Seanad debates

Wednesday, 30 January 2008

The 70th Anniversary of the Constitution: Statements

 

4:00 pm

Photo of Donie CassidyDonie Cassidy (Fianna Fail)
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I propose that Senators' contributions be limited to ten minutes.

Photo of Paddy BurkePaddy Burke (Fine Gael)
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Is that agreed? Agreed.

Photo of Donie CassidyDonie Cassidy (Fianna Fail)
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The Constitution, which was 70 years old on 29 December last, is one of the oldest written constitutions in Europe. "Few things have shaped and controlled Irish political and legal culture as decisively as the Constitution of Ireland." So writes the eminent Professor Gerard Hogan in the foreword to a remarkable, new documentary study on the Constitution by Dermot Keogh and Andrew McCarthy.

Few could have foreseen, with the coming into force of the Constitution, that this document would survive largely intact into the very different Ireland of today. Our Constitution has stood the test of time. While there have been amendments relating to matters such as the unborn child, divorce, voting rights, the European Union, citizenship and Northern Ireland, the very fact of these amendments demonstrates one of the most powerful features of the Constitution, namely, the people's right to charter the destiny of the nation.

Much of the case for a new constitution to replace the Free State Constitution was the need to make perfectly clear that the source of authority in Ireland is the people. Hence the preamble states: "We, the people of Éire ... do hereby adopt, enact, and give to ourselves this Constitution." Article 6 states: "All powers of government ... derive, under God, from the people". With Bunreacht na hÉireann, there was a desire to give the State all the characteristics of a republic and remove references to the British monarchy. The enduring effect of these provisions, however, has been to entrench the rights of the citizen as against the State and, as I indicated, the right of the people to charter its destiny.

In the European Union puzzlement is sometimes expressed about the reason Ireland holds referendums with relative frequency. With the forthcoming referendum on the Lisbon treaty, we will hear much more in this respect. However, the referendum on the treaty underscores the dynamic and democratic nature of Bunreacht na hÉireann.

A conference held in Trinity College last year to mark the 70th anniversary of the drafting of the Constitution demonstrated the influential nature of the Constitution, which affects many aspects of daily life, from religion to education and the criminal justice system. In future years, the Constitution will be pivotal in enabling Irish law and policy to accommodate difference in society and help realise human dignity.

It is a sign of the sophistication of the legal order that when the European Convention on Human Rights was embedded in our law through an Act of the Oireachtas in 2003 the change did not cause upheaval. Our judges and lawyers were already well versed in human rights principles. By contrast, the incorporation of the convention constituted a sea change in the United Kingdom.

Bunreacht na hÉireann has not only been an influential document in Ireland; its influence is much wider. Much of the Pakistan Constitution and some of the Indian Constitution were modelled on the Irish Constitution, which is also well known to the constitutional architects in South Africa. In recent years, it has been a much studied document in the newer eastern European democracies.

The stability and relative success of the Constitution is a testament to those who drafted and interpreted it. Its creator, Éamon de Valera, was lucky in terms of the quality of his civil servants and his judges and had the foresight to choose a talented drafting team led by the remarkable Mr. John Hearne, the then legal adviser at the Department of Foreign Affairs. As well as being a skilled draftsman, Hearne had an unrivalled knowledge of comparative constitutional law and international law. He and his drafting team transcended the limitations of their times and helped to infuse the document with balance and basic humanity.

Criticisms were made at the time that, in the area of personal rights, the new Constitution did not extend fundamentally the rights contained in the 1922 Constitution. Article 40 listed some new rights, however, and included an open-ended reference to the rights of mankind. This article, in the way it has been interpreted by judges, has probably proved to be the most radical part of the Constitution and the volume of constitutional litigation concerning it is a sign of its strength.

One area of the Constitution which has been neglected is Article 45 on the directive principles of social policy. These broad principles are intended for the guidance of the Legislature and are not enforceable in the courts. One can understand the reason there was a fear during the early years of the State about making social and economic rights fully enforceable. Nevertheless, the people believed sufficiently in these principles to make them part of the Constitution. Today, in a time of greater prosperity we would do well to remind ourselves of these principles. It surely must be correct, for example, that limitations be placed on the free market in the interest of the common good and that the State should protect the vulnerable.

