Posted tagged ‘Bunreacht na hEireann’

Getting closer to our constitution

May 13, 2010

In an interesting opinion piece in yesterday’s Irish Times, Dr Fiona de Londras of UCD’s School of Law, one of the authors on the always interesting website Human Rights in Ireland, voiced her strong support for the Irish Constituion of 1937, Bunreacht na hÉireann, and expressed her doubts about the wisdom of replacing or amending it. Her main theme, if I am correctly summarising it, was that as a people we are not in sufficiently close touch with the constitution, and it is this rather than its inadequacy or inappropriateness that is undermining its standing in the community.

In fact, she has put forward this perspective on previous occasions, notably in an article on Human Rights in Ireland. In this she argued we needed to develop what she describes as a ‘constitutional imagination’ for the Irish people, in which constitutional ‘myth’ is replaced by a deeper understanding of what the constitution says and what it can do for our aspirations and how it can reinforce our values.

I should say that her take on the constitution is interesting and certainly worthy of comment, and her attempt to stir up a constitutional debate is entirely welcome. But when all that is said and done, I still think she is wrong. The social and political influences which shaped the wording of the Irish Constitution are ones that do not speak to us today. They included some of the undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society'; and a view of women that saw them as homemakers subservient to the male population. It is entirely true that the courts have, over the years, thrown a more liberal veil over the original wording and allowed it to be used in jurisprudence to reform outdated laws. But even that is, it seems to me, of doubtful value, as it sets up the judiciary as a non-elected legislative body, using a document which on the face of it lends very little support to what they are doing.

I’m afraid I cannot help feeling that if we are to create a ‘constitutional imagination’, it needs to relate to a document that more easily expresses the principles and values that guide society today and for which we would want constitutional protection. A constitution should not express a kind of opaque mystique that only a special judicial class can elucidate as they currently happen to see fit; it should be a document that speaks to the people  directly  rather than through intermediaries.

I believe it is time for fundamental constitutional reform.

Keeping women in the home

February 18, 2010

I came across something recently I had not heard for a very long time, and indeed had not expected to hear again, ever. I was having a cup of coffee in a Dublin city centre cafe, and at the table next to me were two middle aged ladies (you know, young compared with me these days). I don’t want to give the impression that I eavesdrop, but then again, maybe I do sometimes: I have to get material for my blog, after all. And here’s what they were saying.

Lady 1: ‘Do you remember Sarah [name changed], you know the red haired one that Jimmy was going out with?’
Lady 2:  ‘Yes. Too many opinions, if I remember rightly.’
Lady 1: ‘That’s the one. Well, she and Jimmy are getting married.’
Lady 2: ‘Really? I didn’t think Jimmy was, shall we say, the marrying kind.’
Lady 1: ‘Yes, I thought that. But they are. But do you know, Sarah is going to continue working in the travel agency, you know the one Louise was working in until they let her go.’
Lady 2: ‘I hate that. Another married woman taking up a job that could go to someone who needs it.’
Lady 1: ‘Yes, just thinking of herself instead of others at this time when good people are losing jobs.’

I suspect the two ladies themselves were not unduly burdened with jobs – they looked more like the shopping-and-lunching kind – but even then I was aghast at the conversation and was sorely tempted to interject. Such an exchange would not have been untypical in, say, the early 1960s, but in the new millennium?

Well, even if the spirit of the age is against them, the law is not. Because here is what the Irish Constitution (Bunreacht na hÉireann) has to say on the matter, in article 41(2) (in the context of constitutional protection for the family).

‘1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.’

Before we get too anguished at all this, it is worth remembering that the Constitution was adopted in 1937, and it is full of social and political commentary that is typical of the age in which it was written, which in Europe generally was the age of corporatism, fascism and conservative social values. It is a document of its time. All in all, it has been interpreted in case law in a more modern, liberal manner (the effect of that being that the Constitution does not mean what it says, but what the judges say it means). So I am not aware of any case in which article 41 has been used to restrict women’s rights in employment, or anything similar (though an attempt was made to use it in a case on the tax code).

