The Children's Referendum: Donnelly on the Referendum Process

Human Rights in Ireland welcomes guest contributor, Sonya Donnelly. Sonya is a practicing barrister who also lectures in Dublin Business School. She has spent the last year in Africa working as a project coordinator with Irish Rule of Law International on an access to justice project focusing on pre-trial detention in Malawian prisons.  She has written extensively on criminal justice issues and co-wrote a legal text for first year barristers, The Devil’s Handbook. In this post Sonya outlines the Referendum process as part of the Children’s Amendment Blog Carnival.

On Saturday, the 10th November 2012 you are being asked to vote in a referendum which concerns changes to the Constitution in respect of the rights of children.  On the page below, I will set out a short description of some of the key terms of relevance to the referendum process in order to give you a greater understanding of how this process will work.

What is the Constitution?

The Constitution is the fundamental legal document that sets out how Ireland should be governed. The Oireachtas cannot introduce laws in Ireland that are inconsistent with what is stated in the Constitution. Therefore it is sometimes necessary to change the Constitution and this is done by holding a referendum.

What is a referendum?

A referendum is a vote by the people of Ireland on a proposed amendment to the Constitution. A referendum gives the people the opportunity to express their opinion and vote for or against the proposed change. If a simple majority vote yes the amendment is approved and the appropriate words in the Constitution are removed and/or inserted. If a simple majority vote no then the Constitution remains unaffected.

What is the process for a referendum in Ireland?

In order to call a constitutional referendum, a proposal to amend the Constitution must be introduced in the Dáil as a Bill. The Bill sets out the proposed amendment to the Constitution. The Bill must be passed by both the Dáil and the Seanad. The Dáil and Seanad will be holding debates on the amendment of the Constitution on the 17th of October.

When passed the Bill is then submitted to the people to vote for or against it. If the majority of the votes cast at the referendum are in favour of the change, the Bill is signed by the President and the Constitution is then amended.

What exactly am I being asked to vote on?

As it currently stands, the Constitution does not contain a specific guarantee to protect and vindicate the rights of all children.  If the referendum is adopted, the proposed amendment will introduce a statement in the Constitution recognising and affirming that children have what have been called “natural and imprescriptible rights”. This means that those rights cannot be lost, abandoned or forfeited. The text also states that the best interests of the child will be the paramount consideration in all proceedings relating to them. The rights referred to in the proposal are not specifically listed and it will be a matter for the Courts, on a case by case basis, to identify what rights are protected by this new provision.

There are two specific parts to the proposal.  The first is to include in the Constitution a new Article 42A and at the same time remove the current Article 42.5. If a majority of voter’s vote yes in this referendum, the existing Article 42.5 will be removed and a new Article 42A will become part of the Constitution. All other articles of the Constitution will remain in place. If a majority votes no, there will be no change to the Constitution. While the proposed new Article has a number of parts to it, you may only vote yes or no to the total proposal.

The full text of the new proposed Article can be found here.

Can I vote?

In order to be able to vote in the referendum on November 10th you must fulfil the following criteria

  • You must be an Irish citizen
  • You must be at least 18 years old
  • Your name must be on the Register of Electors

It is important to note that you do not need a polling card to vote. You must simply bring a valid form of ID, such as a passport or driving licence to the polling station, in order to be able to vote.

How can I get more information?

If you would like to find out more about this specific referendum, Human Rights in Ireland will be providing expert analysis over the coming weeks in a series of blog posts. In addition the Referendum Commission have set up a specific website for the Children’s Referendum. The Referendum Commission is an independent body whose role is to explain the subject matter of referendum proposals, to promote public awareness of the referendum and to encourage the electorate to vote at the poll.

The Children's Referendum: Donnelly on the Referendum Process

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