As with the European Convention on Human Rights, the Constitution can co-exist very well with international instruments, including European instruments. This is a matter for the future, however. For now, it is important to recount Éamon de Valera's achievement in 1937. Apart from the current Taoiseach, Deputy Bertie Ahern, he was the only other Taoiseach to win three general election victories in a row. His achievements in 1937 were to find a drafting team to transcend the limitations of their day and courageously hold a referendum on the Constitution. The end product was a living document which contributed much to the stability of the State.

Photo of Eugene ReganEugene Regan (Fine Gael)
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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.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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I congratulate Seanad Éireann on having a debate on the anniversary of the Constitution. It came into operation on 29 December 1937 and while this debate did not take place in the calendar year of 2007, it has taken place within a few weeks of the anniversary of the Constitution's commencement.

I join Senator Cassidy in paying tribute to Professor Keogh on his magnificent work describing the origins of the Constitution and the work of the drafters who produced the final text and who assisted the then President of the Executive Council, Mr. de Valera, in its preparation. I also pay tribute to Professor Gerard Hogan, who in a masterly analysis of the Constitution and its origins made the point that Mr. de Valera was of course one of the outstanding liberals of his generation.

Senator Regan finds it very difficult to avoid being contentious in this House but I note that when the Constitution was introduced in 1937 it was the only written constitution in Europe which made express reference to the existence of the Jewish congregations. In the course of making a criticism about the former provision recognising different religious faiths, Article 44, Senator Regan should have noticed the express reference to the existence of the Jewish congregations in Ireland. A former Chief Rabbi made the point that at the time it was a far greater assurance to the Jewish congregations of Ireland to be mentioned in the Constitution than to be given the kind of abstract guarantees of freedom they were conferred with in constitutions such as the Soviet constitution of 1936. This is an example of the essential liberalism of Mr. de Valera in the original text of the Constitution.

I take issue with the rather hackneyed presentation by Senator Regan about the contrast between some modern crusading era inaugurated by Dr. FitzGerald and the original text. Dr. Fitzgerald has many achievements to his credit, including the Anglo-Irish Agreement of 1986, but a permanent imprint on the text of the Constitution is not among them because that particular crusade, like some crusades before it, ended in the sands.

Photo of Eugene ReganEugene Regan (Fine Gael)
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All the amendments are based on that crusade.

5:00 pm

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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We do not know what that crusade was about. It was followed by a pro-life amendment. We really do not want to go there.

The Constitution was put in place in 1937. As Senator Regan fairly notes, it has been amended many times since but it embodies certain features which have assured it has endured. I agree with the proposition that the Constitution re-bottled some wine and built on the work of the Free State Constitution and the earlier Home Rule Bills going back to the first Home Rule Bill introduced by Mr. Gladstone in 1886. However, there is one fundamental feature which distinguishes the 1937 Constitution from all previous proposals for the Government of at least this part of Ireland, namely, for the first time it confirmed in an unequivocal way the national sovereignty of the Irish people in this part of Ireland. The 1922 Constitution was annexed to a United Kingdom Act of Parliament whereas the 1937 Constitution was not considered or enacted in that assembly.

When Senator Regan referred to Mr. Lemass and his famous comment of 1927 that Fianna Fáil was a slightly constitutional party although it was open to the definition of being a republican party, he was of course referring to the conditions under which his party believed it had to operate under the 1922 arrangement. It was decided in 1937 to go back to the people and have a clear unequivocal root of title for the Constitution, and this was achieved. One of Senator Regan's most illustrious predecessors on the Fine Gael benches in this House, Senator Alexis Fitzgerald, made that point in a very fine obituary of Mr. de Valera published in 1976, when he noted that one of Mr. de Valera's greatest achievements was to lead that unconstitutional band into the constitutional light of day.

That was his achievement in 1937. The question is whether this transcended a party achievement and became an achievement for the nation and the State. When the plebiscite took place in 1937, there was a majority for the Constitution but it was far from a decisive one. To be accepted by a people a constitution must have widespread acceptance and it is not sufficient that it should have simply the acceptance of one party or another in a mechanical voting exercise. The question on which we must reflect seven decades on is whether that text — that text as amended, as Senator Regan points out — has managed to provide an enduring basis for the Irish polity. I suggest it has.

