Fifty years ago the Constitution of Ireland, Bunreacht na hÉireann, 1937, was approved by 685,105 votes to 526,945 votes at a referendum which was held on 1 July 1937 and on 29 December 1937 it came into operation.
I am glad Seanad Éireann has decided to mark the Golden Jubilee of the 1937 Constitution in a valuable and concrete way by having this debate on the 1937 Constitution — a Constitution which has been described by Tom Garvin, statutory lecturer in politics at University College, Dublin, as "a formidable political achievement that we have come to take for granted", a Constitution that has been described by Professor John Kelly, T.D. as "very largely a re-bottling of wine most of which was by 1937 quite old and of familiar vintage".
Thus, while the 1937 Constitution obviously differs from its predecessor in many respects the general characteristics of the State were substantially formed before 1937 and while all branches of our law depend for their formal validity on the 1937 Constitution, the degree of continuity between the two documents is very high. Many of the provisions of Bunreacht na hÉireann are broadly similar in terms to those of the 1922 Constitution. In many instances the language is identical and in others there occur only slight verbal changes which do not alter the substance. This holds true, for example, in respect of the provisions on the courts, Articles 34 to 36 and on Dáil Éireann, Article 16. The Preamble to the 1922 Constitution enunciates the divinely inspired sovereignty of the people as the transcendental basis of the Constitution when it states:
All lawful authority comes from God to the people.
Article 2 of the 1922 Constitution reaffirmed it as the concrete basis of the governmental organisation of a new State in that:
All powers of Government and all Authority, legislative, executive and judicial are derived from the people of Ireland.
and are to be exercisable only through the agencies established under the authority of the Constitution.
Article 6 of the 1937 Constitution, which is the constitutional basis of whatever separation of powers we have in Ireland, recalls both the Preamble to the 1922 Constitution and Article 2 of the 1922 Constitution when in Article 6.1. it states:
All powers of Government, legislative, executive and judicial, derive, under God, from the people.
Article 6.2 states:
These powers of Government are exercisable only by or on the authority of the organs of State established by the Constitution.
This corresponds to similar words used in Article 2 of the 1922 Constitution. Hugh Kennedy, the first Chief Justice of Ireland, wrote on 5 August 1922 that:
The great principle upon which Dáil Éireann was founded was that legislative, executive, administrative and judicial power had its source and was derived from the sovereign people of Ireland.
In Murphy v. the Attorney General, 1982, Judge Henchy pointed to the dominant role of the people as being:
A central feature of the ideological rationale and the political philosophy underlying the Constitution.
This emphasised in the opinion of Professor John Kelly that the role of the Legislature was in consequence one of limited delegation only. Some new material in the 1937 Constitution came from pre-existing statutes. Thus Article 16.2.5º provides that Dáil Deputies must be elected
on the system of proportional representation by means of the single transferable vote.
whereas Article 26 of the 1922 Constitution had referred simply to "principles of proportional representation".
The Electoral Act, 1923, which implemented Article 26 of the 1922 Constitution provide for the single transferable vote and its provisions on the counting of votes etc. are still in force today. Again, the 1922 Constitution did not specify the declaration to be made by judges, unlike the 1937 Constitution which sets out that declaration in Article 34.5.1º, that declaration, with minor variations in wording, is that specified in section 99 of the Courts of Justice Act, 1924. Similarly, the source of the Attorney General's authority and the warrant for the existence of his office is Article 30 of the 1937 Constitution. That office is not mentioned in the 1922 Constitution, but it certainly existed before 1937. Hugh Kennedy, who was first called the Law Officer of the Provisional Government assumed the traditional title in 1923, and he was described as Attorney General when he was piloting through the Dáil the Ministers and Secretaries Act, 1924, section 6 of which still applies to that office. The Oireachtas established under the 1937 Constitution is a bicameral Parliament, but the balance of power is tipped more firmly in favour of the Dáil.
The new Seanad, however, exhibits certain features of its predecessor. For example, it has 60 Members, it contains a nominated element and the electorate is clearly modelled on the amended provisions of the 1922 Constitution. In the course of the re-bottling operation there is no doubt that some elements of the emerging national legal system, such as the principle of judicial review of legislation on constitutional criteria, were given a new security. There is also no doubt that the very extended recitals of fundamental rights in Articles 40 to 44 of the 1937 Constitution by comparison with Articles 6 to 9 in the 1922 Constitution have yielded most important results.
