Dáil Éireann díospóireacht -
Wednesday, 23 May 1928

Vol. 23 No. 16

PRIVATE DEPUTIES' BUSINESS. - PETITION UNDER ARTICLE 48 OF CONSTITUTION.

Debate resumed on the following motion:—

"That leave be given to present a petition prepared in accordance with the provisions of Article 48 of the Constitution" (Deputy de Valera).

Professor THRIFT

The following amendment in my name is on the order Paper:—

To delete all words after the word "That" and substitute the words "the question of granting leave for the presentation of a petition, purporting to be prepared in accordance with Article 48 of the Constitution, be not further considered until the Oireachtas has prescribed the procedure to be adopted for the presentation of the petitions contemplated in Article 48 of the Constitution."

I daresay I am not giving you, sir, or perhaps any Deputy in the House, any information when I say that I was extremely interested when I saw Deputy de Valera's motion on the paper. I saw, of course, that the motion introduced many difficulties, and, no doubt, there were many others that I did not perceive. As to which difficulties we should come up directly against, I could not foresee at the time. As the debate proceeded, I saw more clearly many of those difficulties. I think it was only when I heard of the amendment that the Labour Party had thought of submitting to the House, and heard the terms of that amendment, that I began, as I thought, to see clearly the way in which the House ought to proceed. The reason why I thought I clearly saw the right course, I hope to give a little later.

I would like, with the permission of the House, if I can, to try to follow my own lines of thought throughout the whole debate. Deputy O'Connell stated. I thought in an exceedingly admirable way, my thoughts in connection at first with this subject. With much of what he said I found myself in complete agreement. My first impression, in fact, was that this motion indicated a wish and an intention to proceed on constitutional lines and in a constitutional way. With Deputy O'Connell I, as a supporter of constitutional government, am strongly of opinion that constitutional action, when taken in constitutional way, should be supported, and must be supported, by all who support constitutional government at all. So long as that action is taken under an Article of the Constitution and is taken in a constitutional manner, it seems to me it must command support, and so far I am in entire agreement with Deputy O'Connell. But I do not think that I have heard put forward by any of the speakers on this motion any contrary view. So far as I have heard the opinions of the Independents expressed, Deputies with whom I am, perhaps, most in contact, it seemed to me that in this connection the position could be clearly stated in very few words; that so long as Article 48 is an Article of the Constitution, a constitutional operation of that Article cannot with reason be opposed by all who support constitutional government. But again I say that I do not think I have heard that proposition contested by any of the speakers on this motion. I think it ought to be regarded by all parts of the House as incontrovertible. Perhaps in stating the matter thus, I lay more stress on the words "constitutional operation" than has been formerly laid by previous speakers, and perhaps more than would be laid by various members of the House, even by some Independents. It seems to me, however, that such operations of the Article must be in all their points constitutional. It must carry out the express action that is laid down in that Article; it must carry it out in the method indicated in that Article and by the steps indicated by that Article.

I think it was here that I began to diverge from Deputy O'Connell. I do not think in a matter of this kind that we can pick and choose between what is important in the Constitution and what is not important. If we wish to attempt to do a thing we have to do it constitutionally if it is under the Constitution, and to adopt a constitutional method of doing it, and constitutional steps for doing it. In legal matters technical procedure is important. If we depart from it we open the door to difficulties and dangers, and I cannot, with Deputy Lemass, be partly or slightly constitutional. I think when once we depart from the constitutional line we become unconstitutional, and I do not think it is possible in such matters to say that one thing is important and that another is unimportant.

The House will bear with me when I ask them to follow my analysis of Article 48. I take four leading points in it. The first sentence I regard as important though the time for its operation has elapsed. It is important because it gives a clear definition of what the Initiative is intended for. It is the initiation by the people of proposals for laws—I put in the word "proposals" for clearness—or proposals for constitutional amendments. If I were trying to make a case, which I hope I shall never have to do, before lawyers, I might be disposed to argue about the phrase "constitutional amendments." I do not wish to make any point of it here. I am willing to take that in the way I think it is taken by the proposer of the motion. I take it to mean amendments of the Constitution. It then refers to the initiation by the people of proposals for laws or proposals for amendments of the Constitution. That is all that I gain from the first sentence—the definition of what is meant by the Initiative. Then I come to what I regard as the second point in the Article, and that is the petition. I want Deputies to be absolutely clear as to what is meant by the petition. "Should the Oireachtas fail to make such provision within two years, it shall on the petition of not less than ..." formulate provisions for the Initiative or submit the question by means of a Referendum to the people. The petition is merely to compel the Oireachtas to formulate proposals for the carrying out of the Initiative, or to take the other alternative—consult the people about it. The petition refers to nothing else. It is simply a petition for the formulation of provisions by which the Initiative can be worked, and if the Oireachtas does not choose to formulate those provisions it must take, as I understand the Article, the opinion of the people by means of a Referendum as to whether or not they wish the Initiative to be introduced. I think it is a very important point. The petition is only a petition to set that going.

Then we come to what I regard as the third point in the Article. That is, after the petition has been presented, the Oireachtas either does make such provisions for the working of the Initiative or it takes a Referendum of the people on the matter.

