Speaking in this House as a member of the Parliament of a sovereign, independent, democratic State, set up under the Constitution of 1922, and functioning at the present moment, I wish to convey my commiseration to the Minister for Defence, because it was very painful to hear the Minister for Defence and to see him put up to talk upon a subject to which he had obviously given no attention at all. With that, I think I will leave the speech to which the House has just listened.
I think the first thing that must strike everyone, no matter to what side of the House he belongs, is that there is one criticism which must be passed on this Draft Constitution. No matter what you may think of its contents, in whole or in part, I think there is one thing which must be admitted by every Deputy in this House, and that is that no more inelegant or no worse drafted document than this Draft Constitution has ever been placed before Dáil Eireann. It is full of contradictions. It is full of general principles, which can be immediately whittled down until they mean absolutely nothing at all. In a great number of parts this Constitution, which ought to be put in the clearest and plainest language, is so involved and so ambiguous that I— I am sorry to say—am one of the 1 per cent. of the people of this country who have not got a complete understanding of the Constitution. That at least is the figure which the Minister for Defence gave the House.
The first thing which I should like to point out to the Dáil is this phrase: "We, the people of Ireland." This is not being enacted by the people of Ireland. It begins with a false statement; it is not being enacted by the people of Ireland. It is being enacted by the people of 26 counties and not by the people of 32 counties. I am not a person who accepts the present state of affairs, and I do not accept the position that the people of 26 counties, voting upon a particular measure, are entitled to call themselves the entire of the people of Ireland; we are not. I do not like to see any solemn document passing out of this House, through this Assembly, and becoming operative in this State, commencing with a statement known by everybody to be false. Ireland is not 26 counties. Ireland is 32 counties, and the people of the Twenty-Six Counties have not got the right to style themselves the people of Ireland.
I go on; if I discover an untruth in the first part of this document, I do not go very far until I come to something which shows the extraordinarily bad drafting of this Constitution, and which, in my humble judgment at any rate, comes very close to if it is not entirely and completely a heretical statement. I mean, of course, heretical from the Catholic point of view. Article 6 says:—
"All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good."
That statement is not true. What does that mean? It means that all legislative, executive and judicial powers are derived from the people; that they are inherent in the people and exercised by the people under God. That is not the fact. Every power that the people have got came to the people from God, and the power exercised by the rulers, designated by the people of the State, is power they had themselves derived from God. Whether they derived it immediately through the people, as was the view of Cardinal, now Saint, Robert Bellamy, or whether they hold it as derived immediately from God, as was the view of Leo XIII, every school of Catholic thought holds that power is derived from God. Why do we start off with a statement in Article 6 of our Constitution which, as far as moral philosophy is concerned, is completely and entirely wrong?
We asked what are the main principles of this Constitution? What new thing does it bring in? We were not answered. The main new thing which this Constitution brings in is the President and the powers which are given to the President. I should like, Sir, to examine those powers. The President is appointed by a general vote of the people. In my judgement that is not a very satisfactory way of appointing a President. President de Valera in his speech the other night said that powers should be given to the President to a great extent in order that his election by the people should be justified. But if a President is going to be elected by the people is that going to get the best President? We know what a popular election is. Think out how that is going to work. If it is anything like a close fight, is it not the man with the longest purse who is going to win? What will an election cost? Of course, it will cost the State exactly the same sum as a general election does now. There must be the same presiding officers, polling clerks and everything else that there is for a general election. There must be for each candidate likewise a personation agent or several in every booth. Deputy Kelly's famous approval of "vote early and vote often" will most certainly take place unless there are personation agents. I am sure if there are no personation agents that Deputy Kelly will urge very vigorously "vote early and vote often in favour of the candidate for the office of President that I am supporting." There must, therefore, be personation agents; there must also be transport cars to bring the voters to the poll, and the candidate for the Presidency who can supply the best transport is the candidate that is most likely to be successful. In other words, I will ask the House if there is an election for a President is not it perfectly plain that it is the man who can put down thousands of pounds in the fight for election rather than the man who can only put down £1,000 who is likely to be successful? Has not the whole cost of a Party election to be borne if that election is to be representative of the people, and if the voters are to go to the poll in any number? Is that a wise way of selecting no matter how good it may be in theory? I am not concerned with theory. Is it a good way in practice to select a President of this State? Because it means that unless a man has got the support of a Party with Party funds behind him, or that he himself is a rich man, he has got no chance against a person who has got a longer purse than he has, always, of course, assuming that there is not a colossal margin of difference in support for the two in the country. It does not seem to be wise. As a matter of fact, I think an election adequately run and adequately financed by a candidate for the office of President would cost more than a whole Party election would cost a Party at the minute, because personation agents at present give their services free. Candidates for the Presidency will have to pay their own personation agents. Is it a wise or a practical method of electing a President? When you have your President elected, what I object to and object to very strongly in this Constitution is the power which the President is given.