Yet, as Professor Kelly has indicated, even in these two areas, judicial review and fundamental rights, it is quite possible that the State might have developed within the 1922 framework, in much the same way as it ultimately did within the 1937 Constitution. More settled political conditions would probably have led the Government to allow the transitional period within which the Constitution would be amended without referendum by ordinary legislation to expire, thus letting judicial review become a reality. Even under the rigid 1937 Constitution it is doubtful if the part which judicial review ultimately played was what its framers envisaged. It is also likely that it would have been much slower to reach that point if it had not been for the enterprise of one particular Judge, George Gavin Duffy, to whom almost all the assertive interpretation of the Constitution in the first 15 years after its enactment can be attributed. With regard to the recitals of fundamental rights, the large edifice of judge-made law which has been erected on Articles 40 to 44 and on Articles 34 and 38 might, apart from the newly entrenched rights in the field of the family and education, have arisen on the less elaborate statements contained in Articles 6 to 10 and 64 to 72 of the 1922 Constitution. Just as in the United States of America, the Supreme Court has constructed a great corpus of jurisprudence on the fairly brief statements of the early amendments. The word "constitution" of course is commonly used in at least two senses, in any ordinary discussion of legal and political affairs it could be used, first, in the wide and abstract sense and, secondly in the narrow and concrete sense. The constitution of a state in the wider sense is the whole system of government of a country, the collection of rules which establish and regulate the Government. Some of these rules are legal in the sense that the courts will recognise and apply them and some of them are non-legal in the sense that the courts do not recognise them as law but they are nonetheless effective in regulating the Government than are the rules of law strictly so called. These non-legal rules take the form of usages, understandings, customs or conventions and they are binding in the sense that they have become accepted practice. Thus the British Constitution is the collection of legal and non-legal rules which regulate the Government in Britain. The legal rules are embodied in statutes; the may also be found under the prerogative and they may be embodied in the decisions of the courts. The non-legal rules find expression in customs and conventions. In almost every country in the world except Britain, however, the word "constitution" is used in the narrower or concrete sense. It is used to describe, not the whole system of rules, legal and non-legal, but rather a selection of them which has usually been embodied in one document or in a few closely related documents. What is more, this selection is almost invariably a selection of legal rules only. Thus the "constitution" for most countries in the world is a selection of legal rules which regulate the government of that country and which have been embodied in a document.
Comparative studies indicate a series of features common to all or most written constitutions. The first common feature is that some special process will have been used to enact the constitution and this process has two effects: (a), it gives the constitution a legitimacy, not given to other forms of law and, (b), the constitution is given a primary character as law, in that it is the fundamental law of the State over and above all other forms of law. The second common feature is that written constitutions contain a power given to the courts to review ordinary laws and if necessary to pronounce them inconsistent with the constitution and therefore, null and void. The third common feature is that written constitutions are protected from mutilation. Since the constitution is the fundamental law of the State, it follows that to retain this character it must be immune from easy and unconsidered amendment, thus a special procedure is required before the constitution can be amended. If an amendment was permitted by ordinary law, the constitution would be denied its badge of specialty which it claims because of its special enactment and its fundamental character. It is important also to emphasise that although most countries have a written constitution in the form of a document, this document does not operate in isolation. The document is part of the whole system of government, of the whole collection of rules, legal and non-legal. It is supplemented in particular by legal rules enacted by the legislature, rules, which in many countries, are almost as important as the rules embodied in the constitution itself. In some countries, particularly in Ireland and the United States and in Europe, certain of these laws are described as organic laws, that is to say, laws which organise institutions which regulate the exercise of public powers through organs which the constitution has established. There appears to be a rough division of functions between the constitution which establishes institutions and lays down broad principles which are to govern them and organic laws which regulate their detailed composition and operation. In the words of Sir Kenneth Wheare:
There is in most countries an important body of legal rules enacted by the legislature which supplements and perhaps modifies or adapts the rules embodied in the constitution.
