Dan Boyle (Green Party)

It is proper that the upper House takes this opportunity to mark the 70th anniversary of Bunreacht na hÉireann given that it is a creature of that document. We need to use this opportunity to examine in a positive and, in so far as we can, critical way the value of the basic law of the country. It is our second constitution since independence. A close debate took place on whether the Constitution should be adopted and a review of the numbers who were in favour of its ratification demonstrates that it certainly would not have got past a Green Party convention deciding on a party constitution. That said, it was ratified and as a document has served many valuable functions. Strangely, it is one of the oldest written constitutions in Europe. Our nearest neighbour, the United Kingdom, has no written constitution and most of the constitutions of the western European democracies date from after the Second World War. It even has been seen as a source document for constitutional law and was considered during the establishment of the Republic of India. It helped India to shape the manner in which it has become both the most populous democracy in the world and one of the most effective democracies in Asia. On those grounds, the Constitution's drafters can take a great deal of pride.

It has been presented very much as de Valera's Constitution and undoubtedly his personality informed it and brought it about. Recent research by Professor Dermot Keogh and Dr. Andrew McCarthy of University College Cork, however, placed four people into the proper historical context who have not been properly acknowledged in respect of drafting of the Constitution. It is important to mention them in this debate. Chief among them was John Hearne, the legal adviser to the then Department of External Affairs. The other drafters included Philip O'Donoghue, who was a legal assistant to the Attorney General, and Maurice Moynihan and Michael McDunphy of the then President of the Executive Council's department, which was the equivalent of the Department of the Taoiseach. Much of the subsequent debate on the Constitution has focused on the influence of the Catholic Church and of Archbishop John McQuaid in particular. As a creature of its time, however, Bunreacht na hÉireann can be seen to be a highly liberal document and the manner in which it has been interpreted subsequently by the Irish courts system shows that to be the case.

One difficulty with Bunreacht na hÉireann concerns its lack of a large number of specified rights. A number of particular rights are specified while, as Senator Mullen has noted, a large number are implied. Some rights have come about in the strangest of circumstances. For example, the right to bodily integrity came about as a result of a Supreme Court case in the 1960s taken by people who opposed the addition of fluoride to public water supplies. While that was not the point of taking the case, the principle emerged subsequently from the Supreme Court judgment. Furthermore, some specified rights require re-evaluation and reconsideration in respect of their position within modern Ireland. There has been a constant debate on the right to private property and how it has assisted widespread speculation and has not assisted the application of the recommendations of the Kenny report of 1972. Perhaps that is a constitutional matter which should be addressed.

The Irish Constitution lacks a specified section on a Bill of Rights such as can be found in other countries. Some of the arguments that Senator Mullen has just made may run counter to what I am about to argue. There should be an inclusion of specified rights in a future evolution of the Constitution. It is not good enough to depend on international documents such as European or United Nations standards on human rights or even the charter on fundamental rights that might come about as part of the Treaty of Lisbon. Our Constitution should define a list of basic fundamental rights that should be immediately apparent to our citizens. The difficulty when one begins so doing on an individual basis is that one encounters the sort of constitutional difficulties that Ireland has experienced since 1983 when tackling a particular matter. This should be done in a broad sense and not by interfering with the Constitution item by item. Otherwise matters should be left as they stand.

I also seek Bunreacht na hÉireann's evolution to bring about a more participative democracy. It describes the political institutions of the State and apart from numbers of Members of Dáil Éireann and reducing the voting age to 18, there have been few changes since 1937. The required debate in respect of Seanad reform is highly appropriate in this regard. One of the strange points of genesis of the Seanad's present form was the adaptation of a political philosophy and political structures that operated in Portugal in the 1930s, which was far from the best example of democracy at the time. The idea of corporatism, what it then represented and what it can represent in 21st century Ireland, must be changed if Members wish to bring about a more active and participative democracy.

Members should consider issues such as the age at which people become politically active, if not the voting age itself. I have often found it strange that since the voting age was reduced, people are allowed to vote for Members of the Dáil and Seanad but are not entitled to be voted on to become Members. Such anomalies, which have been created since the Constitution's original enactment, probably should be tackled. The Oireachtas has been fortunate to have a highly active committee that has produced eight reports to date on the Constitution, many recommendations of which have been acted on. As a Member of the present Seanad, I serve as a member of the current committee and I wish to see it operate, as is mentioned in the programme for Government, in order that elements of constitutional change that are uncontentious and that bring us toward being a more open, democratic and modern democracy can come about in future. Although the Constitution is a valuable document that should be left intact in so far as is possible, it also is an evolving document and Members' role as legislators is to engage in a constant debate with one another and with the people and citizens of Ireland to ensure it is the best Constitution possible.