Lockdown v. Liberty: do we still believe in freedom?

Maria Cahill

All around the world, countries have been imposing lockdowns to try to contain the spread of the deadly coronavirus, COVID-19. These lockdowns have severely restricted people’s movement and interaction with family members; they have had a drastic effect on social lives and religious worship; they have directly caused the loss of many jobs and they have plunged the world into a severe economic depression that will take a long time to recover from.

And yet, with some notable exceptions, these measures have been overwhelmingly accepted.

Do we accept these restrictions because we do not believe in freedom anymore? Or do we believe that these restrictions do not really disrespect the essence of our freedom?

While there are men and women dying without the consolation of a familiar voice and others struggling to summon the energy to take the next painful breath, these might seem like trivial questions. While there are people waiting for news not knowing if their loved one is alive or dead and others going to funerals on live stream and grieving over Zoom, it can seem heartless to turn attention away from the rawness of all that agony for a moment to engage in a philosophical discussion on the nature of freedom.

But C.S. Lewis said in Oxford in 1939 that the work of learning and thinking must continue even during war-time because if we don’t have good philosophy then we will have bad philosophy. Even during a pandemic – perhaps even especially during a pandemic that is accompanied by widespread lockdowns – it is vital that we keep thinking carefully about freedom and the restrictions that we are living with.

What is Freedom?

Popular understandings of freedom tend to fall into three categories: (1) freedom as absence of external restrictions controlling our behaviour, (2) freedom as the practical capacity to do something that we want to do, and (3) freedom as the psychological capacity to overcome internal barriers to success.

If my goal is to win a tennis grand slam, for example: (1) I would need the freedom to take a leave of absence from my job (freedom as lack of restrictions); (2) I would need to have developed all the practical skills to become the best tennis player in that tournament (freedom as capacity to act); and, (3) I would need to be resilient enough to overcome inevitable setbacks along the way and to bear the burden of success (freedom as psychological accomplishment).

Let’s leave aside for now the third category of freedom as psychological accomplishment, which is a newer preoccupation within theories of freedom, although it may overlap with theological understandings of freedom that have longer histories.

The distinction between freedom as absence of external limitations and freedom as capacity to act has been around for at least 200 years, and it has been made using different terms: Benjamin Constant called it the distinction between the liberty of the moderns and the liberty of the ancients, Isaiah Berlin spoke of a distinction between negative liberty and positive liberty, Charles Taylor framed it as a distinction between freedom-as-opportunity and freedom-as-exercise (before critiquing the caricatural extremism that the distinction encourages), while others have tried to transcend the distinction.

More colloquially, it is known as the distinction between freedom from and freedom to. Negative freedom is freedom from external obstacles that limit or interfere with my choices while positive freedom is freedom to achieve goals that are rationally worthy of my efforts, seeing a connection between freedom and responsibility in relation to my own life and also the lives of others in the same community. Berlin, among others, argued that positive liberty carried with it a danger of authoritarianism, assuming that the state were to choose the goals to be achieved.

Freedom and Law

As a result, law’s role in protecting freedom usually boils down to protecting negative freedom. We write our constitutions so that they protect citizens from external obstacles that interfere with individual choices. We use fundamental rights provisions to articulate that the state is not permitted to interfere with our family life, our privacy, our property, and our freedoms of thought, expression, conscience, religion and association.

Negative freedom and the priority of choice thus became the prevailing hallmarks of liberalism and the foundation of liberal democracies.

But if we are defining freedom as freedom from external obstacles that interfere with my choices, then the lockdown restrictions are a strange case. If all we want is to have freedom of choice, without any responsibility for the lives and welfare of others, then we should all be out on the streets engaging in antilockdown protests, instead of thinking that it is the protestors whose concept of freedom is twisted.

The fact that we are prepared to live with these restrictions calls for an explanation, and there are at least three possibilities:

The first possibility is that we accept the restrictions because in fact they line up with our choices. In normal circumstances, we would want to work and to be free to see family and friends, but fear of contracting the virus has overwhelmed those choices and so they are not choices that we want to make at the moment. The restrictions are not problematic, on this view, because they are not asking us to do things that we do not already want to do. This explanation is inadequate, however, given the imbalance between mortality rates in populations under 65 (evidenced in Britain, Italy, Ireland, Spain) and the severity of the economic and social cost of restrictions on those same populations.

