As nobody else seems desirous of speaking on this particular matter, I take advantage of the privilege of concluding on the amendment. The only really serious speech, in my opinion, apart from the speech of the leader of the Labour Party, in this debate has been that of Deputy Thrift in introducing the amendment. I disagree altogether with his conclusions, and I hope to go fairly closely along the lines that he has travelled. There is very little necessity to deal with and analyse Article 48 of the Constitution. He did that very thoroughly, and I only regret that he did not think it worth his while to take up the Petition and parse and analyse it for us in the same way as he did Article 48. If he had done so I do not think he would, for a moment, have suggested that there was anything slurred over or that there was any attempt to do anything in respect of this Petition except in the most strictly constitutional way. I took the pains to read what was said when this Article 48 was passing through the Provisional Parliament, and I may have occasion, as I go ahead, to deal with some of the remarks made then. The first sentence is this:—
"The Oireachtas may provide for the initiation, by the people, of proposals for laws or constitutional amendments."
Now this was discussed in the Provisional Parliament, and the only point raised in connection with it was whether it should be mandatory on the Oireachtas to provide whether the word "shall" instead of the word "may" should be put in there. The only reason given as to why it should not be made mandatory was that the circumstances of the times were such that it was not certain that within a year or two it would be possible for the Oireachtas to fulfil the obligation which "shall" would impose upon it.
Now, let us come to the next sentence.
"Should the Oireachtas fail to make provision within two years, it shall, on the petition of not less than seventy-five thousand voters on the register, of whom not more than fifteen thousand shall be voters in any one constituency, either make such provisions or submit the question to the people for decision in accordance with the ordinary regulations governing the Referendum."
Contrast these two sentences with "may" in the one case and "shall" in the other. If you take into account the debate that took place at the time there is no doubt that "shall" there is obligatory. There is a definite obligation on the Oireachtas on the Petition. It does not say on the receipt or on the presentation of the Petition, but "on the Petition." Why was it put in by lawyers? I have seen the draft signed by three of the judges either of the Supreme Court or of the High Court. I gave the names when I introduced the Petition. Are we going to assume that these people did not know what they were doing, just the same as we are asked to assume in connection with Article 17, that Lord Birkenhead did not know how to make a thing obligatory or not in his draft? I say here that that was deliberately put in to compel the Oireachtas on a Petition being signed, and not to give the Oireachtas the simple way, and by saying, "Oh, no, we will not look at this Petition of yours. You may sign it as long as you like, but by the simple process of turning our backs and refusing to receive it we can get out of any obligation to receive it." I say there is a moral obligation, and that anyone who wishes to perform his moral obligation is bound to receive it, on its being signed when he satisfies himself that it fulfils the particular provision made there. Now what are the provisions made in Article 48? The provisions made there are that it shall be signed by not less than "seventy-five thousand voters on the register, of whom not more than fifteen thousand shall be voters in any one constituency." The Oireachtas is bound, and this Dáil, as part of the Oireachtas, is bound to do its share when the Petition has been signed and presented, or rather when made aware of the fact that it is signed it is bound to fulfil its obligation in this matter. I say you are not fulfilling your moral obligation, as imposed by this Constitution, if you try to get rid of it by the simple process of saying you are not taking it; "you may present your bill, but I am not going to examine the account and pay my debts."
Now what is it the Oireachtas is compelled to do? What is it that is made mandatory on the Oireachtas to do on being made aware of the signing of this Petition? It should, of course, satisfy itself, in the first place, by the setting up of examiners that the Petition is of the character indicated or intended in this particular Article. It should satisfy itself, that seventy-five thousand voters, of whom not more than fifteen thousand voters have come from any one constituency, have signed it. I hold that once this Petition is brought to its notice, as having been duly signed, it is the business of the Oireachtas to set up examiners to see whether the conditions here imposed are being fulfilled, and when that is done and if it cannot show that the conditions have been violated, then I say it is its duty to do one of two things made mandatory in the Article. What are the two things? One is that it should make provision for the Initiative. Those are precisely the terms of the Petition which has been signed. I shall take that Petition later and do some of the parsing on it that Professor Thrift did on some of the Articles on the Constitution. The Petition was most carefully drawn up. I knew perfectly well, from the attitude of the Executive Council, that if there was any chance by any legal quibble they would get out of their obligations. And in order to make sure that they could not get out of their obligations I got it drafted by the best legal authority that I could find, and one by the way who is not associated with our political Party, who could take a calm, impartial view, and who did it from a purely legal standpoint.