Thus Article 16 of the 1937 Constitution makes certain provisions in respect of elections to Dáil Éireann, but the whole system of elections is provided for in the Electoral Acts. Article 34 makes certain provisions for the administration of justice in courts, but a number of court Acts implement the details of these provisions. Legislatures are not the only source of legal rules. Constitutions are supplemented and modified by rules of law which emerge from the interpretation of the courts, that is called judicial review. The logical justification for judicial review of a constitution finds its most precise expression in the words of Chief Justice Marshall in Marbury v. Madison, 1803. In that case, the Supreme Court of the United States first declared an Act of Congress void and Chief Justice Marshall said:
It is emphatically the province and duty of the judicial department to say what the law is.
It some cases this duty of the courts is expressly recognised. In Article 34.3.2º, it is provided that the jurisdiction of the High Court and, on appeal, of the Supreme Court shall extend to the question of "the validity of any law having regard to the provisions of the Constitution". In some cases, the power of the courts to interpret the Constitution is inferred from the Constitution or from the nature of the judicial function. This is the position in the United States and the words of Chief Justice Marshall in Marbury v. Madison, 1803 were the first and authoritative statement of the Supreme Court's assumption of that power.
Judicial review of course, as has already been mentioned by many Senators, is a very important part of our Irish constitutional law, especially in the area of fundamental rights as set out in Articles 40 to 44 of our Constitution. The seminal judgment in this area is that of Justice Kenny in the High Court in Ryan v. Attorney General, 1965. Before the Ryan case, save for a few judicial straws in the wind, it was generally assumed that the phrase “personal rights” in Article 40.3.1º simply provided a headline to herald the slightly more specific formulation in Article 40.3.2º in respect of “life, person, good name and property rights” and indeed in the other sections, of Article 40. Justice Kenny, however, rejected the conventional wisdom for the principal reason that the Constitution sets up a “Christian and democratic” State from which it follows that the citizens of the State should enjoy all the personal rights which are appropriate in the State.
The Constitution cannot spell out all the personal rights and it is for the courts, therefore, to interpret the Constitution and say what the personal rights are. In this way, major latent personal rights have been divined by the courts. Outside the realm of legal rules, constitutions may be supplemented or modified or even nullified by usages, customs and conventions. Thus, in summary, most countries have a written constitution contained in a document or documents but it does not stand alone for it is supplemented by organic law, by judicial review and by usages, customs and conventions. The 50th anniversary of the 1937 Constitution has evoked many responses and reactions.
From time to time criticisms have been made that the 1937 Constitution is too detailed, but that does not bear close scrutiny. It is a shorter document than the Constitution of the United States, and very much shorter than the constitution of most, if not all, of the European states and other states which have written constitutions. A constitution is intended to endure for a very long time and must therefore be adaptable to various movements and changes in human affairs. Our Constitution is written in the present tense and is intended at all times to be interpreted and read as contemporary law.
The ultimate question remains, what do the words of the text mean in our time? The value of the Constitution is not based upon any static meaning it might have had 50 years ago, but in the adaptability of its fundamental principles to cope with current problems and needs. The Constitution is in large measure a blueprint for Government. One might say that where the text is not actually prescribing the from of Government it is limiting the powers of Government or imposing obligations upon it. The text does, however, point to the supremacy of the human dignity of every person, particularly in the specific provisions of the Article dealing with fundamental rights. These rights are sometimes criticised because it is alleged that they smack of an uniquely Catholic concept of fundamental rights, being based upon natural law or natural rights. This stems from a mistaken assumption that natural law or natural rights are uniquely Catholic which of course they are not. The authority of the authors of the Declaration of the Rights of Man and the Citizen in France in 1789 could scarcely have been regarded as pious Catholics. The Constitution of the United States and the European Convention on Human Rights and Fundamental Freedoms, are themselves basically natural law or natural rights documents. Like the Irish Constitution they do not set out or claim to create fundamental rights, but they recognise the pre-existence of fundamental rights which are inherent in man because he is man, and they guarantee to protect them.
It is universally recognised that the family is the fundamental unit group of society. Many critics of our Constitution seem to labour under the impression that this claim is unique to our Constitution. One example of a modern European constitution whose provisions demand protection for the family and marriage is the Constitution of the Federal Republic of Germany. Article 6 of that constitution provides that: "Marriage and family shall enjoy the special protection of the State". This was one of the foundations for a decision of the federal constitutional court of West Germany many years before the Murphy case, one which resulted in income tax laws which discriminate against married couples being struck down. More recently the same provision has underpinned the decision of the same court which struck down social welfare laws which enabled an unmarried couple to receive more assistance than a married couple.
