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Constitution of Ireland

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The Constitution of Ireland is the founding legal document of the state known today as Ireland. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy, and guarantees certain fundamental rights. The constitution was adopted in 1937 by referendum, and may only be amended in the same manner. It is also widely referred to in English by its Irish language title, Bunreacht na hÉireann Bunreacht na hÉireann may be roughly pronounced by English speakers as "bun-rocht" (with the ch as in loch) "na hair-inn"..

Contents

Historical origins

Background

The Constitution of Ireland replaced the Constitution of the Irish Free State which had been in effect since the southern state became independent from the United Kingdom in 1922. There were two main motivations for replacing the old constitution in 1937. Firstly, the old constitution was indelibly associated with the controversial Anglo-Irish Treaty. Those opposed to the treaty initially boycotted the institutions of the new Irish Free State but in 1932 were elected into power as the Fianna Fáil party. Since 1922 many of the provisions of the Free State constitution demanded by the Anglo-Irish Treaty had been dismantled piece by piece under the doctrine of "constitutional autochthony" or legal nationalism. So, for example, amendments had removed references to the Oath of Allegiance, appeals to the Privy Council, the British Crown, and the Governor General. Nevertheless, the Fianna Fáil government, led by Eamon de Valera, still believed it desirable that a new, entirely native constitution replace one that had been the partial imposition of the British government.

The second motive for replacing the old constitution was that since its adoption it had been subjected to a great many, often rather ad hoc amendments. After 1922 the government of the Free State regularly exploited a provision of the constitution that allowed it to be amended by a simple act of parliament. Sometimes a normal act of parliament would contain within it a blanket provision stating that, if it were found to be incompatible with the constitution, the act should be interpreted as an implicit amendment to it. For these reasons, as well, many saw it as desirable that the old constitution be abandoned entirely, in favour of a clean slate.

Drafting process

Eamon de Valera, oversaw the drafting of a new constitution
Enlarge
Eamon de Valera, oversaw the drafting of a new constitution

The Bunreacht was the work of Eamon de Valera, President of the Executive Council (prime minister) of the Irish Free State. It was actually drafted in two languages, Irish and English: in Irish by Micheál Ó Gríobhtha (assisted by Risteárd Ó Foghludha), who worked in the Irish Department of Education, and in English by John Hearne, legal advisor to the Department of External Affairs (now called the Department of Foreign Affairs). De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney-General or someone from the Department of the President of the Executive Council.

Though many presumed that the constitution was drafted in English and merely translated into Irish, in reality it was in effect written in both languages almost simultaneously, with each co-author borrowing from the other's work. The result is that at a number of points the texts clash. In the event of such a clash, the Irish language, though paradoxically the less well worded legally, given that its author was not a lawyer, takes precedence.

Though controversial, de Valera's work has received international praise. Notwithstanding its actual contents, it is widely seen as a model constitution in terms of its clear legal language, order and structure. It has often been compared to the 1958 Constitution of the French Fifth Republic, which is generally seen by political scientists as inferior in terms of clarity and structure. The Bunreacht has been studied worldwide, for example in Nehru's India and Mandela's South Africa. Its office of President of Ireland was one of six studied closely by Australia's Republic Advisory Committee as Australia considered becoming a republic. The Constitution is currently being reviewed by the All-Party Oireachtas Committee on the Constitution.

Enactment

Bunreacht na hÉireann was passed by Dáil Éireann (the sole house of parliament) on 14 June and then approved narrowly in a plebiscite of voters on 1 July, 1937. It came into force on 29 December, 1937. Among the groups who voted against it were supporters of the Fine Gael and Labour opposition parties, Unionists, supporters of the Commonwealth and women. Its main support came from Fianna Fáil supporters and republicans. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".

