Rónán Mullen (Independent)

I thank my colleagues for their learned contributions and it would be remiss of me not to pay tribute to the Minister's fine contribution. As a former student of law, I felt a twitch in my hand as I had an irresistible urge to take notes as when I was in college. If the people of Dublin West ever do what I do not expect them to do, the Minister would be a welcome guest wherever constitutional law is taught.

We are marking the 70th anniversary of the coming into force of the Constitution. Like de Valera himself, Bunreacht na hÉireann has been singled out for a great deal of scorn over the past quarter of a century. For example, it has been dismissed as out of date in a pluralist Ireland. It is far too suffused with Catholic social teaching, some have said, to be relevant for contemporary society. As Senator Regan stated, for a period during the 1980s, we even had a constitutional crusade, designed to make the Republic more palatable to those Unionists who were supposedly chomping at the bit for a united Ireland minus so-called "sectarian" elements of our Constitution. However, Unionists of various stripes had made it clear over the decades that their opposition to unification was far more deep-seated. The most intransigent Unionists are more socially conservative than any Irish politician. The notion of a more secular constitution being attractive to them was a ruse by liberals keen to get their legislative way with voters in the South.

Those arguments have passed and de Valera's Constitution, for the most part, still stands. Leading constitutional expert, Dr. Gerard Hogan, to whom the Minister rightly paid tribute, points out that it has only been amended 23 times in 70 years. Such stability is down to the fact that there is more to this document that the caricature of it would have us believe. At the time of its drafting, it was a remarkably advanced legal document. It limited the sphere of influence of government when the trend in Europe was heading in the opposite direction. Mussolini came to power in Italy in the 1920s while in Spain rival ideologies battled it out, each as totalitarian as the other in their ambition, in a vicious civil war that claimed 600,000 lives. Four years before the Constitution was drafted, Hitler came to power in Germany and in the Soviet Union, Stalin was imposing his own brand of tyranny. None of this was accidental because at a time of huge economic and social upheaval, many people were attracted to the notion of strong state influence. Over time, this would prove tyrannical in many ways. Thankfully, the drafters of the Constitution had set sail in a different direction by setting out the fundamental rights of the individual and ensuring no power — not even the State — could deny those rights.

Today, Ireland is top of the class in Europe when it comes to rulings by the European Court of Human Rights. There have been fewer rulings made against this State than any other European country. Articles 40 to 44 of the Constitution might provide an explanation because these provisions protect freedom of religion, freedom of the press, freedom of speech and family rights, among others. We can have recourse to our own courts before we need to go to Europe because we have these rights.

It is true that the Constitution reflected the Catholic values of its time. The preamble with its reference to "our Divine Lord, Jesus Christ", the inclusion of Article 44, which until the 1970s recognised the special position of Catholicism and the echoes of Catholic social teaching in its provisions on marriage, family life and education, were hardly surprising given that the majority of the population were practising Catholics. However, this Catholic influence can be overstated. Some church leaders wanted Catholicism to be made the official religion but de Valera would not agree. In the UK, lest it be forgotten, Anglicanism is still the state religion. In Norway, supposedly a bastion of liberal tolerance, Jesuit priests were banned until 1956. There are plenty of influences from Catholic social teaching, however, and these are not confined to the role of religion. The document's references to "inalienable and imprescriptible" rights reflect the influence of natural law principles, which although promoted with enthusiasm by the church are not the exclusive property of religious believers. Natural law thinking asserts that some rights exist ahead of man-made or positive law. The Constitution singles out the right to private property as such a right. It also states that the family possesses these rights.

I acknowledge natural law is not without its critics. Recent Irish Supreme Court rulings have not been kind to the idea. In 1995, when lawyers for the unborn argued that abortion information legislation went against the natural law basis of the Constitution, the Supreme Court replied that the people had voted for such legislation and they, not natural law, were the ultimate arbiters of the fundamental law of the State. However, it is wrong to forget the importance of natural law in several rulings which actually expanded the rights of Irish citizens. Prior to the 1960s, the courts did not recognise rights not explicitly set out in the Constitution. However, in 1965 the court concluded that such rights existed all along. The right to bodily integrity, said Mr. Justice Kenny, flowed from the Christian and democratic nature of the State. Over the years, this idea has been used to acknowledge other rights, including the right to strike, the right to communicate and the right to privacy.

