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Irish Constitutional Law

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Irish Constitutional Law 1 ERASMUS SUMMER SCHOOL MADRID 2011 IRISH CONSTITUTIONAL LAW Martin Kearns Barrister at Law Historical Introduction The Treaty of December 6, 1921 was the foundation stone of an independent Ireland under the terms of which the Irish Free State was granted the status of a self-governing dominion, like Australia, Canada, New Zealand and South Africa. Although the Constitution of the Ireland ushered in virtually total independence in the eyes of many it had been imposed by Britain through the Anglo Irish Treaty. 1 The Irish Constitution of 1922 was the first new Constitution following independence from Britain but by 1936 it had been purged of controversial symbols and external associations by the Fianna Faíl Government which had come to power in 1932.2 The Constitution of Ireland replaced the Constitution of the Irish Free State which had been in effect since the independence of the Free State from the United Kingdom on 6 December 1922. The motivation of the new Constitution was mainly to put an Irish stamp on the Constitution of the Free State whose institutions Fianna Faíl had boycotted up to 1926. 1 Signed in London on 6 December 1921. 2 e.g. under Article 17 every member of the Oireachtas had to take an oath of allegiance, swearing true faith and allegiance to the Constitution and fidelity to the Monarch; the representative of the King known as the Governor General etc. 2 Bunreacht na hÉireann an overview The official text of the constitution consists of a Preamble and fifty articles arranged under sixteen headings. Its overall length is approximately 16,000 words. The headings are: 1. The Nation (1–3) 2. The State (4–11) 3. The President (12–14) 4. The National Parliament (15–27) 5. The Government (28) 6. International Relations (29) 7. The Attorney General (30) 8. The Council of State (31–32) 9. The Comptroller and Auditor General (33) 10. The Courts (34–37) 11. Trial of Offences (38–39) 12. Fundamental Rights (40–44) 13. Directive Principles of Social Policy (45) 14. Amendment of the Constitution (46) 15. The Referendum (47) 16. Repeal of Constitution of Saorstát Éireann and Continuance of Laws (48–50) Bunreacht na hÉireann was approved by the people and came into force on December 29, 1937 The 1922 Constitution (Article 1) had opened with a statement of the Free State’s Commonwealth membership; but while the new post 1937 state was still a member of the Commonwealth this was not referred to in the Constitution. All symbols of Commonwealth were removed from the Constitution. In place of the Governor General a President was to be the head of State for internal purposes. The 1937 Constitution has a superior structure to its predecessor. There is a clear section headed fundamental rights. New material included Article 29 (international relations), Article 41 (the family), Article 42 (education) and Article 43 (property rights). The new Constitution is declamatory in tone and contains aspirations and objectives e.g. Article 29.1.2° on international relations, as opposed to that of 1922. The tone is also much more religious with the preamble making references to the "the Most Holy Trinity" and "our Divine Lord, Jesus Christ." Article 44.1 (religion) had no counterpart in the previous constitution. However there is a considerable amount of continuity between the two documents. Many of the 1937 provisions are broadly similar in terms to those of the 1922 Constitution e.g. provisions on the Courts (Articles 34-36) and on the Daíl (Article 16). And some of Bunreacht na hÉireann’s new material came from pre-existing statutes. 3 The Oireachtas established under the 1937 Constitution is a bicameral legislature, but the balance is tipped much more firmly in favour of the Dáil. Processes of change since 1937 Article 46.1 provides: “Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal….” The amending power has been successfully invoked on twenty eight occasions to date.3 The major changes, however, affected the courts. For instances Article 26.2.2° and 34.4.5° stipulate that in cases involving the constitutionality of Bills under Article 26, or Acts under Article 34, the Supreme Court must deliver only one opinion. Overall, however, it can be said that the amendments go to matters of detail, and that the basic structure erected in 1937 remains in place. 4 The impact of judicial review Judicial review was initially slow to take off. But form the 1960s it began to flourish and it has lead to a heightened awareness of citizens' rights and of the Constitution's role in diffusing and restricting power. Perhaps the most important development has been the judicial recognition that the Constitution protects rights that are not specifically set forth therein. The courts have come to play a vital role in enforcing constitutional mandates but they have not usurped the function of the Executive. 5 For instance in Norris v. Att. Gen. [1984] I.R. refused to widen the right of privacy so as to invalidate nineteenth-century statutes that criminalised homosexual activity between consenting adult males in private. Despite the importance of their role under the Constitution, the courts still play a subordinate role in the making of policy for a changing society. While the courts may invalidate existing legislation, they cannot enact it. 3 Four relate to membership of the European Communities, three to abortion, and three to electoral matters. Others cover diverse matters such as adoption, bail, the 1998 British/Irish agreement and government confidentiality, divorce and religion. 4 Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. 5 See below under Judicial Power. 4 The People, the Nation and the State “The State” would seem to mean the political entity created by the Constitution. But “the State” is not merely an abstract concept. It has a geographical dimension too which arguably makes it equivalent in meaning to “country”, for the President many not leave “the State” without the Government’s consent (Article 12.9). The expression “Republic of Ireland” finds no place in the Constitution. There has been some confusion over what is the correct name for the State in the Constitution. In Ellis v. O'Dea [1989] I.R. 530 the Irish Supreme Court expressed its disapproval of the fact that extradition warrants from UK courts regularly named the State “Éire”. And a majority of the court indicated that such warrants should not be endorsed by the Irish police, but should be returned whence they came for rectification. The Constitution review group in May 1996 reported that Article 4 was unnecessarily complicated and should be amended to read: Éire is ainm don Stát. The name of the State is Ireland. Article 2 and Article 3 Were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment which took effect on 2 December 1999. As amended they grant the right to be “part of the Irish Nation” to all of those born on the island of Ireland and express a desire for the peaceful political unification of the island subject to the consent of the people of Northern Ireland. Before 1999, Articles 2 and 3 made the claim that the whole island formed one “national territory”. Prior to 1999 Article 2 and 3 reads as follows: Article 2 “The national territory consists of the whole island of Ireland, its islands and the territorial seas.” Article 3 “Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by this constitution to exercise jurisdiction over the whole territory, the laws enacted by the parliament shall have the like area and extent of application as the laws of Saorstat Éireann and the like extra-territorial effect.” 5 History 6 The drafters of Bunreacht na hÉireann considered the partition of Ireland under the 1922 Anglo-Irish Treaty illegitimate. They desired the new constitution to proclaim the existence of a single “Irish nation”, and the theoretical right of the state to encompass the whole island, while for reasons of pragmatism recognising the de facto reality of partition. What emerged in 1937 was a delicately worded legal balancing act. The Constitution refers to two separate entities: a nation , encompassing the whole island of Ireland, and a state , extending, for the time being, only to the twenty-six counties of the 'South'. In its 1937 form, Article 2 described the island of Ireland as the “national territory”. Article 3, however, stated that the laws of the southern state would apply only to the South. The purpose of Article 3 was to clarify that Article 2 was intended largely as a kind of declaration, rather than as a provision that would have actual force of law. Current version Ireland was bound by the terms of the 1998 Good Friday (Belfast) Agreement to submit Articles 2 and 3 to amendment by referendum. To this end, the Nineteenth Amendment of the Constitution was adopted in June of the same year. The new wording describes the Irish nation as a community of individuals with a “common identity” rather than as a “territory”, and is intended to reassure unionists that a united Ireland will not come about without a majority of the Northern Ireland electorate declaring in favour of such a move.
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