Mark Bassett is a barrister in independent practice at the Northern Ireland Bar and argues for us to take a look at presidential voting rights in an Irish Presidential Election
In 2013 the Constitutional Convention recommended an extended franchise for the next Presidential election to include all Irish citizens. Despite that clear endorsement the current Irish government has been reluctant to take any steps to implement the Convention’s report.
Those of us who believe in this amendment have the task of convincing first the Oireachtas to propose it and then the electorate in the south of its merits. Both of those audiences hold the Irish Constitution in high regard. Since both the legal status of Irish citizenship and the office of President ultimately arise from this document arguments that highlight its virtues will assist in carrying the day.
It is also important to reassure those who are opposed to the idea that they will lose nothing if it is implemented. It is our task to make the case that an extended franchise is entirely in keeping with the values of the Constitution and the Good Friday Agreement.
A former president of the Supreme Court of Israel, Professor Barak, provides an excellent description of constitutions. He said the following:
“It shapes the character of society and its aspirations throughout history. It establishes a nation’s basic political points of view. It lays the foundation for social values, setting goals, obligations, and trends…
It reflects the events of the past, lays a foundation for the present, and shapes the future. It is at once philosophy, politics, sociology, and law.”
And so it is with Bunreacht na hEireann. Parts of the document speak exclusively of the Irish State. Some parts speak of the Irish Nation, the Irish People and other parts speak to the outside world.
Like other democratic constitutions it contains many complexities, contradictions and clichés. To that is added the subtleties and ambiguities that have come to be the mark of any document that touches upon Irish-British relations.
Ireland was to have a constitution which was republican in form but could not use that label. The document uses three distinct phrases – “The People”, “The Nation” and “The State”. At the risk of oversimplification, it can best be explained in the following way:
The State is the political entity created by the Constitution. It is the 26 counties. The Republic of Ireland is a description of the State rather than its name. The Nation is best understood as referring to the territory of the entire island of Ireland – the 32 counties, its islands and territorial seas.
As the new article 2 states:
It is the entitlement and birthright of every person born in the island of Ireland … to be part of the Irish Nation.
The Irish Nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural affinity.
In purely constitutional terms I would imagine there are a large number of readers who belong to “The Irish Nation” but do not live in “The State”.
We are part of a large number of Irish citizens to whom the Constitution speaks to directly; on occasion claims to speak on our behalf; calls for our loyalty but in its present form allows for little response. The report of the Constitutional Convention was an attempt to update the text of the Constitution to match its values.
A citizenship regime is the clearest expression of the political philosophy of a State. The campaign to extend the franchise is aimed at more definitely aligning “The Nation” with “The People”. The State will remain unchanged.
It is in the case of the President of Ireland that the need for this alignment is most acute. It is an institution which speaks on behalf of the entire citizenry in a way neither the Irish government nor the membership of the Oireachtas can.
At its heart the Presidency is a symbolic office. It represents, and has been largely accepted to represent, the citizenry as a whole rather than just the State or the population of the State.
He or she is largely insulated from controversial political choices. The election itself is an aggregate vote rather than one which is compartmentalised into constituencies. It is not an office which requires substantial public funds. It is the institution which best represents nationality and citizenship.
The vote for the President should be detached from the vote for the legislature. They are very different institutions and call for different models of participation. It is a symbol of the Nation which should be chosen by the Citizens. The method of choosing the office holder should match the intended result. The electorate, therefore, should be based on nationality rather than nationality and residence.
There is nothing in the current Constitution or the proposed amendment that should be a cause of anxiety for those who have no wish to take up their entitlement to Irish citizenship or to vote in a Presidential election.
On the important issues of sovereignty and identity there is broad agreement. The Good Friday Agreement is a constitutional bridge between Britain and Ireland. The two constitutions no longer shout at each other. The references to Irish unity in the Irish constitution are mirrored in the constitution of the UK. Section 1(2) of the Northern Ireland Act (1998) makes provision for reunification in terms similar to article 2 of Bunreacht na hEireann.
Another fundamental part of the Agreement was the recognition by the parties and by the two governments that the population here could be British, Irish, Northern Irish or any combination thereof.
The right to be Irish in the Agreement goes beyond identity however. The core of that right is the entitlement to the legal status of Irish citizenship. There is nothing in British citizenship law which seeks to undermine that in any way.
Irish citizenship is not imposed on anybody in Northern Ireland or elsewhere. Nobody will be forced to vote for an Irish president. The effect of Irish citizens voting for their President does not diminish the British citizenship or Northern Irish identity of anybody else.
Citizenship requires more than the right to think of yourself as Irish or to be regarded by others as Irish. This right was not intended to be a placebo or a token acknowledgement. It cannot be limited to an entry into a census form or the receipt of a passport in the post.
Citizenship is a community of equals with its most basic element being participation. At the present time the experience, understanding and general outlook of Irish citizens outside the State forms no meaningful part in the election of the President.
Most democracies have found some method of including citizens outside the borders of the State and allowing them to contribute to the political life of the country. The restrictive provisions of Irish law are out of step with other EU member states as well as Canada, the USA and Australia.
The rhetoric in the Irish constitution goes far beyond that of our contemporaries. It is a paradox that this document, which speaks of Irish citizens beyond the State’s borders in the most generous and warm terms, does so little in practice to include them.
The campaign to extend the franchise is an attempt to hold the State to the values its constitution proclaims. It is the President which is the institution which is most suited to reconciling the concepts of Nation, People and State.
The holders of the Presidency are a good illustration of the breadth of Irish citizenry. They have come from Ulster, Connaught, Munster, Leinster, London and most famously from New York. Two of our former Presidents joined the Diaspora on ending their term. An electorate which better matches that breadth of experience should be a source of pride not of division.
The 2018 election provides an opportunity to reinforce the connection between all citizens though this time on the basis of equal standing. It is an opportunity to demonstrate that Irish citizens, wherever their home, have a President that represents them.
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