The first feature of the Constitution that achieved this was the question of national sovereignty and the fact this was clearly and unequivocally vested in the people for the first time. It is true that the 1937 Constitution contained some rhetorical flourishes, not all of which would be in accordance with popular thinking today. That said, it is important that a people is entitled to make such rhetorical flourishes, which was a right denied to the Irish people for many centuries.

The Constitution of 1937 secured popular acceptance in the decades that followed, the degree of which is illustrated by the fact it was not necessary to amend the Constitution, after the initial transitional amending period, until 1972. For more than three decades there was no popular demand to amend the Constitution and the only proposal to amend it in that era, which was brought forward by my own political interest, was the proposal to abolish the system of proportional representation. This was something which the people in their wisdom or lack of wisdom decided to reject, a decision which certainly gave the people more authority and certainly made the politicians work harder. As to whether it produced a better system of government, future generations of political scientists will have to decide.

A further feature of the Constitution is that it settled the national question where this part of Ireland is concerned. It is interesting that when in 1992 the Downing Street Declaration, which is the basis of the modern peaceful arrangement in both parts of Ireland, was formulated, it was felt necessary in the first instance to affirm the right of self-determination of all of Ireland, albeit that it must be exercised in two parts. This reflected the thinking in Articles 1, 2 and 3 of the Constitution. Articles 2 and 3 were modified by vote of the people but thank God we had them to negotiate with when the Good Friday Agreement came to be negotiated, and that they had not been abandoned in some kind of crusade. They proved very valuable in the discussions that took place on the Agreement. The Irish people were able to reformulate their aspirations in the context of a comprehensive settlement of the Northern question, which has now been brought about.

I do not want to dwell too long on those issues. I wish to draw attention to a second feature of the Constitution, the question of popular sovereignty, with which I believe all of us agree but about which I wish to raise certain questions. The Constitution of course confirms our sovereignty as a nation but it also vests that sovereignty in the people, who are entitled to exercise the franchise in the State. De Valera himself said when he presented the draft to Dáil Éireann in 1937, "If there is one thing more than another that is clear and shining through this whole Constitution, it is the fact that the people are the masters." There is no doubt the Constitution embodies that principle to a unique degree.

There is the principle that the Constitution is vested in the people and can be changed only by amendment by popular plebiscite in a referendum, which establishes a rigidity within it. One cannot, as in some constitutions, amend it by universal agreement of the Houses or by some special majority in both Houses. One must have a referendum on every word, comma and full stop contained in it, which has been our arrangement since 1937, or rather since 1942 when the transitional period for amendments elapsed. This is not the practice in any other European state, as we know from the course of the current referendum on the Lisbon Treaty. It is the practice in some, though not all, jurisdictions in the United States to have frequent referenda and, of course, there is one other European state, not a member of the European Union, which has frequent recourse to the referendum, Switzerland.

There is another view, of course, which is that the people express their authority through their elected representatives. That view is accepted in the French Republic and in such states there is far less ready recourse to the device of a referendum. The idea of popular authority is also embodied in the President who is the ceremonial expression of that popular authority. As Senator Regan pointed out, the President has a valuable power in ensuring that the Legislature does not trespass on the rights of the people, preventing it from doing so in the first place by having recourse to a Supreme Court opinion. Equally, the courts preserve the rights of the people in their interpretation of the Constitution. There is, therefore, a strong emphasis on popular authority in the Constitution as well as on national sovereignty. That theory of popular authority runs right through the Constitution. I will not dwell on the political institutions, which we talk about often enough. Our presidents have served us with great distinction and the creation of that office in the Constitution was a valuable step. One can see the idea of popular authority shining through the provisions.

In most European states the election of a ceremonial head of state is unusual. Normally a head of state is elected by Parliament in a special procedure. I am subject to correction but I think Iceland is the only other European country that elects a president. However, some of the new central and east European states, which have unshackled themselves from the Soviet system, may have a similar arrangement. Nonetheless, that arrangement is an unusual one and contributes to a certain unreality in the presidential election. Senator Harris, who is present, can talk about presidential elections with greater authority than most. However, it seems to me that such an arrangement reduces the candidates in a presidential election to promise to do all sorts of things in the presidential palace.

