The petition would say that a proposed Bill was of such national importance that the people of Ireland should decide whether it became law. When the President receives the petition, they must consult the Council of State. If the President agrees that the proposal is of such national importance they will refuse to sign the Bill until a referendum has been held.
The Referendum Commission is an independent body whose role is to explain the subject matter of the referendum proposal, to promote public awareness of the referendum and to encourage people to vote. The legislation that provides for establishing a Referendum Commission is the Referendum Act , as amended by the Referendum Act The chairperson, who is nominated by the Chief Justice, must be a former Supreme Court judge, or a serving or former High Court judge.
For an ordinary referendum, the Minister may establish a Referendum Commission no later than the date of the order appointing a polling day. It prepares statements on the main issues and distributes those statements through television, radio and other forms of media to bring them to the attention of the public. The role of the Commission includes ensuring that the statements should be accessible for those with a sight or hearing disability.
It is then dissolved a month later. Voting is by secret ballot. There are various arrangements to facilitate voters with disabilities. A tactile ballot paper template is available in each polling station for people who are visually impaired. The consent of the Irish people is needed before the Constitution can be amended.
This means that amendments to the Constitution can only be made by way of a constitutional referendum. Up to , 35 constitutional referendums had been held, of which 29 resulted in amendments to the Constitution. A list of the amending Acts is at the front of the Constitution published on irishstatutebook.
A majority of voters approved the referendum proposal — you can read about the result on referendum. If no petition challenging the result is presented to the High Court within 7 days of its publication, the certificate becomes final.
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Reappraising judicial supremacy in the Irish constitutional tradition. Judges, Politics and the Irish Constitution. Manchester: Manchester University Press, There is often a sense in Irish politics that major political and social change should be done at a constitutional level in order to be effective.
This is true even when there is little or no need to elevate the matter to a constitutional level, or when non-constitutional political action is more important. This trend was not apparent before the insertion of Article It seems that the success of this change led to almost any political campaign for social change being thought apt for elevation to a constitutional level.
Not only is this potentially wasteful of political capital, it also serves to impoverish the non-constitutional political sphere by suggesting that major issues should transcend ordinary politics rather than seriously engage with it.
This might, over time, erode trust in representative democracy and politicians. Constitutional Referendums: the theory and practice of republican deliberation. Oxford: OUP, We can say that such a lack of trust is on display in Ireland, although its causes are multifarious, and discerning the influence of any one factor would be impossible.
Thirdly, moving the complex question of abortion to the constitutional sphere - particularly in the form of an unborn right to life, as adopted in Ireland - created a great deal of difficulty and uncertainty. The precise meaning and effect of the amendment were not entirely clear: its effect on the distribution of abortion information may not have been foreseen by voters; the Attorney General believed - erroneously, it transpired - that the clause required the government to injunct citizens from leaving the State to procure abortions abroad.
That the government refused to legislate in line with X left doctors deeply uncertain of the legality of potential treatments. Only with the legislation was any functional certainty obtained, thirty years after the insertion of the amendment. Even then, the government was highly restrained by the constitutional provisions when legislating, and there were doubts raised about the constitutionality of that very limited legislation.
Moreover, cases continued to arise where medical professionals were unsure of the balance of constitutional rights and the correct legal position, and they were forced to apply to court to know if the course suggested by their medical judgment was constitutional as the law essentially said nothing, and the Constitution had regulative effect in the area.
The Irish case illustrates the potential negative effects for legal certainty and regulatory flexibility of raising abortion to the constitutional level. Fourthly, and relatedly, though the amendment was in large part motivated by fear of judicial intervention, raising the matter to the constitutional level ironically involved courts very substantially in this area.
Obviously, courts were prevented from invalidating a prohibition on abortion - which they probably would not have done in any event - but as a consequence of the new constitutional provision, the courts became intimately involved with setting abortion policy, as every question around the limits of abortion became a matter not of policy or politics, but of constitutional interpretation.
The appropriateness of having these matters judicially determined is open to question, and is curiously at odds with the distrust of the judiciary that motivated putting the matter on a constitutional footing in the first place.