A second possibility is that we have become de-sensitised to value of freedom and that we do not object with sufficient determination to restrictions even though we should do. To put it more bluntly, the second possibility is that lacking a strong sense of solidarity and the psychological maturity to bear the responsibility of freedom, we walk ourselves sleepily into tyranny. The explanatory power of this possibility turns, in each jurisdiction, on the kinds of measures that were put in place, their legitimacy and longevity, but also on the strength of democratic opposition and responsible journalism. Avoiding this depressing scenario requires ongoing vigilance and critical analysis.

In the case of the first possibility or the second possibility, there is no real conflict between the restrictions and individual freedom because they have collapsed into each other.

Socially Responsible Freedom

The third possibility maintains that the lockdown restrictions are in direct conflict with individual freedom, but it says that, we are willing to endure even severe limitations on our individual freedom out of a sense of responsibility for the lives of others. We know that, because of the highly contagious nature of this virus, we hold the lives of friends and strangers in our hands and that their lives reasonably take priority over our choices.

Negative freedom always allowed that the state would sometimes deny our constitutionally-guaranteed freedoms when there are pressing public interest concerns, but only around the edges. The restrictions infringe on our freedom in a much more comprehensive and wide-ranging way and with lasting effects on economic wellbeing. They do not square easily with negative liberty within the liberal paradigm.

Could it be, then, that one of the realisations that we are having during this extraordinary time, is that our conception of freedom is not as self-centred as we might have thought it was? That the vision of freedom as the prioritisation of the choices of individuals by means of rights that cannot be interfered with is too narrow. That, as feminist theorists have reminded us time after time, we are also members of communities with a sense of solidarity with the vulnerable. That we recognise the value of self-transcendence and our vision of freedom is ambitious enough that it is not threated by care and responsibility for the lives of others.

These restrictions should not stay in place a minute longer than they need to – and all of us bear responsibility for ensuring that that does not happen – but at the same time it is worth pondering whether our understanding of freedom is more socially responsible than our theories of freedom have given us credit for.

Maria Cahill is Professor of Law at University College Cork. 

This blog was originally published on Verfassungsblog and is republished with permission. 

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Remote Dáil Sitting – A Textual Analysis

Dr Seán Ó Conaill

Reports emerged today that advice has been issued to TDs and Senators which suggests that the Houses of the Oireachtas cannot sit remotely because the text of the Constitution requires the Dáil to sit in a physical place.

Conor Casey, Hilary Hogan and Ciarán Toland have already put forward an excellent summary of the legal position and a convincing argument on this blog as to how remote sittings could be accommodated and highlight that even if this were later discovered to be problematic by a Court it is unlikely that there would be profound consequences.

In this blog post I want to focus instead on the idea that the use of the word place in the Constitution means that a physical sitting of the Dáil must take place and how the modern Constitution can be interpreted in a modern manner, with a particular reference to the Irish language text, rather than interpreting it in the originalist way in which the drafters may have intended.

Our constitution is of course a bilingual legal document with each provision having and English and Irish language version. The Irish language text of the Constitution is t3672625058_4952490634he authoritative text in the event that there is a conflict found between the English and Irish versions. Although the claim that the Irish text of the Constitution is a mere translation of English text is often made (including in some judgments of the Supreme Court) this claim is without foundation in the face of the evidence. Extensive works of scholarship such as Prof Mícheál Ó Cearúil’s study highlight how the Irish and English texts are not translations of each other and on many occasions the Irish text differs significantly from the English text.

The key provision is Article 15.1.3 which in English reads:

“The Houses of the Oireachtas shall sit in or near the City of Dublin or in such other place as they may from time to time determine.”

The Irish text of the same provision reads

“Is i gcathair Bhaile Átha cliath nó ar a cóngar, nó cibé áit eile ar a gcinnfid ó am go ham, a shuífid Tithe an Oireachtais.”

Prof Micheal Ó Cearúil offers the literal translation of this as being

“It is in the city of Dublin or in its vicinity, or wherever else they decide from time to time, that the Houses of the Oireachtas will sit.”

Neither text expressly mentions a physical place although it could be reasonable to assume that is what the drafters of the 1937 Constitution had in mind when they referred to place in this context.

The word ‘place’ (or places) appears nine times in the English language text although only two of these references refer to a space or area. Six of the references refer to the use of the word in the context of acting ‘in place’ of a person or office (in these examples the Irish text represents this as ‘in ionad’) and one use of the word refers to war taking ‘place’.

In the Irish text the word ‘áit’ is used twice and on both occasions refers to a space or area however ‘áit’ does not stand alone and instead forms part of a more complex phrase ‘cibé áit’.