The phrasing is objected to on the pretence that there are two Petitions, and this by men who admit themselves they are only laymen. I say if they read this as ordinary English they will see it is correctly drafted. These men put themselves up, although they disclaim any such intention, against a legal authority upon this matter. In the drafting this legal authority took the precise words of the Article. When I brought this first before An Ceann Comhairle we had a long talk in connection with procedure, but there was never a suggestion for a moment that this Petition was a double-barrelled Petition, or that it was drawn in any way except in accordance with Article 48 of the Constitution. The first suggestion of that kind came from the President. Deputy Little, on our side, stressed a certain argument which was quite legitimate, but to a point in which he made a mistake. He said that this Petition having been signed, if it is accepted, when the Initiative was set up we might use it afterwards for another purpose. Of course, that could not be done. First of all the Petition would be impounded here with the Clerk of the Dáil or the Clerk of the Seanad or somewhere else and, therefore, that Petition would not ordinarily be available for a second purpose. In any case there is no need to do it. If there is any difficulty about it later, I shall get Deputy Little's argument and show that it was a perfectly legitimate, natural argument as to the difficulty, in fact, the most extraordinary hardship, we put upon ourselves to get this thing signed, by making it quite clear that one of the constitutional amendments which we propose to use the Initiative for ultimately was to get this constitutional amendment, namely, the elimination of Article 17. I hope I have made it clear that the Oireachtas is bound to act on this Petition. On this Petition being presented here formally, it is quite clear that no one, wishing to put an obligation on the Oireachtas, would leave such an easy way out as for the Oireachtas to say, "We will not look at it."
The next thing is this: "Any legislation passed by the Oireachtas providing for such initiation by the people shall provide," and it goes on to say that if the Oireachtas acts on this Petition, either by starting out of its own initiation at once on receipt of the Petition to make the necessary provisions for the initiation, or if it prefers to refer the matter to the people, then let the people decide whether there should be initiation or not. It says in either case that any legislation passed by the Oireachtas providing for such initiation by the people shall provide——. It limits, in other words, the powers of the Oireachtas as regards legislation in respect to the Oireachtas in these particular matters. The first point is, that such proposals may be initiated on the petition of 50,000 voters on the register. That means that if you are making legislation, as a result of a petition being signed and brought to your notice, you must if you are to keep within the Constitution provide for these proposals for legislation by the people. When the people start to make proposals for legislation they must be initiated by them on the petition of 50,000 voters on the register. That is the matter of voters necessary in order to initiate the legislation.
The second point is that if the Oireachtas rejects the proposal so initiated it shall be submitted to the people for decision in accordance with the ordinary regulations governing the Referendum. That is, if there be a petition from the people for certain changes in the Constitution, or requesting that certain laws be enacted, and if there be a petition signed by 50,000 voters to that effect, this Oireachtas may of course accept or reject, but if it is going to reject then the questions which have been initiated by the people shall be submitted to the people again for decision in accordance with the ordinary regulations governing the Referendum. The third limitation on the powers of the Oireachtas as regards legislation in the matter is, that if the Oireachtas enacts a proposal so initiated, such enactment shall be subject to the provisions respecting ordinary legislation or amendments to the Constitution as the case may be. That means that legislation that would be passed as a result of the people's initiative would have to conform to the limitations which are imposed upon ordinary legislation in this House.
This House, I take it, is not going to be the judge in disputed matters. Where legal matters are in dispute, we have, time after time, heard it here that these matters are referred to the courts. There is a definite way for deciding whether certain things are ultra vires in accordance with this Constitution or not, and surely such a decision as that would not be taken. This House would not presume, if the people on their initiative want a certain thing passed, to sit as a court of judgement and say, "No, that thing is not possible in accordance with the Constitution." The people, I take it, are above us. If we are going to deal with this thing properly as a democracy, we must take it that the supreme sovereign authority in the country are the people. I, for one, have never denied that proposition.
I take it the people, and by the people I mean the people of the whole of this island, under present conditions are not able to apply that particular test. But, surely, this House is not going to take on the position of interposing itself between the desire of the people to do a certain thing and say: "No, you cannot do this because it is not in accordance with the Constitution." That is a matter to be settled otherwise. What Deputy Thrift and those associated with him propose is, because they think that this thing is ultra vires, that they should interpose at this stage and stop it. We say that they have no power to do it. I have got the written opinion of four senior and three junior counsel on this very matter. Every one of them holds that Article 17, as it stands in the Constitution, need not stand in it at all, and still the Treaty be strictly carried out.
