Thirty-ninth Amendment of the Constitution Bill 2019

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The Thirty-ninth Amendment of the Constitution (Presidential Elections) Bill 2019 (bill no. 68 of 2019) is a proposed amendment to the Constitution of Ireland which has been initiated by the current government that would extend the franchise in presidential elections to nonresident citizens. At present, the only nonresident voting rights in Ireland are for university constituencies in Seanad Éireann and certain public servants posted abroad.

Proposed changes to the text[edit]

At present, Article 12.2.2º of the Constitution of Ireland states:

Every citizen who has the right to vote at an election for members of Dáil Éireann shall have the right to vote at an election for President.

and Article 12.3.3º states:

An election for the office of President shall be held not later than, and not earlier than the sixtieth day before, the date of the expiration of the term of office of every President, but in the event of the removal from office of the President or of his death, resignation, or permanent incapacity established as aforesaid (whether occurring before or after he enters upon his office), an election for the office of President shall be held within sixty days after such event.

If the amendment is passed, Article 12.2.2º would be amended to:

All citizens without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to elections for the office of President, shall have the right to vote at an election for the office of President.

and Article 12.3.3º would be amended to:

An election for the office of President shall be held not later than, and not earlier than the ninetieth day before, the date of the expiration of the term of office of every President, but in the event of the removal from office of the President or the death, resignation, or permanent incapacity established as aforesaid, of the President (whether occurring before or after the President enters office), an election for the office of President shall be held within ninety days after such event.

The amendment would also insert a new Article 12A to provide that a law would be enacted as soon as practicable to give effect to the amendment, but also that it would not take effect until 1 January 2025. It also provided that that an election that took place before 1 January 2025 would operate under terms of the old text.

Explanation of the textual changes[edit]

The current text had tied the presidential franchise to residency by its reference to "Every citizen who has the right to vote at an election for members of Dáil Éireann". The entitlement to vote in elections to Dáil Éireann (the representative house of the Oireachtas or parliament) is defined in Article 16.1.2º of the Constitution as:

i All citizens, and
ii such other persons in the State as may be determined by law,
without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.

Section 8(1) of the Electoral Act 1992 states:

A person shall be entitled to be registered as a Dáil elector in a constituency if he has reached the age of eighteen years and he was, on the qualifying date—
(a) a citizen of Ireland, and
(b) ordinarily resident in that constituency.

The Electoral Act 1992 is an ordinary act of the Oireachtas which can be amended by a subsequent act of the Oireachtas; the Constitution can be amended by act of the Oireachtas but subject to approval of the electorate at a referendum.

According to the explanatory memorandum published by the Department of Foreign Affairs and Trade, the change to Article 12.3.3º is to allow sufficient time for the holding of elections with an extended franchise. The purpose of the new Article 12A is to act as "a temporary scaffolding provision which will allow for the preparation and enactment of an Electoral (Amendment) Act to regulate the detail and practical implementation of an extended franchise".

The next presidential election is not due to be held until late in 2025, but there could be an vacancy before then if the incumbent president Michael D. Higgins dies, resigns, is removed from office, or becomes permanently incapacitated.

Political background[edit]

The Irish diaspora is large and the question of voting rights for emigrants and other expatriates has arisen continually since the 1980s. The Oireachtas committee on the constitution considered the matter in 2002; it recommended no extension of the franchise, but that among the senators nominated by the Taoiseach (prime minister) should be "a person or persons with an awareness of emigrant issues".[1]

Constitutional Convention[edit]

The Constitutional Convention established in 2012 was directed to report on several issues, including "giving citizens resident outside the State the right to vote in Presidential elections at Irish embassies, or otherwise".[2] It considered the matter at its plenary meeting on 28–29 September 2013 and recommended allowing expatriate citizens to vote. It made some more detailed discussions, voting as follows:

  • Should citizens resident outside the State have the right to vote in Presidential elections? Yes 78–21 No
  • Should citizens resident in Northern Ireland have the right to vote in Presidential elections? Yes 73–20 No

Restrictions:

Restriction Percentage
All Irish citizens resident outside the island of Ireland 36
Just citizens who have lived in Republic of Ireland 26
Just citizens who have lived in Republic of Ireland as adults within the last...
... (number of years) 5 10 15 20 25 No limit
Percentage 14 17 20 6 4 38
27
Undecided/No opinion 11

Government response[edit]

Although the Fine Gael–Labour coalition government was supposed to give an official response in the Dáil within four months of receiving the Convention's report, it was not until January 2016 that Ann Phelan said it was "committed to undertaking ... analysis" of the "complex and inter-related issues" involved in the recommendation.[3] It had already responded in March 2015 to a European Commission communication on "the consequences of disenfranchisement of Union citizens exercising their right to free movement", saying "policy, legal and practical issues" on diaspora voting should be considered by the Minister for the Environment, Community and Local Government, the Minister for Foreign Affairs and Trade and the Minister of State with responsibility for diaspora affairs;[4][5] in October 2015, Paudie Coffey said this work had begun.[6]

In 2017 the government formed after the 2016 election accepted the Convention's 2013 recommendation, published a position paper listing seven options for eligibility criteria and associated implementation measures, and promised a constitutional referendum on whichever option it would select, to be held in May 2019 alongside the local elections.[7][8] The seven options were:[7]

  1. All citizens resident outside the State;
  2. All citizens on the island of Ireland, and all citizens outside the island of Ireland for a period of time who have lived in the State;
  3. All citizens on the island of Ireland, and all citizens who have left the island in the previous 15 or 20 years;
  4. All citizens on the island of Ireland, and all citizens resident outside the outside the island of Ireland who hold a valid Irish passport;
  5. All citizens resident outside the State who were previously registered to vote in the State;
  6. Citizens resident outside the State who were born on the island of Ireland; or
  7. All citizens on the island and all citizens resident outside the island of Ireland who were born on the island or who have lived on the island for at least one year.