The Icelandic Prime Minister told me that in a recent presidential election one of the main issues was whether the cellar in the presidential palace would be opened up to voters. There is a difficulty in that because if the president does not have executive powers a presidential election can of necessity become a beauty contest. It is important, however, that the President should be elected because it means that people are personified in some way in the State through the person who transmits the seals of office and can safeguard the public interest concerning legislation.

The courts are a public institution of the State, not a party political one. One of the key features of the courts, as established in the Constitution, is that they are given express powers to review legislation. The earlier United States constitution, on which many of the provisions of our Constitution were modelled, did not have an express power for judicial review. Chief Justice Marshall identified that power as being in the constitution and it was expressly conferred in our Constitution. It has been exercised frequently since 1937.

As regards exercising powers of judicial review, it is important to bear in mind that Ireland is a common law jurisdiction. Many continental jurisdictions have constitutions with fine-sounding statements about rights but their legal systems are not strong in vindicating and enforcing such rights. One of the great strengths of the common law has been its emphasis on remedies rather than rights, including the fact that the individual plaintiff can sue for damages, obtain an injunction, obtain an order for contempt of court when a court order has not been enforced, or attach a company for sequestration of its assets when it is not in compliance with a court order. The common law therefore developed a powerful battery of remedies for the enforcement of rights. If that is combined with a constitution that declares abstract rights, one confers great judicial powers.

In many jurisdictions of continental Europe there are many fine declarations of abstract rights. The French constitution, for example, contains the declarations of the rights of the citizen, which was made during the great revolution there. However, the French constitution does not contain a system for the enforcement of these rights. In fact, the French constitutional court is dependent on a reference from the president or some other court to arrive at a determination. Likewise, the German system has a constitutional court. Individuals have far greater access to that court but there must still be an element of reference from another body.

In our system, by contrast, the High Court is vested with full and original jurisdiction to determine all matters whether of law or fact and the individual has a right to invoke that jurisdiction to enforce individual constitutional provisions. That is a powerful protection for the individual, leaving aside how the rights are formulated or expressed. How far it can extend was illustrated in the proceedings brought by Raymond Crotty against the Single European Act. Senator Regan also instanced the case of electoral legislation and the insistence on equality of representation in the delimitation of constituency boundaries. There have been many other examples but I will not recite them all. The most fundamental one of all, however, is the case of Byrne v. Ireland in which the Supreme Court decided that the State was a juristic person subject to its own laws and accountable to its own citizens before the courts. That was a fundamental decision.

I agree that the Constitution was enacted in a context when the courts did not have these powers. While the 1922 Constitution had envisaged the development of judicial review it never came into being because of the troubled circumstances of the time. Therefore there was no effective power of judicial review. Many judges of that generation had grown up in the late 19th century where it was axiomatic that Parliament was sovereign. The idea of a sovereign court deriving power directly from the people and reviewing their charter was not congenial to them. That changed in the years following the enactment of the Constitution. Lawyers are slower to change their habits than other professions but eventually the lawyers and judges did change. Men like Judge Gavan Duffy, Mr. Justice Walsh and Chief Justice Ó Dalaigh developed the courts and gave a dynamic interpretation to the Constitution. Both Seán Lemass and Éamon de Valera were on record at the time as welcoming that development. They welcomed the fact that the Irish Supreme Court modelled itself on the United States Supreme Court.

Fundamental rights provisions are an important element of the Constitution. In 1937, the formulation of fundamental rights in a constitution was common. I have already mentioned the Soviet constitution of 1936, which guaranteed fundamental rights but of course that was illusory given the character of the state in question. We arrived at a different conclusion as a result of the formulation of those rights but it does raise a difficulty. I discussed that difficulty in this House some years ago when I was acting as Minister of State in this Department in the debate on the European Convention on Human Rights Act 2003. There is a difficult question of how one harmonises the recognition of fundamental rights in our Constitution with the recognition of fundamental rights under the European Convention and the Community legal order. This is an aspect of the debate on the Lisbon treaty which will be very important.

