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Fortnight Publications Ltd.
A Constitution for Ireland?Author(s): Mary RobinsonSource: Fortnight, No. 35 (Mar. 8, 1972), pp. 5-6Published by: Fortnight Publications Ltd.Stable URL: http://www.jstor.org/stable/25543973 .
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FORTNIGHT 5
A CONSTITUTION
FOR IRELAND? Mary Robinson.
One feels a sense of annoyance, of
unreality in putting pen to paper to devise a possible Constitution for the island of Ireland. There are so many problems: the basic one of democratic legitimacy; the
problem of gaining acceptance; the
problem of ensuring the protection of
minority rights; the problem of fostering two traditions and the problem of ensuring a comparable standard of living and
equality of life throughout the island.
Nevertheless, the excercise may be
useful if it analyses the various elements
pointing strongly in the direction of
change, shows the need for new
constitutional development, and suggests ways of reconciling conflicting interests and protecting minority rights and traditions. As a member of the Senate of the South I find it easier to app each the task by arguing the imperative need for
change there based on four themes which have relevance to any constitutional
framework for the whole country. 1. The Need for a Secular Constitution
The 1937 Constitution contains strong Christian and in some cases Roman
Catholic overtones which discriminate
against those who hold different beliefs or no religious conviction. The preamble acknowledges the authority of the most
Holy Trinity and continues: 'We, the
People of Eire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ' . . .
thereby excluding a minority who do not subside to the divinity of Christ. The Constitution requires an oath
by the President, the members of the
Council of State and the members of the
Judiciary beginning: 'In the presence of
Almighty God' . . . and not allowing the alternative of a solemn affirmation. Are
we still content to exclude citizens who do not profess belief in a personal God from these high Offices? Article 44 contains
provisions for recognition by the State of the 'special position' of the Roman
Catholic Church, and the recognition of certain other named churches and other
religious denominations which existed in 1937.The church opened recently in Co.
Monaghen by the Rev. Ian Paisley does not bask in the glow of constitutional
recognition. The 1937 Constitution is one of the few
in the world which contains an absolute
prohibition on granting divorce, reflecting the teaching of the Roman Catholic
Church as a constitutional principle. We
have a pluralist society in the South for which this constitution is inadequate. It would not be enough to adopt a blandly
'Christian' Constitution, eliminating the
exclusively Roman Catholic provisions. We must be prepared to separate Church and State in the full sense and enact a
secular constitution to which all citizens can adhere equally. 2. Changing Social and Economic Conditions The Articles protecting fundamental
rights, such as Article 41 on the Family, Article 42 on Education and Article 43 on
Private Property are framed in language appropriate to Catholic thinking in the
1930s, but no longer adequate to allow for
progressive action to cope with modern conditions. For example, it is feared that the private provisions would hamper proper state control of profits from land
speculation. The protection of freedom of association has effectively crippled and
fragmented the trade union movement.
The family provisions have reinforced an
outdated concept of the role of women in
society and may prevent reform of our
adoption laws to extend them to abandoned children. These are some
examples caused by bad draughtmanship and natural law terminology. We need
concise phrases guaranteeing the
protection of individual rights, combined with independent judiciary skilled in
judical review of the constitution. The Consequences of EEC Membership At present a Bill is passing through the
parliament of the South to amend the 1937 Constitution and allow us to assume the obligation of membership of the EEC. It provides that any legislation or
measures 'necessitated by obligations of
membership' would not be unconstitutional even if they contravened other sections of the Constitution, and
Community legislation, where it purports to do so, will operate as part of our
internal law. This amendment is
necessarily vague as it is really on
interpretative clause. It must lead to a
certain constitutional instability internally, and the amendment may have been framed too narrowly in that it only refers to
'obligations' under the Treaties, and
much of the present activity of the
Community (in economic and monetary union and in involving a foreign policy) is either at the fringes of the Treaties or goes
beyond them with the unanimous consent of the governments concerned.
Entry into Eurpoe could help to bung North and South closer together. From Brussels Ireland is a geographical unit, a
region with similar problems and
advantages. As well as this the decision to
join the EEC is a commitment to allowing certain important decisions to be taken at the European level, and not at the national level as hitherto. To prevent further alientation of the peoples involved from any influence on the decision-making process, there must be a compensation for
this. As certain decisions are removed to
the Community level, so other appropriate decisions must be made at the regional and local level. Centralization must be combined with devolution. Regional structures must evolve to allow planning and decision-making for the regions. The
concept of quality of life does not just mean standard of living, it means power to
influence decisions affecting the livelihood and environment of the citizen.