Bill and referendum[edit]

In February 2019, the government decided that, due to the urgency of dealing with Brexit, the referendum would be postponed until October; it also agreed that the proposal would be "an extension of the franchise to all citizens resident outside the State, including citizens resident in Northern Ireland".[9] The text of the bill was agreed by the cabinet on 11 June,[10] and it was introduced in the Dáil by the Minister for Foreign Affairs and Trade Simon Coveney on 16 September 2019. The required Referendum Commission was established on 26 September, chaired by High Court judge David Barniville.[11] Because of Brexit being delayed multiple times, a referendum in 2019 is considered highly unlikely.[12]

References[edit]

Sources[edit]

  • "Thirty-ninth Amendment of the Constitution (Presidential Elections) Bill 2019". Houses of the Oireachtas. Retrieved 19 September 2019.
  • "Electoral Act, 1992". electronic Irish Statute Book (eISB). Retrieved 28 March 2019.
  • "Constitution of Ireland". electronic Irish Statute Book (eISB). Retrieved 28 March 2019.
  • Convention on the Constitution (November 2013). "Fifth Report: Amending the Constitution to give citizens resident outside the State the right to vote in Presidential elections at Irish embassies, or otherwise". Archived from the original on 6 November 2017. Retrieved 28 March 2019.
  • Honohan, Iseult (2011). "Should Irish Emigrants have Votes? External Voting in Ireland" (PDF). Irish Political Studies. 26 (4): 545–561. doi:10.1080/07907184.2011.619749. ISSN 0790-7184.
  • Lynch, Catherine (27 February 2019). "Overseas voting in presidential elections: representative democracy, electoral integrity and the situation in EU States" (PDF). Spotlight No.1 of 2019. Oireachtas Library & Research Service. Retrieved 14 April 2019.
  • Oireachtas All-party committee on the Constitution (2002). "Chapter 4: Northern Ireland and emigrant participation in national political life". Seventh Progress Report: Parliament (PDF). pp. 40–59.

Citations[edit]

  1. ^ Oireachtas All-party committee on the Constitution p.59
  2. ^ "Constitutional Convention: Motion". Dáil Éireann (31st Dáil) debates. Houses of the Oireachtas. 10 July 2012. Retrieved 28 March 2019.
  3. ^ "Convention on the Constitution Final Reports: Statements". Dáil Éireann debates. 14 January 2016. Retrieved 15 January 2016.
  4. ^ Kenny, Enda (9 June 2015). "Constitutional Convention Recommendations (Continued)". Dáil Éireann debates. Retrieved 27 November 2015.
  5. ^ "Minister Deenihan address to the Seanad on Global Irish: Ireland's Diaspora Policy". MerrionStreet.ie. Government of Ireland. 10 March 2015. Retrieved 27 November 2015. But we cannot ignore the fact that this is not straightforward and there are a number of policy, legal and practical issues that have to be thoroughly considered. The Government has asked Minister Kelly in cooperation with Minister Flanagan and myself to analyse these issues and report back to Government and that is what we will do.
  6. ^ "Report of the Joint Committee on European Union Affairs on Voting Rights of Irish Citizens Abroad: Motion (Continued)". Dáil Éireann debates. Oireachtas. 23 October 2015. Retrieved 27 November 2015.
  7. ^ a b "Coveney publishes an Options Paper on extending the eligibility for citizens resident outside the State to vote at presidential elections". MerrionStreet (Press release). Government of Ireland. 22 March 2017. Retrieved 23 April 2018.
  8. ^ Ruth, Maguire. "Announcement by the Taoiseach on Voting Rights in Presidential Elections for Irish Citizens outside the State" (Press release). Department of the Taoiseach. Retrieved 2017-03-23.; "Postal Voting". Written answers. KildareStreet.com. 17 April 2018. Retrieved 23 April 2018. the proposed referendum on extending the franchise at presidential elections to Irish citizens resident outside the State which it is intended will be held on the same date as the local and European elections in late May/early June 2019
  9. ^ Phelan, John Paul (20 February 2019). "Referendum Campaigns:". Written answers. KildareStreet.com. Retrieved 28 March 2019.
  10. ^ McNeice, Stephen (11 June 2019). "Cabinet approves plan for referendum on Irish citizens abroad voting in presidential elections". Newstalk. Retrieved 10 October 2019.
  11. ^ "S.I. No. 484/2019 - Referendum Commission (Establishment) (No.2) Order 2019". electronic Irish Statute Book. 26 September 2019. Retrieved 10 October 2019.; Quann, Jack (26 September 2019). "Government sets up referendum commission for presidential elections". Newstalk. Retrieved 10 October 2019.
  12. ^ "Referendum on extending presidential vote 'highly unlikely' this year". The Irish Times. 10 October 2019.

External links[edit]