In Article 15.1.3 the Irish word ‘áit’ is prefaced by the word ‘cibé’  which is generally understood to give a wide ambit to the word which follows eg ‘cibé áit’ would become ‘wherever’ and accordingly the focus on the word ‘place’ in the English text is shifted somewhat in the Irish text so as to focus more on the flexibility of wherever the Dáil wishes to sit in the phrase ‘cibé áit’.

In Article 31.8 which concerns meetings of the Council of State in English tells us that meetings can take place at such “times and places” as the President decides. arasThe plural form here again hints at more flexibility as times and places could involve multiple venues and even times compared to Article 15.1.3 and thus could be used grounds for believing that 15.1.3 sets a stricter standard and accordingly should be interpreted narrowly. The Irish text however diverges and uses the same singular form of ‘cibé áit’ seen in Article 15.1.3 suggesting that there is no difference between the standard set in Article 15.1.3 and Article 31.8 and that the President.

The Constitution as drafted in 1937 has done a good job at standing the test of time but this has been achieved by virtue of Judges being willing to interpret the document as living and evolving document which in certain respects moves with the times.

The Courts have recognised that technology for example can change the way in which constitutional provisions are to be interpreted. Riordan v An Tánaiste [1998 ILRM 494], a case from November 1997 the Supreme Court acknowledged that modern technology could change how we understand constitutional provisions drafted in the 1930s. In this case it concerned the role of the Tánaiste standing in for FC-colourthe Taoiseach while the Taoiseach was overseas. The Court noted that “it is manifestly absurd to suggest that with modern communications and the speed of travel by aircraft, it is necessary for the Taoiseach to hand over his duties as head of government whenever he leaves these shores.”. In the context of Article 15.1.3 a valid question could be raised as to whether ‘place’ or ‘cibé áit’ could be understood to mean a virtual online environment particularly in light of the advances in technology unforeseen even in 1997.

Such discussions are not unique to Ireland. In the United States for example the use of a technology called the autopen by Presidents to sign bills remotely has raised questions as to its constitutionality . During the current Coronavirus crisis many other jurisdictions have grappled with the issue of having legislatures sit and many have successfully used technology to facilitate the democratic process.

In the context of Dáil Éireann when we look at both the willingness of the Courts to interpret the Constitution as a living document which evolves over time and the flexibility offered by the Irish language text there are strong arguments to be made to facilitate remote sittings of Dáil Éireann at the time of a national crisis. Even if this was subsequently held to be constitutionally pragmatic the consequences most likely would not be dire.

 

Dr Seán Ó Conaill teaches Dlí Bunreachtúil (Constitutional Law through the medium of Irish) at the School of Law at University College Cork

Twitter @soconaill

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Remote Sittings of the Houses of the Oireachtas: A constitutional solution to a potential democratic deficit

Conor Casey, Hilary Hogan and Ciarán Toland SC

With the rapid spread of the coronavirus, the Irish State has been confronted with its worst public health crisis in a century.

In an odd twist of fate, it happens to have no elected government. Leo Varadkar resigned as Taoiseach over a month ago. Regina Doherty, Katherine Zappone and Shane Ross, currently Ministers of Government, are not even members of the Oireachtas. The need to form a new government has been heightened by advice from the Attorney General that the Oireachtas cannot continue to pass laws, although Professors Oran Doyle, Tom Hickey, and Seth Barret Tillman have argued to the contrary.

There is widespread agreement that a government needs to be formed sooner rather than later. A programme for government could be agreed and a new Taoiseach and Government elected by the Dáil as a matter of urgency.

But gathering 160 TDs into the confines of Leinster House would be grossly irresponsible in the present climate. Plans are afoot to use a large space such as Dublin’s Convention Centre for the votes on the Taoiseach and Government, where deputies can place themselves at a safe distance. However, this is not planned for regular sittings.

Currently, the Dáil is sitting in reduced numbers, with proportionate representation from each political party. Last week, Labour TDs opted not to attend Dáil statements on health, and instead provided prepared written statements to be read into the Dáil record. This model might be adopted to allow TDs who cannot attend to contribute to Dáil debates in person. Only a small portion of our elected representatives will participate fully in Oireachtas sittings.

But there is another alternative, which does not involve granting blank cheque to the executive, nor compromising parliamentary representation. This alternative would better protect the health of members and public servants, and – in the interests of democracy – would enable more regular and fuller sittings than is currently planned.

It involves facilitating both Houses and their Committees either: (1) to sit wholly electronically; or (2) to sit physically with electronic participation of absent members.

