We must search for a set of contemporary principles upon which to build alternative citizenship laws, write Donncha O'Connell and Ciara Smyth
In 1998 an overwhelming majority of the Irish people voted in favour of an amendment to Articles 2 and 3 of the Constitution by way of implicit approval of the Belfast Agreement. This involved deleting the previous controversial territorial claim, and replacing it with a broad and inclusive conceptualisation of the Irish nation which reads:
"It is the entitlement and birthright of every person born in the Island of Ireland . . . to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland."
It now appears that the Government proposes to change the current understanding of Article 2 by way of an amendment to Article 9, the enabling provision dealing with citizenship. The amendment's purpose is to qualify the jus soli principle of citizenship (as a birthright linked to birth within the State), which Article 2 arguably "constitutionalised" by linking it to jus sanguinis (the principle of citizenship based on blood descent). In effect, this will stop children born here to non-national parents who have no links with the State from gaining an automatic right to citizenship.
The central reason posited by the Minister for seeking to change the citizenship provisions in the Constitution is that our system of jus soli is creating a "pull factor" for non-national pregnant women. These women are travelling to Ireland and presenting at maternity hospitals at late stages in their pregnancies, a phenomenon that prompted the masters of some Dublin maternity hospitals to allegedly "plead" with the new Minister for Justice, Equality and Law Reform for constitutional change in 2002.
Even if such a plea was made in the manner described by the Minister (but, notably, disputed by the masters), it would hardly rank as an imperative for constitutional change, much less the expedited constitutional change upon which the Minister is now insisting.
One would expect that a constitutional referendum on something as fundamental and sensitive as citizenship would at least be preceded by the publication of green and white papers as well as wide-ranging public consultation and debate.
As the proposed amendment to Article 9 will qualify the overwhelmingly endorsed amendment to Article 2, this bypass of the normal precursor to constitutional change is all the more troubling. While one might appreciate the need for some legal or constitutional change in this area, the case for urgent constitutional reform has simply not been made. In this connection, it is noteworthy that the actual wording proposed has yet to be published.
In fact, this issue has little to do with pressures on the maternity hospitals and everything to do with the fact that Ireland is the only EU member-state which operates primarily on the jus soli principle of citizenship. In the present context, the fact of being born in Ireland leads not only to an entitlement to Irish citizenship, but also to EU citizenship, with all the rights and benefits associated with that status. While this point is alluded to in departmental briefing documents in support of the referendum proposal, it is noteworthy that the Minister has launched the debate by stressing the more emotive maternity issue.
Does this indicate a lack of confidence in voter capacity to comprehend the arguably valid legal reasons for some change? Why use the emotive argument when the rational argument would suffice? It is difficult to avoid the suspicion that there is a dubious subtext to this proposal.
This is reinforced when one considers the proposed timing of the referendum, especially in light of the previous clear denial by Government that voting would coincide with the June 2004 local elections .
In the context of any election, strategy, tactics and even public discourse are orchestrated for electoral advantage. It is difficult for any political actor to have even the most inconsequential conversation without it becoming politicised. In that heightened atmosphere, the idea of a parallel discourse on something as sensitive as citizenship, and the inevitably related issues of race, culture and identity, is impracticable.
If the Minister wished to neutralise the suspected race factor in this proposal he could start by considering a scheme to "regularise" the position of the 11,000 families with Irish citizen children currently awaiting an indication of his intention to deport along the lines suggested by the Irish Human Rights Commission, CADIC and the Catholic Bishops' Conference.
There is no argument against having a national public debate on all of these issues. In fact such a debate is, arguably, overdue. But context is everything, and such a referendum should be decoupled from an election in which mutual antagonisms of a partisan kind and unproductive debate are the order of the day.
The kind of political consensus that might be achieved by a proper debate is clearly not forthcoming from the initial reaction of Opposition parties. That, of itself, should suffice to postpone this vote.
It may well be the case that jus soli is an illogical basis upon which to fashion citizenship, but so is the usually preferred alternative of jus sanguinis. The former is based on the fortuitous happenstance of birthplace, the latter on the random luck of ancestral pedigree. Both were developed for outmoded and perhaps forgotten models of the state. If neither is inherently logical we must search for a set of contemporary principles upon which to build alternative citizenship laws.
These will, of course, be informed by the State's self-interest and, indeed, its sense of its own vulnerability. However, such essentially pragmatic values are not the only foundations upon which to build rational citizenship laws. In today's world of inequality of wealth between the southern and northern hemisphere and the consequent south-north migration patterns, we must recognise that citizenship is a property right which entitles its holders to specific entitlements, protection and assets, while excluding all others. If Irish citizenship is to have moral authority - and citizenship is not a concept devoid of moral content - it must have a normative foundation.
Only a Minister with the extraordinary certainty on all matters that Michael McDowell is possessed of could think this a matter that lends itself to easy and swift resolution.