With the Irish Constitution receiving criticism in light of the presidential race, Elizabeth O’Malley examines the scope for constitutional reform
The Ireland of the 1930s is almost unrecognisable in comparison to the Ireland of today. It was a time of censorship, strong religious values and, for most, a time of poverty. Since then there has been a growing movement to widen the definition of the family, anger in the wake of reports of clerical abuse and, while we may be in the middle of a recession, it is hard to compare the rural economy of previous decades to the more urban economy of today.
With this in mind, it is interesting to examine whether a constitution written in 1937 can really cater for the needs of the Irish population in the twenty-first century. After all, if the answer to that question is no, then one wonders about the purpose of having a constitution at all. Does it make sense to have a document to provide permanency of law if it goes out of date so quickly?
Professor David Farrell, who teaches a module on political reform in Ireland, believes that there are urgent issues which need constitutional reform. “We’re in the middle of a crisis, the worst crisis in our history but not the first crisis in our history … What caused the last crisis was the failure of our political institutions.” He recommends that the Senate be overhauled so that it is legitimately elected, that ministers give up their seats upon being appointed to allow for greater separation of powers, and that parliamentary committees have more investigative powers in order to hold the government to account.
But the structure of political institutions is not the only thing that has been cited as needing urgent overhaul. The 1937 Constitution had significant input from the Catholic Church, with Archbishop John McQuaid being one of the co-writers of the document. Included in our Constitution is a preamble which states that all powers of law are derived from God. Also featured are articles that previously banned divorce, strongly prohibits abortion, and state that marriage is between a man and a woman. While most of these issues have in fact been addressed to various degrees, many argue that religious matters don’t have a place in our most binding source of law. Campaign for a Secular Irish Constitution believe that “a modern secular Constitution would allow all citizens, whether religious or nonreligious, to live together as equals with the State being neutral on matters of religion.”
The Labour Party, who are proposing that a new constitution be introduced by the 1916 centenary, highlight other perceived faults with the current document. For example, they point to the provision which “recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved” as an example of values that while perhaps legitimate in the 1930s, but should not be legally enshrined today.
This criticism is also raised by Rachel Patterson, who argues in her thesis, ‘Women in Ireland: Change Toward Social and Political Equality in the 21st Century Irish Republic’, that the language of this particular provision was “aimed to preserve the power and status of the male in Irish society.”
The issue of rights has been one which has been closely examined by the courts. The Constitution provides for a number of specific rights, including the right to property, the right to your good name, and the right to equality before the law, but where other rights have not been specifically stated the Courts have used the wording ‘the personal rights of the citizen’ to fill in the gaps. These rights which have been ‘discovered’, such as the right to bodily integrity, are known as unenumerated rights. Given that the courts have acted to protect these rights in the absence of specific provisions, this is not an urgent issue.
Court intervention and referendums have, for the most part, kept the Constitution from completely falling behind the times. However, it appears that with the current economic crisis and the long overdue debate on religion in our Constitution, that now is the time to discuss reform.
Professor Farrell believes that any reform needs to be done in stages. “The risk of doing everything in one go is that the urgent things … will get lost in that quagmire. It should be something done in stages so that the most urgent aspects of fixing our government be done now, in the next year or two. In parallel, we should start a larger discussion about a change in our Constitution.”
Unlike the previous Constitution, which had the input of just a few people, the proposed constitutional reform should be headed by experts, as well as individual Irish citizens chosen in a similar way to juries. We as a nation need to consider what we need from our most important legal document.