Other  institutions have taken steps to facilitate electronic sittings, including the European Parliament, Spain, Poland, and Romania. The House of Commons has authorised its Committees to work remotely, and its Speaker has proposed virtual sittings.

The Constitution

Are there any constitutional barriers to allowing the Dáil and Seanad to convene remotely?

 Place of sittings

Art 15.1.3 of the Constitution envisages that the Houses of the Oireachtas will sit in or near Dublin, but that the Oireachtas can sit in “such other place” as they “may…determine”.

The fact that Dublin is identified means the natural interpretation is that such other place” refers to another physical location, such as Cork or Galway. The drafters could not have imagined that members of the Oireachtas would be able to gather and deliberate in anything but a single, identifiable location.

However, neither language version rules out the possibility of electronic sittings, expressly or on a purposive interpretation.

Sittings in public

Article 15.8.1 provides that “sittings of each house of the Oireachtas shall be public.”

Here, there is likely no conflict on the face of the Constitution.

Any virtual sittings of the Oireachtas would simply have to comply with the requirements of Article 15.8.1 for a sitting of the Houses of the Oireachtas to be public. Ideally, it could be streamed online, made available on the Oireachtas television channel or played on the airwaves.

Sittings in private

Article 15.8.2 envisages that a “private sitting” can be held in “cases of special emergency” with the assent of two thirds of the “members present”. Whilst Article 15.8.2 could potentially be invoked to permit electronic sittings should doubt exist about their being in “public”, this is neither necessary nor desirable.

Presence and Votes

Article 15.11.1 provides that “all questions in each House” shall be determined by “a majority of the votes of the members present and voting” other than the Chairman.

Whilst “present” again would have been understood as a physical presence, nothing now prevents members could register a virtual presence by participating in a specially convened sitting of the Oireachtas via technological means. Voting could also be facilitated either by roll call votes, or by software. Provided members can hear and speak to one another, they should be able to perform most of the same functions that they can by being there in person.

Physical sittings supplemented by electronic participation of members

Alternatively, it could be possible for a limited amount of deputies to continue to convene in the Dáil chamber, while the other TDs can be virtually present.

This would undoubtedly satisfy the text of Article 15.1.3 for meetings at a specific “place”.

It would also ensure that the session could be broadcast to the public, and satisfy Article 15.8.1 that the sittings be held publicly.

Purposive Constitutional Interpretation

The purpose of the provisions of the Constitution governing Parliamentary sittings inform their interpretation. An overly formalistic reading of Articles 15.1.2, 15.8.1 and 15.11.1 of the Constitution would undermine that very purpose.

The purpose of Article 15.1.3 is to empower the Houses to determine their place of sitting when not in Dublin: there is no constraint. The purpose of Article 15.8.1 is to provide that sittings are in public. The purpose of Article 15.11.1 is to provide for plurality voting.

Why does the Constitution stipulate that the Houses of the Oireachtas should have sittings, as a collective, in public, save in emergency situations?

The need for the Oireachtas to perform its constitutional functions (in particular, the exclusive power to legislate under Article 15.2.1 and to facilitate Government responsibility to the Dáil under Article 28.4.1), with its entire composition of elected members, would inform its interpretation in these extraordinary circumstances.

Public sittings support the constitutional functions of the Oireachtas of legislating and holding the Government publicly accountable by scrutinising its actions. Much like Article 34.1 for the administration of justice, public sittings of the Houses of the Oireachtas facilitate the legislature carrying out those roles effectively and in a way that protects public trust in the systems of government.

Which format best allows Dáil Éireann to carry out its constitutionally-mandated functions of legislation and of holding the Government to account?

Written questions have none of the spontaneity that rigorous questioning, in real time, can provide.

A remotely-convened sitting of the Oireachtas would arguably amount to a far more effective legislature than the present one where only a handful of TDs and senators are present, selected by the parties, and where the vast majority of debate is conducted by pre-written questions and answers.

The format to be chosen for virtual sittings should enable (subject to amended rules on standing and procedure) the Members of the Oireachtas to securely communicate clearly and spontaneously in order to ask questions, engage in debate, and vote (by software or roll-call).

In short, it is unlikely that the Courts would place undue emphasis on the literal meaning of “sit”, “place” or “present”, or a historic meaning of “public”, where same would have the effect that the Houses do not sit, sit with reduced members, place members at risk, or work ineffectively.

Accordingly, electronic sittings could suffice to satisfy the constitutional purpose of sittings of the houses in public, with members present and voting.