Fifthly, the issue being regulated on the constitutional level, and overseen by the judiciary, created a passive attitude to the issue in the executive and legislative branches. On one level this is understandable, as the issue was largely removed from their bailiwick. However, even when a legislative measure was invited or required - after the X case , say - the political branches declined to act, preferring repeatedly to offer referendums and let the public decide rather than act on matters plainly within their competence.
Removing this political issue from the ordinary contestation of politics allowed - and even encouraged - political abnegation of responsibility on any question related to it.
When the time came to reconsider the question, the government placed two levels of intermediary - the Assembly and the Committee - between it and the making of the decision. Neither of these two results seemed inevitable or even particularly probable before the Assembly met. Furthermore, it set the public debate on the constitutional position on abortion in motion, and did so in a carefully curated and controlled way, which may have helped to create a largely civil discourse following its conclusion.
January poll said they had become more open to wider availability in abortion in that period. Abortion poll findings dramatic but attitude change has been gradual. The Irish Times, 26 Jan. That a group of randomly chosen citizens, well informed by experts, reached the conclusion that this was the best path may have persuaded voters to reconsider their own views. The case for public participation in the formulation of change proposals is, on this example, strong.
Finally, having raised the issue to a constitutional level, it has been difficult to sever the constitutional question from the regulatory question in the public mind. The Assembly and the Committee dealt with the two issues separately - the removal of the issue from the Constitution and the legislation that might be introduced after the constitutional change might be made.
Despite the fact that these are conceptually distinct questions - in principle, any regulatory regime could follow the constitutional change - they have been repeatedly elided in public debate, and opponents of the proposal painted a vote to change the Constitution as a vote for abortion up to 12 weeks, 54 54 See BINCHY, William.
Supreme Court has given us a clear choice in abortion referendum. The Irish Times, 14 Mar. This introduces more uncertainty and unpredictability into the legislative process than would be usual. The process of legislating for abortion after a referendum could potentially produce unexpected outcomes. Once joined together, abortion and the constitutional order are, at the very least, difficult to disentangle.
At the same time, exit polls suggest that the efforts to separate the issues in the minds of voters may have been effective: some voters did vote in favour of the referendum in spite of disagreeing the legislative regime that would likely follow a Yes vote. Even for those ideologically opposed to abortion, it would be hard to call this experiment an unqualified success. It may have prevented the liberalisation of abortion for a time, but its costs - to legal certainty, to the capacity of, and trust in, the political system, to the many who travelled to obtain abortions - have been significant.
Time will tell what the return of this issue to ordinary politics in Ireland might bring. But the Irish experience offers some cautionary tales to those who would consider raising abortion - or other complex and contested social questions - to a constitutional level and regulating them with constitutional text. Abrir menu Brasil. Abrir menu. E-mail: david. Abstract Abortion in Ireland is regulated by a constitutional provision that was inserted following a referendum in Journal of Law and Economics , vol.
McGill Law Journal, vol. Cardozo Law Review , New York, vol. European Journal of Political Research , vol. Political Studies , London, vol. American Journal of Comparative Law , vol.
Potentially problematic interpretations ranged from allowing abortions in many cases on the one hand, and demanding a much stricter abortion regime on the other. The following was added to Article The Irish Times , 06 July The Irish Times , 10 Feb.
The Irish Times , 31 May Detailed proposals included no time limit for risk to life including by suicide , risk to health and fatal foetal abnormality; a 22 week time limit for other serious conditions; and ancillary recommendations about the related issues of healthcare, education etc. The Irish Times , 23 Apr. Again, in the interests of full disclosure, I testified before this committee in September on constitutional law questions surrounding the question of repealing or replacing the constitutional bar and judicial intervention.
The Irish Times , 21 Mar. The Court did suggest that the that the legislature would have an entitlement to legislate to protect unborn life as an aspect of the common good even aside of any specific rights of the unborn, which appears to be an indication that the legislature may still limit access to abortion even without Article More precisely, Of course, culture has to be accounted for alongside the formal obstacles in assessing the reality of how difficult an amendment process is.
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