It is only then, after that has been determined—we will suppose determined in favour of the Initiative—then and only then does the question arise of proposals for legislation which are not important for us to-day. Looking at Deputy de Valera's motion, it seems to me that he has slurred over the various distinctions which I have tried to make clear as appearing, to my mind, to be contained in that Article; and that he has in this motion more or less merged together all the different steps which are indicated in that Article, even to the extent of specifying one particular proposal for the amendment of the Constitution, which I take it he hopes to introduce by means of this Initiative. I think it is that which has led to what it seems to me to be a great deal of confusion in the debate that followed. I do not think it is any wonder. In such a matter the only hope of proceeding properly is to proceed step by step. The fact that all these things are more or less brought together in this motion would seem to me to be largely responsible for the diversity of opinion which has been expressed about this motion from the various sides of the House. To such an extent was that the case that I think —and I hope I am not misunderstanding him—that one Deputy went the length of thinking that if the motion were passed, the Oireachtas would not only be bound to formulate a provision for the carrying out of the Initiative, but that the Initiative could be at once applied by bringing forward a particular amendment which was indicated not in the motion, but in the speech of the proposer.

It was only when the motion was itself followed by the speech explanatory of it and the debate that followed, that the different points were raised and brought home to my mind. As you said, sir, after the speech in which the motion was introduced, a general discussion became inevitable. Different points were raised, and though I hope to base my case for the amendment on a very much more restricted line of argument, I hope the House will bear with me if I make a few remarks about the general points that have been raised in that discussion. I do not think I could very easily avoid it. The first point definitely to my mind that arose was, I think, a legal point. As such I do not presume, as a layman, to think that I am offering an opinion of any value. I can only state my own opinion as it seemed to be brought home to myself. It seemed to me perfectly clear that the petition considered in the Article is merely a petition that the Oireachtas shall formulate provisions; for this petition, as explained by Deputy de Valera, is a complicated petition. It included that provision, but it included more, and it is a legal question as to whether the inclusion of more did or did not vitiate the whole thing. To my mind—I may be wrong —the argument that many of the signatures to the petition might have been obtained, might have been put to that petition, because the signatory wanted a particular amendment that Deputy de Valera wanted, and wanted it very badly, and therefore signed quite independent of what he thought about the formulation of the provisions altogether; that that argument was sufficient, and would be sufficient in a court of law, to vitiate the whole petition. That is only my opinion. I do not pretend that it can be of any value at all to anybody else, but I give it as my opinion. I have often told the House that I make no claim in matters of law to be anything but a mere layman.

But the next difficulty was a still larger difficulty. It was a difficulty as to whether it was possible to make use of an Article of the Constitution practically to subvert the Constitution; to introduce, as I think I had better call it, directly to introduce under an Article of the Constitution, an anti-Treaty amendment. Now, that is the big difficulty which has been raised by this motion of Deputy de Valera's. It immediately raises the question: What is the Constitution? The Constitution consists of a series of Articles given in certain pages of the book I have before me here. Those Articles are a schedule to an Act, the first schedule to an Act, and those Articles only have validity because of that Act. They are given validity by Section 1 of the Constitution Act, and they are limited and controlled by Section 2 of that same Act. It is impossible to consider the Constitution as having validity at all apart from the Constitution Act, which gives it force.

It may be for academic purposes an excellent study in Irish and English literature, or how to pass from one to the other. But apart from the Constitution Act, the Constitution as specified in these pages of this Book in my hand has no meaning at all and no force at all. It is impossible to consider it apart. It has validity because of Section 1 of that Act, and it is limited and controlled by Section 2 of that Act, and Section 2 of that Act specifically states that "if any provision of the said Constitution, or if any amendment thereof, or of any law made thereunder, is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative.

Now how under any Article of the Constitution which takes its force under that Act and which is controlled by that section could it be possible to introduce an amendment to that Constitution which is repugnant to the Constitution? Or, putting the difficulty in another way, even if that amendment of the Constitution were carried by the Referendum, how can that amendment to the Constitution have any force whatever in view of the fact that it is controlled by that Section 2, which states that, in so far as it is contrary to the Treaty, it is void and inoperative? It seems to me to be perfectly clear that under the Constitution, by an Article of the Constitution, it would be utterly impossible to go contrary to the Treaty, or to break up the Constitution itself, which is what going contrary to it would do.

I would suggest that if the Oireachtas were to set about the formulation of proposals for the Initiative it would be bound in the formulation to make such provisions as would make it impossible to introduce under the Initiative any amendment which would be contrary to the terms of the Treaty. I suggest that the formulation of those provisions necessarily involves the setting up of some scheme, some method, some plan, by which proposed amendments to the Constitution would have to be tested and sifted, whether it were done by the Judiciary or any other way that may be thought of. Some such sifting would be necessary in order to prevent the Initiative being set in motion to introduce an anti-Treaty amendment. Whether that could be done is quite another matter, but it seems to me to be absolutely clear that those who want to bring about a change in the Treaty could not hope to proceed by means of the Initiative—that the only way in which such a change could be introduced would be by the direct method, by attacking the Treaty through the Government, by an Act of the Oireachtas declaring that we are no longer going to be bound by the terms of the Treaty.

May I digress for a moment at the risk of being out of order, at the risk of speaking absolutely in vain? May I appeal—and I wish that I could speak not as a plain matter-of-fact speaker, but with the eloquence which many Deputies have at their command—not alone to Deputies, but, in so far as my words are reported, to the country, for a cessation for a time at least of this anti-Treaty agitation. It is true no doubt—I put the best interpretation on it—that that will mean for many the holding up of the fulfilment of ideals that they hold dear, but, if so, did not the acceptance of the Treaty mean for many the giving up of their views, their hopes, their ideals, too, and they sacrificed those in order that they might join with the majority of their countrymen in the hope that a measure of unity might be attained and that all together might work to bring peace and prosperity to the country. I think those who made sacrifices, and they were sacrifices, have loyally attempted to carry out what they set out to do. They have co-operated, they have done all that in them lay to make that cooperation effective, and to support all attempts to bring prosperity and peace to the country.

