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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