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The "Democratic Architecture"

Another major category for me is what I'd term the "democratic architecture" (for want of being able to think of a better or more catchy name, perhaps "democratic infrastructure" would be a somewhat better fit?) This category pairs most closely with and overlaps somewhat with the rights category. This division would cover most of the machinery of government, a bit of a mish-mash of different things really. It's broadly trying to cover areas where parliament/government interfaces with the rest of society and how some of the underlying machinery of government functions, rather than what it actually produces. These often are functions that might ideally be placed at arm's length from government, or may be vital and sensitive parts of the state machinery that need a certain degree of independence.

What Might Be Placed In This Category

I'd place the entire criminal-justice system under this umbrella. Obviously, the part of the judiciary that interprets the constitution (whether called a supreme or constitutional court) is of crucial importance to a constitution (it's really only as good as the judges that interpret it). But also I'd place the lower judiciary in there too, along with the prosecution system (DPP/public prosecutor) and police (might as well throw in army/security services too as we're at it) into this category. Same with most usual constitutional office-holders and institutions: Comptroller and Auditor General, Ombudsman (if that office had a constitutional underpinning), Electoral Commission (if we had one), not Attorney General though (too much a purely government office). And I think there's a good argument for formalizing the office of DPP by creating a separate independent constitutional office of public prosecutor (perhaps could also leave prosecution powers with the AG leaving the government still able to initiate prosecution if it wished). And I guess a constitutional Electoral Commission, as well as being in charge of drawing electoral boundaries and the like, would also subsume the current role of SIPO (the Standards in Public Office Commission) and other related functions like the monitoring of political lobbying.

The South African Constitution is rather good at this type of approach. It has quite a few institutions/office-holders in the chapter "State Institutions Supporting Constitutional Democracy", including Public Protector (an Ombudsman-type office), Human Rights Commission, a very South African "Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities", Commission for Gender Equality, Auditor-General, Electoral Commission, Independent Authority to Regulate Broadcasting. Elsewhere in the constitution there's a Judicial Service Commission, a Public Service Commission (along with a list of basic principles and values governing public administration) and a Fiscal Council. The remits for these are all beautifully written and covering the types of areas I'd lump under the general "democratic architecture" umbrella.

Some of the Icelandic provisions would follow this general theme also: the creation of a Civil Service Commission to vet and propose candidates for ministerial appointment to public office, presidential vetoes (within their semi-presidential system) over public prosecutor and judicial appointments (which only a 2/3 parliamentary super-majority can override), and only allowing changes to the legislation governing and operation of independent state agencies, "certain agencies of the state that perform an important monitoring function or collect information necessary for a democratic society shall enjoy certain independence", by a 2/3 supermajority.

Areas like public appointments and the civil service, media regulation, the criminal-justice system, public procurement (purchases and sales by the state), electoral law, regulation/financial surveillance, constitutional office holders like the Ombudsman, bodies like an Electoral commission, Judicial Appointments Board, Police Appointments Board, Fiscal Council etc. I'd place in this category. I hope people are starting to get my general drift by now ! :) Parliamentary procedures (politicians' pay and expenses and arrangements for support staff, parliamentary jobs and the general functioning of parliament) and the role of speaker/Ceann Comhairle could be included here also, as well as legislation governing parliamentary inquiries (though placing these under the general "dispersion of power" and parliament-executive relationship subcategory seemed more appropriate).

Freedom of information, whilst it could be mostly protected by a relevant constitutional article, probably really also would need some legislation to cover the finer and more practical details. And some constitutional office-holder, Ombudsman or an Information Commissioner, might have a role in regulating and dealing with such inquiries. And I suppose FoI is mostly aimed at the civil service and promoting greater transparency in the machinery of government itself.

Special Protections for the "Democratic Architecture"

My problem with the Icelandic approach in this area is that it's done in a somewhat patchy and piecemeal way. The South African treatment is certainly comprehensive and well-written in its approach, albeit perhaps such a profusion of bodies isn't quite necessary, but I'd feel a serious potential weakness there is that the operation of all these bodies is governed by ordinary legislation and appointments to these offices and bodies is mostly government-made (though local government via the Council of Provinces does play some role).