Standing Orders of Dáil and Seanad Éireann

There are no Standing Orders of either House concerning the permissibility of meeting remotely via technological means, nor are there Standing Orders requiring the Dáil or Seanad to meet in Leinster House. However, the Standing Orders would require amendment to enable electronic presence of members.

Risk of legal challenge to amendments to Standing Orders

It could be argued that any question over the validity of the Oireachtas sitting remotely could pave the way for a legal challenge, and cast doubts over any legislation passed. While there are legal risks to our proposal, it should be remembered that the courts have been slow to interfere in internal Oireachtas matters, citing the need to preserve the separation of powers articulated by the Constitution.

Deference to the Houses on amendment of Standing Orders

The Courts have made it clear in cases like O’Malley v An Ceann Comhairle [1997] 1 IR 427 and Haughey v Moriarty [1999] 3 IR 1 that, by and large, parliamentary standing orders and procedures are not justiciable.

The exception is, of course, when procedures of the Oireachtas have the potential to affect the personal rights of citizens (Maguire v Ardagh [2002] 1 IR 385, Re Haughey [1971] IR 217, Callely v Moylan [2014] 4 IR 112 and Kerins v McGuinness [2019] 2 ILRM 301). The proposed procedures for remote participation in Dáil and Seanad sittings would not directly implicate citizens’ personal rights.

Whilst legal risk cannot be discounted, there is a possibility that the Courts will find they do not have the power to review the substance of amendments to the Standing Orders to permit the Houses to sit electronically.

The Consequences of Constitutional Breach

The Courts are alert to extraordinary adverse circumstances and potentially grave consequences, not only when interpreting constitutional provisions, but also when deciding the consequences that should flow from their determinations.

This would become relevant if the decision for the Oireachtas to sit remotely were found not to be authorised by Article 15.

The question is what the effect of this would be on the business carried out: in particular, the passage of legislation through the Houses; and, any votes on the election of the Taoiseach and Government.

With respect to legislation, a finding of unconstitutionality in respect of mode of sitting could negate the presumption of constitutionality for Acts: however, this may be surmounted if the Oireachtas were acting on a bona fide understanding of their constitutional obligations.

Although now unlikely, if the Taoiseach and Government were to be elected by electronic means, it is possible that the validity of the elections and their actions in secondary legislation and the executive sphere may also be called into question.

However, case law shows that – in exceptional circumstances – the Courts do not dogmatically pursue the logical consequences of a breach of Constitutional norms (De Búrca v Attorney General [1976] IR 38; Murphy v Attorney General [1982] 2 IR 241; A v Governor of Arbour Hill Prison [2006] 4 IR 88).

Courts have in recent years begun to develop a flexibility in their remedies such that they can “suspend” declarations of unconstitutionality for periods of six or twelve months to allow the Oireachtas address the constitutional deficiency (PC v Minister for Social Protection [2018] IESC 57; AB v Clinical Director of St Loman’s Hospital [2018] IECA 123).

This is the very kind of scenario for which such remedies were designed.

Conclusion

In summary, we argue that the Houses can, and should, amend their Standing Orders to clarify that their meetings can be convened remotely, and for members to be deemed to be present when so connected.

At a time of national crisis, where far-reaching legislation has rapidly been enacted to protect public health and regulate the economy, the Oireachtas will need to review the public health and economic measures being taken by the Government, and may consider new legislation.

For now, restrictions in some form on public gatherings may last several months. It cannot be suggested that our elected representatives would not meet for that period. Nor should our Parliament be limited to reduced attendances, with members selected by party whips, if our law permits a better solution.

The ability for full participation by those we elect should be the least we expect, especially now.

Electronic sittings, or electronic participation of members in physical sittings, would square the circle of protecting the competing requirements of democratic governance and of public health.

Conor Casey is a PhD Candidate at Trinity College, Dublin.

Hilary Hogan is a PhD Candidate at the European University Institute, Florence.

Ciarán Toland is a Senior Counsel at the Bar of Ireland.

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German Reunification – Lessons to be Learned?

Prof Anna Katharina Mangoldcsm_mangold-photo-kopie_5c8f03077a

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

Similarities seem to appear everywhere once one starts comparing reunification processes from a constitutional perspective. While recent constitutional developments seem to point in the direction of separation and independence movements rather than reunification, the German example springs to mind as a possibly comparable historical situation. However, as with all constitutional comparisons, the ever present historical, political, social and economic differences between states need to be kept in mind. Thus, there are certainly no ready-made and direct lessons to be learned but there might be some broader considerations that could point the way to what to expect, what best to avoid and hints to possible pitfalls in a constitutional reunification.

