Constitutional reform

A couple of weeks ago, in a post on the legal and constitutional position of women, I suggested that the time might be right for a new constitution for Ireland. Now I see that the Fine Gael party has been working on a framework for constitutional reform, which (according to the Irish Times) will propose that there should be five constitutional amendments adopted on one day of voting. The issues the party wants to see addressed are mainly to do with reorganisation of the Oireachtas (including the abolition of the Seanad).

It seems to me that to have the cost and burden of a referendum campaign with complex and perhaps somewhat technical issues on the ballot paper may not be taking into account the recent referendums in Ireland on EU Treaties.In addition, there is more to be adjusted in the Constitution of 1937 than its handling of the Oireachtas. The 1937 document is a product of its time – and its time was that of fascist dictators and an edgy world sliding closer to war. Its social and moral provisions (particularly in relation to families and women, but not only those) betray a vision that is somewhere between quaint and reactionary. It is fair to say in some respects the Constitution has served the country well, but in a new millennium the time is right to look again and to draft a document that reflects modern values and best practice in national governance. It’s time to start anew.

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Constitutional revision

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

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.