Electorate Total poll (%) Spoilt (%) For (%) Against (%)

1,775,0551,346,207 (75.8)134,157 (10)685,105 (56.5)526,945 (43.5)

Legal continuity

Main article: Legality of the enactment of the Constitution of Ireland

At the time the Bunreacht was adopted there was uncertainty as to whether its enactment amounted to a 'legal' amendment of the Free State constitution or a violation of its terms. If the enactment of the Bunreacht were considered to be illegal in this way it could be considered an act of peaceful revolution. De Valera's government insisted that, owing to the principle of popular sovereignty, provided it was approved by the people in a plebiscite it was not necessary for the new constitution be adopted legally under the terms of the old. Nonetheless, in order to avoid a challenge to the new constitution in the courts, senior judges were required to make a formal declaration that they would uphold the constitution in order to be permitted to remain in office once the Bunreacht had come into force.

Main provisions

Structure

The official text of the constitution consists of a Preamble and fifty articles arranged under sixteen headings. Its overall length is approximately 16,000 words. When adopted, it also included a number of Transitory Provisions. However these are now likely to be of no legal effect and have been omitted from all official texts since 1941. The headings are:

Preamble (full text)

In 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,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.

Characteristics of the nation and state

National language

Irish is declared as "the national language" and "the first official language", and English as "a second official language" (Article 8). The State can provide by legislation to use only one of the official languages for a particular official use, or in any part of the State, but to date, no such law has been passed.

The Irish text of the constitution takes precedence over the English text (Articles 25 and 63). However, the second amendment included changes to the Irish text to bring it in line with the English text. In practice the Supreme Court tries to find an interpretation compatible with both versions. The constitution provides for a number of Irish language terms that are to be used even in English speech. The terms Éire for the state, and Taoiseach for the head of government appear first in the Bunreacht. The terms Oireachtas, Dáil Éireann and Seanad Éireann had also featured in the Free State constitution.

Organs of government

Main article: Politics of the Republic of Ireland

The Constitution establishes a government under a parliamentary system. It provides for a directly elected, ceremonial President of Ireland (Article 12), a head of government called the "Taoiseach" (Article 28) and a national parliament called the "Oireachtas" (Article 15). The Oireachtas has a dominant, directly elected lower house known as "Dáil Éireann" (Article 16) and upper house "Seanad Éireann" (Article 18), which partly appointed and partly indirectly elected. There is also an independent judiciary under a Supreme Court (Article 34).

National emergency

Under Article 28, the constitution grants the state sweeping powers during a "time of war or armed rebellion", which may include an armed conflict in which the state is not a direct participant. In such circumstances a "national emergency" may be declared to exist by both houses of the Oireachtas (parliament). During such a period the Oireachtas may pass laws that would otherwise be unconstitutional and the actions of the executive cannot be found to be ultra vires or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty is absolute and it may not be introduced during a "time of war". Two national emergencies have existed since 1937: an emergency declared in 1940 to cover the threat to national security posed by World War II, and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.

International relations

Individual rights

Under 'Fundamental Rights' title

Under other provisions

Directive Principles of Social Policy

Article 45 outlines a number of broad principles of social and economic policy. Its provisions are, however, intended solely for the guidance of the legislature and cannot be enforced by a court of law. In the 21st century, the Directive Principles of Social Policy feature little in parliamentary debates. However, no proposals have been made for their repeal or amendment. They require, in summary, that:

Transitory Provisions

The Transitory Provisions are, or were, Articles 51 to 63. These thirteen articles mandate arrangements for the smooth transition from previous institutions to the newly established state. Article 51 provides for the transitional amendment of the constitution by ordinary legislation. The remaining twelve deal with such matters as the transition and reconstitution of the executive and legislature, the continuance of the civil service, the entry into office of the first president, the temporary continuance of the courts, and with the continuance of the attorney general, the comptroller and auditor general, the Defence Forces and the police.

Under their own terms the Transitory Provisions are today omitted from all official texts of the constitution. The provisions required that Article 51 be omitted from 1941 onwards and the remainder from 1938. However, paradoxically, under their own provisions Articles 52 to 63 continue to have the full force of law and so may be considered to remain an integral part of the constitution, even though invisible. This created the anomalous situation that, in 1941, it was deemed necessary, by means of the Second Amendment, to make changes to Article 56 despite the fact that it was no longer a part of the official text.