Mr. AIKEN

What did they do to their own comrades?

Professor THRIFT

They have attempted to bring that peace by stages and by seeking unity. Is it worth while to take away the plank on which such a measure of unity has been attained? Is it worth while to put everything into the melting-pot again, to set even those who have joined together adrift, to bring us back to the stage when we were all taking different lines? Are there not enough things calling for us all to join together? Are there not hundreds of problems waiting for us to attack and work at? Are there not unemployed calling for us to do something to give them employment? Are there not thousands living in dwellings who appeal to us to put our brains to work to see how we can make things better for them instead of wasting time? I do not use "wasting" in the sense of saying anything which will hurt anybody's feelings in the matter. After all, these theoretic points are theoretic points and they are not getting at what is really calling us to work. There are hundreds of things which we might be working our brains at. Can we not, for a time at any rate, set aside further talk about the Treaty? Can we not get to work? What good will it do? Put everything, as I say, into the melting pot, smash hopes of unity throughout the country. Can we not try and work for unity everywhere in the country and get one country and see how things work? I apologise for this digression, as I know I am out of order. Perhaps I am too optimistic in hoping that even at the eleventh hour some such thought may prevail, and that it may seem to us all that it is more patriotic to put aside our hopes of satisfying all our ideals, more patriotic to see if we cannot work on better terms together, and try and do things that are urgently wanted throughout the country.

I come back to the point on which I was speaking, and that is, how can an attempt be made under the Constitution to wreck the whole Constitution, because that is what such an amendment to the Constitution as that which was mentioned by Deputy de Valera would inevitably do. It is quite clear to me that the way to do that is not under Article 48, but if the determination to proceed on these lines is adhered to, the only way to do it—the only way to do it by which we can keep our self-respect, at any rate—is to go straight for the Treaty itself, and see if we are prepared to abandon that Treaty.

I wish to come really into touch now with the amendment of which I have given notice. In that amendment I confined myself to very much narrower limits than those within which the debate has hitherto been confined. I have indicated the various steps which Article 48 seems to me to show are the necessary steps if we wish to bring about action under the Initiative. My amendment simply confines itself to the first step. As I have said, if we want to proceed clearly and constitutionally, we must only go one step at a time. My amendment confines itself to the first step, that is, the presentation of the petition. It seems to me that if a petition to formulate provisions for the Initiative is prepared and presented constitutionally, Deputy de Valera's motion is quite unnecessary, and the passing of his motion would not lead us one whit nearer, whether the petition had been prepared and presented constitutionally or not.

I think we all, or many of us, at any rate, hold very diverse views as to whether it was or not. I cannot say that I have any view at all on that matter. I do not know whether it was or not. I think you yourself, A Chinn Comhairle, said that you were unable to say whether the petition had been prepared and presented in accordance with the Constitution. I go so far as to say that nobody can say with certainty, because until it is laid down what is the constitutional way to prepare and present a petition—and that can only be determined by the Oireachtas—until that is done, nobody can say whether the petition was prepared in accordance with the Constitution or whether it was not.

Now the words of my amendment differ from the words of Deputy de Valera's amendment intentionally, but not in a depreciating way. Deputy de Valera refers to an amendment prepared in accordance with Article 48 of the Constitution. I do not question his belief that it is so prepared, but I submit that that is not enough for a parliament. There must be some way in which Parliament can judge as to whether it has been prepared in accordance with the Article or not. The only way in which it can be said to be prepared and presented constitutionally is when the Oireachtas itself has determined how it is to be prepared and how it is to be presented, to whom it is to be presented, on behalf of the Oireachtas, because the whole Article deals with the Oireachtas—the presentation of the petition to the Oireachtas, the act of the Oireachtas, formulating provisions for legislation by the Oireachtas—and until that is laid down I say it is impossible to say even if the motion is passed whether we are a bit nearer or not.

It seems to me to be perfectly clear and a thing that ought to commend itself to every Deputy in the House, whether he wants to proceed with this measure for the Initiative or not, is that so long as Article 48 remains in the Constitution, and it refers to the presentation of a petition, that the first thing to do is for the Oireachtas to determine how that petition is to be presented, to lay down what is the constitutional and proper way to do it. And, accordingly, I have put down as a substantive motion that the House should proceed to get advice from a Joint Committee of the Dáil and the Seanad as to what that Committee thinks is the right method to adopt for the proper presentation of such a petition. That is my case for the amendment. I contend that the passing of the motion itself will not advance us. There will be no other way of saying afterwards whether this is constitutional or whether it is not. What we ought to do is proceed by proper steps and determine first what is the constitutional way of preparing a petition. It might easily be that when a proper method is established that that method would require supervision for the preparation of a petition from the very start, and not alone an inquiry into it when the position has been obtained. It might require that we should have signatures obtained to it under proper attestation to be accepted by the Oireachtas as satisfactory proof of the genuineness of the signatures. But I contend it is quite clear that the first thing we ought to do is to make up our minds as to how we want a petition to be presented to the Oireachtas and how it can be presented. I do not think I am quibbling in the least. I contend it is an essential feature of the Article that every bit of constitutional procedure is essential, and we must be careful in carrying out any Article of the Constitution that we follow it with meticulous care through all its steps if we wish to be constitutional. I beg to move that Deputy de Valera's motion be amended in the way in which I suggest, in the amendment on the paper in my name.

