The Referendum, the Courts and Representative Democracy in Ireland
| Published date | 01 March 1992 |
| Date | 01 March 1992 |
| DOI | http://doi.org/10.1111/j.1467-9248.1992.tb01761.x |
| Subject Matter | Article |
Political Studies
(1992),
XL,
61-78
The Referendum, the Courts and
Representative Democracy in Ireland
GRETCHEN
MACMILLAN*
University
of
Calgary
This article examines the four referendums held in Ireland between 1983 and 1987.
Special emphasis
is
placed on the constitutional framework. It is argued that the 1937
Irish Constitution created a tension between representative democracy and judicial
review. as well as between parliamentary supremacy and sovereignty of the people.
This is encapsulated in Article
6.
which states that all executive, judicial and legislative
authority is derived from the people under God. This article was used by the Supreme
Court to strikedown legislation which precipitated the 1984and 1987 referendums and
to refuse injunctions in the 1983 and
1986
referendums. Finally, the four referendums
were called in response to interest group pressure and Supreme Court decisions, which
indicates shifts in Ireland away from the traditional Westminister model that has
operated in practice in Ireland since 1922.
Between 1983 and 1987 the Irish electorate went to the polls four times to
determine whether
or
not certain amendments should be made to the
Con-
stitution.' Three
of
the referendums led to changes: the ban on abortion (1983);
electoral reform (to allow non-citizens domiciled in Ireland the right to vote in
1986 referendum to legalize divorce was defeated. The amendment procedure is
one
of
the Irish modifications, based on the principle of sovereignty
of
the people,
of
the British representative model.* Other changes, including judicial review
This is a much revised version of two earlier papers given on referendums in Ireland:
'Constitutional referenda in Ireland, 1983 and 1986: the use of constitutional amendment to prevent
social change' given at the Canadian Political Science Meetings, McMaster University, Hamilton,
Ontario, June 1987 and 'Plebiscitary
or
representative democracy: the
use
of the referendum
in
Ireland' at Political Studies Association meetings at the University of Wanvick,
UK,
April 1989.
I
am
grateful for the comments on my paper at the PSA meetings.
I
would like to thank Dr Martin Burch
of the University of Manchester and the two anonymous reviewers
for
Political
Studies
for their
useful comments.
'
There also have been six general elections: in 1981, 1982(2), 1984, 1987 and 1989; and two
European parliamentary elections (1984 and 1989).
*
Provisions
for
both
the
referendum and initiative were made in the 1922 Constitution of the
Irish Free State, although they were never used. In Article
47
the referendum was provided for in
relation
to
ordinary legislation. According
to
this, on the request of two-fifths of Dail Eireann or a
be
suspended
if the request was made within seven days of its passing. If within 90 days three-fifths of Seanad
Eireann
or
a petition
of
the people of at least one-twentieth of the voters on the register requested a
referendum
it
would
be
held, the decision
of
the people being final. Article
50
provided
for
the use of
the referendum in the amendment of the Constitution. A resolution would be passed by both
Houses
of
the Oireachtas and submitted to the people for approval. Approval
of
the referendum would
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1992
Political Studies
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