The Minister for Defence talked a moment ago, and so did other members of the Government who spoke in this House, that this did not create a dictatorship. We do not say it creates a dictatorship. This Constitution does not set up a dictatorship here now but what this Constitution does is that it makes it easy for a dictatorship to be set up. This Constitution takes away the barriers which stood in the way of a dictatorship being set up. It makes smooth the road for setting up a dictatorship. This Constitution will in itself enable a dictatorship to be set up.
Let me take two things. First you have got certain powers given to the President by the Constitution. You have other powers which may be given to him by law. Section 9 of Article 13 states:
"The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government,"
with three exceptions. Those are the powers and functions conferred on the President by this Constitution. There are two classes of power conferred on the President. There is class No. 1, the powers conferred by the Constitution, and class No. 2, the powers conferred by law. There is no such proviso that the powers and functions conferred by law shall be exercisable and performable by him only on the advice of the Government. Any power can be given to him by law under Article 13:
"Subject to this Constitution, additional powers and functions may be conferred on the President by law.... No such power or function shall be exercisable or performable by him save only on the advice of the Government, or after consultation with the Council of State, as may be determined by such law."
Therefore, any power or function of any kind may be given to the President which he can exercise after consultation with the Council of State, but the Council of State has no power. The Council of State is purely an advisory body, and the President need not heed in the slightest bit what they tell him. Any power can be given to the President. Complete control of this State can be given to him, to be exercisable by him after consultation with the Council of State, whose advice he need not take. Is it not smoothening the road within the Constitution for a dictatorship?
There is another matter. Why it is put in, I do not know. It is Article 13, Section 5:
"The exercise of the supreme command of the defence forces shall be regulated by law."
I should have read Section 4 first:
"The supreme command of the defence forces is hereby vested in the President."
How he is to exercise that has to be regulated by law. There is not a single thing there about consultation with the Council of State. There is not a word about that:
"The exercise of the supreme command of the defence forces shall be regulated by law,"
and therefore he may be given complete power and control of the defence forces, and he can exercise that so given power—that proviso is contained in the Act giving him the power—without the advice of the Executive Council. Every dictator wants an army behind him. Most of the dictatorships have been started by armies. If the Dáil and Seanad, or a majority of the Dáil—we need not bother about the Seanad—and the President conspire to make the President dictator in this State, all they need do, within this Constitution, is to give him unlimited power, as they can do, and at the same time give him control of the Army, which he can fill up immediately with his own people. I have not heard any reasoned argument from the Government Benches as to why this one individual, who can be given these extraordinary powers; who has, even under the Constitution, such great powers as he has got, is being set up at all. What is the need for him? What is the necessity for having a President with these powers? It is a retrograde step; it is going backwards; it is setting up a Constitution much less democratic than the present Constitution.