In 1972, we joined the European Communities, as they were then called, and the people voted on the necessary constitutional amendment to permit the State to become a member of the European Communities. At that time, a provision was inserted into the Constitution providing that the State was authorised to be a member of those Communities and that any acts done, measures taken or obligations necessitated by the obligations of membership of those Communities would be immune from our Constitution. That has been the legal position since 1972. Matters pertaining to the Community legal order are determined by the European Court of Justice in Luxembourg. A separate legal order exists side by side with our Constitution as envisaged first in the Rome treaties and latterly in the Maastricht and Amsterdam treaties.

The Lisbon treaty — a consolidating and codifying document — purports to put that whole arrangement on a final footing. While we will have a debate on this matter in the next few months, it is important to make an important preliminary point. For the first time the Community legal order will have its own fundamental rights guarantees — not ones that will entrench on our legal order but fundamental guarantees with the Community legal order. That is a desirable development. In effect, in 1972, we gave a blank cheque in legal terms to the European legal order. Our legislators and Ministers have worked to lobby and secure the best possible arrangements for Ireland but the Community legal order as a whole has not been ring-fenced by the idea of fundamental or individual rights. It will be ring-fenced with concepts of such rights in the Lisbon treaty. These rights are carefully drafted and formulated so as not to entrench on the domestic fundamental rights guaranteed in our Constitution. Essentially, we are witnessing in the Lisbon treaty the establishment of a treaty of union at European level that resembles the constitutional order with which we have been familiar in our jurisdiction. That is a welcome development, which should be supported. I fear it is open to misrepresentation and people will suggest it has something to do with the fundamental rights clauses in our Constitution, whereas it is concerned with the competences we have conferred on the European Union. Its purpose is to ensure that such competences are subject to a regime of fundamental rights in the same way as the competences, that we as a national Parliament and Government exercise, are also subject to a regime of fundamental rights. It is important that the competences of the Union should be subject to a similar arrangement.

Professors Keogh and Hogan were mentioned and I refer to the question of the status of the texts of the Constitution, which was enacted in the Irish text as well as the English text. Both texts are authentic and both are texts of the Constitution. On occasion, it is said the Irish text is the sole text of the Constitution but that is not correct, as the Constitution was published in both texts. Both texts are official and authentic. The Irish text is enrolled in the original cló gaelach and subsequent amendments to the Constitution have been so enrolled. If there is a conflict, the Irish text prevails.

Micheál Ó Cearúil conducted an excellent study for the All-Party Committee on the Constitution, when I was its chairman, and he explored the implications of the Irish text. One of the most interesting features was that the text was not drafted as a translation of the English text. Rather Mr. de Valera assembled a separate collection of translators who worked through the text in tandem with the evolution of the English version. As a result, the Irish translation is a free rather than a literal translation of the Constitution and this has led to discrepancies between the two texts. The Constitution itself provides that in the case of such a discrepancy the Irish text should prevail. However, the courts have rarely found a discrepancy and they have sought to harmonise the text. Both texts, therefore, have served to illustrate each other.

I refer to the question of whether the separation of powers envisaged in the Constitution is true and in fact. Clearly, the people have the supreme authority under the Constitution but it then goes on to envisage that the people have ordained that there should be three separate powers — legislative, executive and judicial. While the judicial arm of Government is independent and its independent sphere of operation is carefully safeguarded by the Constitution, the political institutions of Parliament and the Government are interdependent under it. The Government is accountable to Dáil Éireann and Seanad Éireann advises and assists Dáil Éireann on legislation but these institutions are related to each other. It was admitted by de Valera that he considered in 1937 introducing an American style government in which the President or the Taoiseach, as President, would exercise more executive power and Parliament would be a separate body but he reflected upon it and declined to do it because he believed in the importance of individual responsibility of Ministers to the House. He was correct in that judgment. It is important that Ministers should be individually accountable to Parliament as well as collectively accountable as a Government. That was the effect of that decision on the drafting of the Constitution.

I commend the Seanad on having this worthwhile debate. I have referred to the past and I have examined essential features of the Constitution. Looking to the future, the greatest issue relating to the Constitution is the sheer volume of judicial interpretation placed upon it. The late John Kelly made the point that it was never envisaged by the drafters that the document would go through the minute exegesis it has gone through in the courts. As a result, we have thousands of judicial decisions giving precise interpretations of different clauses, subclauses and paragraphs of the Constitution. That can put a substantial fetter on the capacity of these Houses to legislate as they might please. I do not envy the Parliamentary Counsel who advises on legislation because clearly the range of constitutional interpretation must be taken into account in the formulation of legislation.

