On 25 May two-thirds (66%) of Irish voters supported striking the 8th amendment of the constitution, which puts the life of the unborn child on an equal footing with that of the mother. This provision has made termination of pregnancy de facto illegal in the Republic of Ireland and has led to cases of serious medical difficulty. An example is Savita Halappanavar, who was refused an abortion as she was going through a septic miscarriage. Savita died due the complications of her miscarriage and her death sparked mass protests and a nation-wide discussion on the 8th amendment.
The referendum on the repeal of the 8th amendment was finally called as a result of a Citizens’ Assembly, followed by a parliamentary committee, both of which recommended repealing the 8th amendment. Following this process, the Minister for Health introduced a referendum bill. Any change to the constitution involves the Parliament passing “An Act to amend the Constitution” which must then be voted on in a referendum, before it becomes a law. A simple majority of those voting is decisive, without any turnout quorum. As the Republic is a unitary state, there are no restrictions as one might have in federal states eg. Switzerland, US.
The Citizens Assembly was established by a parliamentary resolution in 2016 and was assigned certain topics, such as climate change, the ageing population and the organisation of referenda. It consisted of 99 citizens, randomly selected to resemble the demographics of the Irish population and it was presided by a retired supreme court judge. The Assembly made recommendations to the Parliament, which could then decide on how to follow-up on them. The discussions on abortion took place over the span of five weekends in 2016 and 2017.
“99 people, selected to be broadly representative of the Irish population with respect to sex, age, region and social class, with a Chair appointed by the Government, discuss topics proposed by the Parliament, and to some degree selected by themselves. These topics were all important questions for the Irish society and the process left enough space for the people to share relevant information and form opinions,” states Erwin Mayer, highlighting the importance of a long community-wide debate. “This Irish role model is a good example of combining participatory elements with direct democracy, in form of binding referenda.”
The hybrid form of sortition and referendum has gained a lot of attention in international media, hailing it as a model for deliberative democracy and citizen participation. Its potential for cultural change is seen as especially promising.
“Citizen Assemblies have gotten a lot of attention, because they have resulted in three referendums on changes to our 1937 Constitution, two of which were passed: same-sex marriage and repealing a ban on abortion,” says Donal O’ Brolcháin, “One issue was rejected, voters opted against reducing the minimum age for presidential candidates, on the same day marriage equality was accepted.”
But, we should not overlook that these referenda did not come out of the blue Donal points out, they are a consequence of a range of factors. “There is no doubt that the outcome of the referendums on abortion and on marriage equality in the Republic of Ireland is the result of decades of campaigning by civil society groups. These campaigns directly led to both issues being explicitly written into the terms of reference for the Constitutional Convention in 2012 and the Citizens’ Assembly in 2016,” he says.
Another decisive elements that contributed to the repeal of the 8th amendment was that it was only inserted into the constitution in 1983, also by referendum. Donal points out that social realities played a big role in the recent repeal campaign: An estimated 170.000 women have travelled to the UK to seek an abortion since 1983. Moreover, the wide and uncontrollable availability of abortion pills online was a factor that informed the parliamentary committee’s decision.
Finally, certain cultural changes are believed to have contributed to the success of the repeal campaign. One that was much discussed is the declining status and influence of the Catholic church in Ireland, which in the past years has been beset by scandals. Donal points out that the increased diversity of elected officials has also played a role. Ireland does not have a first-past-the-post system like its neighbours, but rather a system of proportional representation. This has allowed political change and more varied representation.
The Citizens’ Assembly followed after the Irish Constitutional Convention, which met between 2012 and 2014 and which delivered the impetus to for the 2015 marriage equality referendum. But looking at the outcomes of the Constitutional Convention, a flawed process is uncovered. A tally from 2016 shows that only 17% of the Irish Constitutional Convention recommendations were accepted by the Government, as many have been formally rejected, but in the majority of cases the issues proposed were simply “parked”.
This lack of output legitimacy may well undermine the success story of the Irish citizen jury processes. “How long will citizens take these assemblies seriously, if the recommendations are not acted on?” asks Donal, “Or if the powers-that-be set things up so that anything emerging from such deliberation does not inconvenience their ways of doing things or their hold on power?”
One issue that does not seem to be slated for a referendum anytime soon, despite citizens’ insistence, is direct democracy. Both the Constitutional Convention and the recent Citizens’ Assembly have called for modern direct democracy. The introduction of a citizens’ initiative instrument received a majority at both events, ranging from 69% to 83% depending on the specific type of citizens’ initiative. “This is the missing link: The people of Ireland should be enabled to decide by themselves on what topics, in which wording of the question, and when referenda are held,” confirms Erwin Mayer, “Irish people want and need a legal initiative right to bring self-determined legal proposals or constitutional changes to the sovereign, the people, in form of binding referenda. If anything, this referendum shows that it is possible to have a broad, nuanced debate even on sensitive and human rights issues.”
