D O’Brolchain 7Feb2013 Direct participation in politics Page 1 of 8 Executive Summary This European Year of Citizens prompts us to look at how we can participate more directly in politics. We own all political power in this Republic. We delegate this to elected representatives. Between elections we lose our political power. Direct democracy is one of the checks and balances to limit the scope for abuse of our power by politicians, policy makers, public servants and lobbyists. Based on Swiss experience, I propose  We give ourselves a constitutional right to initiate a referendum on all legislation including the Constitution;  Such referenda would be called when at least one per cent of eligible voters in the previous general election sign a petition for a referendum;  The Dáil would have the right to make a counter‐proposal, to be put to the people at the same time as that proposed by citizens. Citizens’ initiative is a means to increase our primary control of government. Direct democracy is an ever‐present reminder that Government depends on our participation. Donal O’Brolcáin
100 Griffith Avenue Dublin 9 7 February 2013 D O’Brolchain 7Feb2013 Direct participation in politics Page 2 of 8 Direct participation in politics Providence never intended to make the management of public affairs a mystery to be comprehended by a few persons of sublime genius. Jonathan Swift. Gullivers Travels This European Year of Citizens (http://europa.eu/citizens‐2013/) prompts us to look at how we all – women and men ‐ can participate more in how we govern ourselves. In this submission I propose that we provide ourselves with a mechanism to control the political process between elections, similar to that which the Swiss (at national and local levels) have had since the mid 1800s. 1. We, the people, own all political power in this Republic 1.1. Article 6.1 of our Constitution states that: "All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate all the rulers of the State and, in the final appeal, to decide all questions of national policy, according to the requirements of the common good”.  We delegate this power to our elected representatives with the result that between elections we temporarily lose our political power. We have no method to intervene if those to whom we have delegated our power do not use it as we would wish. 
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2. Citizens Initiative and Direct Democracy 2.1. Citizens’ initiative is a means of controlling our government between elections. It is a formal method whereby a group of citizens can call for a referendum, by securing enough voters' signatures, to propose or oppose legislation, including changes to the Constitution. It is a form of direct democracy that complements the indirect democracy on which we currently rely. 2.2. Direct democracy would allow us to propose laws that government or legislators are either unable or unwilling to propose. The re‐introduction of residential property taxes shows weaknesses in the way government currently works. During 2012 about one‐third of households did not pay this new tax. This indicates that without enhanced means of ensuring democratic legitimacy, policy is not effective even when agreed with the EU‐ECB‐IMF Troika. D O’Brolchain 7Feb2013 Direct participation in politics Page 3 of 8 3. The Mutual Education of the Democratic Process 3.1. During the 1960s, the late Dr. David Thornley pointed out the effects of such external pressures on our democracy “There may be change in the criteria of decision‐making at the top; change in social habits at the bottom. But unless these two are bridged by the mutual education of the democratic process, communication between the top and the bottom may cease. In Ireland, where the stimulus to change is external, something like this may in fact be happening”.... 3.2. Current discussions on economic policies and abortion suggest that this gap in communication exists as it did 50 years ago. 4. Democracy is hard work – not the rule of the politician 4.1. Recently, the Swiss President Doris Leuthard pointed out that “Democracy is hard work – sweat and often uncomfortable confrontation.... democracy lives in 'the conflict of interests and opinions – but also in the wisdom to recognise the limitations of this conflict'.....Democracy is never easy – especially in an increasingly globalised world, in which state borders become more and more porous,...In our country democracy is not 'the rule of the politician' as defined by Joseph A.Schumpeter. In Switzerland there is a direct trade‐off and active participation in shaping policy between the political establishment and the voters via the right of initiative. Here the initiative and referendum process has become a direct political feedback loop” 4.2. Over the past 150 years, the Swiss have developed methods of direct political feedback. This has inspired the introduction of direct democracy elsewhere eg. US states. The Swiss now have direct democracy at both national and local levels. Federal legislation (except budgets) can be subject to a petition leading to a full referendum.. At a local level, some Cantons (eg. Zurich) have citizens’ initiative on budgetary matters. 