There is also another popular but misconceived criticism of the Constitution. It is the oft repeated claim that the Constitution is excessively protective of private property interests. Except for the special provisions dealing with the taking of the property of religious denominations as distinct from religious orders and of educational institutions, there is no reference whatever in our Constitution to the payment of compensation for the taking of property. The Constitutions of the United States of America and of the Federal Republic of Germany and the French Declaration of the Rights of Man and a Citizen, unlike our Constitution, expressly provide for the payment of compensation.
Article 43.1 acknowledges:
that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
Article 43.1.2º prohibts the State from passing any law to abolish the right of private ownership which of course is quite distinct from deciding how much property a person may be entitled to own or to retain. Article 43.2.1º and Article 43.2.2º goes on to give specific power to the State to delimit the exercise of the rights of private property in the interests of the common good, and to regulate them by the principles of social justice. The case law on our Constitution indicates quite clearly that a claim to compensation which can be sustained in the courts on the basis of a constitutional claim could be only a claim to just compensation. It does not permit of unjust enrichment nor does it, as has been pointed out by the Supreme Court, guarantee that in every case justice will require compensation.
The recent observations of Justice Niall McCarthy in the Supreme Court in JS Investments Limited, 1986, have raised the possibility that legislation authorising the use of public funds to pay what might be excessive compensation might be unconstitutional. In any review of our Constitution it must be acknowledged that the effect of the "single opinion" rule enshrined in Articles 26.2.2º and 34.4.5º of the Constitution fosters the illusion that the "single opinion" necessarily represents unanimity. In the opinion of Justice Walsh and I quote:
It can conceal fundamental differences of opinion of which the public ought to be aware, and which legislators should have available to them in their legislative deliberations.
The obligatory concealment of the existence of assenting or dissenting opinions also seriously hampers the development of constitutional jurisprudence. The "single opinion" can only be achieved by at least a bare majority of the members of the Supreme Court agreeing not only the result but also the reasons to be stated in support of that result.
The German Federal Constitutional Court after several years of being bound by a similar rule was ultimately released from it to the great benefit of German constitutional jurisprudence. While there may be political advantages to the rule it is in the opinion of many observers and participants too high a price to pay to avoid the shrill rhetoric of the disappointed litigant who endeavours to discredit a three-two result by describing it as one carried by "the slenderest of majorities". It is difficult to reconcile that the requirement of justice be administered in public with the requirement that in some cases all judicial opinions of the highest court in the land may not be revealed, particularly in an appeal from the High Court where several opinions may have been pronounced. Equally the provisions in Article 34.3.3º that any law which has been passed by the Supreme Court by virtue of Article 26 of the Constitution may never again be questioned in any court lies uneasily with the view that the Constitution is to be interpreted always as a contemporary law. There may be rare instances where a reference under Article 26 is urgently necessary, but it would be wiser to confine the prohibition on further questioning of a particular law to a limited number of years. The report of the Committee on the Constitution is of the opinion that the best solution to the problem would be an amendment to the effect that a Supreme Court decision could be challenged in further legal proceedings after a period of say, seven years.
The authorised text of Bunreacht na hÉireann, 1937, contained in that unassuming little blue booklet is not the whole constitutional story. In the words of Michael Keogh writing in The Irish Times on the 50th anniversary of the 1937 Constitution:
The Irish Constitution is not simply a document, a basic text, but it also incorporates traditions that are much older than the 1937 document, together with an impressive and continually developing Irish constitutional jurisprudence that has clothed the formal enactment of half a century ago with coherent and contemporary meaning. Our Constitution in the fullest sense is a richer, more durable, more adaptable and far reaching code of fundamental law than is apparent from the bare words of the blue booklet. As a guarantor of personal rights, it bears comparison in practice with any Constitution.
There are three main options with regard to the Constitution. First, it can be left largely as it is; secondly, a review of some or all of its provisions can be undertaken with the ultimate aim of modifying rather than abandoning the document; and, thirdly, an entirely new document can be drafted. In conclusion, I would like to emphasise that to scrap the Constitution as it now stands is to jettison all the creative, coherent and, for the most part, enlightened constitutional jurisprudence that after many years is beginning to acquire reassuring maturity. It is not simply a question of tearing up a piece of paper. Go raibh maith agat.