Without natural law, citizens have to rely on positive or man-made law which leaves many in a perilous situation because they are dependent on the Legislature for rights which they ought to have by virtue of their dignity as human persons. The role of natural law might not be so obvious in Ireland of the early 21st century but contemporary events in Kenya show how people can turn on each other and how a majority of the population can trample on the rights of a minority if they are led by the wrong people. Natural law, which protests that there are some things that even man-made law or a majority of the voters can never make right, is the bulwark against chaos. The Constitution reminds those of us who serve in public life that we are not only obliged to follow what the people want but are also required on occasion to provide leadership in promoting the common good. The natural law of our Constitution offers similar leadership.

There has been criticism of Article 43.3 on the protection of the unborn and Article 41.3.1°, in which the State pledges to guard with special care the institution of marriage as the foundation of the family. These Articles and others, such as the former constitutional ban on divorce, have been used as a stick with which to advance the idea that the Constitution was a Catholic document for a Catholic people. However, while the Catholic nature of the State was undoubtedly influential in the formulation of the Constitution, it is not true to claim that the basis for ongoing protection of the unborn can be understood only in theological terms. These positions are based on rationality and those who continue to argue, for example, that protection for the unborn is of exclusive concern to people with religious faith are doing a disservice to the community.

We should not forget either the influence of democratic liberalism on the Constitution. The document mandates a balance between the Executive, the Judiciary and the Legislature, thereby ensuring that no single branch of Government has unlimited power. This was not revolutionary given that the United States and the United Kingdom had such arrangements in place for centuries but it was not guaranteed in the context of the trend in the 1930s towards increased State powers. Some officials in the Department of Justice objected to the idea that the Judiciary would have the final say on interpreting the Constitution because they worried that the Supreme Court could thereby restrict the actions of the Dáil. The provision remained, however.

Article 6 of the Constitution states that the people have the final say on "all questions of national policy". Article 46 makes this a reality by requiring that the Constitution can be amended only by a vote of the people. The 1922 Constitution, by contrast, could be amended at will by the Legislature. We see the limitations of that today in other EU countries when we consider that only Irish people will speak directly on the subject of their country's accession to the Lisbon Treaty. While I do not doubt the truth of what the Minister has said regarding the provisions in that treaty on fundamental rights, that is not the final word because we will probably have to consider what will happen if the competences of the European Union are interpreted by the Irish courts as being hostile to the natural law elements of the Constitution. We will have to reflect on that openly and truthfully.

In speaking about the constitutional crusade of the 1980s, the Minister appeared to suggest there was something regrettable about the introduction to Article 43.3 of protection of the unborn. We should never regard any debate by the people, however divisive, as undesirable. The debates that have taken place on that issue as a result of the requirement to put it to the people have contributed to a high level of maturity and awareness among Irish people, even if they have not always agreed on the correct policy. It is politically convenient for some to claim that Article 43.3 opened some kind of Pandora's box to the disadvantage of those who proposed it but we could also argue that it continues to guarantee a significant measure of protection for the unborn. If it had not been inserted by the people, it is reasonable to suggest that the provisions of 19th century legislation, which had fallen in Britain in the Bourne case, might similarly have fallen and been replaced by legislation which did not answer the precise and considered will of the people.

Throughout its 70-year history, the Constitution has enabled the people to speak in their own voices rather than be dictated to on issues that mattered. I am reminded of a story about Éamon de Valera on the first of two attempts by Fianna Fáil to get rid of proportional representation by means of a referendum of the people in 1959. The Dublin Opinion, or some other journal, carried a cartoon depicting de Valera the mathematician, complete with mortarboard, writing out the equation "FF minus PR equals infinity". Fianna Fáil was probably right in its surmise because, without proportional representation, the smaller parties would have lost out and the larger parties would have hoovered up the seats.