Looking to Italy for new a fresh take on the Constitution

Valuable insights often flow from experts from outside Ireland turning their attention to social, political or cultural life here and interpreting it in the light of their own country’s experience and the latest international thinking.

This is particularly so when many people in Ireland are questioning existing institutions and practices. The value of views from outside was borne out by a seminar in November 2011, held at the initiative of the then Italian ambassador in Ireland, Dr Valerio Augusto Astraldi, Prof Giuseppe Franco Ferrari of Bocconi University, Milan and Prof Colin Scott, dean of UCD Sutherland School of Law.

The seminar brought several leading Italian scholars of constitutional and administrative law to Dublin, to discuss with Irish counterparts a number of the major topics arising from the 75th anniversary of the Constitution of Ireland , celebrated in 2012. The papers delivered at that seminar have now been published in book form*.

A wide range of issues are reflected in the book – the protection of individual rights, how the courts review the constitutionality of laws and interact with other branches of government in doing so, the interpretation of constitutions more generally, the impact of constitutional law on administrative law, constitutional preambles, the European Union’s place in Irish constitutional law, the nature of the office of the president of Ireland and the work of the Convention on the Constitution.

Of the many common themes, developed in different ways by Irish and Italian contributors, two in particular reveal the value of external perspectives and the connections between apparently disparate aspects of the Constitution. Prof Angelo Rinella closely analysed the Preamble to the Constitution of Ireland , in the context both of other constitutional Preambles and of scholars' classifications of the systems of church-state relations which Preambles often symbolise.

As he points out, the references to "the Most Holy Trinity" and "our Divine Lord, Jesus Christ" are not only out of keeping with the liberal and secular character of most of the rest of the Constitution, they also now do not reflect the much-altered relationship between the Roman Catholic Church and the State. Although the Preamble to a constitution can often be a relatively idiosyncratic expression of national identity, with few concrete implications for church-state relations in the country in question, Prof Rinella does highlight some of the basic reasons why the Preamble is on the agenda for future reform of the Constitution.

Indeed, the final report of the Convention on the Constitution recently recommended separation of church and state (including a review of the Preamble) as a further aspect of constitutional change to be examined by the Government, the Oireachtas or a new convention.

In carrying out such a review, two of Prof Rinella’s points may be particularly relevant: firstly, that it is inappropriate to refer to God in the Preamble to a contemporary democratic constitution because that reference risks compromising the interpretation of the Constitution itself, rather than being seen just as a symbolic element; and, secondly, that – seen as “a symbol of historical identity”– such references may have some useful function – “a sort of warning about the limitations of human thought and action … the claim that human laws, human authority, and human rights are not without limitations and conditions. The human being cannot be the measure of all things.”

If – as many still think – that is a claim that the Constitution should make, in some form, it will be challenging to devise an appropriate form of words to replace reference to God. The current Polish formulation is a possible candidate: “We, the Polish Nation – all citizens of the Republic, both those who believe in God as the source of truth, justice, good and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources.”

Dr Maria Cahill in her contribution addressed a different constitutional issue – the nature of the status that the Constitution gives to European Union law when it provides (in Article 29.4.6°) that "no provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State … that are necessitated by the obligations of membership of the European Union … or prevents laws enacted, acts done or measures adopted by … the said European Union … from having the force of law in the State."

Basically, Dr Cahill argues that this provision should not be interpreted literally and that its effect should be limited by "harmonious interpretation"– that is, by reading in the light of other constitutional rules or principles that, because they are seen as fundamental to the authority of the Constitution itself, cannot be subordinated to Article 29.4.6°, whatever the sub-section appears to say at first sight. That argument is vehemently contested by some Irish lawyers, who firmly believe that Article 29.4.6° means exactly what it seems to say and that this is the bedrock of Ireland's effective membership of the European Union.

What "harmony" requires
To some extent, Dr Cahill's argument is unimpeachable: what the sub-section means is unquestionably a question of Irish constitutional law, not European Union law and every provision of the Constitution does have to be interpreted not in isolation but in the light of all the others.

Furthermore, Dr Cahill’s argument for upholding the ultimate authority of the Constitution over that of European Union law reflects, as she points out, the position in many other EU member states (notably Germany, the Czech Republic, Italy, Poland and Spain).

Nevertheless, what "harmony" requires in the interpretation of the Constitution in this context is more a question of the identity of the Constitution as a whole – in the sense of the basic values suffusing it – rather than just labelling some provisions as "more fundamental" than others. In particular, if you think that human laws (whether made at Irish, European or any other level) cannot transgress certain limitations, then you may want to interpret Article 29.4.6° so as to do least violence to that principle, at least as far as the consequences for the specific case are concerned – even though the Constitution of Ireland itself is just as much a human law as any emanating from the European Union.

On both these points –the question of constitutional identity and the limits of human laws – the issues raised by Dr Cahill's argument bring us back to Prof Rinella's close reading of the Preamble. This was just one of the insights revealed by bringing together Irish and Italian scholars working in the field of public law; the book of the seminar shows how great is the potential for collaborative studies of this kind, looking closely at rights, justice and democracy in Ireland and elsewhere.

John O'Dowd is a lecturer at UCD Sutherland School of Law.

* 75 Years of the Constitution of Ireland: An Irish-Italian Dialogue edited by Professor Giuseppe Ferrari Franco and John O'Dowd; published by Clarus Press, 2014