I will not argue with the Minister as to whether there is not some devious motive in the Government's mind. I quite understand the position. The referendum in itself is a disastrous proposal, but it is in the Constitution, and in an absolutely iron-fast Constitution it is also a disaster to the people. The main interest is to get this Constitution as easily amended as possible and to have the minimum hindrances in it. When the Minister or the Government has been advised with regard to the interpretation of certain things, it does not necessarily follow that I will say "Yea" every time an adviser advises and say that he is quite right, even though the advice might have been quite good.
The Minister says an Article must be interpreted in the light of all it contains. He brings in the word "forthwith" in relation to clause 5 of Article 46, imposing something on the President. It is a simple business, that the President acts entirely without any intermediary legislation, according to that Article 5, which is complete and which requires no further consideration. The "forthwith" relates to time—that, certain things having happened, the President shall do something forthwith. If that which is to be done requires the setting-up of machinery — he does not require machinery to sign a document— obviously that word "forthwith" should not be there, as you need an intervening period to have the machinery set up. "Forthwith" means that, without any delay at all, the President shall do a certain thing.
Clause 2 says that a certain thing shall be done, but it is something involving an alteration by all the people in the country and it requires machinery. That is the only possible implication of the word "forthwith" there. You cannot say, the moment the Dáil and Seanad have passed a certain proposed amendment to the Constitution, that "forthwith" the people shall vote, as machinery is required.
When the original Constitution was passed, there was a law to the effect that a general election should be held not less than every six years. There had then to be passed an Electoral Act, inasmuch as the election had to be held every six years, laying down the conditions and mode of holding the election. Had the Government refused to pass an Electoral Act, the position would be that it would cease to be a legal Government at the end of six years and there would be no Government. Therefore, they would be breaking the Constitution by refusing to perform an act the performance of which was made necessary by something laid down in the Constitution. This clause 2, inasmuch as it says that, under certain conditions, a referendum must be held, has made it necessary that a certain Bill be passed, setting up machinery and conditions for the referendum.
The clause does not state a time and we agree that, as far as the Constitution is concerned, you cannot say that the referendum must be held within one, two or three months. There is, however, an undefined term after which you can say that the Government is implicitly breaking the Constitution by not having the referendum held.
There was such a case in the last year or so—I remember seeing it in the newspapers; it was the case of an ex-Fianna Fáil T.D.—in relation to the Army Pensions Act of 1933 or 1934. That Act did not say that the commission set up to consider those things must have brought in its findings with regard to every single applicant—there are about 60,000 of them—within a certain time. A case was taken in the courts in which a man said that it was against reason that the decision in regard to his own particular case had not been taken, and, if I remember rightly, the courts agreed with him. We admit that, as far as the Constitution is concerned, there is no time laid down as to when a referendum must be held. The Constitution says it must be held, but it does not say when, and its being held requires the setting up of machinery. When we come to this Bill, it says:—
"Whenever a Bill containing a proposal for the amendment of the Constitution shall have been passed or be deemed to have been passed by both Houses of the Oireachtas and the Government determines that such proposal shall be submitted by referendum to the decision of the people——".
The Minister says this is not giving the Government power not to have a referendum. I say it is, because this lays down, as a condition for the holding of the referendum, not merely that the two Houses of the Oireachtas shall have passed or be deemed to have passed a Bill containing a proposal for the amendment, but it also lays down that the Government must have determined that such a proposal shall be submitted to referendum. The Constitution has determined that such a proposal shall be submitted to referendum. That is already determined in the Constitution. The Government can determine exactly when it is going to be held, but implicit in that section there is a new condition. Whereas the Constitution says that it shall be held, this Section 8, sub-section (1), says implicitly that not the mere passing shall cause a referendum; it requires another condition, and that is, that the Government itself shall also determine that it ought to be submitted. The Government says: "This only happens when I determine it." If there is a binding law prior to that which says: "It shall be done" and you make a law which says: "It shall only be done when I determine it", you are actually breaking that prior law. With regard to the advice which the Government has got, I will say that, if the case put forward by the Minister in which he brings in "forthwith" in sub-section (5), Article 46, was the case put forward by his advisers, and if the advisers have told him that sub-section (2) does not make it mandatory that a referendum shall be held, and if they base that advice on the grounds of bringing in an interpretation of sub-section (5), I can only say that the advisers are so ill-advised that they clearly misunderstood not merely one sub-section of that Article but the whole thing. It is relating to certain circumstances.
Certain conditions are fulfilled; a man writes his name on a paper, which requires no more than a fountain-pen and possibly a pair of eye-glasses. In the other, a certain operation by every voter in the country is involved, which can only be done after the necessary machinery has been set up. That requires intermediary legislation, but the legislation must only be passed on the known fact that is laid down by the Constitution; once the amendment is passed or deemed to be passed by the two Houses, then a referendum shall be held. "Forthwith" means that the President must act in a week or so. This has not laid that down. I think, if you pass this Bill as it is, and the Government does not within a reasonable time submit a referendum to the people, it will be open to any one of us to take a case in the courts and ask for an injunction insisting that the Government shall carry out what is laid down by the Constitution. Government advisers or no Government advisers, I am satisfied that the courts will not say that the word "forthwith" in sub-section (5) means that the Government need never do it at all.