Our Constitution gives people the power, thankfully

29 Dec

Today, December 29th 2012, marks the 75th anniversary of the Irish Constitution, Búnreacht na hÉireann coming into effect. This is my Evening Herald column on it continuing importance and relevance to Irish life.

eamon de valera

Dev – Architect of our Constitution

On this day seventy five years ago the Irish Constitution came into operation. As we have seen in recent and current controversies, almost four decades on, the Constitution is still central to much of our political debate.

Within the past year we have seen it successfully amend it three times: Judges Pay, Fiscal Compact and Children’s Rights. But, we have also seen the public resoundingly reject the governments request that they amend it on the issue of  Oireachtas enquiries.

It is not the first time the public has done this. Not only did they defeat the Nice I and Lisbon I votes, as early as 1959 they rejected the then attempt to change the voting system. Indeed in 1968 the voters rejected the next two amendments put to them, both related to elections.

It was not until the 1972 vote on joining the then EEC that the people passed the first amendment to the Constitution. (Technically this is the Third Amendment as the first two were made in 1939 and 1941 without referendums as part of transitional arrangements.)

Over the past 75 years the public have approved some twenty five changes to the Constitution. While some were technical in nature, others – such as the five votes relating to abortion – were highly controversial and emotionally charged.

What this shows is that the Constitution makes the people sovereign. They alone decide what changes may be made to the fundamental law of the land.

This important aspect of De Valera’s 1937 Constitution has been much praised over the years. While it is easy to look at the language and some of the secondary provisions as being a product of their time and maybe a little outdated now, most legal experts view the principles set out in the Constitution of 1937 as being ahead of their time.

Five of the fifty articles are devoted to Fundamental Rights. Decades before international instruments, such as the United Nations Charter and the Universal Declaration of Human Rights proclaimed fundamental rights and fair procedures, the Irish Constitution had done so.

Indeed, while the Constitution does not declare Ireland as militarily neutral, it does contain in Article 29.2 a commitment to “the pacific settlement of international disputes” and the adherence to International law. This is just something else that marks the document out as being ahead of its time.

But while it may have been well ahead of its time 75 years ago, it is still so?

I would argue that, essentially, it is. The fundamental principles it espouses are just that – fundamental. The commitment to democracy, rule of law, fair procedures etc do not change with the seasons of the prevailing political fashion.

But it is also a living document, particularly in the provisions relating to how government and the judiciary should work. Back in 1937 it seemed natural that only those over 21 should be entitled to vote, by 1972 that was changed to 18 by a margin of over 5 to 1 of those voting.

Events of recent years have thrown up some more significant issues. Are our governmental structures sufficiently responsive – or even fit for purpose – in the context of the IMF/EU bailout and an evolving European Union/Eurozone? Is the 1930’s post independence concept of property ownership appropriate in 21st century Ireland?

But where is reform on these issues being discussed? Not at the Government’s Constitutional Convention, it seems. Its initial priorities, as set out by the Government, are to discuss the President’s term of office and the voting age. This is the equivalent of setting up a dance committee after the Titanic has hit the ice. The one substantive constitutional issue on which the government, particularly the Taoiseach, is committed is abolition of the Seanad.

Just when we require more meaningful scrutiny of government policy, it proposes less and sells it under the guise of “reform”. Fortunately, it is the people who will be sovereign on this.

ENDS

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