Take the history of representative Government. The home of representative Government is in England. There you had a king with a tremendous power; you had a House of Lords with great power, and you had a House of Commons commencing with very, very small power. Even as late as the great exclusion debates in the time of Charles II the House of Lords was the Assembly with greater power than the House of Commons. Gradually, the House of Commons begins to assert itself; gradually it becomes more important than the House of Lords; gradually it is encroaching upon the king's power; until the time comes, as it did come in the complete process of development, when the one man, that is to say, the king has got no active part in the Government at all.
You want to set up one man here. Under the old Constitution we had no such one man—no one man with any power. But you want to step back from the democratic position which representative Government had reached in this country, just as it had reached it in England. You want to step back from that position and, taking a retrograde and anti-democractic step, you want to put the power, not in an elected Assembly but to a considerable extent in the hands of one man. Surely that is anti-democratic. It is a step backwards—that is undeniable.
What is the reason for that step backwards? We have had none given. We heard, to my mind, a rather unsound argument with reference to an existing dictatorship. There is no doubt that, under the Constitution as it has been spoiled by Fianna Fáil, there is a power of dictatorship —it has worked down practically to that. But it is a dictatorship which must be exercised in public; a dictatorship which is subject to criticism in this House; a dictatorship whose acts are known. It is a dictatorship that only exists because the Seanad was abolished. A dictatorship which is subject to criticism and subject to public opinion is a different thing from the dictatorship which can be set up within the terms of this Constitution without taking away the dot from one of the i's or the crossing from one of the t's. Why do you do that? Certainly, we have had no reason given yet.
If there are going to be alterations in the Constitution certainly the burden of proof to show that there ought to be alterations is on the person making the alterations. If there is going to be a new Constitution, the burden of proof to show that the old Constitution is bad is on the person bringing in the new Constitution. Neither in the speeches I have listened to, nor those I have read in the newspapers or in the Official Reports, has any sound reason been given for the introduction of this present Constitution; above all things, no reason for the introduction of this present Constitution with this very great change effected by giving power to one man. I see no reason, and I have heard no reason, why that should be done on the eve of an election, which is essentially a time when big changes should not be made by a House nearing its dissolution. If there are changes of this nature to be made, they should be made in the early days of a Parliament, not when persons' minds are fixed upon what are the real substantial issues before the country in an election.
There are other difficulties about this strange new office of President. Suppose the President does not do what he is bound to do under this Constitution, what is the remedy? There is none provided. Suppose a Bill is sent up to him and he refuses to sign it, what is going to happen? There is no method within the Constitution of making him do so. He need not sign a single Bill, and he need not do a single bit of work. He is irremovable for seven years, and there is nothing to compel him. I may be answered by saying that he makes a declaration, and that that declaration will compel his conscience. There is nothing else. Quite apart from the fact that things more solemn than a declaration have, as we know, on a famous occasion in this State been described as empty formulas, I should like the House to consider the nature of the declaration to be taken. It is very interesting, because it is on a par with everything else in this extraordinary Draft Constitution—it is contradictory. The declaration reads:—
"In the presence of Almighty God I do solemnly and sincerely promise and declare that I will maintain the Constitution of Eire and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Eire."
Suppose a Bill comes up to him: it is his duty under the Constitution to sign that Bill. But suppose he exercises his abilities, as he thinks, in the service and welfare of the people of Ireland, and he comes to the conclusion that this Bill does not help on the service or the welfare of Ireland and he refuses to sign it, where are you? He says: "I am not violating my declaration"—though there is no punishment even if he does violate his declaration. He remains there for seven years. You have no method on earth of getting rid of him. Is not that an extraordinary state of affairs?
