Clues to the future shape of the Constitution may lie in its past

Sat, Sep 15, 2012, 01:00

OPINION:A spare and elegant draft constitution of 1935 provides much food for thought

THERE HAS been a widespread view that the Constitution owes its existence to the political stance adopted by the Fianna Fáil government led by Éamon de Valera when it came to power in 1932.

De Valera was certainly convinced that the constitution of the Irish Free State, which it replaced, lacked democratic legitimacy because, as he and his followers believed, it had been imposed on the Irish people by the British.

His government was determined to abolish those features of the constitution that emphasised the new State’s continued membership of the British empire, ie the oath of allegiance to the king as head of the empire required of every Dáil deputy and senator, the office of governor general representing the king and the appeal to the privy council in London from decisions of the Supreme Court.

However, as the documents in Gerard Hogan’s book published this week by the Royal Irish Academy make clear, the first steps to a new constitution in the post-1932 period were taken in a different context.

The Civil War into which the country had been plunged following the Anglo-Irish Treaty led to the introduction of draconian emergency legislation irreconcilable with the human rights guarantees in the Free State constitution. That was made possible because changes to the constitution meant it could be amended by ordinary legislation at any time.

De Valera established a committee to ascertain what articles of the constitution should be regarded as fundamental “on the ground that they safeguarded democratic rights” and what steps should be taken to ensure that they could not be amended by ordinary legislation. The committee consisted of four senior civil servants, each of whom had legal qualifications.

When de Valera ultimately concluded that the existing constitution should be replaced, the same group of civil servants played a central role in the drafting of the new constitution. Although the finished product undoubtedly reflected de Valera’s thinking, the influence of the civil servants, as the volume published this week documents, was crucial, the outstanding figure being the legal adviser to the department of external affairs, John Hearne, subsequently described by de Valera himself as “the architect in chief and draftsman” of the Constitution.

Hearne produced a draft constitution in April 1935 which is of extraordinary interest in the light of later events. It made no reference to the crown and provided for a president to be elected by the people.

It replicated almost verbatim the fundamental rights provisions of the Free State constitution (with the exception of the right to free elementary education) and, like it, provided for judicial review of legislation by the High Court and Supreme Court. Crucially, however, it also made clear that the fundamental rights articles could be amended only by referendum.

Hearne’s draft was conspicuously secular in tone. The special position of the Catholic Church was not mentioned, there was no prohibition on divorce legislation and his draft preamble was in stark contrast to the overtly religious preamble in the Constitution as enacted. Nor was there any equivalent to the articles ultimately included guaranteeing private property and family rights and heavily influenced by Catholic social teaching. The requirement that the State should “respect and honour religion” (apparently confined to monotheistic religions) was also a later addition, as was the provision that blasphemy was a criminal offence.

These provisions were added following extensive consultations with religious bodies and, while the influence of the Catholic Church on the final version is beyond argument, it also probably reflected de Valera’s own views.

It should also be said that de Valera resisted some of the more extreme demands made on him, and in particular declined to include any provision establishing the Catholic Church as the official religion of the State. Ultimately, indeed, the Vatican was notably lukewarm in its reception of the final draft, Pope Pius XI saying: “I do not approve, neither do I not disapprove – we shall maintain silence.”

It is at the same time tempting to speculate what the consequences would have been if Hearne’s secular version had been adopted without that religious super-structure.

In the non-religious sphere, there was also a significant departure from his draft in the form of articles 2 and 3, which included the claim as of right to the territory of Northern Ireland. Those articles were, of course, deleted and replaced by referendum, following the Good Friday agreement.

The provisions recognising the special position of the church and the prohibition on divorce legislation have also been removed, but the private property and family articles remain in place and, in the case of the latter, have caused widespread concern in recent years as to the consequences for children.

The provision that the Constitution could be amended only by referendum was of major significance. Difficulties that could not have been foreseen have arisen, however, since we joined the European Economic Communities in 1972. The actual wording of the amendment allowing us to join and the decision of the majority of the Supreme Court in the Crotty case seem to have led to governments leaning in favour of a referendum where changes to the existing treaties are proposed, at least in borderline cases.

At a time when changes to the Constitution are under discussion, this volume will provide much food for thought. Apart from the ease or otherwise with which the Constitution could be amended, the topics that concerned the framers included the abolition and replacement of the Seanad, the role of women, the limitations on judicial review of legislation, whether socio-economic rights should be protected, and the right of the President to refer legislation to the Supreme Court.

It is, of course, the case that amendments to the Constitution by referendum have usually been prompted by reaction to specific circumstances, such as those on changes to the EU treaties, or to particular campaigns. The proposals for changes by official bodies such as the Constitution Review Group, some at least relatively uncontroversial, have been generally ignored by politicians.

It may take events as traumatic as those of the last century recalled by Gerard Hogan’s volume (but one would hope less violent) to bring about the more radical changes that may now be necessary. Who knows whether we will yet become a member state of a federal Europe?

If radical new constitution-framing becomes unavoidable, we could do worse than adopt as our template the spare and elegant draft produced all those years ago by an unknown civil servant, John Hearne.

Ronan Keane is former chief justice. He wrote this article in connection with the publication of The Origins of the Irish Constitution 1928-1941 by Mr Justice Gerard Hogan.

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