Legality of the enactment of the Constitution of Ireland
From Wikipedia, the free encyclopedia
There was uncertainty during the 1937 adoption of the Constitution of Ireland (also known as the Bunreacht) whether or not its enactment observed legal continuity with the document that preceded it. In other words, was this a valid amendment of the Constitution of the Irish Free State, or were the terms of the earlier constitution violated in an act of peaceful revolution?
There were two main reasons to doubt the legality of the process of the constitution's enactment: firstly, the method of enactment of the Bunreacht differed, at least in form, from that laid down in the Free State constitution for the adoption of constitutional amendments. At the time the Bunreacht was adopted, the Free State constitution provided that constitutional amendments could be enacted in the same manner as ordinary laws, as acts of the Oireachtas (parliament). Instead of being adopted in this way the new constitution, after first being "approved" by Dáil Éireann (the sole house of parliament), was submitted to the people in a plebscite and only deemed to have become law once voters had endorsed it.
Secondly, whilst the Free State constitution provided for its own amendment, it had not itself been adopted as a free-standing document but had rather been enshrined in constitutional laws passed by both the British parliament and the Irish Constituent Assembly. These framing laws provided no explicit method by which they could be altered or repealed and some jurists insisted that the Oireachtas, at least, did not have authority to amend them.
Eamon de Valera, whose government sponsored the Bunreacht, argued that, in accordance with the principle of popular sovereignty, provided it was approved by the people in a plebiscite it was not necessary for the new constitution be adopted legally under the terms of the old. In the Dáil he conceded "I do not think we could amend the old Constitution in this way" but nonetheless insisted that no one could "tell us that this Draft Constitution is ultra vires for it is the people themselves who will enact it". In order to ensure that the legality of the new constitution would not be challenged in court the Bunreacht required that, once it had come into force, judges of the Supreme Court and of certain other courts formally declare that they would uphold the constitution in order to be permitted to remain in office.
Contents |
[edit] Amendment of the constitution acts
The complex method by which the Free State constitution had been adopted arose from the fact that its enactment coincided with the secession of the Irish Free State from the United Kingdom. The fundamental law of the Irish Free State took the form of three documents, the
- Constitution of the Irish Free State
- Irish Free State (Saorstát Éireann) Constitution Act (enacted by the Constituent Assembly)
- Constitution of the Irish Free State Act (enacted by the British parliament)
The 1937 constitution does not mention the British law, but as far as the two other documents are concerned it provides, in Article 48, that "the Constitution of Saorstát Éireann [the Irish Free State] ...and the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922 ...are hereby repealed".
Because the Free State constitution was enacted in Ireland as a schedule to the Constitution of the Irish Free State (Saorstát Éireann) Act (a law enacted by Constituent Assembly) the Oireachtas that had debated the draft of a new constitution in 1937 was not the same organ that had enacted the Free State's constitution act. On the contrary, the Oireachtas of the Irish Free State was the creation of the constitution act, derived its authority from that act's provisions and was bound by its limitations. It was for this reason it was argued that, while, in accordance with the Free State constitution's provisions, the Oireachtas could legally amend the constitution, it was ultra vires for the legislature to repeal the act enshrining the constitution. Nonetheless, the constitution of 1937 was not the first law to amend the Irish Free State Constitution Act. The first law purporting to do so was the Constitution (Removal of Oath) Act adopted in 1933, which, amongst other changes, removed the constitution act's requirement that all future constitutional amendments comply with the terms of the Anglo-Irish Treaty.
Whether or not the constitution act could be amended was not a problem as far as British law was concerned. While, in the belief of many Irish nationalists, the Free State constitution owed what validity it had to an act of the Constituent Assembly, under British law it derived its legitimacy from an act of the British parliament: the Irish Free State Constitution Act. This act merely endorsed the Constituent Assembly's act and ensured that the Free State constitution was valid under British law. In the initial years of the Irish Free State the Parliament of the United Kingdom retained the theoretical right to amend the Free State's constitution acts if it so wished. However in 1931 the British Parliament passed the Statute of Westminster. This statute renounced the right of the British parliament to legislate for the Free State, while granting the Oireachtas the authority to amendment all laws affecting the state, including both of the Free State's constitution acts. Thus as far as British law was concerned the enactment of the Bunreacht could be considered legitimate in so far as it amounted to the amendment or repeal of the constitution acts. However, paradoxically, this was a proposition that the Bunreacht's sponsors themselves could not accept; to do so would have been to recognise that the law of an alien parliament (the Statute of Westminster) could affect constitutional matters in Ireland.
The amendment of the law framing a national constitution has been an issue of dispute in other former or current Commonwealth nations. For example, the Constitution of Australia forms part of the Commonwealth of Australia Constitution Act, 1900, a law originally passed by the British parliament at a time it retained authority to do so. While the Constitution of Australia provides a clear mechanism for its own amendment there is uncertainty among Australian jurists as to the proper method by which the framing act might be altered or repealed.
[edit] Amendment of the constitution itself
Constitutional amendments were governed by Article 50 of the Free State constitution which, at the time the Bunreacht was enacted, provided that constitutional amendments could be enacted by the Oireachtas under the same procedure used for the adoption of ordinary laws. De Valera's government repudiated the Free State constitution as an unrepublican, foreign imposition and so deliberately provided that the new constitution would be adopted by an irregular method. The preamble to the Free State constitution described it as an enactment of the Constituent Assembly. In order to stress the republican nature of the document, and the sovereignty of the Irish people, the Bunreacht's sponsors decided that it would be enacted not by an elected body but by the people themselves by means of a plebiscite. The preamble to the Bunreacht is thus written in the name not of the legislature but of "We, the people of Éire". The drafters of the Bunreacht desired that the document be approved by the people's elected representatives before being put to a vote. However, instead of it being "enacted" by the Oireachtas in the same manner as a constitutional amendment, the standing orders of the Dáil were changed so that it could pass a resolution by which it merely "approved" the draft constitution without it therefore immediately becoming law.
Prior to 1936 the Oireachtas was bicameral, consisting of the Dáil and a senate. However by the time the Dáil was considering the Bunreacht the senate had been abolished, and thus, while the Oireachtas (the parliament) and the Dáil (the sole "house of parliament") technically remained separate organs of government, the distinction between them was purely a formality, and every bill passed by the Dáil automatically became law as an "Act of the Oireachtas". Nonetheless, the Free State constitution required that each constitutional amendment take the form of such an act. In spite of these provisions, formally at least, the Bunreacht was not "enacted" by the Oireachtas but merely "approved" by Dáil Éireann. Instead of enacting the new constitution itself the Oireachtas passed the Plebiscite (Draft Constitution) Act, 1937. This merely provided for the holding of a plebscite on the draft constitution while making no provision for the status of the draft document should it be passed by the electorate. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".
[edit] Footnotes
Note 1: Dáil Éireann was at that stage the sole house of parliament, because Seanad Éireann had been abolished the previous year because of its opposition to certain constitutional amendments.
[edit] See also
[edit] External links
- Historical Dáil debates from official Oireachtas website.