The precise requirements of the Transitory Provisions were that Articles 52 to 63 would be omitted from all texts published after the day on which the first president assumed office (this was Douglas Hyde, who was inaugurated in 1938), and that Article 51 would be omitted from the third anniversary of this inauguration (1941). Unlike the other articles, Article 51 expressly provided that it would cease to have legal effect once it was removed from the document.

Amendments

Main article: Amendments to the Constitution of Ireland

Any part of the constitution may be amended but only by referendum. The procedure for amendment of the constitution is specified in Article 46. An amendment must first be adopted by both Houses of the Oireachtas (parliament), then be submitted to a referendum and finally comes into effect on being signed into law by the President. The constitution has been amended more than twenty times since its adoption. Controversial amendments have dealt with such topics as abortion and divorce. Many have also dealt with the European Union.

Judicial review

Main article: Irish Supreme Court

The constitution states that it is the highest law of the land and grants the Supreme Court authority to interpret its provisions, and to strike down the laws of the Oireachtas and activities of the Government it finds to be unconstitutional. Under judicial review the quite broad meaning of certain articles has come to be explored and expanded upon since 1937. The Supreme Court ruled, prior to their alteration in 1999, that Articles 2 and 3 did not impose a positive obligation upon the state that could be enforced in a court of law. The reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family has been interpreted by the Supreme Court as conferring upon spouses a broad right to privacy in marital affairs. In the 1974 case of McGee v. The Attorney General the court invoked this right to strike down laws banning the sale of contraceptives. The court has also issued a controversial interpretation of Article 40.3, which prohibits abortion. In the 1992 case of the Attorney General v. X (more commonly known simply as the "X case") the Supreme Court ruled that the state must permit someone to have an abortion where there is a danger to her life from suicide.

Issues of controversy

The \"national territory\"

Main article: Articles 2 and 3 of the Constitution of Ireland

As adopted in 1937 Articles 2 and 3 of the constitution made the controversial claim that the whole island of Ireland formed a single "national territory". These articles offended Unionists in Northern Ireland who considered them tantamount to an illegal extra-territorial claim. Under the terms of the 1998 Belfast Agreement the state amended Articles 2 and 3 to remove reference to a "national territory" and to state that a united Ireland should only come about with the consent of a majority in Northern Ireland, but also to guarantee the people of Northern Ireland the right to be a "part of the Irish Nation" and to Irish citizenship.

Religion

Main article: Fifth Amendment of the Constitution of Ireland

The Constitution of Ireland, particularly in the form in which it was adopted in 1937, has been accused of favouring the Roman Catholic Church and of bias against Protestants. The constitution is not an entirely secular document. Although it guarantees freedom of worship and forbids the state from creating an established church, it contains a number of explicit religious references, such as in the preamble, the oath sworn by the President and Article 44.1 which reads:

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.
The constitution has also, since 1983, contained a controversial prohibition of abortion. However this does not apply in cases where there is a threat to the life of the mother (including from risk of suicide) and may not be used to limit the distribution of information about abortion services in other countries or the right of freedom of travel to procure an abortion. A number of ideas still found in the constitution reflect the Catholic social teachings current in the 1930s. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy and the system of vocational panels used to elect the senate. The constitution also grants very broadly worded rights to the institution of the family.

