed to make findings of fact about the conduct of individual citizens.
It states that “the Tribunals of Inquiry legislation was first enacted because people did not have confidence in the ability of politicians to fairly adjudicate matters of urgent public importance”.
Since 2004 an alternative to Tribunals has been available, namely, Commissions of Investigation which afford a quick, efficient and cost effective means of carrying out investigations or inquiries.
It is deeply disturbing to think that if this amendment is passed the citizen aggrieved at his treatment by Deputies or Senators in an inquiry in which his rights are at risk will not be afforded the opportunity to vindicate his or her rights before the courts.
The Bar Council is also opposed to the proposed amendment on judges’ pay, calling it “vague and imprecise” when it should leave “no room for ambiguity as to the maximum size of cuts in judicial pay”.
Although it is not opposed to amending the Constitution to permit reductions in judges’ pay, it is concerned about the means the Government is using to enshrine it.
It believes it would place too much control in the hands of the Government and would seriously compromise judicial independence.
There is a real risk that a future government would be free, if this referendum was passed, to cut judges’ pay by, say, 50% once the pay of a very small number of public servants was cut by 5%.
What is at issue is the independence of the judiciary and the maintenance of this crucial protection in a democracy.
The Referendum Commission chairman, Dr Bryan McMahon, told TheJournal.ie that the commission cannot comment on what the ramifications of passing the referendum will be, and added:
In conducting these inquiries, the Oireachtas must have due regard to the principles of fair procedures. Therefore, the Oireachtas itself will decide how to balance the public interest with the rights of individuals. While anyone can go to Court at any time making a case that their rights have been violated, the real question is whether they would be successful or not. The Referendum Commission has stated that it cannot say whether or not the Courts would decide they had a role in this; the Courts themselves would decide that. The wording of the Amendment suggests that it will be hard for the Court to second-guess a decision of the House on the balance they’ve struck on this question.
Meanwhile, the Irish Council for Civil Liberties Association (ICCL) said it is also asking people to vote no on the 30th Amendment to the Constitution, regarding the Oireachtas inquiries.
It describes the proposals as “rushed and ill-considered” and says they “do not strike the right balance between the public interest and individual rights”.
It will launch its campaign today at the Westbury Hotel in Dublin.
To embed this post, copy the code below on your site
have your say