However, the fundamental issue relating to the institution of judicial review is how far the courts go in the interpretation of the Constitution. Reference was made to the fact that in 1965 the courts decided there were implied rights in the Constitution as well as those expressed therein. Once an implied right is recognised, the courts have substantial power to develop implied rights and to read into the Constitution many matters not thought to be within its province. It is welcome that recent Supreme Court decisions clearly recognise judicial self-restraint in social and economic matters. In a number of decisions over the past decade the court has reaffirmed that it is for us in the Oireachtas to determine issues relating to the allocation of resources. The judgments on social and economic matters must be made by us, as legislators, in the Oireachtas and not litigated in the courts. It is clear the Supreme Court has developed that doctrine in recent years, which I welcome, because the reality is that a social problem examined from an administrative and legislative point of view can be tackled from that point of view but a social problem litigated in the Four Courts will not always be litigated to a correct conclusion in terms of the broader interest of the people. That is my view on judicial review but others may have different views. I do not speak on behalf of the Government in that regard but I thank Senators for their contributions to date and I look forward to the rest of the debate.

Photo of Rónán MullenRónán Mullen (Independent)
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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.

Photo of Brian Lenihan JnrBrian Lenihan Jnr (Dublin West, Fianna Fail)
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We have not done too badly with proportional representation.

Photo of Rónán MullenRónán Mullen (Independent)
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They never got to prove the equation because the deletion of proportional representation was twice proposed in an amendment to the Constitution and twice the people said "no". De Valera may not have realised in 1938 that the Irish people would use Bunreacht na hÉireann to frustrate his wishes concerning the voting system but that does not lessen his achievement in putting the document before us as a wonderful piece of constitutional history on a worldwide scale and an enduring and valuable legacy to the Irish people.

Photo of Dan BoyleDan Boyle (Green Party)
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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.

Photo of Eoghan HarrisEoghan Harris (Independent)
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I had not intended to make a contribution until I heard the extraordinary and lucid exchanges between Senator Regan's fine exegesis on the background to the Constitution and the Minister's subsequent response. It is not often that one is unwilling to leave the Chamber. While I had planned to attend to more urgent business in my office, as I listened to them I realised there was nothing better on the box, so to speak. On a day on which the Oireachtas concerns itself with what I believe future historians will consider to be no more than a hill of beans — I refer to the fallout from the Mahon tribunal — it is good to be reminded of the great mountains of our democracy. During the Minister's exceptional tour de force on the historical, legislative and political aspects of the Irish Constitution, I shared Senator Rónán Mullen's urge and felt the same twitch in my fingers to take notes because he opened my eyes. Having grown up with John M. Kelly's marvellous work on the Irish Constitution, I had believed that I knew a little about the subject but I discovered the limits of my ignorance.

This has prompted me to mention my recollection of reading the great conservative historian, Michael Oakeshott. Shortly after the enactment of the Irish Constitution he undertook a comparative study of all European constitutions and considered the former to be the most perfect of them in its attempt to achieve social and political harmony at a very difficult time. The aspect of the Irish Constitution that I like, about which the Minister has reminded Members, is its modesty. Unlike the great prescriptive constitutions such as the French revolutionary injunction to liberty, equality and fraternity or the American constitution's injunction to life, liberty and the pursuit of happiness, the Irish Constitution does not tell its citizens to do anything. It has no prescriptions for a happy and better life. It simply tells them modestly how they might live with one another in a body politic. This was a tremendous achievement. Senator Regan correctly demonstrated its origins in the Free State constitution, to which the Minister rightly paid tribute, as well as reminding Members that its origins went further back into the great home rule parliamentary tradition and to British common law.

One of the Irish Constitution's fine points is that it breathes the Christian and Graeco-Roman tradition. It is deeply informed by the Greek spirit of liberty, the Roman respect for laws and the Christian notion of social justice and harmony. We should applaud the fact that such a Christian document is so capable of serving in such secular times. We are very lucky because, whatever today's contributions lacked in quantity, they certainly made up for it in quality.