affiliated to the International Association of Constitutional Law
Cross-posted from RightsNI.
Ireland’s system of voting rights (for Irish citizens) places particular emphasis on residency within the state. With some limited exceptions, there is a near blanket exclusion of citizens outside of the state. The position is now widely questioned. In September 2013, the Convention on the Constitution voted in favour of proposals to extend voting rights to Irish citizens who are resident outside the state for Presidential elections. There were four questions asked, with the second specifying ‘should citizens resident in Northern Ireland have the right to vote in Presidential elections?’ 78% voted ‘yes’ to the first question (a general one on voting rights for all citizens) with 73% answering ‘yes’ to this second question. The third and fourth questions offered options relating to which citizens ‘outside the island of Ireland’ should enjoy this right, and whether there should be time limits. Here the outcome was complicated. The options for ‘all citizens’ (36%) with ‘no time limit’ (38%) topped the poll. Although these were the preferred options, the majority did favour options with a time limit (ranging from 5 – 25 years), and a connection via previous residency in the Republic of Ireland (either as an adult or generally). The outcome suggests endorsement of the democratic principle for Irish citizens, with strong (but not majority) support for the idea of applying it to all citizens without time limits. Although the views were mixed, the overall majority of those voting thought (for those outside the island of Ireland) prior residency in the Republic of Ireland should be a condition, and that there should be a time limit. The outcome reflects the contours of the international discussion of ‘external’ voting rights, the variation in practice, and some of the challenges of operationalising the principle in the Irish context. There are four points to consider in taking forward this work.
First, the extension of voting rights to citizens is part of an international trend, evident since the 1970s. It is, however, necessary to be clear on the different types of elections involved: legislative; Presidential; referendum; and sub-national. It appears most prevalent for Presidential elections, and to legislatures. Methods of voting differ and may include: personal voting; postal voting; proxy voting; or electronic voting. International experience suggests that it can be done, and that Ireland’s current approach is out of step; not only for Presidential elections.
Second, the debate can be framed as significant for the advancement of civil and political rights. The right to vote has gained widespread acceptance as a fundamental human right. It connects to other political rights, such as the right to self-determination, and to an extent the emphasis placed on the right to a nationality, and attempts to eradicate statelessness. The Universal Declaration of Human Rights 1948 Article 21 underlines the right of everyone ‘to take part in the government of … [their own] country’, and the International Covenant on Civil and Political Rights 1966 Article 25 contains the only guarantee (in that instrument) that is directed to ‘every citizen’. Reference can be found (in different forms) to voting rights in many other instruments (Convention on the Elimination of Discrimination against Women 1979, Article 7; Convention on the Elimination of Racial Discrimination 1965, Article 5; Migrant Workers’ Convention 1989, Article 41; Convention on the Rights of Persons with Disabilities 2006, Article 29) and there is also regional support for the principle (American Convention on Human Rights 1969, Article 23; African Convention on Human and Peoples’ Rights 1981, Article 13; European Convention on Human Rights 1950, Protocol 1 Article 3; EU Charter of Fundamental Rights 2007, Articles 39 and 40). There is variation in coverage, for example, the ECHR protection is for elections to the legislature (and the UK debate is well known), and there is widespread recognition that certain conditions and restrictions may be permissible. For example, residence conditions have been deemed reasonable by the UN Human Rights Committee, and by the European Court of Human Rights. Even taking the level of interpretative generosity into account, questions can still be raised about the near blanket exclusion of Irish citizens who are resident outside the state. Is this really reasonable, objectively justifiable and proportionate?
Third, in the context of post Belfast/Good Friday Agreement constitutionalism there is a troubling lack of political rights for Irish citizens in Northern Ireland who want to participate in the new institutions in the North and give meaning to their citizenship in ways that extend beyond the sporting and cultural. For those Irish citizens who are resident in the North of the island of Ireland this takes on a sharpened form – and this perhaps presents the strongest case for change. Irish constitutionalism still speaks directly to the ‘Irish nation’ and to all citizens. It embraces the idea of the unity of all the people who share the island. However, as a consequence of the direct constitutional linkage to eligibility for elections to Dáil Éireann, law and practice currently permits exclusion. The position could be remedied either by an amendment to Article 12 (as proposed in the Private Members’ Bill introduced by Deputies Gerry Adams and Seán Crowe in March 2014) or even potentially by addressing entitlements to vote in Dáil elections. As a matter of constitutional principle, the exclusion of many Irish citizens from voting in Presidential elections seems out of line with the post Belfast/Good Friday Agreement world. The attempt to accord mutual recognition and respect to national identities could easily extend to an acceptance of enhancing political rights for Irish citizens. This may also mean looking again at the voting rights of British citizens who are resident in the state or in the island of Ireland. For example, Irish citizens will be entitled to vote in the upcoming EU referendum in the UK (as will British citizens resident overseas for less than 15 years – if still on the electoral register for General Elections). British citizens in Ireland can vote in Dáil, European and local elections but not in referenda and Presidential elections. This too could be part of the discussion.
Ireland’s system of voting rights for citizens who are resident outside the state is not keeping pace with emerging trends. That is not, of course, a sufficient reason to promote reform. It is evidence that others are persuaded of the merits of the idea, and that it can be done, if the will is there. Although there are substantial arguments on all sides, the combination of extending political rights, the developing recognition of external voting, and the particular historical experience of Ireland (partition and emigration) make it compelling. Advancing voting rights in Presidential elections is a small way of recognising citizenship beyond the state, and acknowledging, for example, ‘people over territory’. It may in fact erode barriers of mistrust by promoting better knowledge and understanding of constitutionalism in ‘modern Ireland’.
Fourth, there are broader questions and wider human rights arguments. For example, although Ireland grants voting rights to non-EU citizens in local elections, the democratic exclusion of those who are not Irish, British, EU or Commonwealth citizens across these islands is marked. Debates on the political rights of Irish citizens must acknowledge this agenda too, and can even be used to open a more inclusive constitutional conversation. The fact that many in these islands – who make a substantial contribution to society and to communities – are excluded from democratic participation should be a profound concern. There is no excuse for resurrecting narrow forms of nationalism as part of the ongoing dialogue about inclusive (and human rights based) republican citizenship.
The Irish Constitution speaks eloquently to the island, and about the role of the President. Is it therefore right that citizens in the North have no say? The Presidential election in 2018 provides an opportunity to implement the recommendations of the Constitutional Convention. It would be an appropriate time to test this exercise in democratic inclusion, and entirely in keeping with republican constitutionalism. Not as the last word about voting rights, but as a modest invitation to reflect on what participation and political rights might mean in this island in the time ahead.
Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast.
(Suggested citation: C. Harvey, ‘Citizenship and Political Rights in Ireland’ UK Const. L. Blog (18th Nov 2015) (available at https://ukconstitutionallaw.org/))
This post originally appeared on the RightsNI blog, and is reposted here with thanks.