My strong feeling is that special arrangements and protections are needed for items in this category. The area in our own constitution from and between the section on the Comptroller and Auditor General to the Judiciary could be greatly expanded to contain items in this general category: constitutional bodies/institutions and their remits and special categories of legislation. The general South African approach of describing a body or office and broadly defining its general remit and then allowing the finer details to be set by legislation seems fine. The weakness is probably in then allowing the associated legislation and sometimes appointment(s) to be controlled purely by a simple government majority. Then, all a government has to do is to cow the judiciary (their last remaining defender) and these wonderful sounding bodies become thoroughly neutralized.

Having different legal protections/arrangements for this category, I'd feel, would be important to give such bodies real teeth and meaningful independence from government. For example, having a Fiscal Council is all well and good (and we legislatively even seem to have one now too), but imagine if how it was constructed and funded and staffed was not purely in the government of day's remit, and non-government parties and politicians had significant real say in shaping its functioning. That perhaps also presupposes an effective opposition who are fiscally responsible (but that's a whole other problem! ;) ).

Possible Special Arrangements

Full constitutional entrenchment for any associated legislation in this category would probably be far too heavy-handed. Numerous other arrangements (intermediate between ordinary legislation and full constitutional entrenchment) are possible (and ways of appointment other than by minister or simple government majority). Super-majority appointment and passing of legislation in this category is one option (with perhaps a government able to use a referendum to bypass a logjam if a supermajority was not achievable, or perhaps more radically allow a parliamentary qualified minority limited abilities to trigger a referendum to alter such legislation). Another option would be to additionally require the assent of a second directly-elected house (or even give the second house eventual precedence after a given time period, thereby essentially giving the second house an oversight/watchdog/audit role as guardian and ultimate controller of the "democratic architecture"). Or one could alternatively involve local government in the process. Or a president in a semi-presidential setup. The precise method would depend on overall arrangements for dispersion of power in the system. This entire category needs to be only loosely coupled with the rest of the constitutional design if one simply says that special arrangements are used for passing associated legislation and making appointments. One can then wave one's hands and come back to the precise arrangements later. Requiring a democratic consensus more broad than a simple majority in a single democratic body would IMO be desirable, and perhaps allowing minority rights, or rights for a separately elected democratic institution, to counteract any inertia such entrenchment might engender. 

One option would be to have a special intermediate category of law. Perhaps a relevant example would be so-called "organic law" in the French and Spanish constitutions. Such law is confined to deliberately restrictive areas, has quasi-constitutional status, but can be passed by parliament (just via more stringent procedures). It would be more entrenched than ordinary law (or at least require special more stringent procedures to pass) but be more flexible than and not as fundamental as constitutional law (but have deliberately restrictive scope to counter a creeping tendency to expand it into a quasi-constitution). Appointment procedures for office-holders could be left open to be set by such law. There would obviously have to be some means for testing compatibility with the constitution (just a simple adaption of what already is in place would be fine).

Another crucial issue is whether such law (or other arrangements) should be able to compel funding from the public finances (and annual finance bill) for such bodies/office-holders (to a reasonable level of course, a matter to be adjudicated by the courts I suppose).

In a unicameral setup, one arrangement might be that legislation in this area could only be passed or altered by a super-majority, perhaps 2/3. A government could bypass this via a simple referendum (with no requirement other than getting a majority). A useful innovation might be giving a qualified minority of say 2/5 of TDs a limited ability to trigger such a referendum by petition to the Ceann Comhairle. A restriction that a TD could only be involved in one such petition (one that successfully triggered a referendum) within a given time period (say one or two years, depending on how one wants to calibrate this), but perhaps in this case such a referendum should be subjected to some of the stricter criteria of the citizens initiative referendum I described earlier (2/3 majority or absolute majority of those on the register required). It's likely such referendums would be rarely called anyway, since their mere threat might usually induce the government to come to some compromise with the opposition on such legislation. For some items it might be better if a 3/4 supermajority or corresponding 1/3 qualified minority petition was required, e.g. perhaps for parliamentary inquiry legislation in a situation, where like in the Germany Bundestag, a quarter of TDs could trigger an inquiry.