But still it is there, and is capable of being quoted. More than that, the lead-in to article 41, in referring to the rights of the family, says that the family is ‘a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.’ This latter phrase could suggest that the ‘special’ status of women – what you and I might consider discrimination against women – cannot even be revoked by law, not even by constitutional law.

Anyway, Senator Ivana Bacik has now called for a referendum to remove article 41 and its provisions from the Constitution. I would go along with this proposal, as a method by which we as a country may secure closure to an age in which society victimised some of its members, including women, and in which inequality was the norm. It’s time to move on. I might merely suggest – and I’ll return to this – that we don’t restrict our discussions to article 41, but might look more broadly at the possibility of adopting a completely new constitution.

Constitutional revision

October 6, 2009

During the recent Lisbon referendum campaign, the anti-Treaty group COIR at one stage put up posters that read: ‘We love our constitution’. I was not absolutely sure what this was trying to say – perhaps that the Lisbon Treaty would weaken the effectiveness of the Irish Constitution. At any rate as we know, these arguments did not have a significant impact on the electorate and thus on the referendum outcome.

However, maybe the COIR assertion should prompt us to consider whether it is true; the time may be right to ask ourselves whether the Irish Constitution of 1937 is still appropriate as the basis for our legal system.

Bunreacht na hÉireann (Constitution of Ireland) was adopted by a referendum in 1937. It replaced the 1922 constitution of Saorstat Éireann (Irish Free State), which had ceased to have any real effect mot least because its provisions could be amended by a simple parliamentary decision. And so the new constitution was given an entrenched status, subject to amendment only on the basis of a popular vote. It has a higher legal status than statutes, and therefore is capable of being used by the High Court or (on appeal) the Supreme Court to strike down legislation or administrative actions. It has a section on fundamental rights which, in particular, have featured prominently in constitutional litigation.

It is necessary, in assessing the 1937 constitution, to distinguish between the text of the document and its actual legal effect. The text was in many ways a typical product of its time. It displays some conservative Catholic and also fascist influences of the era, and many of its provisions also reflect corporatist thinking that may have had its origins in Portugal, Spain or Italy in the 1930s: this suggests that society should be organised along vocational lines in a collectivist setting. The constitution, at least in its original wording, provided for a ‘special position’ of the Roman Catholic church, and it incorporated some traditionalist teachings of that church in other provisions, particularly those on the family. It has however also been argued, with some justification, that the then Irish leader, Eamonn de Valera, followed a clever and sometimes independent-minded path in the drafting, and that conservative politicians and prelates were not happy with some of the provisions of the document.

On the other hand, the provisions of the constitution have been interpreted by the judiciary in what has often been a very liberal way. The courts used the constitution to enforce equality between men and women in jury service, to overturn the legal prohibition of contraception, and so forth. This reinterpretation proceeded at such a pace that it became increasingly hard to see the apparently conservative ethos of the 1937 constitution as worded in the litigation giving it force.

I think I am probably right in saying that most Irish lawyers would prefer to see the constitution left unchanged. Given the jurisprudence of the courts’ decisions on constitutional law that does seem a tempting proposition. On the other hand however, such an approach is not without its risks. The actual substance of constitutional law in Ireland is now to be found in the case law rather than in the constitutional document. The socially conservative tone of the latter now inhabits a legal instrument that, as interpreted, actually protects rights and freedoms that would have seemed truly shocking to those who drafted the constitution. This in turn has also meant that the Irish judiciary have used its provisions to enforce legal standards that often seem only vaguely connected with the document itself, or even may seem to contradict it. But this process, whereby the legal text and its apparent literal meaning is separated from the  meaning given to it by the courts, cannot go on for ever, not least because it is unpredictable and because judges should interpret and apply the law rather than make it.