Let me taken another thing. You may put in the office of President a man whom the people may think is of blameless life. There may be some domestic or other scandal. Unfortunately we know of a domestic scandal that had a terrific effect on the prospects and history of Ireland. Supposing some such scandal happened, or that some financial difficulty or something like that arose in the case of this person who was elected President, still, as the Draft stands, he must remain in that office. There is no method of removing him. He is above the law. He cannot be prosecuted. He cannot be sued on the civil side during his term of office. He remains there, and the finger of scorn may be pointed at him; he may be, in the opinion of every decent citizen, unworthy of holding the position. Yet he must remain there. There is no means of removing him. I would have thought that a sensible Constitution would contain some provision by which a declaration would be got that the person who has been elected President had shown himself unworthy to fill the office, and that an impartial tribunal should be set up to inquire into the charges made against him. Probably the most impartial tribunal would be the Supreme Court. I think it would be the fairest tribunal to try a matter of that nature. You could not possibly get a fairer tribunal.
Quite apart from the details there should be some method of removing a President who has shown himself unworthy, and this Draft Constitution produces none. There is only one provision by which he can be removed and that is a most extraordinary provision. It is only if he has been guilty of high treason as defined in this Constitution or "other high crimes or misdemeanour," that he can be removed. It must be a high crime or a misdemeanour. It must be an offence known to the law. Then what happens? It is provided that two-thirds of the members of the Seanad may go back to that oldest and most worn-out method, the procedure by impeachment. Somebody has been studying the history of the Stuarts and discovered that Stafford, Laud and various other persons were impeached before the House of Lords. In those days the House of Commons impeached an individual before the House of Lords who had power to pass the death sentence.
Under the regulations here the procedure is reversed; the Seanad may impeach for criminal offences before the Dáil. Is that a satisfactory method of trial or a fair method of trial? How long will the trial last? How many witnesses will be examined? Supposing the trial lasts three or four days the President is to sit there in the dock— wherever the dock may be—and he is being impeached before the Dáil. Is not the thing ridiculous and is it not an absurd tribunal? Not only that, but there is the period which the trial will occupy. I said for three or four days. As a matter of fact the impeachment of Warren Hastings went on for eight or ten years. I am not sure of the exact duration. I know this, that impeachments have always been extremely slow. The modern method, going right back to a worn-out thing, is the method that is going to be adopted in our new Constitution! Even here the framer or draftsman of the Constitution could not be consistent because in Article 38, Section 5, we have:—
"Save in the case of the trial of offences under Section 2, Section 3 or Section 4 of this article, no person shall be tried on any criminal charge without a jury."
In other words, under Article 38 the President is given the right of trial by jury, and under Article 12, Section 10, that right is taken away from him. Yet these two sections are left standing there in their complete inconsistency. Which is it going to be? Must he be impeached if two-thirds of the Seanad wish it, or is he entitled to trial by jury? As the two sections stand they are completely and entirely inconsistent. I presume that the interpretation of that is that the general is controlled by the lesser, and that is that the right of trial by jury is being taken away. That is the ordinary rule of legal interpretation—that the lesser controls the general. But why not make it perfectly clear in your Draft? The Draft Constitution is the same all the way through. Again, I would like to know what is the reason for setting up this very strange and extraordinary person?
There are a great number of things arising out of this Constitution. I am not going through the whole lot. I have dealt at some length with the position of the President because it is a real innovation. We have the bringing in of one man, possessing powers in the Constitution such as it is proposed to give. It is a new step, a retrograde step and an undemocratic step. It is an attempt to set back the hands of the clock. Let us look through these pious aspirations which are put into the Constitution for some reason or another. I do not know why in this Constitution you get some very curious things. Take the provision about which we have had so much discussion:—
"the State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home".
That is Section 2 of Article 41 of the Constitution. That is very excellent but why not push it to its entire conclusion?
