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The Constitution of Ireland (Irish: Bunreacht na hÉireann)[1] came into force on 29 December 1937 after having been passed by a national plebiscite the previous July. The Constitution is the second constitution of independent Ireland and replaced the Constitution of the Irish Free State.[2]
The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected president, a separation of powers and judicial review. The constitution may only be amended by referendum.[3]
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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 in 1922. There were two main motivations for replacing the old constitution in 1937. Firstly, the old constitution was, in the eyes of many, indelibly associated with the controversial Anglo-Irish Treaty. Those opposed to the treaty initially boycotted the institutions of the new Irish Free State but in 1932 were elected into power as the Fianna Fáil party. Since 1922 many of the provisions of the Free State constitution, required by the Anglo-Irish Treaty, had been dismantled piece by piece under the doctrine of Constitutional Autochthony or legal nationalism. So, for example, amendments had removed references to the Oath of Allegiance, appeals to the Privy Council, the British Crown and the Governor General. The sudden abdication of Edward VIII in December 1936 was quickly used to redefine the royal connection.[4] Nevertheless, the Fianna Fáil government, led by Éamon de Valera, still desired a new, entirely native constitution replace the one they saw as having been imposed by the British government.
The second motive for replacing the old constitution was that since its adoption it had been subjected to a great many, often rather ad hoc, amendments. After 1922 the government of the Free State regularly exploited a provision of the constitution that allowed it to be amended by a simple act of parliament. Sometimes a normal act of parliament would contain within it a blanket provision stating that, if it were found to be incompatible with the constitution, the act should be interpreted as an implicit amendment to it. For these reasons also, many saw it as desirable that the old constitution be abandoned entirely, in favor of a clean slate.
Though often accredited to De Valera solely, he only oversaw the writing of the Constitution. It was drafted in two languages, Irish and English: in Irish by Micheál Ó Gríobhtha (assisted by Risteárd Ó Foghludha), who worked in the Irish Department of Education, and in English by John Hearne, legal adviser to the Department of External Affairs (now called the Department of Foreign Affairs). De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney General or someone from the Department of the President of the Executive Council.
Though many have presumed that the constitution was drafted in English and merely translated into Irish, in effect it was written in both languages almost simultaneously, with each co-author borrowing from the other's work. The result is that at a number of points the texts clash. Where the texts in the two languages conflict, the Irish texts prevails.
The constitution was passed by Dáil Éireann (then the sole house of parliament) on 14 June and then approved narrowly in a plebiscite of voters on 1 July 1937. It came into force on 29 December 1937. Among the groups who opposed the constitution were supporters of the Fine Gael and the Labour Party; the main opposition parties, Unionists, supporters of the Commonwealth and feminists. Its main support came from Fianna Fáil supporters and republicans. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".
| Plebiscite on the Constitution of Ireland | ||||
|---|---|---|---|---|
| For / Against | Votes | % | ||
| For | 685,105 | 56.5% | ||
| Against | 526,945 | 43.5% | ||
| Total poll | 1,346,207 | 75.8% | ||
| Spoilt votes | 134,157 | |||
| Electorate | 1,775,055 | |||
At the time the constitution was adopted there was uncertainty over whether its enactment amounted to a 'legal' amendment of the Free State constitution or a violation of its terms. If the enactment of the constitution were considered to be illegal in this way it could be considered an act of peaceful revolution. De Valera's government insisted that, owing to the principle of popular sovereignty, provided it was approved by the people in a plebiscite it was not necessary for the new constitution be adopted legally under the terms of the old. Nonetheless, in order to avoid a challenge to the new constitution in the courts, senior judges were required to make a formal declaration that they would uphold the constitution in order to be permitted to remain in office once the constitution had come into force.
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:
The constitution also includes a number of transitional provisions which have, in accordance with their terms, been omitted from all official texts since 1941 . These provisions are still in force but are now mostly spent.
Article 8 of the Constitution of Ireland states the following;
It should be noted however that the State has never enacted legislation under Article 8.3.[5]
The Irish text of the constitution takes precedence over the English text (Articles 25 and 63). However, the second amendment included changes to the Irish text to align it more closely with the English text rather than vice-versa. The Constitution provides for a number of Irish language terms that are to be used even in English. The old Irish terms Taoiseach and Tánaiste, for the head and deputy-head of government, made their first appearance in the constitution. Whilst the terms Oireachtas, Dáil Éireann and Seanad Éireann had previously featured in the Free State constitution.
The Constitution establishes a government under a parliamentary system. It provides for a directly elected, largely ceremonial President of Ireland (Article 12), a head of government called the Taoiseach (Article 28) and a national parliament called the Oireachtas (Article 15). The Oireachtas has a dominant directly elected lower house known as Dáil Éireann (Article 16) and an upper house Seanad Éireann (Article 18), which is partly appointed and partly indirectly elected. There is also an independent judiciary headed by the Supreme Court (Article 34).