On the other hand, there is still a good deal of affection for Bunreacht na hÉireann in Ireland, and it would not be wise to call its future into question before an alternative document has been considered. What I am arguing for, therefore, is a fundamental review of the constitution, taking in popular and expert opinion wherever possible. The outcome of this review could then determine whether Bunreacht na hÉireann is still fit for purpose, or whether it needs to be replaced by a more modern document that gives expression directly to the substance of our constitutional law as we would now wish it to be.

Separation of church and state

May 22, 2009

In response to my post of yesterday on the report of the Commission on Child Abuse, a number of comments have focused on the issue of the separation of church and state. The concern being expressed, I think, is that the misuse of power and the prevalence of abuse unchecked by any real scrutiny over decades was connected with the failure in Ireland to separate church and state in any meaningful way. It is worth pursuing this further, but in my view (as I shall explain below) this is not the main – or at any rate only – cause of the problem.

The legal standing of churches and religions is regulated under article 44 of the 1937 Irish Constitution, Bunreacht na hEireann. This article provides as follows:

1.    The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2.    1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
2° The State guarantees not to endow any religion.
3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 
5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

1.    The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
2.    1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
       2° The State guarantees not to endow any religion.
       3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
       4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 
       5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
       6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.

There have been a number of cases in which the Irish courts examined the meaning of this article, and its impact in practice. It might be reasonable to summarise the findings in these cases as follows: (i) that no religion or denomination may receive special support or financial assistance; (ii) that no denomination can be accorded any special status; (iii) that no citizen can be ‘compelled to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience’ (Walsh J. in McGee v. Attorney General).

On the other hand the interpretation of these provisions is undermined by the tone of the whole document including its religious references in the Preamble, which dedicates the constitution to ‘the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred.’ In addition, the original wording of article 44 (repealed by referendum in 1972) provided for the ‘recognition’ of the ‘special position’ of the Roman Catholic Church.

These aspects of the Constitution are significant, not for their legal effect (which, it was suggested in a judgement by one Supreme Court judge, was zero), but because they imply and reflected an ambivalence in the national attitude. Ireland might not have been governed, in strict legal terms, by the Roman Catholic Church, but in practice it was much less clear. When Sean MacBridge was elected to Dail Eireann in 1947, his very first act was to write to the then Archbishop of Dublin, John Charles McQuaid, in the following terms:

‘I hasten as my first act, to pay my humble respects to Your Grace and to place myself at Your Grace’s disposal. Both as a Catholic and as a public representative I shall always welcome any advice Your Grace may be good enough to give me and shall be at Your Grace’s disposal should there by any matters upon which Your Grace feels I could be of assistance. It is my sincere hope that Your Grace will not hesitate to avail of my services.’

When a year later the new Fine Gael-led coalition government, of which MacBride was a member, took office, it sent a telegram to the Vatican in which it proposed ‘to repose at the feet of Your Holiness the assurance of our filial loyalty and of our devotion to your August Person.’ This was reflected more recently, as we have just read, in the unwillingness of the Department of Education to address suspicions or allegations of child abuse in Roman Catholic institutions because of the handicap of the Department’s deferential attitude.

In these periods of Irish history, I suspect what was needed in Ireland was not a better legal framework of separation of church and state, but a more emancipated attitude to the relationship. It is perhaps the case that what we had was a national ambivalence rooted in post-colonial problems, which unfortunately created a large group of victims – not just abused children, but arguably women also. It took the country a long time to escape from this position, but arguably that has now been achieved. What we now need to ensure is that the injustices inflicted duiring this time are recognised and, if possible, compensated.

The final victim of all of this is, perhaps, the Roman Catholic church itself. Throughout this period there were also people (including clergy) of compassion and goodwill in the church. Right now that hardly seems to matter, and as the edifice continues to creak and threaten to collapse few of the good things seem memorable to anyone. The final lesson in this is that a deferential attitude by the state and by society to any church is ultimately destructive for the church also. The church will survive, but its position will never be the same again.


Follow

Get every new post delivered to your Inbox.

Join 820 other followers