Starting Point: The Cold War

The border between the Federal Republic of Germany (FRG) and the German Democratic Republic (GDR) was also the border between the two major competing political and economic geopolitical blocks in the post-WW II period. Communism and capitalism clashed in a single country. The two German states were paradigmatic for the ideas and ideologies of capitalist and socialist systems, and they fought on many levels. One can say that up until the 1980s, the FRG and the GDR were archenemies.

Then, things started to shift in favour of the capitalist model as the economic collapse of the GDR was imminent. Civil society protests against the totalitarian approach of the SED (Sozialistische Einheitspartei Deutschlands, Socialist Unity Party of Germany) paved the way for a non-violent change. Where border patrol soldiers had previously shot those wanting to cross the border, forcefully separated families reunited on that truly magic night of the 9th November 1989 that to this day I remember vividly as a child growing up in Berlin.

At that point in history, the capitalist system seemed to be the “winner”. And before too long, the FRG indeed took it all.

Constitutional Theory: Constitution-Making Power or Constituted Power?

The Constitution of the FRG was not even called a “constitution” because the parliamentary assembly in 1948/49 thought of the “Basic Law” as an interim solution until Germany would be reunited. Article 146 of the Basic Law shows this quite clearly. In its 1949 version it read:

This Basic Law loses its validity on the day on which a constitution comes into force which has been freely decided by the German people.

There were various competing interpretations of what this article actually meant. Some figured it regulated the constitutional way to reunification. Others sought and found deeper meaning: they understood Article 146 to regulate the constitution-making power as opposed to the constituted power. Proponents of this view argued that a reunited German people would be absolutely unbound by the then invalid Basic Law.

Both politicians and constitutional lawyers did not foresee the events of November 1989. What had seemed to be a largely theoretical academic debate suddenly and unexpectedly became a relevant and decisive question.

No New Constitution for the Reunified German People

Contrary to an intuitive reading of Article 146, the Basic Law continues to be the Constitution of the (now reunified) Federal Republic of Germany No. 2. The new state even kept the name of the capitalist part of the country.

Instead, a solution was found by negotiating a lengthy “Unification Treaty”, concluded on the 31st August 1990. This international treaty between the FRG No. 1 and the GDR regulated the legal dissolution of the GDR, its accession to the Federal Republic of Germany and, finally, German unity. The GDR simply ceased to exist, its territory was transformed to fit into the federal organisation of the FRG No. 1, and all substantive decisions of the Basic Law extended to apply in the five new federal states.

Several annexes of a highly detailed and legally complex nature extended the validity of all law of the FRG No. 1 to the territory of the acceding GDR. Some exemptions were made, for example in funeral law, but largely the law of the former GDR ceased to exist at the same time as the socialist state.

Wounds that do not Easily Heal

The populace of the former GDR had to pay an unequally distributed share of the costs of German reunification – economically, mentally, politically, and democratically. The state in which people had grown up and which they knew, even if they disliked the authoritarian setup, disappeared overnight, and with it most laws regulating daily life. Everything was new now. The ideology of the former GDR was “defeated”, and so was its population. In November 1990, the widely circulated cover of a satirical journal from West Germany depicts “Zonen-Gabi” (Gabi, a woman from Eastern Germany) holding a partly pealed cucumber with the caption: “My First Banana”.

“Ossis”, people from East Germany, having grown up behind the Iron Curtain, were believed to be backward, not cultivated, and generally in need of thorough democratic education. Many “Wessis”, people from West Germany, were sent to fill the leading positions in administration and the former socialist companies. Soon, they were known as “Besser-Wessis” (those from West Germany that know everything better). Differences between the populaces of West Germany (former FRG No. 1) and East Germany (former GDR) were exacerbated, and they continue to have a major impact. In terms of power relations and in an anti-discrimination perspective, these differences amount to a relationship similar to that between a dominating group (West Germans) and a dominated group (East Germans). Anti-discrimination law is, however, not in a position to address this structural inequality meaningfully and protect East Germans (evidenced by a Stuttgart Labour Court decision from 2010 which allowed a person to be disregarded for a job on the basis of them being an “Ossi”).

Economically, it was evident from the beginning that East Germany was in a dire condition. Nevertheless, in 1990 German Chancellor Helmut Kohl famously claimed:

“Through a joint effort, we will soon succeed in transforming Mecklenburg-Western Pomerania and Saxony-Anhalt, Brandenburg, Saxony and Thuringia into flourishing landscapes again in which it is worth living and working.”

