Maurice Cummins (Fine Gael)

I welcome the Minister of State, Deputy Pat Carey, to the House. The 1937 Constitution is undoubtedly an important and enduring document. We have been talking about its role in Irish politics, but it is not enough to consider it in isolation. We must consider the circumstances of its creation and endurance in the context of other comparable countries. The Irish Constitution has been used as an example by other fledgling or transitional states which were seeking a measure of higher law that is balanced, robust and durable. It is well known that the Irish Free State Constitution of 1922 was a progressive, liberal and secular document. It was drafted during a period of turmoil, not just in Irish politics but across the wider European political front. New countries, with new boundaries and forms of governance, were being formed across Europe at that time. The new constitutions which were being drafted were based on idealism. Old institutions and sources of power were being shaken off. The Austrian Constitution of 1920, the Weimar Constitution of 1919 and the Irish Free State Constitution of 1922 were drawn up as part of the liberal and secular break from the institutional and colonial past.

While the 1922 Constitution was drawn up during a period of international idealism and liberalism, the 1937 Constitution was written during a period of comparative international conservatism, when the retrenchment of individual rights and liberal philosophy was felt by all. Thanks to the skill of its drafters, Bunreacht na hÉireann, uniquely among similar documents of that era, is a flexible and progressive document. It has served us well for 70 years. Great credit for its success must be attributed to those who drafted the Constitution. They were led by a remarkable Waterford man, John Hearne, who was the legal adviser to the then Department of External Affairs. In their recently published The Making of the Irish Constitution 1937, Professor Dermot Keogh and Dr. Andrew McCarthy noted that the drafting team transcended the limitations of their times and helped to infuse the document with balance and basic humanity.

Dr. Gerard Hogan, who is an expert on constitutional law, described John Hearne recently in The Irish Times as not only a "skilled drafter" of some repute, but also as having "an unrivalled knowledge of comparative constitutional law and international law". When Senator Cassidy spoke at the beginning of this debate last week, he used the same quotation from Dr. Hogan's fine piece in The Irish Times. Fianna Fáil would do well to carefully and properly give credit to those who drafted the Constitution. The importance of the role played by John Hearne and his drafting team, as well as the jurists who influenced them including the Chief Justice of the time, Hugh Kennedy, and others like Mr. Justice Gavan Duffy and Mr. Justice Kingsmill-Moore, is often overlooked in the fervour of party politics and historical legacy. It is time for us to express, on the record of the Seanad, the gratitude of the Irish people for the care, skill and ingenuity employed by Mr. Hearne and his team in drafting the Constitution. While posthumous acknowledgment is belated, it is essential in this case if we are to recognise the fine work that was done. It also serves as a means of expressing implicitly our appreciation of the fine drafters of today, without whose skill and commitment this country would surely be worse off.

The Constitution has served us well. The various amendments which have been made to it over the decades reflect the change from an authoritarian and, in many ways, closed society to the more open Ireland of today. The various EU treaties which have been accepted in constitutional referendums have contributed to these changes. The most innovative aspect of the Constitution is that it is rigid — a referendum is required if it is to be changed in any way. I do not think any democrat will object to the necessity for a vote of the people of Ireland from time to time.

I commend Senator Harris, who referred to the killings of Mr. Paul Quinn and Mr. Robert McCartney and the threat posed by the Real IRA. I hope the change in people's attitudes, which is helping them to co-operate with and trust the police forces on either side of the Border, will bring an end to the culture of omerta that has been prevalent for far too long. I hope such changes will help to crush the Real IRA, which is threatening the institutions of this State as created by the 1937 Constitution.