4.3. In Switzerland, there are referenda on more than a dozen federal laws each year. All it needs is for some group to find 50,000 electors (about 1.2% of the electorate) who sign a form demanding a referendum within 100 days. The possibility of a call for a referendum means that those proposing legislation take much greater care in its preparation.. D O’Brolchain 7Feb2013 Direct participation in politics Page 4 of 8 5. Designing Direct Democracy – pointers from Swiss Experience 5.1. In September 2012, the Constitutional Affairs Committee (AFCO) of the European Parliament held hearings on a “Method for citizens’ direct participation in EU Member States – Model for a more democratic Europe”. Dr. Andreas Gross, (Member of the Swiss Parliament) outlined five key criteria for the design of direct democratic 1) The number of signatures required should not exceed 3 % of the electorate; 2) There should not be any minimal quotas for either turnout or approval in any referendum, as these kill communication; 3) There should be provision for respective counter proposals to maintain the links between indirect/representative and direct democracy; 4) To enhance the communication needed to make direct democracy effective, there needs to be generous time frames for all phases of the process; 5) Rules/procedures governing direct democracy must ensure fairness. 6. Direct Democracy in our 1937 Constitution 6.1. Introducing direct democracy into our constitution needs three principal major changes to our Constitution 6.1.1. A clear statement that the people, as the source of legitimate power of the State, have the right to exercise that power directly on their own initiative, to propose a referendum to revise the Constitution or any law. This could be done by adding a new section to Article 6 of the Constitution, as follows Art. 6.3. The people may initiate proposals for changes to, or complete replacement of, this Constitution and ordinary legislation. D O’Brolchain 7Feb2013 Direct participation in politics Page 5 of 8 6.1.2. Setting out the forms and requirements of citizens’ initiative, in terms of  The number of signatures needed from persons eligible to vote (eg. 1% of those voting in the previous general election or just over 22,000 based on the 2011 general election);  the timeframe within which these signatures are to be collected;  the right of the Dáil to make a counter proposal. This could be done by replacing Article 27 which has never been used as follows. Art. 27. This article specifies the form of citizens’ initiative provided for in Article 6.3 1.
Such initiatives consist of a request to introduce or set aside or modify this constitution or national legislation or generally binding administrative measures or specific sections of such legislation. 2. An initiative may consist of a general proposal or a complete draft legislative text. 3. Such requests shall be supported by the signatures of not less than one percent of those entitled to vote in the last general election. 4.1 If a majority of the Dáil agrees with an initiative, it must, within ninety days of the request being submitted, pass legislation to bring the proposal into force forthwith. 4.2 If a majority of the Dáil disagrees with an initiative, it may prepare its own proposal for decision by the people in a referendum along with the original proposal 5. Each such initiative shall be in writing and shall be signed by those supporting the initiative whose signatures shall be verified in the manner prescribed by law. 6. The Oireachtas shall set up a body to oversee the operation of measures introduced to give effect to Article 6.3. 6.1.3. Specifying the timeframe within which the outcome of any referendum must be implemented. This is needed to overcome “implementation deficit disorder” (eg the “X” case). This could be done by replacing Article 47.2, which refers only to Article 27. Art. 47.2.1 Any proposal submitted to the people under the provisions of Articles 6.3 and 27 of this Constitution shall enter into force within ninety days if it has been approved by a majority of citizens casting a vote. D O’Brolchain 7Feb2013 Direct participation in politics Page 6 of 8 7. Issues with citizens’ initiative Among the issues raised in considering the introduction of citizens’ initiative are 