As adopted in 1937 the constitution included two particular controversial provisions that have since been removed. These were a prohibition of divorce and a reference to the "special position" of the Catholic Church. Article 44, Sections 2 and 3 read:

Defenders of the original 1937 text argue that the concept of incorporating Catholic social teaching into law was prevalent in the 1930s, and common to many countries with large Catholic majorities. Divorce, for example was banned in other states such as Italy, which repealed its ban in the 1970s. It is also argued that reference to the Catholic Church's special position was of no legal effect and that there is significance in the fact that the "special position" of Catholicism was held to derive merely from its greater number of adherents, a concept that ran contrary to the Church's view of itself prior to the Second Vatican Council. It is observed that Eamon De Valera resisted pressure from right wing Catholic groups such as Maria Duce to make Catholicism an established church or to declare it the "one true religion". It is finally argued that the prohibition of divorce was supported by senior members of the Church of Ireland and that the constitution's explicit recognition of the Jewish community was progressive in the climate of the 1930s. Article 44, Sections 2 and 3 were deleted from the constitution in 1973. The ban on divorce was removed in 1996.

Alleged sexism

The constitution guarantees women the right to vote and to nationality and citizenship. However it also contains a provision that was objected to by women's organisations at the time of the Bunreacht's enactment in 1937. Article 41.2 states:

*Subsection 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.
*Subsection 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.

A republic?

Main article: Irish head of state from 1936-1949

In 1949 the state was officially declared to be a republic. However there is debate as to whether or not the state was a republic in the period of 1937-1949 (between these dates the state was not referred to as the 'Republic of Ireland' but was known only by its constitutional names, Ireland and Éire). The constitution does not mention the word "republic" but does include provisions stating that sovereignty resides in the people, and prohibiting the granting of titles of nobility or the establishment of a church.

Nonetheless, debate largely focuses on the question of whether prior to 1949 the head of state was the President of Ireland or King George VI. The constitution did not mention the king but nor did it state that the President was head of state. The President exercised certain of the usual roles of a head of state, such as appointing the Government and promulgating the law.

However in 1936 George VI was declared "King of Ireland" and, under the External Relations Act of the same year, it was this king who represented the state in its foreign affairs. Treaties, therefore, were signed in the name of the 'King of Ireland', who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Irish head of state in the eyes of foreign nations. In 1949 the Republic of Ireland Act was adopted. This proclaimed a republic and transferred the role of representing the state abroad from George VI to the President. No change was made to the constitution.

Name of the state

See also: Names of the Irish state
The constitution provides that the name of the state is simply "Ireland". This is objected to by some as suggesting that Northern Ireland is part of the territory of the state. These objections were reinforced by the fact that, prior to 1999, the constitution actually made this claim. The name Ireland can also cause confusion as to whether one is referring to the Republic or to the island as a whole. For these reasons since 1937 a number of alternative names have come into use, including the 'Republic of Ireland', the 'Irish Republic' and 'Éire'. The Republic of Ireland is enshrined in the Republic of Ireland Act and today is the most common alternative name used in the Republic itself.

The constitution provides that Éire is the name of state in Irish. However the wording of Article 4, it states that "Éire, or, in the English language, Ireland", where a more conventional translation of the version of Article 4 found in the Irish text would have been "the name of the State is Ireland, or, in the Irish language, Éire". This unusual wording, combined with the preamble, which refers to "We the people of Éire", suggests that Éire is intended as one of two names that can be used for the state in English speech. Nonetheless today the name Éire (or Eire, without the accent) is only commonly used in this way in the United Kingdom. Because the name is rarely used in the same way in the Republic itself, and because use of the name Éire has sometimes been associated with a condescending attitude towards the state, some Irish people find its use objectionable. In 1989 the Supreme Court found objection to that fact that warrants issued by United Kingdom Courts, which were in English, often contained the name Eire, which the Constitution declares to be the Irish name of the state, directing that in future all such warrants should be returned for correction.

Language issue

Some have criticised the constitution for affording the Irish language, as "the first official language", a superior status to English. This is criticised both as disciminating against the Protestant, Anglo-Irish community, many of whom are not descended from Irish speakers, and as being unrealistic, given that English is the first language of over 97% of the population. Under the 1922 constitution Irish and English were afforded equal status.