Mr. DE VALERA

As a question of procedure and order, is it my right to close the debate on the amendment as mover of the original motion?

AN CEANN COMHAIRLE

The Deputy who moved the main question has a right to conclude on that question, but if an amendment is proposed and the amendment is carried the Deputy who moved on the main question has, I think, lost his right to conclude the debate. As a matter of practice the Deputy who moves the main question, under procedure of this kind, should always have an opportunity of speaking on the amendment, and it has been found the practicable method to allow that Deputy, by agreement, to conclude the debate. I suggested that procedure already. I think, in another case. I have no objection to it in this case. On the amendment before the House, the Chair will tend to prefer Deputies who have not already spoken, with the proviso that the Deputy who moved the main question must be allowed to speak before the matter is brought to a conclusion. I think, if there is no objection, he may be allowed to conclude the debate on the amendment itself.

Mr. O'HANLON

I hesitated to rise to support Deputy Thrift's amendment because I happen to be an Independent Deputy, holding views perhaps in 99 per cent. of cases different from those held by Deputy Thrift, but in this one instance of one per cent. I find myself in total agreement with the arguments he has put forward in support of his amendment. First of all, I welcome this amendment as bringing the House back to a sense of its dignity in dealing with an exceedingly large and important question—the question of the Constitution of the Irish Free State. I heard a good many speeches upon this motion, and for a time, I should say, I had made up my mind to vote in favour of it. (A Deputy: Why change?) Deputies laugh and ask me why change. I shall tell them why I changed. It is because I was elected an Independent member of the House to change my mind if I like and not to have somebody else making it up for me. I belong to the peculiar type of politician who tries to make up his own mind after having appealed to the electors. They said to me: "We put our case in your hands to act on our behalf and we believe you will act straight," and I am trying to act straight on this occasion.

I am not going to be led off the path of straightness. When I was interrupted I spoke of the dignity of the House, and also of the fact that up to a point I was entirely with Deputy de Valera in his motion. Nobody could find fault with Deputy de Valera's motion that leave be given to present a petition prepared in accordance with the provisions of Article 48 of the Constitution. I do not want to prolong this debate, except to adopt almost every word that Deputy Thrift has used in connection with this question of the petition. There are many legal aspects of it, and the ordinary layman will find himself in a maze of legal difficulties. I will not attempt to extricate myself from them at the moment. I think the House is also in a difficulty. I find in dealing with this motion that we have had put on by one side the constitutional smashing of the Constitution and by the other the constitutional misuse of the Constitution. That is not a position, I think, which should be taken up either by the Opposition or Government benches. If those of us who believe we have a Constitution are really serious, and if we want to amend it, we are not going to amend it by tricks or quibbles. One side said that this was a quibble; the other say it is a trick. We want to do it in a dignified way, which will appeal not so much as a debating point here, but which will appeal to those we are representing, and we will see that the Constitution is not to be broken by tricks or quibbles.

There is very little else I want to say. I could say a great deal, and I, with Deputy Thrift, do not wish to take this opportunity of scoring a point off the Opposition or off the Government, but I unite with him in making a plea that if we are serious in doing anything for the country, there is a constitutional way of doing everything. There is even a constitutional way, as Deputy de Valera has found out, for breaking the Constitution. I am not out to break the Constitution. I would ask the House to deal with this matter by leaving it over until such time as the machinery is put into operation for dealing with Article 48 of the Constitution, whether it be right or wrong. I express no opinion whatever as to whether the Initiative or Referendum is a good thing, but, right or wrong, there is a way of dealing with Article 48 of the Constitution, and that is by adopting the amendment which Deputy Thrift put before the House.

Mr. HUGH LAW

I trust that the Government will see its way to accept the amendment Deputy Thrift has put before the House. I think he offers us a dignified, proper and right course among many conflicting interests and different courses which we might take. I say quite frankly that I do not think it would have been sufficient to have based our opposition to Deputy de Valera's motion on the grounds put forward by the President or some other members of the Front Bench. I say it for this reason, not because I think those grounds to be wrong, not that I think they were put forward in error or bad faith, but because, in my judgment, they were somewhat too narnow for popular understanding. It may be that there is something in the distinction which the President drew between the presentation of a petition to the Dáil and the presentation of a petition to the Oireachtas. It may be there was substance in the point raised by the Minister for Defence—I think there was—that the petition should relate to one clear point and not to two points. At any rate, if we had before us no other choice than the one put forward by the Minister for Agriculture, I, for one, would have been prepared to adopt the line he recommended. I think politics are, in the main, a choice of evils. One must be content, for the sake of doing great good, to do a little wrong, and if there was no other choice possible than to commit ourselves to a technical illegality for the sake of avoiding the overthrow of the Constitution, it is plainly setting before us an action which must be under a provision of the Constitution liable to be challenged in the courts and upset as contrary to the Treaty. If that had been the only choice before us, I for one, because my conscience has been hardened after something like a quarter of a century of politics, would have been prepared to agree with reluctance to that course. All the time there has been another course. The amendment which Deputy Thrift has moved gives us a plain, simple, legal and dignified course. I venture to commend it to the House and hope the Government will accept it.