If the object of the State is to ensure that mothers shall spend their time in the performance of their duties in the home why confine it to one class? Why have this class legislation in your Constitution? Why put in about the duty of the mother being confined to the necessitous? Why not have put in that no mother in receipt of moneys from any public body shall engage in labour or in work from any public authority of any kind? Why not apply it to the national teachers, the secondary teachers and the university professors? Why not apply it to all these? Why not apply it to them if you are going to apply your good idea to mothers who are obliged by economic necessity to engage in labour? Why not also express your view in those other cases, because it flows naturally that no married woman should be engaged in productive work? It all flows one from the other. Is not that the principle which you are enshrining here? I am simply putting that forward. I am bringing it right down to thereductio ad absurdum.
If you want to put down your general propositions, you cannot put them in one Article. You must deal with every specific instance. If you are going to take that as it stands, unqualified, all the consequences which I have stated must flow from it. If you believe one, you must bring it right down to the end. There is no qualification there except that it is confined simply to mothers who are obliged by economic necessity. What is the difference between those and the ones who are not? If it is due to one, it is due to another. There may be an answer, and I would like to know what it is, but personally I do not see it at the moment.
It is rather interesting to take Article 45, paragraph 4 (1):—
"The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged."
That is admirable, but there is a well-known doctrine of interpretation that if you make one statement clear, the statement of the one thing is a contradiction of its opposite, and also it is to be interpreted by what it leaves out as well as what it puts in. Why infer that the infirm, the widow, the orphan and the aged are the only persons to whom the State should contribute? Why should they not contribute to the support of an adult hungry man. What is the difference? After all, has not the adult hungry man or woman the same right to a contribution as the persons named in this Article.
There is a portion of Article 45 that is really laughable, coming from the Fianna Fáil Party:
"That there may be established on the land in economic security as many families as in the circumstances shall be practicable."
Established on the land in economic security! What a statement to come from Fianna Fáil. The Government that have made every single perch of land in Ireland uneconomic have now got the pleasure of saying that they believe in keeping people on the land in economic security. For the last five years this House has rung with denunciations of the policy which is making and has made Irish land uneconomic. Instead of spending your time in some effort towards making the land economic, you are discussing generalities here.
The policy of the Government has had the effect of driving down the price of cattle, destroying the market for eggs, destroying the market for all live stock. It has made Irish land completely and entirely unprofitable. Now, along comes this Constitution with the statement that they hope to establish on the land in economic security as many families as shall be practicable. They believe now in putting people in economic holdings. Why do they not go further and say: "We believe then in making them uneconomic as quickly as ever we can, because we have been spending the last five years in making all other Irish holdings uneconomic"?
There is behind this one very big question, and I would like an answer from Fianna Fáil or somebody who has gone into the matter and is qualified to deal with it. We are told that the Constitution shall come into operation on the day following the expiration of a period of 180 days after its approval by the people, signified by a majority of the votes cast at a plebiscite thereon held in accordance with law. Who are the people? We are told the people are the people of Ireland. There is nothing in that Article which limits it to citizens of Saorstát Eireann. It is plain there that it is only to come into force when a plebiscite of the people has been taken. But how can you take a plebiscite of the people of Ireland? I would like to know how that is to be done. So far as I can see, you cannot do it; you cannot take a plebiscite of the people of the Six Counties.
There is no limitation there and I want to know how you propose to work this. Suppose this is challenged in court. Suppose any law passed under the Constitution is challenged in court and you are asked what gives that Constitution validity. If you say it has got its validity from a plebiscite of the people of Ireland, then there would want to be proof that there was such a plebiscite. But there cannot be such a plebiscite. Is your Constitution as it stands going to have the force of law and what is going to give it the force of law? The Constitution of 1922 has the force of law from Act No. 1 of 1922, which, of course, is not repealed here and is still in force. In other words, Saorstát Eireann still remains and, after the passing of this Constitution, Saorstát Eireann will still remain until Act No. 1 of 1922 is repealed. You cannot repeal it now, because if you repeal it there would be no Constitution. You are in the extraordinary position that you have got citizens who are citizens of Saorstát Eireann and you have Saorstát Eireann still in existence.