However, in practice the State has frequently failed to provide Irish speakers with basic services or access to documentation. At present there is still a considerable backlog of legislation which has yet to be published in the Irish language. This failure has led to increasing litigation in recent years. See for example Ó Beoláin v. Fahy [2001] 2 I.R. 279.

Constitutional Reviews

The constitution has been subjected to a series of formal reviews in the last 40 years.See [All-Party Oireachtas Committee on the Constitution: Constitutional Reviews]. This section is adapted from this source, under the presumpton of fair use of government publications

1966
The then Taoiseach, Seán Lemass, encouraged the establishment of an informal Oireachtas committee, which undertook a general review of the Constitution and issued a report in 1967.
1968
A draft report was produced by a legal committee, chaired by the Attorney General Colm Condon. No final report was published.
1972
The Inter-Party Committee on the Implications of Irish Unity addressed constitutional issues in relation to Northern Ireland. Its work was continued by the 1973 All-Party Oireachtas Committee on Irish Relations and later by the 1982 Constitution Review Body, a group of legal experts under the chairmanship of the Attorney General. Neither of the 1972 groups published a report.
1983–1984
The New Ireland Forum was established in 1983, and its report in 1984 covered some constitutional issues.
1988
The Progressive Democrats published a review entitled Constitution for a New Republic.
1994–1997
In October 1994, the government established a Forum for Peace and Reconciliation, which considered some constitutional issues relating to Northern Ireland. The Forum suspended its work in February 1996 but met once more in December 1997.
1995–1996
The [

All-Party Oireachtas Committee on the Constitution

First Committee

The first All-Party Committee (1996-97), chaired by Fine Gael TD Jim O'Keeffe, published two progress reports in 1997:

Second Committee

The Second All-Party Oireachtas Committee on the Constitution (1997–2002) was chaired by Fianna Fáil TD Brian Lenihan, Jnr. It published five progress reports:

The second committee also published two commissioned works:

Third Committee

The current (2002) committee is chaired by Fianna Fáil TD Denis O'Donovan. It describes its task as being to "complete the programme of constitutional amendments begun by the earlier committees, aimed at renewing the Constitution in all its parts, for implementation over a number of years". It describes the job as "unprecedented", nothing that "no other state with the referendum as its sole mechanism for constitutional change has set itself so ambitious an objective."See [Work Programme of the All-Party Oireachtas Committee on the Constitution]

The committee has divided its work into considering three types of amendment:

The current All-Party Committee has published three reports:see [Publications of the All-Party Oireachtas Committee on the Constitution]

The committee summarises its remaining tasks as being to consider:

References

See also

Further reading

Obtaining copies

Paper copies of the Bunreacht are available from the Irish Government Publications Office in Dublin, and from the Irish Government Stationery Office, Molesworth St, Dublin 2. For electronic copies see below.

External links


Major constitutional laws affecting Ireland 
Pre-Union


Poyning's Law (1492)
Grattan's constitution (1782)
Act of Union (1800) 
UK Acts


Catholic Relief Act (1829)
Church Disestablishment Act (1869)
Representation of the People Act (1918)
Government of Ireland Act (1920)
Statute of Westminster (1931)
Northern Ireland Constitution Act (1973)
Northern Ireland Act (1998) 
Constitutions


Dáil Constitution (1919)
Free State Constitution (1922)
Constitution of Ireland (1937)
 
Oireachtas Acts


Ministers and Secretaries Act (1924)
Courts of Justice Act (1924)
External Relations Act (1936)
Republic of Ireland Act (1948)
Human Rights Act (2003) 
Treaties


Anglo-Irish Treaty (1922)
European Convention (1950)
Treaties of the EU (1973-2003)
Good Friday Agreement (1998)

{| class="toccolours" align=center width=95% |- | style="background:#ccccff" align="center" | Amendments of the Constitution of Ireland || || |- | align="center" | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | (12) | 13 | 14 | 15 | 16 | 17 | 18 | 19 | 20 | 21 | (22) | 23 | (24) | (25) | 26 | 27 |-

 

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