The MINISTER for EDUCATION (Professor O'Sullivan)

I presume that on previous occasions on speaking on this amendment we had full liberty to discuss not merely the amendment and its connection with the motion but also the motion itself, and so far as the motion itself is concerned, I cannot, any more than you, sir, take seriously the suggestion of Deputy Lemass that we are discussing something in vacuo, that we are merely discussing the abstract principle that it is a good thing to receive a petition we know nothing about, we never heard about, to be presented to the Dáil if it is in accordance with Article 48 of the Constitution. The motion is that a petition be received, namely, the petition described, alluded to, and read out by Deputy de Valera in his opening speech. It is quite true that Deputy Lemass's suggestion may not have been seriously meant, but I prefer not to take the responsibility of deciding. Many of the arguments I heard I should not care to decide whether they are seriously meant or not. I gather from Deputy Lemass's own leader, in an interruption of a subsequent speech of the Minister for Agriculture, that he himself regarded that suggestion more or less as a quibble. Therefore I leave it there. It is not the reception of any motion that we are in reality here discussing. It is the acceptance or rejection of a particular motion that purports to be drawn up and presented here in accordance with Article 48 of the Treaty.

I do not think that any Party or any Deputy in the House ought to be under any illusions so far as that is concerned. I was surprised, though I am not quite sure about it, to learn from speeches made by the Labour Party in this House. that they are not sure whether it is an abstract principle we are discussing or this very concrete Petition that was presented to this House. I wonder does Deputy de Valera himself wish us to believe that it is merely an abstract principle or whether it is his own very definite motion. the fate of which has to be decided as a result of this debate. Of course it is quite correct to say that we have seen what purported to be the Petition. We have seen the bundles that one day made their appearance in this House for a short time. We do not know what is in the Petition or what it is about, but we are told that it asks us to deal with two things—that it is to deal with the general question of the setting up of machinery to put what is known as the Initiative into operation. And not merely to do that but to do it for a particular purpose, namely, to get rid of Article 17 of our Constitution. Really that is what in essence we are told to do. Our attitude as a Government towards that proposition has been very clearly indicated by the three members of the Government who have spoken—by the President, by the Minister for Defence and by the Minister for Agriculture. I think they made our attitude quite clear on the various questions that were raised on this matter.

Let us remember there are two distinct questions involved. One is Article 48 of the Constitution—I will deal with that in a moment—the Government's attitude towards Article 48 of the Constitution and the second is this Petition that we hold is not in accordance with Article 48 of the Constitution so far as that Petition has been explained to us by the mover of the motion. Our attitude towards Article 48 of the Constitution is one thing. Our attitude is quite definite. There should be no cause or no reason for misunderstanding. Our attitude towards the petition, that claims to be under that Article, and that we claim is not under that Article, is an entirely different thing. It may be asked why we found it necessary not merely to state what our attitude is towards the Petition, but that we found it necessary also to state our attitude towards Article 48 of the Constitution. May I answer that question by asking another? If we did not do so, and if we then proceeded to introduce a Bill, as we are entitled, to remove that Article from the Constitution, I can easily imagine that we would have been accused of deceiving the Dáil and of keeping silent on this particular Article when this Petition was being discussed. I think it was the duty of the President and the other members of the Government who spoke, to make clear their attitude, not merely to the Petition, but also as to Article 48, and I think that is what they did. Our attitude towards both of these matters, towards Article 48 of the Constitution and towards this Petition, that claims to be drawn up in accordance with that Article, is strictly, fully, and entirely constitutional. It is animated with full respect for the Constitution. The suggestion that the contrary is the case, the accusation that we are willing, so to speak, to play with the Constitution, is only possible if people confuse our attitude towards these two very different matters.

So far as Article 48 of the Constitution is concerned, I ought to point out that it is a two-fold one. Article 48 is an Article of the Constitution. It is portion of the fundamental law, therefore, of this country, and as long as it remains portion of the Constitution it must be honoured. That is quite clear. We are fully within our constitutional rights—and I challenge anybody in the Dáil cogently to prove anything to the contrary or to suggest the opposite— in moving for the deletion of the Article if we think fit. That is quite clear. I think it is because people were for one reason or another inclined to confuse our attitude towards Article 48 as it stands, our honouring of that Article, which we hold must be done, and our very definite intention to try to induce the House to remove that Article as soon as possible that a case can be made for the light charge of unconstitutionalism that is so easily levelled across the floor of the House at the Government. I think there should be no room for hesitation or doubt that as long as that Article is in the Constitution, it must be honoured, but equally clear is this, that by the Constitution itself any party in this House and any member of this House is entitled fully within the Constitution, and using a constitutional right, to move, if he thinks fit, for the deletion of that Article.

Mr. COONEY

And for the deletion of Article 17.

Professor O'SULLIVAN

I will deal with Article 17 in my time, and not in the time of the interrupters.

Mr. LITTLE

We hope to deal with it in your time.

Professor O'SULLIVAN

Deputy Little let so many cats out of the bag the last day he was speaking, that he might keep quite when other people are speaking. We were presented with the very dignified and exhilarating spectacle of Deputy Little's leader in a wild chase round the Dáil in order to try to get Deputy Little's cat back into the bag again.

Mr. MacENTEE

Just as the Minister for Education is trying to catch Cosgrave's cat.

Mr. COONEY

Deputy Little was making way for the Minister.

Professor O'SULLIVAN

We all remember the particular episode, and we can say that it did give us much pleasure.

Mr. O'KELLY

We will remember this also. This is a practical illustration of what happened the other day.

Mr. FLINN

The Minister is asking for interruptions.

Mr. CARNEY

He is sending out the cat to look for Article 5 of the Treaty.

Professor O'SULLIVAN

Am I relevant, A Chinn Comhairle?