I do not think that even a referendum could be exercised at the present moment. I should like to know how it could, because there are no citizens of Ireland at the present minute. I should like someone to tell me how a referendum could be exercised or how this is going to have validity at all. This cannot repeal a statute. A statute can only be repealed by another one. If it is tested in a court, how is it going to be argued that it is repealed? There will be such questions arising. They certainly arise in my mind, and I have endeavoured to see any answer to them, and I cannot see it.
Suppose, now, that this Constitution is brought before a plebiscite of the people of Saorstát Eireann, and that a court is asked: "Is that a binding document, or is that the Constitution now in force?" I do not see, for the life of me, how any court could say that it is. If there is any answer to that, I should like to know what it is. It may have its force because it is a repeal of the Schedule to the Act, No. 1 of 1922, which sets up the Constitution, but it does not profess to be that, and it does not profess to be enacted by Dáil Eireann or the Oireachtas. It does not profess to be enacted by any person with direct legislative authority, and I should like to know very much from anybody who can inform me where it is going to get its legislative or operative power from. It can get its operative power, possibly, if you regard it as a Schedule to the Act of 1922, but otherwise than that, it has no operative power, because we have got a Constitution which is now in force, and the Act by which it is established is not attacked and could not be attacked, because this document here can only be conceived to be of binding force if it is regarded as a repeal of the Schedule to Act No. 1 of 1922, and the insertion of a new Schedule in it.
These are big questions. They seem to me to go to the very root of the matter, and I should like to have them very seriously considered, and I should like to see a serious answer given. Mere rhetoric—and we have had very little except rhetoric from the Government Benches in the course of this debate—does not answer solid argument. Mere rhetoric does not answer, if you like, seriously meant questions, and I am putting my question seriously. I should like to have it dealt with seriously, because we may find ourselves in this position: that we have been spending days discussing this thing as members of a mere debating society, whose conclusions cannot be received by our courts. I have nothing more to say upon this matter, Sir. There is an amendment before the House to the effect that the discussion should be adjourned for six months. I think that, quite apart from the reasons put forward by Deputy Mulcahy in support of that motion, the whole trend of this discussion here has shown that a delay of six months is eminently desirable. This is not a fully digested and fully thought-out document, and, besides, it is a wretchedly drafted document. I think that it ought to be postponed. This Constitution is supposed to last for all time, and a document that is supposed to last for all time ought to be clear. This document is not clear. It is confused and involved. It is giving most extraordinary powers to a President—powers which may be made more extraordinary still—and it is all being done immediately. Surely, if ever there was a document which ought to be carefully considered and the consideration of which should be postponed, it is this document.
Then, on the question of voting for this Constitution, how are we going to vote? There are things in this document which I like. For instance, I like the restoration of the Seanad. That could have been done under the old Constitution, but at any rate it is here in this Draft Constitution. I like a Constitution with a Second Chamber. On the other hand, I loathe portions of this Constitution, such as those which deal with the new power to be given to a President. Other people will have the same difficulty as I have. How are you going to say that the document has got the approval of the electorate when the electorate disapproves of a new principle enshrined in it? There are two new principles enshrined in it, if I may put it that way, although I admit that it is rather a loose expression to use. The entirely new principle in it is the creation of a President with undemocratic power—anti-democratic power, I should put it. The other new principle is not new to us, but it is new to our existing Constitution. It is not a new idea, but the restoration of an old idea. I refer to the bringing back of the Seanad. I like one of these principles. I wish to see the Seanad back. But I do not wish to see a President being given undemocratic powers. Other people will be in the same position, and how are we going to vote? If we vote for the bringing back of the Seanad, will that not be immediately twisted into saying that there is a majority of the people in favour of the creation of an undemocratic President? That is what will be declared immediately in this House. We will be told that they have got a mandate for a President of that kind. If Fianna Fáil comes back to power, which is very doubtful——