Under Article 28, the constitution grants the state sweeping powers during a "time of war or armed rebellion", which may include an armed conflict in which the state is not a direct participant. In such circumstances a "national emergency" may be declared to exist by both houses of the Oireachtas. During a national emergency the Oireachtas may pass laws that would otherwise be unconstitutional and the actions of the executive cannot be found to be ultra vires or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty, introduced by an amendment made in 2001, is absolute and applies even during a "time of war". There have been two national emergencies since 1937: an emergency declared in 1940 to cover the threat to national security posed by World War II, and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.
Article 45 outlines a number of broad principles of social and economic policy. Its provisions are, however, intended solely for the guidance of the legislature and cannot be enforced by a court of law. This Article is the remainder of the metaconstitution that preceded it. In the 21st century, the Directive Principles of Social Policy feature little in parliamentary debates. However, no proposals have been made for their repeal or amendment. They require, in summary, that:
The transitory provisions of the constitution consist of thirteen articles numbering 51 to 63 that provide for a smooth transition from the state's pre-existing institutions to the newly established state. Article 51 provides for the transitional amendment of the constitution by ordinary legislation. The remaining twelve deal with such matters as the transition and reconstitution of the executive and legislature, the continuance of the civil service, the entry into office of the first president, the temporary continuance of the courts, and with the continuance of the attorney general, the comptroller and auditor general, the Defence Forces and the police.
Under their own terms the transitory provisions are today omitted from all official texts of the constitution. The provisions required that Article 51 be omitted from 1941 onwards and the remainder from 1938. However, paradoxically, under their own provisions Articles 52 to 63 continue to have the full force of law and so may be considered to remain an integral part of the constitution, even though invisible. This created the anomalous situation that, in 1941, it was deemed necessary, by means of the Second Amendment, to make changes to Article 56 despite the fact that it was no longer a part of the official text.
The precise requirements of the transitory provisions were that Articles 52 to 63 would be omitted from all texts published after the day on which the first president assumed office (this was Douglas Hyde who was inaugurated in 1938) and that Article 51 would be omitted from the third anniversary of this inauguration (1941). Unlike the other articles, Article 51 expressly provides that it would cease to have legal effect once it was removed from the document.
Any part of the constitution may be amended but only by referendum. The procedure for amendment of the constitution is specified in Article 46. An amendment must first be adopted by both Houses of the Oireachtas, then be submitted to a referendum and finally comes into effect on being signed into law by the President. The constitution has been amended twenty one times since its adoption. Controversial amendments have dealt with such topics as abortion, divorce and the European Union.
The constitution states that it is the highest law of the land and grants the Supreme Court authority to interpret its provisions, and to strike down the laws of the Oireachtas and activities of the Government it finds to be unconstitutional. Under judicial review the quite broad meaning of certain articles has come to be explored and expanded upon since 1937. The Supreme Court ruled, before their alteration in 1999 , that Articles 2 and 3 did not impose a positive obligation upon the state that could be enforced in a court of law. The reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family has been interpreted by the Supreme Court as conferring upon spouses a broad right to privacy in marital affairs. In the 1974 case of McGee v. The Attorney General the court invoked this right to strike down laws banning the sale of contraceptives. The court has also issued a controversial interpretation of Article 40.3, which prohibits abortion. In the 1992 case of the Attorney General v. X (more commonly known simply as the "X case") the Supreme Court ruled that the state must permit someone to have an abortion where there is a danger to her life from suicide.
As adopted in 1937 Articles 2 and 3 of the constitution made the controversial claim that the whole island of Ireland formed a single "national territory". These articles offended Unionists in Northern Ireland who considered them tantamount to an illegal extra-territorial claim. Under the terms of the 1998 Belfast Agreement the state amended Articles 2 and 3 to remove reference to a "national territory" and to state that a united Ireland should only come about with the consent of majorities in both parts of the island of Ireland. The new Articles also guarantee the people of Northern Ireland the right to be a "part of the Irish Nation" and to Irish citizenship.
The Constitution of Ireland guarantees freedom of worship and forbids the state from creating an established church. Previously the constitution contained a clause which explicitly recognised a number of religions including the Catholic, Church of Ireland, Presbyterian and Jewish religions. Controversially it also recognised the "special position" of the Catholic religion. However, it was removed by referendum in 1973 (see below). Nevertheless the constitution still contains a number of explicit religious references, such as in the preamble, the oath sworn by the President and Article 44.1, which reads:
The constitution has also, since 1983, contained a controversial prohibition of abortion. However, this does not apply in cases where there is a threat to the life of the mother (including from risk of suicide) and may not be used to limit the distribution of information about abortion services in other countries or the right of freedom of travel to procure an abortion.