AN CEANN COMHAIRLE

I hope Deputies will some day realise that Minister have a right to speak in the House.

Mr. LEMASS

I would suggest that your advice on that matter, A Chinn Comhairle, should be given impartially. I counted in the Official Report the number of times I was interrupted one day last week. I was interrupted thirty-one times.

AN CEANN COMHAIRLE

Deputy Lemass is not yet a Minister. In this particular instance, my advice is being given in regard to Ministers. Ministers have a right to speak in the House. I am afraid that some Deputies do not realise that. The matter to which Deputy Lemass referred is one about which I know nothing.

Mr. CARNEY

Ministers like us to help them out.

Professor O'SULLIVAN

This Constitution was passed by the Dáil in 1922. No member of the Dáil that passed that Constitution had the slightest doubt that it could in many ways be amended. There is no doubt that it could be amended, and the Dáil that passed the Constitution was quite clear on the point. The Deputies then clearly foresaw that amendments would be necessary to the Constitution that they had passed. They provided, in the Constitution itself, for the passing of amendments to that Constitution. Even though they were only starting the Government of the Free State at that time, they, having wisdom, foresaw—or, perhaps, I should say they saw clearly—that it was one thing at the beginning of the political life, so to speak, of this country to draw up a Constitution, but that coming years would give wisdom that was not then possessed, and that amendments would be necessary. They provided for that. They foresaw that probably in the early years of the Constitution it would be desirable, in the interests of the Constitution and in the interests of the nation, to make the passing of amendments easier for the first eight years than would be the case in the subsequent years. Hence, it is that in the initial period the passing of certain amendments to the Constitution was made easier and lighter than in subsequent years. Reference was made here—I think by Deputy Davin— to the view expressed, during the Constitution debates, by the late Minister for Justice. His murder has, of course, removed from us his great wisdom on this occasion.

But let it be quite clear that long before Deputies opposite had the intention of entering this House that Minister had made up his mind, as others had made up their minds, that this particular Article of the Constitution was a flaw in the Constitution and ought to be removed. How, then, that being the case, can anybody suggest that there is anything in the slightest degree unconstitutional in the attitude taken up by the Government, that this clause ought to be removed from the Constitution? We are perfectly within our rights in proposing to amend or entirely to delete Article 48. There is nothing unconstitutional in proposing that. It is quite true that other members of the House may not take the same view as we do about that Article. Other members of the House may think that the Article is important and valuable. It may seem to them to be, in a certain sense, more democratic than ordinary Parliamentary institutions are democratic. But we are certainly within our constitutional rights in believing the opposite. Personally, I believe that though this Article has, on first examination, the appearance of giving more rights to democracy, in reality I think this Article, and other Articles like it, are in the long run more calculated to thwart the will of the people than to help to secure the victory of the will of the people. We believe this Article is capable of gross abuse. We believe it is capable of being used to subvert all good government in the country. We believe it is capable of being used—as it would be used, for instance, if this motion were passed—to defeat the declared will of the people.

Mr. LEMASS

How?

Professor O'SULLIVAN

We believe the Article is undemocratic and unsound, and we intend to move the deletion of that particular Article. Others may hold different views, but we hold that we are entitled, as long as we are members of this House, and even when we are not, to have our views. We hold that as long as we are members of this House we are entitled to put our views before the House and to ask the judgment of the House upon them. The President, both now and previously on relevant occasions—last July, and again a week ago, when it was equally relevant—did think it was his duty to point out what the attitude of the Government was to this particular motion. We believe it serves no useful purpose; that it is bad for the State and that it ought to go. I am not going into detail. The time will come, I hope, when the Article itself can be debated on its merits—when we can debate and argue definitely here whether or not this Article ought to remain a portion of the Constitution. May I mention one objection. Let us suppose—from what I have read of the working of the Article in other countries there is nothing chimerical or unduly imaginative about the supposition I am making —a general election.

Mr. O'HANLON

On a point of order, are we discussing Article 48?

Professor O'SULLIVAN

I think you, A Chinn Comhairle, decided that we could not very well avoid discussing the Initiative.

Mr. FLINN

The Minister is ignoring Article 48.

AN CEANN COMHAIRLE

On Deputy O'Hanlon's point of order, I think I stated that a discussion on the value of the Initiative as a piece of constitutional machinery seemed to me to be inevitable in view of the motion. The Minister is perhaps discussing the Article itself more than the machinery. It is a distinction which is very difficult indeed to draw in this instance.

Mr. FLINN

A red herring is easy to draw.

Mr. DAVIN

Will the Minister tell the House why we should ignore the Article while it is there?

Professor O'SULLIVAN

I have distinctly stated that the Article should not be ignored while there. Nobody has suggested that the Article ought to be ignored while it is there.

The PRESIDENT

Give me a petition and I will recognise it, but not that.

Professor O'SULLIVAN

I gather that it is your will, A Chinn Comhairle, that I should not attempt to show how this Article might work out undemocratically.

AN CEANN COMHAIRLE

I am not preventing the Minister from doing that at all. I am afraid the matter has gone so far now that the contrary will be argued. I will allow the Minister to argue the whole matter.