To this day, East Germany is economically less well off than West Germany. Employees on average earn less, and pensions are lower. Young people tend to “flee” to West Germany, for economic reasons.

Finally, the decision to enact German reunification in this way has at least contributed to the rise of nationalist, populist, and fascist political movements. A xenophobic, outright racist and misogynist party such as the so called “Alternative for Germany” has its strongest footing in East German federal states.

From the perspective of many, of course not all, East Germans, German reunification was a deeply unsettling experience, rendering biographies and people superfluous. After the fall of the Iron Curtain, capitalist systems were no longer under pressure to prove their “human side”. In the 1990s, EU Member States, the FRG No. 2 among them, started to implement a form of turbocapitalism that hurt (and still hurts) not only the East Germans but the western part of the German population in a particularly brutal form. To them, German reunification must have appeared not so much as a unification but indeed more as an annexation.

Postponement of the Constitution-Making Power

No referendum was held in either the FRG No. 1 or the GDR. In fact, the “Unification Treaty” is said to be an example of legal genius, negotiated by lawyers and bureaucrats. The highly complex nature of the Treaty made it impenetrable to the not legally trained populace.

Even in this really broadly sketched little narrative, it is obvious that this constitutional moment in German history was not the time of constitution-making power. Rather, the constituted power of FRG No. 1, brought into the world by the Basic Law 1949, changed the wording of Article 146. Today it reads:

“This Basic Law, which, since the achievement of the unity and freedom of Germany, applies to the entire German people, shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.”

The time at which all Germans can exercise constitution-making power, together, is apparently postponed to another day.

Prof. Dr. Anna Katharina Mangold is a Director of studies at the Department of European and International Law, Europa-Universität Flensburg .

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Irish Re-Unification: Perspectives from Elsewhere

Cheryl SaundersCherylSaunders_004

Editors’ Note: This post is part of an IACL-AIDC Blog Symposium on unification of the island of Ireland. The Symposium is co-hosted by the Constitution Project @ UCC Blog. Selected posts will also be co-hosted by the UKCLA Blog. The full set of posts can be found here.

All restructuring of the external territorial boundaries of states takes place in a distinctive context, requiring caution in drawing parallels with experiences elsewhere. The case of Ireland is no exception. The long and complex history of relations between what now is the south and the north, the separate trajectories of the two populations over a considerable period of time, the logic of cohabitation on a relatively small island, the role of the United Kingdom, and the various commitments in the Good Friday Agreement that would be relevant in any move towards reunification make the Irish case sui generis, in many respects. Nevertheless, there are experiences with the restructuring of state boundaries in various ways in other parts of the world that provide a contrast with Ireland and from which instructive insights might be drawn.

As Aoife O’Donoghue notes in her post in this series, reunification of Ireland would create two reconfigured states, effectively involving both ‘unification and breakup’. For this, there are no recent parallels; and even unification alone now is rare. Historically, many states were built by a process of unification, including the United Kingdom itself. Many older federations were created by aggregation, including the United States and Australia. The modern world is comprehensively covered by states, however, making any form of coming together in a state form unusual. The reunification of Germany following the fall of the Berlin Wall is the closest parallel, already covered in the post by Anna-Khatarina Mangold. The reunification of North and South Vietnam in 1976 and, arguably, the return of Hong Kong to China in 1997 are other examples, but too far removed from the conditions of Ireland for comparison to be of much use. On the other hand, attempts to reunite Cyprus, which so far have failed, have some relevance for Ireland as another example of the challenges of finding a basis on which two unequal part of a shared island, with a relatively recent history of hostility, can agree to live together. While both cases have been fraught, the Good Friday Agreement offers Ireland an auspice under which what would be likely to be challenging discussions could at least begin.

The possibility of reuniting the two Koreas is another case that may be waiting in the wings to which much thought has been given,  drawing on German experience. The magnitude of difficulty of reunification of the Koreas is significantly greater than in Ireland, given huge disparities in economic development, government services and political culture and the superadded problem of militarisation. Some strategies floated by President Moon may offer insights, nevertheless. One is timing reunification to coincide with what for both Koreas is the symbolic occasion of the centenary of liberation in 2045.

State restructuring through separation or attempted separation is a much more familiar contemporary phenomenon. Timor-Leste and South Sudan succeeded; Bougainville may do so; Catalonia, Scotland, Quebec and Kurdistan each have sought secession, although without success so far. The breakup of the former Yugoslavia and the separation of the Czech and Slovak republics are relatively recent examples of other kinds.

