Eugene Regan (Fine Gael)

The House is discussing the basic law of the country, the Constitution of 1937, which defines our representative democracy as one grounded in popular sovereignty, subject to the rule of law. It is sometimes easy to forget that among the former colonies, Ireland, in 1922, became the first to win independence and chose deliberately to make its legislation subject to the control of a Judiciary sworn to uphold rights enunciated in and derived from a publicly ratified Constitution. This is the essence of the liberal democracy through which, at a time of great threat to democracy from modern European dictatorships, Ireland, in both the 1922 and 1937 Constitutions, translated into the British model of government the great democratic principles of the French and American revolutions. Thus were created the foundations for the stable parliamentary and European democracy we enjoy today.

The American Constitution, the Constitution of the Soviet Union and the Irish Constitution of 1937 are all notable documents. They only have meaning, however, by virtue of adherence to the principles enunciated in them and their interpretation by the courts. We know the manner in which the Soviet Constitution was implemented and interpreted and the authoritarian and brutal state that was the USSR. Just as the interpretation of the US Constitution by its Supreme Court is what gives character and meaning to US democracy, the same can be said of Bunreacht na hÉireann.

One of the key values from which our Constitution has derived support from the people, and secured rights for citizens, is the principle of equality before the law. This was embedded in the 1937 Constitution. It resulted in the abolition of a number of common law rules which restricted marital equality. It prevents discrimination by the State on grounds of sex, race, language, religious or political opinions. For example, in the O'Donovan case which addressed the uneven spread of Dáil seats across the country, in the McKenna judgment on the spending of public funds in referenda, and the Coughlan judgment on availability of broadcasting time in referenda, this principle of equality has had a tremendous influence on Irish democratic life.

It is interesting to note that many of our fellow European member states, such as the French Republic and Italy, grant to their public representatives immunity from prosecution. It is entirely to the benefit of the Irish people and to the integrity of public life that under the Irish Constitution we as public representatives are bound by the rule of law. From the highest office holder to the ordinary member of the public, we are equal before the law or so the Constitution provides. This is something the present Taoiseach and Cabinet should bear in mind.

Seán Lemass said in the Dáil in 1928 that Fianna Fáil was a slightly constitutional party. Mr. Lemass was correct in 1928 and, by all appearances, he is correct in 2008. This can be seen most clearly in the manner in which the Taoiseach and his Ministers have sought to undermine and frustrate the work of the current Mahon tribunal, a body established by the Oireachtas to inquire into corruption in Irish politics. That tribunal, as every tribunal which is established by the Oireachtas, is essential to restoring confidence in the political process and every TD and Senator has an interest in ensuring it does just that. De Valera would be watching the debate this evening in the Lower House when that matter is discussed.

In the area of personal rights set out in Article 40.3 of the Constitution it is not the personal rights enunciated in the Constitution which are the most notable but rather the unspecified personal rights developed by the courts with, at times, the most tenuous of links to the actual wording in the Constitution. As Professor John Kelly, a former Fine Gael Member of this House, pointed out in A Short History of Western Legal Theory, it was only in the Irish constitutional jurisprudence built up on the idea since the mid-1960s that there existed latent, unenumerated personal rights, which Article 40.3 of the Constitution protects in merely general terms, but which may be specifically identified and enforced by the courts as occasion arises. These rights, according to the judgment which initiated the trend, are such as are implied by "the Christian and the democratic nature of the State".

We know that many of the unspecified personal rights — the right to bodily integrity, the right to earn a livelihood, the right to marital privacy, the right to individual privacy, the right to litigate or have access to the courts — have been identified as unspecified and unenumerated in the Constitution. The court did not, however, interpret the right to privacy so as to invalidate in the Norris v. Attorney General case, penalising homosexual conduct between consenting adults in private. That is a matter which was resolved in the European Court of Human Rights.

As James Casey stated in Constitutional Law it was not the 1937 Constitution which broke with British constitutional theory but rather the 1922 Constitution of the Free State. While the treaty formed part of the constitutional text, neither the preamble nor the articles of that constitution recognised or acknowledged any British authority, holding that the power to enact the constitution derived from the people.

Our current system of proportional representation was based on Article 26 of the 1922 Constitution which, on two occasions, was sought to be overturned in referenda. Judicial independence and the principle of judicial review invalidating legislation was provided for in the 1922 Constitution. That constitution limited the powers of the Oireachtas in several respects, one of which was in the area of extraordinary courts which was reintroduced in the 1937 Constitution. Trial by jury was guaranteed and so on. Therefore, there was quite a degree of continuity between the 1937 Constitution and the 1922 Constitution, the latter being amended by legislation at the time.

The one important innovation in the 1937 Constitution which is commendable is Article 26 which gives the President a role in adjudicating on the constitutionality of legislation. While decisions are made by the council in that regard, they are made in abstract. Nevertheless that power helps to create a certain legal certainty in the interpretation of the Constitution.

The review of the 1937 Constitution and the protection of personal rights — the real innovations — were slow to develop. There was a tendency in the courts of the 1940s and 1950s to uphold the legislation and the legislator rather than the Constitution as it protected individual rights. That was a process which developed in the 1960s and 1970s.

The recent publication, to which the Leader has referred, The Making of the Irish Constitution 1937 by Dermot Keogh and Andrew McCarthy, has highlighted the quality of the drafters, in particular, John Hearne, the legal adviser at the Department of Foreign Affairs, in drafting the 1937 Constitution. Articles 2 and 3, the claim on Northern Ireland, the ban on divorce, the special position of the Catholic Church — Article 44, and the so-called place of women in the home provisions characterise that Constitution. In many ways those characteristics define the Constitution and define the Ireland of the time. The activism of the Irish Judiciary from the 1960s was clearly influenced by the human rights principles enunciated in the UN Declaration on Human Rights, the European Convention on Human Rights and by the judicial activism of the American Supreme Court, particularly during the courts of the Chief Justice Earl Warren and Warren Burger.

Chief Justice Cearbhall Ó Dálaigh and Mr. Justice Brian Walsh are among those who grasped the nettle of a changing society and firmly established the role of the Supreme Court as protector of the individual under the Constitution, as opposed to the more traditional role as upholder of the legislation and the legislator. It also reflected a changing Ireland from an authoritarian and in many ways closed society to a more liberal and open one. In this connection one has to mention the constitutional crusade of Garret FitzGerald in the 1980s which had an undeniable liberalising effect, not only in terms of the constitutional amendments which were subsequently made but in terms of the opening up into both public and legal discourse on the Constitution of the potential to be progressive and not to be bound by the conservative public and judicial thinking of the 1940s and 1950s. The most important innovation of the Constitution was that it was rigid and that it required a referendum for changes to be made to it.

As Gerard Hogan pointed out recently, of the 23 amendments to the Constitution, five involved the European treaties, three were on abortion, two on voting rights, two on citizenship and one on the Belfast Agreement. He stated that the only significant changes have been to delete those controversial provisions of the Constitution which reflect traditional Catholic and nationalistic views — the claim on Northern Ireland, Articles 2 and 3, etc.

The 1937 Constitution, as amended, most particularly following judicial review by the courts, our entry into the European Union and the constitutional crusade of Garret FitzGerald, now provides a basic law which is more in keeping with a modern and pluralist society in the European mainstream. We are all the better for that.