Another arrangement, in a bicameral setup, would be to give the second directly-elected house ultimate precedence over such law. For example, one could allow such law to be changed by either:

  1. simple majorities in both houses
  2. an absolute 2/3 majority in the second house
  3. a vote by simple but absolute majority in the second house supported by at least a third of TDs in the first house, with the exact same vote taken again after a minimum period and after new elections have taken place to the second house
That would give the second chamber a distinct oversight/watchdog role. Again, this is only one possible arrangement amongst many.

Weaknesses in our own "Democratic Architecture"

A better constructed "democratic architecture" could have had real material impact on the development of the current crisis. Special arrangements for financial regulation (the Icelanders are proposing to dip their toes into these waters) could definitely have helped. The integrity/independence of the general criminal-justice system is another issue. Wouldn't be so worried about the higher judiciary, though their CVs look like one long advertisement for Ireland's top private colleges and I suspect some of their wine cellars have impressive selections! :) The Judicial Advisory Appointments Board (JAAB) should be replaced with something actually meaningful by formalizing and putting the judicial appointments process at greater arm's length from politicians (maybe a requirement for some increased diversity in judicial backgrounds in any constitutional article would be no bad thing). There are many different ways appointments could be organized. For example, one could get a judicial appointments board to actually make the appointments. Such a board could be a means to at least spread around the political patronage (maybe having appointees from all sides of the house and/or from other elected bodies/entities, e.g. some Presidential/Seanad nominees or from local government). One could have a substantial number of non-political members (maybe get the judiciary to elect their own representatives, have the legal professions elect some representatives too, and perhaps law lecturers might be a good source also). Maybe at least a third of the members should be non-political and so hold the balance of power. Again, the broad outlines could be set out in a relevant constitutional article, allowing the finer details to be fleshed out by special legislation.

The idea of having a proportion of members (perhaps a third) be drawn from a non-political source relates to some comments made in the direct democracy section. Perhaps the only truly independent and a-political source would be randomly selected citizens. An effective strategy might be to give a collection of random citizens a third of the voting power on many such bodies. All very radical I know! :) Perhaps an idea worth mentioning however.

Whatever about judicial appointments, I'd actually be more worried about the investigation/policing and prosecution arms of the criminal-justice system. Even if we had the proper laws, and judges who might well enforce them, that's all irrelevant if cases somehow never find their way to court in the first place. Bodies that might investigate corporate crime might not be adequately financed. Should special arrangements to compel financing be extended to the prosecution area? Plus government/politicians seem to me to have an inordinate influence over the Gardaí with ministers micro-managing police resources and where they should go, and all significant Garda promotions needing approval by the government. IMO this is another part of our "democratic architecture" that seems to rest on shaky foundations.

I could go on and on and on here. The "democratic architecture" covers a broad and diverse range of areas. What I feel unites them is the need for special procedures and legal arrangements. They are ancillary parts of the process of governance rather than the final end product, and hence I feel deserve special protection (even if not to the same extent as fundamental constitutional law). Many would also need a certain hands-off distance and independence from government (even sometimes politicians in general), which might not be particularly compatible with simple direct ministerial or government control.

Of course some of these bodies may not quite achieve what they set out to achieve. Some of these areas would be quite slippery to police. FoI is a good example. The mere presence of FoI is likely to change the behaviour of civil servants. Document annotations may be placed on disposable post-it notes or important meetings may no longer be minuted or recorded in quite the same level of detail. FoI legislation can be drafted to counteract some of this, but probably not with 100% success. Lobbying is an area that might be even harder to pin down. Or "independent" bodies may turn out not to be quite as independent as hoped. But that doesn't mean the attempt shouldn't be made. The goal posts may move, but they might not be able to move that far! ;)

It seems that the current government intends to tinker around somewhat in this area (perhaps even to some useful effect). But IMO a far more comprehensive and systematic look is needed. Again this category can be to a great extent be worked upon in relative isolation to most other constitutional changes. One can first design the special legal categories and any constitutional bodies/offices and leave the final nature of the special arrangements to a later date, then perhaps taking full account of the model chosen for dispersion of power. For example, if there was a big restructuring and empowering of Dáil committees, then it would be reasonable to have a special relationship between the Finance Committee and a Fiscal Council (the same could be said for similar relationships between other constitutional bodies/office-holders and committees).