Professor O'SULLIVAN

I was going to make this one point as an illustration. Suppose there is a general election in this country, and any Government gets returned with a two-thirds majority of this House. Then there is a petition for the Initiative. The Government refuses to act, because the Government believes, rightly or wrongly, that the particular matter asked for in the petition would be fatal to the country, and would be against the policy that the Government has stood for and must stand for, according to its own lights. Let us suppose the Government refuse to act. The next move is that the petition must be referred by way of referendum. Let us suppose that what has happened in most of the countries where the Initiative and Referendum have been in force happens in this country, and that only about one-third or one-fourth of the people vote. What is the situation then? A small fraction of the people, a fraction possibly representing one-sixth of the people—that has occurred in cases where this Referendum was in force—will decide that a certain policy must be carried through. The Government, just returned after a general election, is incapable of adopting that particular policy. Is there any method of solving the particular crisis that on that occasion arises? In the long run, the result of the Initiative and of the particular machinery connected with it is not the triumph of the will of the people, but the triumph of well-organised interests. But as Deputy Davin is so anxious to have explained, as long as the Article is there it must be honoured. But a petition has only to be honoured when it is shown to us that it is in accord with Article 48 of the Constitution. We do not believe that this petition, which is attempted to be presented to this House, is in any sense in accord with Article 48 of the Constitution. Full respect for Article 48 of the Constitution does not mean any obligation on our part to vote for the acceptance of a petition that we believe not only not to be in accord with Article 48 of the Constitution, but that we believe to be contrary to the whole Constitution.

There is nothing inconsistent in full respect of Article 48 of the Constitution and the line that we are taking up on the matter of this particular Petition. In this Petition we are asked to do two things. An effort is made to force us, under plea of constitutionalism, for the moment, anyhow, to accept something that we believe we are not constitutionally bound to do and, secondly, to force us to do what constitutionally we believe we are forbidden to do. Are we to be tricked into doing what we believe to be wrong? Are we to be tricked into a violation of the Constitution simply because a charge of unconstitutionalism is likely to be levelled against us, because we do not accept the first Petition that purports to be in accord with Article 48? Are we to be tricked into undermining and flouting the Constitution itself? That is our position. This Petition purports to be according to Article 48. We deny that it is according to Article 48. That is our firm belief and, as long as we believe that, it is not possible for us to vote for the motion that Deputy de Valera has proposed. As Deputy Thrift, in one of the best pieces of analysis I have heard since I came into this House, pointed out. Article 48 has one purpose and one purpose only, and that is to deal with the Initiative and the machinery of the Initiative. It has got nothing to do with the presentation of amendments to the Constitution.

Mr. DE VALERA

Who said it had?

Mr. LITTLE

That is the answer to my cat.

Professor O'SULLIVAN

I am glad that Deputy Little is happy with his cat at last. I hope his leader is equally happy, having, as he imagines, got him back into the bag. But whether he has got him into the bag or not we know that the cat is there.

Mr. LITTLE

You put him back for me.

Professor O'SULLIVAN

The first portion of the Article is permissive. It simply states that the Oireachtas may adopt the Initiative. Remember the Oireachtas is quite within its rights in not taking steps in that direction. It is a matter for the will of the Oireachtas, but if it does not do it then the Article goes on to state that on a certain thing, namely, a petition signed by seventy-five thousand people the Oireachtas may do one of two things. It still may refuse to put the machinery into operation, but if it does so it must refer the matter by Referendum to the people; but, as I say, this Article deals with a petition of one kind and one kind only, a petition dealing with the machinery of initiation. I believe, as Deputy Thrift believes, that from the start this Petition is vitiated by the fact that it put before the people a confused issue. It is not in accordance with Article 48 and it destroys the whole idea of the Initiative by putting a confused and double issue before the people.

Mr. DE VALERA

Not a double issue.

Professor O'SULLIVAN

What did the alleged petitioners mean when they signed this? Have we now to decide that? Supposing you do accept it, what is to be submitted to the people —this petition or a different thing altogether? What right have we to change what other people have put up to us? If you accept this you will submit to the people again a confused issue, and we will not know what they stood for. If Deputy de Valera has not taken the ordinary precautions to bring this petition within the four walls of the Constitution, by what process of reasoning are we bound to help him out of his difficulty? Why are we bound when he himself has, I believe, failed to observe the rules of the Constitution, when he failed to proceed according to the directions laid down in the Constitution? Why should others come to his assistance to help him out? Have the majority of this Dáil, have the majority of the people in the country, no constitutional rights? Why are they to be compelled to do what they think to be wrong, simply because if they do not do it a certain petition cannot be presented in the way Deputy de Valera wants? The petition, I believe, was vitiated from the start. No clear issue was submitted to the people. If Deputies think there was a clear issue, let them read the speeches of those who stated they intended to support this motion, and they will know definitely from these speeches whether the main purpose is to set up the Initiative or to get rid of a certain obnoxious Article in the Constitution and in the Treaty.

Mr. DE VALERA

Through the Initiative.

Professor O'SULLIVAN

It is also bad, as Deputy Thrift has pointed out, for another reason. I spoke of what those who drew up the Constitution did in the way of providing for future amendment of the Constitution, but they laid down certain limits within which amendments could be made. As Deputy Thrift pointed out, that was done in an Act to which the Constitution itself is a Schedule—namely, the Constitution Act. It was also done in Article 50 of the Constitution. As long as that is there, taking the Constitution as such, it is impossible for this Dáil to pass legislation of a type such as is demanded in Deputy de Valera's petition. Even supposing that Article 2 of the Constitution Act and Article 50 of the Constitution itself were not there, surely Deputies opposite know well that international agreements cannot be abrogated in that particular way.

Mr. CARNEY

Article 12 was. What about it?