Separation from the United Kingdom is the least of the concerns raised by Irish reunification. It is envisaged by the Good Friday Agreement; UK acquiescence can be assumed, if the two parts of Ireland agree; and reunification would not add to the total number of states. Some insights may be drawn from these cases, nevertheless. Most sought to legitimise secession through a popular vote, although typically in the general terms now discredited by Brexit. Controversy over the referendum question in Quebec ultimately led to the determination by the Supreme Court of Canada in the Secession Reference that what was needed for ‘democratic legitimacy’ was what in the context was accepted as a ‘clear majority’ vote on a ‘clear question’. The common sense of this decision makes it relevant to referendums associated with state restructuring elsewhere. It may well be of interest in Ireland where, however, what is needed for a majority vote already has been identified by the Good Friday Agreement.

The absence of a referendum to authorise the ‘velvet divorce’ in Czechoslovakia also has some negative relevance for Ireland. The divorce was prompted by the difficulty of finding a form of multi-level government acceptable to the two parts of an unequal state, in the absence of effective unifying forces. It was resolved without a referendum because of uncertainties about sequencing and differential outcomes that Ireland would need to resolve. Consequential issues about the distribution of assets and treaty succession also were resolved by negotiation.

Other kinds of developments in constitution-building across the world over the past few decades may be of greater interest in Ireland than these assorted instances of reconfiguration of state boundaries. Many of these stem from attempts to find constitutional frameworks within which divided societies can live together in sustainable peace. South Africa was a case in point, where an impressive process of constitutional redesign sought to bring unity to the country after the fall of apartheid and the introduction of universal suffrage. Many states in this situation necessarily deal with a range of issues that uniting the island of Ireland also would confront. These include the design of national symbols that can be shared, of which the constitution preamble, the flag and the anthem are likely to be examples; language policy in conditions of linguistic pluralism; and, perhaps most challenging of all, the development of a shared account of history.

It is not possible here to canvass these experiences fully enough to identify all points of interest for Ireland.  Those wishing to pursue them further will discover an extensive literature, of which this is an example. Two issues on which these experiences cast light should be identified, however: one substantive and one procedural.

Much post-conflict state building uses territorial divisions within a state to provide a degree of autonomy for communities that are regarded as distinct for some reason. Such arrangements need not be permanent, although expressing them as transitional could undermine the already difficult task of making them work in the first place. There is no end to the potential forms of multi-level government, which currently range from varieties of federation (Germany, Nepal, South Africa), through regionalism (Italy, Spain, the United Kingdom), to special autonomy within an otherwise unitary state (Indonesia, Philippines, Papua New Guinea). Several pertinent generalisations can be made, however. One is that any significant form of multi-level government requires a commitment on the part of both levels of government to make it work and may be particularly challenging in previously unitary states. Another is that the design of systems of multi-level government requires attention not only to dividing powers and functions but also to providing institutions, principles and processes to unite the state in ways that are voluntary, rather than imposed.

Any proposal for significant constitutional change, in which multiple stakeholders may have different interests, is likely to begin by negotiating agreement on constitutional principles on which more detailed arrangements can be built. Such principles may, but need not, be set out in an interim Constitution. The Constitution of South Africa famously was drawn up in this way, as the post by Brendan O’Leary notes. Initial agreement on constitutional principles may well be a useful device for Irish reunification as well. The Good Friday Agreement offers a useful starting point for thinking about what some of the principles might be.

Less successful attempts to use principles elsewhere, in the wake of the South African achievement, suggest some guidelines that it may be helpful to consider. The principles should be clear, with enough detail to give key stakeholders confidence in the process and its outcomes, without being overly prescriptive. There should not be too many principles (South Africa had 34); the aim is to provide an agreed and intelligible constitutional foundation, not to pre-empt the constitution-making process. The principles should be negotiated in a way that will be accepted as legitimate, during the constitution-making process and thereafter. And, needless to say, the principles should be followed in settling the final constitutional arrangements. South Africa ensured this by providing for certification by the Constitutional Court.  This is not a solution that is likely to be available or acceptable everywhere, however. In other contexts where, as in Ireland, success is critically dependent on continuing mutual commitment, other kinds of guarantees may be sufficient instead.

Cheryl Saunders is a Convenor of the Constitution Transformation Network, Laureate Professor Emeritus at Melbourne Law School, and President Emeritus of the International Association of Constitutional Law (IACL).

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