The North I have left this to the end because it is the
most acute. The 1937 Constitution speaks in terms of territorial absorption not of
uniting peoples or communities. Article 2 asserts that the national territory is the
whole island, and Article 3 makes
provision for an interim phase "Pending the re-integration of the national
territory'. If one where to seek democratic
legitimacy for this assertion, one would
find it was authorised by a narrow
majority in a plebiscite involving the
people living in the 26 counties. The Report of the all-party committee
on the Constitution in 1967 unamimously
suggested a change as follows: 'The Irish nation hereby proclaims its firm
will that its territory be re-united in
harmony and brotherly affection between all Irishmen'.
This certainly removes the emphasis from land to people. Another source of conflict is the status of the national language in
Article 8. If this is not to be an artificial
barrier to co-operate we will have to
consider the concept of two official
languages, neither to be prepared or to be
compulsory for state employment,
university entrance etc.
Themes for Constitutional Development I am reluctant to try to set out a blueprint for a constitution for the whole island, preferring to suggest that the themes I have analysed in relation to the South have a relevance for the whole island.
We need a secular constitution.
We need a Constitution which is responsible to socio-economic change
?
We need to consider the enormous impact of membership of the EEC
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6 WEDNESDAY, MARCH 8th. 1972
We need to talk of Communities and not of territories
The most important political force in
both parts of the island is the desire for
regional control. People in the west, the
south west and in Donegal alienated and remote from decision-making at national
level in Dublin. The single-level structure, bolstered by the 'democracy for a day' of
the vote is a poor and inadequate
reflection of real democratic control.
Consequently, I would favour regional structures in Ireland linked to the national
government but with a large measure of
independence to plan and administer the
region is co-operation. with the national
policy and with resources made available
from a fully developed European level
regional policy. The appropriate regions would be the
old provinces of Ulster, Leinster, Connacht and Munster. It should help to
break down the mythologies and give a
fair opportunity for development to have
Donegal in their natural region. The
structures should not be parliaments in
themselves, but regional administrations on which the local parliamentatians would
have places alongside representatives of
appropriate interested groups. It is only at the national level that these
parliamentarians would sit in party structures of government and opposition.
The system of election would be
proportional representation.
Judicial Review The constitution would contain clear
protection of minority rights and eliminate the possibility of discrimination. The courts would have powers of judicial review of legislation to declare irepugnant if contrary to these provisions. At present
under Article 26 of the 1973 Constitution the President may refer a Bill to the
Supreme Court for an opinion as to its
constitutionality. John Temple Lang in a
recent speech on the Constitution,
suggested the additional protection of a
Vice-President who would also have this
power to refer Bills to the Supreme Court, and that by convention that Vice President should be from the minority.
ALTERNATIVES
Tom Hadden
Unionists have got into the habit of
treating their constitution as sacrosanct.
Institutional changes within the constitution may be talked about, and
might even be accepted in exchange for a little peace and quiet. But not an inch on
the constitution. The same goes for the
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Republicans. Unification is a non
negotiable demand, at least in the long run. Republicans are prepared to talk
about altering individual provisions within an all-Ireland constitution to meet
Protestant susceptibilities. But partition can never be conceded. The
constitutional issue when formulated in this way seems to make any compromise settlement virtually impossible, since each side is only prepared to make concessions
within their own particular constitutional framework.
In fact there is a large range of alternatives between the extremes of
unification and Unionism which might be
explored as a means of providing for the
aspirations and loyalties which are
legitimately expressed on either side in constitutional terms.
Linked Institutions The simplest formula for bridging the
gap is that of linked institutions which could give an appearance of unity without
affecting the reality of independence on
either side of the border. So far this has been restricted to administrative co
operation on various joint boards and councils. But there is no reason why the idea might not be extended into the
legislative and legal spheres as well. The Government of Ireland Act 1920, as is well known, provided for a joint Council of Ireland which was to form a link between the two Parliaments in the North and tha South and perhaps the basis for
eventual unification. This might well be resurrected. Similarly provision could be
made for a superior all-Ireland Court
structure to adjudicate on issues of
constitutional importance such as the
validity of legislation or administrative actions in terms of entrenched constitutional guarantees for minorities on
either side of the border. Some members of Justice, th y British section of the International Commission of Jurists, are
said to be interested in pursuing this idea as a means of securing the rights of the individual on an all-Ireland basis. Federation
Any type of linked institution of course falls short of the kind of unity which some think is the only natural state. The next
step towards this would be a form of
federation, in which the existing legislatures north and south of the border
would be subordinated to a new all
Ireland Parliament. There would be considerable legal difficulties in setting up such a federation, given the existing legal division between the United Kingdom and the Republic, without the consent of the
Northern Ireland Government.
The federal solution, however, would not of itself meet the wishes of the Northerners to maintain a link with Britain and to preserve their British
nationality. Progress might be made in this
by inducing the South to reapply for Commonwealth membership for this
purpose alone. But even if that were
accepted, it might not satisfy the more
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