Professor O'SULLIVAN

An international agreement over-rides municipal law, and by doing so it becomes municipal law. It cannot be negatived by legislation. It can be altered in either of two ways, and only in either of two ways, either by negotiation and agreement between the parties who made it or by denunciation.

Mr. CARNEY

Not the parties concerned. You did not consult the Dáil.

Professor O'SULLIVAN

It can be altered in either of these two ways, and only in either of these two ways. These are the only means known in international law of changing agreements between two countries. Even apart from that, as Deputy Thrift pointed out, it is the more manly thing, the thing more in keeping with the dignity of this House and of this nation, to face the issue fairly and straightly and call for the denunciation of the Treaty, and not try to do it in this way, in a hopelessly unconstitutional manner. You have one way of gaining your end, by peaceful means; that is to see that the people elect a Government that is willing either to negotiate a change in the Treaty or is ready to denounce that Treaty. Until the people of this country elect a Government that is prepared to do either of these two things, then I see no manly or constitutional method of changing that Treaty or getting rid of it or of getting rid of any fundamental article in that Treaty. It may be, of course, that that would be quite easy. As Deputy Little put it, with great knowledge of the methods by which political negotiations are carried out: "It is always possible to change treaties"—of course it is—"and if there was a united vote of the Irish people and of this House in favour of the removal of that Oath, it would be a mighty easy thing to face the English Government and say that the Oath has to go—to re-open the Treaty and get rid of the Oath." It would be a mighty easy thing for any party to ask another party to do anything. Now, when that thing happens, when the people of this country make up their minds to repudiate the Treaty, or to repudiate fundamental Articles in the Treaty, I hope there will be no indefiniteness about it, either on their part or on the part of the people who invited them to that particular policy. But if there was a wrong way to go about removing this particular Article it is the way that has been chosen by those who got the people to sign this particular Petition. It is in reality a trick to undermine the Constitution. Then what about verification?

Mr. O'KELLY

What about Deputy Thrift's amendment?

Professor O'SULLIVAN

What about verification? Verification under the Article is undoubtedly important. How are we to know whether these signatures are genuine or not?

Mr. SMITH

You should have gone around with them when they were got.

Professor O'SULLIVAN

We are told by the mover of this motion that a certain number of people went before Peace Commissioners and swore that the signatures were genuine. They were witnesses, not the people who signed the Petition.

Mr. DE VALERA

Who saw it signed.

Professor O'SULLIVAN

Is any one serious in thinking that that is verification? We know nothing about these parties, nothing about their oath and nothing as to the value they attach to the oath.

Mr. CARNEY

It is more valuable than your oath.

Professor O'SULLIVAN

The Labour Party recognised, as was clear from their amendment, that the mover of this motion was on the wrong track. Is it possible that, in order to show their respect for the Constitution, they are going to vote for a motion that in reality is itself unconstitutional, and is aimed at tearing up and undermining and destroying the Constitution? The mover of this motion had plenty of time, since that happy day when he saw the serried benches opposite for the first time—not quite so full now as they were then, perhaps—to take the proper steps in preparing this Petition.

Mr. DE VALERA

We have taken them.

Professor O'SULLIVAN

But during all that time, interested as they professed to be in the Petition, they took no steps. Article 48 is still there: as long as it is there it must be honoured. Deputy Thrift's amendment, and the motion of which he has also given notice, for a committee to carry out what is really a corollary of his amendment, are the steps that are necessary to be taken if Article 48 is to be honoured. On that ground, and on that ground alone, because Article 48 is still an Article of the Constitution, and as long as it is there we intend to support Deputy Thrift's amendment—(Interruptions). We had no doubt about it from the start, and all my speech was going to prove that anything that was constitutional in connection with this Article we were, and are, prepared to do.

Mr. MacENTEE

You have had a great deal of difficulty in eating humble pie.

Professor O'SULLIVAN

And at the same time we again want to make it quite clear that we reserve to ourselves the constitutional right to move at the first available opportunity for the deletion of this particular Article. I want to have no misunderstanding there. We intend, as long as the House sees fit to keep this Article, to see that this Article is honoured. We intend to honour it to the full.

Mr. LEMASS

You have nearly been cornered.

Mr. O'KELLY

You are turning down your leader.

Professor O'SULLIVAN

I sympathise with you, A Chinn Comhairle; naturally there are limits to your powers. We also intend to put a proposition before the House that this Article, which we believe to be harmful, to be subversive of good order, to be dangerous to the Constitution, be removed from the Constitution.

Mr. LEMASS

Up "the will of the people!"

Mr. O'KELLY

Why not abolish the Electoral Act?

Professor O'SULLIVAN

We will move for the abolition of any Article in the Constitution that we think is harmful.

Mr. MacENTEE

The Minister's back is still sore from the "Irish Times" whip.

Professor O'SULLIVAN

The Deputy apparently thinks that the "Irish Times" can do no wrong. That may or may not be so. But from the start it was made clear by Ministers here that they did not believe that this Article ought to be in the Constitution, and that they proposed at the first opportunity they had to ask the House to remove it. But as long as it is there we intend to honour it. We propose to do these two things——

Mr. LEMASS

Say it again.

Professor O'SULLIVAN

Certainly. I quite admit that, owing to the difficulties that Deputies opposite have in understanding ordinary reasoning, and ordinary, clear statements, it is necessary to repeat even the most ordinary things very often—(Interruptions)— in the hope that they may penetrate in the long run.

A DEPUTY

You will convince yourself yet.

Mr. MOORE

Do not lose your temper.

Debate adjourned until Friday.

The Dáil adjourned at 10.30 p.m.