What excuse has been put forward— what decent excuse, and I use the word advisedly—for rejecting this Petition and refusing to receive it, to examine it, and see whether the Petition is signed in the proper manner or not? I see none. I do not see anything in Deputy Thrift's suggestion but a means of shelving the whole thing, and of getting out of a moral obligation by another process. It is simply the "Irish Times" attitude. I am prepared to take it that Deputy Thrift was acting in good faith, just as the Labour Party were probably acting in good faith when they suggested here some time ago that there should be machinery put up here to determine the procedure that would be necessary in connection with this Petition. I am quite willing to admit that.
This is a petition to the Oireachtas, and the Oireachtas does not sit in one place. Laws are made by the Oireachtas but, as I have said on a former occasion, the Oireachtas does not sit together. It is a stage in a certain process. The most natural thing in the world is that if you want to present a petition to the Oireachtas you present it first to the Dáil, which, I take it, is the democratic House and the House in which legislation usually originates. After this House had done its duty in the matter—we have done our part, I take it, for instance—if there was a real Executive here that wanted to carry out its obligations and wanted to act as a real Executive for this assembly, it would, on this petition being presented and on being made aware that such a petition was in existence, straight off, with its legal advisers or otherwise, devise a process by which this thing could be done. But to say now that you are not going to do this, and particularly when we have the threats made from the other side, from the Minister for Education, the last day, the definite assurance that they were going to remove this Article from the Constitution, in view of all that I say that I cannot regard Deputy Thrift's amendment as anything but a means of shelving the whole thing, of causing delay until such time as those who do not want to act on the obligations can side-track them.
Let me come back to the terms of the Petition itself. The Petition, as I have said, is signed in accordance with Article 48. The first part is introductory: "We, the undersigned, whose names are set forth in the second column hereof, and whose addresses are set forth in the third column hereof, being voters on the registers for the constituencies and registration units indicated." Then it goes on:—
"We, the undersigned,.... hereby request that provision be made for the initiation by the people of proposals for laws or constitutional amendments," and in particular for a certain constitutional amendment which is indicated.
Take the words of Article 48: "The Oireachtas may provide for the initiation by the people of proposals for laws or constitutional amendments." The identical words, the very words which Deputy Thrift, when dealing with the first sentence, said defined for him the Initiative. They request, therefore, that provision be made. What they request the Oireachtas to do is, to make a certain provision, and nothing more, and the moment the Oireachtas or the Dáil gets that request, it is morally bound in duty, if it has any respect for moral obligations, to accede to the request to make the provision or put the matter to the people whether they want the Initiative or not. Confusion is caused by the existence of two "fors." I was not responsible, and the lawyer that drafted this was not responsible for that.
The question is when you have a request that "Provision be made for the initiation by the people of proposals for laws or constitutional amendments, and in particular for the constitutional amendment following," is there anybody here who would say that this English sentence is capable of any interpretation but one from the context, particularly when it has reference to an Article of the Constitution in which the intention is quite clear. If more was asked, then the Oireachtas is not bound to give it. The Oireachtas clearly would only give that which it was bound to give, and refuse to recognise anything else. If there was any intention, which there is not, to ask the Oireachtas to do something more than it was bound to do, then those who do not want to do that would have a good case for refusing to do it. But it is not asked to do anything more than to receive or consider a request: "That provision be made for the initiation by the people of proposals for laws or constitutional amendments." That is, pro vision be made so that the people may make these proposals for laws or constitutional amendments, and in particular may make proposals for this particular constitutional amendment which they indicate. If they are at liberty to make proposals for constitutional amendments in general, surely it does not in any way interfere with their rights by indicating a special one —that kind of constitutional amendment they want. It does not, of course. They simply indicate a certain one in which at the moment they are particularly interested. Some people may be interested in the Initiative for one purpose, and some people may be interested for another. For instance, I indicated earlier that I was particularly interested in the Initiative because it gave people the opportunity of changing the Constitution when they wanted to do so, and I think that a very valuable power, for history shows, I have said already, that wherever there is a cast-iron constitution—it was tried very often in France and in other countries—and when any attempt by means of such cast-iron instruments was made to defeat the will of the people, it has generally resulted in the whole thing being swept away. I do not say that fundamentally a law, particularly if that law had the full approval of the people, could be easily changed. I do not say that, but if there is a strong desire on the part of the majority of the people to change it, then the people ought not to be defeated in their desire by any instrument of this particular kind. Therefore, I say the Initiative would save the nation from the danger which I foresee, and would save it from the action which is bound to come. Now, I will be told in a moment that whenever I mention an argument of this kind I am threatening, and gentlemen on the other side will say they will not be threatened. That is nonsense. It has nothing to do with the question. The fact is that if you tell people there is a fire there, and that if they put their fingers into it they will be burned, that is not threatening. It simply means you are indicating that certain reactions will follow if they put their fingers in the fire.
