Introduction

A referendum will be held on 7 June 2001. In this referendum, you will be asked whether or not you favour the removal from the Constitution of references to the death penalty and the introduction of a Constitutional ban against the death penalty.

This booklet, which is published by the Referendum Commission, is designed to help you make your decision by giving you information on the Death Penalty Referendum.

The Referendum Commission is an independent body, set up by the Referendum Act, 1998. The Chairman of the Commission is Mr Justice Tom Finlay, former Chief Justice of the Supreme Court and the other members are the Clerk of the Dáil, the Clerk of the Seanad, the Ombudsman and the Comptroller and Auditor General. The Commission is independent in its functions, has its own budget and is supported by a secretariat from the Office of the Ombudsman.

The functions and powers of the Referendum Commission are set out in the Referendum Act, 1998. The primary role of the Commission is to explain to the people the subject matter of the referendum as simply and effectively as possible, while ensuring that the arguments of those in favour and those against the proposed amendment to the Constitution are put forward in a manner that is fair to all interests concerned.

This booklet is published as part of the process of explaining, in as balanced and straightforward a fashion as possible, the main elements of the Death Penalty Referendum. This document does not outline the arguments for and against acceptance of the proposed amendment to the Constitution; the main arguments presented by both sides will be published separately by the Referendum Commission following a consultation process with the people and organisations wishing to contribute to the debate. You will have to make up your own mind on the arguments for and against the amendment and cast your vote accordingly.

Your vote is equal in value to every other citizen's vote and if you choose not to vote on 7 June 2001 then you are allowing others to make a decision for you. It is your voice and your choice. Let it be heard.

The Death Penalty Referendum

The proposed amendment seeks to change four separate provisions of the Constitution. The combined effect of these changes would be to delete all remaining references to the death penalty in the Constitution and to prevent its re-introduction under any circumstances, even where there is a state of emergency.

Article 13.6

Article 13.6 deals with the right to pardon and the power to commute or remit punishment imposed by a court following a criminal conviction. Article 13.6 provides that this power is vested in the President (who must act on the advice of the Government) "except in capital cases." If the referendum were passed, the reference to capital cases will be deleted. Capital cases are cases which involve the imposition of the death penalty.

Article 15.5.2°

If the referendum were passed, an entirely new provision would be made prohibiting the Oireachtas from enacting any law providing for the imposition of the death penalty and would be inserted as Article 15.5.2°.

Article 28.3.3°

Article 28.3.3° is the provision permitting the Houses of the Oireachtas to declare a state of emergency by reason of war, armed rebellion or an armed conflict arising outside the State which affects the vital interests of the State. Where such a declaration has been made legislation made as a result of it cannot be challenged on grounds that it is inconsistent with the Constitution.

If the amendment were passed, no law could be made, as a result of such a declaration, providing for the death penalty. The general power of the Houses of the Oireachtas to declare a state of emergency, and the consequence of such declaration, is not otherwise changed by this referendum.

Article 40. 4

Article 40.4 of the Constitution provides for an inquiry to be made by the High Court about the detention of a person, and, in appropriate cases, to order his or her release.

Article 40.4.5° deals with the special situation of where a person under sentence of death applies to the High Court for an inquiry under Article 40.4 as to the legality of his or her detention. If the amendment is passed, this provision, which would be quite inconsistent with the prohibition of the death penalty, will be taken out of the Constitution.

When you vote on 7 June 2001, you will be asked

Do you approve of the proposal to amend the Constitution contained in the undermentioned Bill?

Twenty - first Amendment of the Constitution (No. 2) Bill, 2001.

That Bill contains the detailed proposals for changing the Constitution. There are four elements to these proposals:

1. In Article 13.6, to delete ",except in capital cases,";

2. In Article 15.5, to insert the following subsection -

"2° The Oireachtas shall not enact any law providing for the imposition of the death penalty.";

3. In Article 28.3.3°, to insert "other than Article 15.5.2°" after "Constitution";

4. In Article 40.4, to delete subsection 5°.

You will be required to vote yes or no on the proposal as a whole; it is not possible to vote separately on each change.

This leaflet is also being made available, through the National Council for the Blind, in Braille and on audio tape for persons with a sight disability.

A version in the Irish language is being distributed through a range of public outlets.

The Referendum Commission,
18 Lower Leeson Street,
Dublin 2.
Tel: (01) 6395695
Fax: (01) 6395684
Website: http//www.refcom.ie
Email: refcom@ombudsman.irlgov.ie