by Angela Clifford (December 1987)
This is the fiftieth anniversary year of the Constitution of Eire, which de Valera produced in 1937 to sum up the achievements of the national revolution to date and to put into law the social philosophy of the Catholic nation. Even though the Catholic nature of the Constitution has recently been confirmed by the Abortion referendum of 1983 and the Divorce referendum of 1986, a dissatisfaction with the Constitution has become evident amongst some sectors of society.
In a country without a written Constitution it is hard to appreciate just how different is a society with a written Constitution enforced by the Courts. In the United Kingdom a majority of the people's representatives can make any law they wish - and the society will tolerate. There are no formal constraints. Lawmaking is subject only to the pressures exerted by the society. For the most part, government takes account of society's wishes when drafting a law. And where a law transgresses the limits of social acceptability, it is either brought down by mass civil disobedience, or repealed by the next government. Frequent elections provide a constant reminder of the penalties of flouting popular wishes.
People with political reflexes engendered by this state of affairs find it difficult to understand the lack of parliamentary sovereignty in a place like Ireland, where the Dail may not legislate, or the Taoiseach govern, in contradiction to the Constitution. It is the Courts that decide which legislation is permissible. Their decisions have the effect of retroactive legislation. Thus when the Supreme Court found that the Adoption Board, established by the government in 1952, was an illegal body because they considered that the Board had been given judicial functions, all the adoptions sanctioned between 1952 and 1979 were made illegal. To prevent chaos a referendum had to be rushed through, legitimising the Adoption Board, and the adoption orders it had made.
Not only is lawmaking and government constrained by the Constitution Ð even individual behaviour is subject to it. All individual rights in the society are subject to the Constitution and its interpretation by the Courts. This allows an interference with individual rights well beyond anything that would be contemplated in a British court of law. In Britain, it is the Parliament which looks after individual rights. It legalised homosexuality and abortion, for instance. In Ireland, such matters are left to the Courts, and the dozen, elderly men who compose their upper echelons.
In making their decisions the judges rely on the Constitution, in which it is made clear that Catholic philosophy and morality must guide their decisions.
The Constitution begins and ends with a prayer. It opens: "In the Name of the Most Holy Trinity, from Whom, as our final end, all actions both of men and States must be referred..."
The section entitled Personal Rights mentions the main liberties common in Britain as being available to Irish citizens, but makes all of them subject to a morality clause: "The State guarantees liberty for the exercise of the following rights, subject to public order and morality" (6.1).
In addition, liberty of expression is made subject to a specific limitation that it "shall not be used to undermine public order or morality or the authority of the State". Furthermore, it makes punishable the utterance of "blasphemous, seditious or indecent matter".
The point about all this is that it is expected of the judiciary that they will interpret the Constitution to enforce Catholic standards of social behaviour, even where no laws exist on a particular matter. This occurred recently over the SPUC (Society for the Protection of the Unborn Child) Case against the Women's Clinics of Dublin (run on a voluntary basis). Abortion was already illegal in 1983, but a referendum on the matter was also held to put the matter into the Constitution, lest the Courts sanction a doctor's intervention to save the life of the mother. The Dublin Women's Clinics continued to give counselling and advice on abortion and make references to British clinics. SPUC brought its case against this activity, even though there were no abortions actually carried out in Ireland. It was opposed to information and advice on abortion being made available. There was no law on the matter: the Dail had not passed any legislation for or against.
In Britain, no legal action would have been possible. A pressure group such as SPUC must lobby Parliament for law to be made. The matter is thus thoroughly aired by the arguments of various pressure groups and discussions in constituencies, where MPs are subject to pressures. There is then a thorough debate in Parliament by two Houses before a decision is made one way or the other. A lengthy democratic process is invoked when individual rights are to be extended or abrogated.
In Ireland, a single judge, sitting in the High Court, interpreting the Constitution, was sufficient to stop the Dublin Clinics giving advice to desperate women. SPUC won its constitutional challenge.
Many people both in Ireland and Britain who defend judicial interference with individual rights either in a fully-fledged Constitution or a Bill Of Rights just do not realise what scope for arbitrary action they are giving to the judicial elite.
It is not surprising that few progressives are celebrating 50 years of the Eire Constitution.
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