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validating the signature of the voters; The influence of well‐financed campaigns; Quality of legislation arising from such initiatives; 7.1. Validating signatures 7.1.1. As local governments have now made the total electoral register readily accessible on the web, it would not take much administrative work or legal drafting effort to introduce a means of validating voters’ signatures for citizens’ initiative here. In fact, most of the work has already been done with the introduction of a European Citizens’ Initiative (ECI) which took effect on 1st April 2012. This measure arose from the Lisbon Treaty, which most Irish political parties supported. 7.1.2. Irish regulations to implement this EU measure provide that the register of European Electors and related registration records may be checked to establish the eligibility of signatories for ECI. A similar provision could be made for citizens’ initiative based on the register of Dáil electors. 7.2. The influence of well‐financed campaigns. 7.2.1. Given the influence and lobbying power of well‐placed groups and even individuals on our political system at present, it is difficult to see this as a serious reason for not having a citizens’ initiative.i 7.2.2. Over recent years, we have learnt from Tribunal reports just how some people with money go about influencing policies. The growth of consultancies offering public affairs services in another indication of the resources that are currently being devoted to lobbying. We can learn from jurisdictions which have long experience of citizens’ initiative and direct democracy. 7.3. Quality of legislation arising from such initiative 7.3.1. The Swiss style of citizens’ initiative allows the Federal Parliament to make a counter proposal to a citizens’ initiative, both of which must be voted on at the same time. Giving the Dáil similar powers would be a safeguard against poor quality legislation being passed by referendum. This means that the full resources of the Dáil can be brought to analyse the issues raised. D O’Brolchain 7Feb2013 Direct participation in politics Page 7 of 8 7.3.2. The Dáil could also make counter‐proposals, should it decide, after deliberation, that the citizens’ proposals leave something to be desired.ii A provision of this type means that citizens’ initiative is not a threat to either the Dáil as a legislative assembly or to TDs as representatives, directly elected from constituencies.. 7.3.3. This objection was taken very seriously by the 1996 Constitutional Review Group, chaired by Dr. T. K Whitaker. Arguments for and against a provision for popular initiative were set out together with an account of the Popular Initiative in the Constitution of Irish Free State, attached as Appendix 28. This relied on a study published in 1932. 7.3.4. However, it is extraordinary that the Review Group did not examine the experience of direct democracy worldwide since say the end of WWII. 7.3.5. The late John M. Kelly’s (Constitutional lawyer, Attorney General, TD, Minister) observation seems an apt comment on this approach “Ireland's political and official rulers have largely behaved like a crew of maintenance engineers, just keeping a lot of old British structures and plant ticking over” 8. Dependence on the people is the primary control on the government 8.1. Madison, one of those who drew up the US constitution over two hundred years ago, pointed out — "Ambition must be made to counteract ambition. In framing a government which is to be administered by men over men the great difficulty lies in this: first you must enable the government to control the governed and in the next place, you must oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. “ 8.2. Citizens’ initiative is a means to increase the primary control of the people. Direct democracy is an ever‐present reminder to Government that it depends on the people. It is the essential way to ensure that the government responses to change match the real requirements of the people. D O’Brolchain 7Feb2013 Direct participation in politics Page 8 of 8 9. Trusting ourselves to govern ourselves for the common good What better way to mark the European Year of Citizens than by focusing on how we can rebalance our political power? Based on the republican ideals of the French Revolution, Swiss‐style direct democracy offers us a means of rebuilding our trust in governance. It is one of the checks and balances on the use of our power which has been abused by politicians, parties, parliaments, policy makers, public servants and lobbyists. For further consideration of the ideas in this article, see “The Mutual Education of the Democratic Process – a case for Citizens’ Initiative and direct democracy”. Donal O’Brolcáin’s contribution to the Shadow Constitutional Convention series (edited by Dr. Eoin Daly, School of Law UCD) in the web‐forum Human Rights in Ireland here http://www.humanrights.ie/index.php/2012/10/15/shadow‐constitutional‐convention‐17‐
o‐brolcain‐on‐direct‐democracy/