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Piecemeal constitutional reform

By: Mark Tottenham BL

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In the first 50 years after the passing of the Irish constitution in 1937, there were ten amendments. In the 41 years since 1987, there have been 26 amendments. It is questionable whether this is the best way to amend the constitution, or if there should be a more fundamental review.

The constitution serves two broad functions. It is an enabling document, setting out the rules of government: how to elect the people with power, and the procedural checks and balances on their use of it. It also serves as a bill of rights, creating personal protections of people from the government and - to a certain extent - from each other.

Much of the language of the constitution reflects the values that existed at the time of its original passing. In 1937, Ireland was a largely agricultural country with an overwhelmingly Catholic population. It may have been acceptable then for the constitution to refer to the position of women in the home, and the neglect of mothers’ ‘duties’ therein, but it now seems laughably archaic.

If Ireland once voted in referendums in accordance with religious beliefs, it is clear that this is no longer the case. A large majority voted in 2015 to allow same-sex couples the right to marry. An even larger majority voted this year to remove the constitutional ban on abortion.

Referendums are now planned to remove the aforementioned reference to the life of women in the home, and the criminalisation of blasphemy. These are unlikely to be controversial. Although they will cause the State some expense, the greatest foreseeable challenge will be for broadcasters trying to find sane voices to speak in favour of their retention.

But other changes are surely needed. Over the years, Irish courts have recognised a number of ‘unenumerated rights’, including the right to privacy, the right to education and the right to trial by jury. It is surely time for these to be given express constitutional protection. Furthermore, the 1953 European Convention on Human Rights is now a part of Irish law. Surely it is time to align Ireland’s constitutional rights with those protected by the Convention. Changes of this sort were recommended by the Constitution Review Group in 1994, but no serious attempt has been made to implement them.

As we approach the centenary of Ireland’s independence (and the enactment of our first written constitution - the Free State constitution of 1922), perhaps it is time to bring in a new constitution for the 21st century. This should: (a) give express protection to the unenumerated rights in the existing constitution; (b) align Ireland’s constitutional rights with the European Convention; and (c) remove or update the more embarrassing and archaic language of the 1937 constitution.

The constitution of the United States is often given quasi-religious significance by politicians and commentators, notwithstanding that it has a number of provisions that are clearly unfit for a modern state. In Ireland, outside the legal profession, our constitution is often spoken of with derision because of its perceived conservatism. It should be remembered that, in 1937, most of Europe was ruled by dictatorships and that it descended into war soon afterwards. It is to the credit of Eamon De Valera and his then government that they introduced a constitution that protected Ireland’s democratic structures throughout that period and since. Overall, our constitution has served the country well, but it could unquestionably be improved upon if rewritten for our times.

(This piece was originally published in Law Ireland in 2018.)

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