A number of ideas still found in the constitution reflect the Catholic social teachings current in the 1930s. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy and the system of vocational panels used to elect the senate. The constitution also grants very broadly worded rights to the institution of the family.
As adopted in 1937 the constitution included two particular controversial provisions that have since been removed. These were a prohibition of divorce and a reference to the "special position" of the Catholic Church. Article 44, Sections 2 and 3 read:
Few contemporary commentators argue that the original text of the Constitution would be fully appropriate today. Those that have have argued that:
However Sections 2 and 3 of Article 44 which recognised specific religions were deleted from the constitution in 1973. The ban on divorce was removed in 1996. However, the remaining religious articles - including the Preamble - remain controversial and widely debated.[6]
The constitution guarantees women the right to vote and to nationality and citizenship. However it also contains a provision that was objected to by women's organisations at the time of the its enactment in 1937. Article 41.2 states:
Article 41.2.1 could, however, be viewed in the context of the 1930s and some point out that it is not coercive and there is no constitutional obligation for women to stay in the home. Instead, some argue that the provision highlights the value of the unremunerated role that women in the home contribute to society.
In 1949, it was officially declared that the state could be described as a republic. However, there is debate as to whether or not the state was a republic in the period of 1937-1949 (between these dates the state was not described in any law as a republic nor was Ireland's official description, the Republic of Ireland). To this day, the constitution does not mention the word "republic" but does include provisions stating that the state is a "sovereign, independent and democratic state" and that all power is derived, under God, from the people.
Nonetheless, debate largely focuses on the question of whether, before 1949, the head of state was the President of Ireland or King George VI. The constitution did not mention the king, neither did it state that the President was head of state. The President exercised some of the usual internal roles of a head of state, such as appointing the Government and promulgating the law.
However, in 1936, George VI was declared "King of Ireland" and, under the External Relations Act of the same year, it was this king who represented the state in its foreign affairs. Treaties, therefore, were signed in the name of the 'King of Ireland', who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Irish Head of State in the eyes of foreign nations. In 1949, the Republic of Ireland Act was adopted. This proclaimed a republic and transferred the role of representing the state abroad from King George VI to the President. No change was made to the constitution.
The constitution, adopted in 1937, provides that the name of the state is "Éire", or, in the English language, "Ireland". Originally the draft constitution had stated that the state was to be called just Éire and used the term throughout the Constitution, but the English text of the constitution was amended during the Dail debates to replace Éire with Ireland[7] except in article 4 which was amended to provide the alternative English language name.
The name of the state was the subject of a long dispute between the British and Irish governments which has since been resolved.[8]
Article 41.1.1˚ of the constitution recognises the family as “the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law” and guarantees its protection by the State. However, these rights and protections are not available for every family unit, much to the dismay of many liberals, egalitarians, single parents, unmarried co-habiters, homosexuals and gay rights activists.
The institution of marriage enjoys a privileged position in the constitution. A family exclusively based on marriage is envisaged – Article 41.3.1˚ states that “[t]he State pledges itself to guard with special care the institution of marriage, on which the Family is founded”. The effect is that non-marital unit members are not entitled to any of the encompassed protections, including those under the realms of tax, inheritance and social welfare, granted by Article 41. For example, in State (Nicolaou) v. An Bord Uchtála [1966] IR 567, where an unmarried father, who had become estranged from the mother of his child some months after living and caring for the same child together, was prevented from invoking the provisions of Article 41 to halt the mother’s wishes of putting the child up for adoption. The then Mr. Justice Walsh of the Supreme Court stated that “the family referred to in [Article 41 was] the family which is founded on the institution of marriage”.
The constitution has been subjected to a series of formal reviews in the last 40 years.[9]
The first All-Party Committee (1996-97), chaired by Fine Gael TD Jim O'Keeffe, published two progress reports in 1997:
The Second All-Party Oireachtas Committee on the Constitution (1997–2002) was chaired by Fianna Fáil TD Brian Lenihan, Jnr. It published five progress reports:
The second committee also published two commissioned works:
The current (2002) committee is chaired by Fianna Fáil TD Denis O'Donovan. It describes its task as being to "complete the programme of constitutional amendments begun by the earlier committees, aimed at renewing the Constitution in all its parts, for implementation over a number of years". It describes the job as "unprecedented", noting that "no other state with the referendum as its sole mechanism for constitutional change has set itself so ambitious an objective."[21]
The committee has divided its work into considering three types of amendment:
The current All-Party Committee has published three reports:[22]
The committee summarises its remaining tasks as being to consider:
Paper copies of the constitution are available from the Irish Government Publications Office, Molesworth St, Dublin 2. For electronic copies see below.
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