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The Constitution of Ireland (Irish: Bunreacht na hÉireann, pronounced [ˈbunraxt nə ˈheːrʲən]) is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected non-executive president, a bicameral parliament based on the Westminster system, a separation of powers and judicial review.
It is the second constitution of the state since independence, replacing the 1922 Constitution of the Irish Free State.[1] It came into force on 29 December 1937 after having been passed by a national plebiscite on 1 July 1937. The constitution may only be amended by referendum.[2]
The Constitution of Ireland replaced the Constitution of the Irish Free State which had been in effect since the independence of the Irish state from the United Kingdom on 6 December 1922. There were two main motivations for replacing the constitution in 1937. Firstly, the Statute of Westminster 1931 granted parliamentary autonomy to the six UK Dominions within a Commonwealth of Nations. The Irish Free State constitution of 1922 was, in the eyes of many, associated with the still controversial Anglo-Irish Treaty. The largest political group in the anti-treaty faction, who opposed the treaty initially by force of arms, had boycotted the institutions of the new Irish Free State until 1926. In 1932 they were elected into power as the Fianna Fáil party. Since 1932, under the provisions of the Statute, some of the articles of the Constitution of the Irish Free State required by the Anglo-Irish Treaty, had been dismantled by acts of the Dáil. Such amendments had removed references to the Oath of Allegiance, appeals to the United Kingdom's Judicial Committee of the Privy Council, the British Crown and the Governor General. The sudden abdication of Edward VIII in December 1936 was quickly used to redefine the royal connection.[3] Nevertheless, the Fianna Fáil government, led by Éamon de Valera, still desired to replace the constitutional document they saw as having been imposed by the UK government in 1922.
The second motive for replacing the original constitution was primarily symbolic. De Valera wanted to put an Irish stamp on the institutions of government, and chose to do this in particular through the use of Irish Gaelic nomenclature.
De Valera personally supervised the writing of the Constitution. It was drafted initially by John Hearne, legal adviser to the Department of External Affairs (now called the Department of Foreign Affairs). It was translated into Irish over a number of drafts by a group headed by Micheál Ó Gríobhtha (assisted by Risteárd Ó Foghludha), who worked in the Irish Department of Education. De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney General or someone from the Department of the President of the Executive Council. He also received significant input from John Charles McQuaid, the Archbishop of Dublin, on religious, educational, family and social welfare issues.
There are a number of instances where the texts in English and Irish clash, a potential dilemma which the Constitution resolves by favouring the Irish text.
The draft constitution was presented personally to the Vatican for review and comment on two occasions by the Department Head at External Relations, Joseph P. Walsh, prior to its tabling in Dáil Éireann and presentation to the Irish electorate in a plebiscite. In an obfuscatory Vatican comment on the final amended draft by Secretary of State Eugenio Cardinal Pacelli, the future Holy Father Pius XII responded "We do not approve, neither do we disapprove; We shall maintain silence."[4] The quid pro quo for this indulgence of the Catholic Church's interests in Ireland was the degree of respectability which it conferred on De Valera's formerly denounced republican faction and its reputation as the 'semi-constitutional' political wing of the 'irregular' anti-treaty terrorist minority.
The text of the draft constitution, with minor amendments, was approved on 14 June by Dáil Éireann (then the sole house of parliament, the Senate having been abolished the previous year).
The draft constitution was then put to a plebiscite on 1 July 1937 (the same day as the 1937 general election), when it was passed by a plurality. 56% of voters were in favour, comprising 38.6% of the whole electorate. The constitution formally came into force on 29 December 1937.
Among the groups who opposed the constitution were supporters of Fine Gael and the Labour Party, the major opposition parties, Unionists, and some independents and feminists. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".
| Plebiscite on the Constitution of Ireland[5] | ||
|---|---|---|
| Choice | Votes | Percentage |
| Yes | 685,105 | 56.52% |
| No | 526,945 | 43.48% |
| Valid votes | 1,212,050 | 90.03% |
| Invalid or blank votes | 134,157 | 9.97% |
| Total votes | 1,346,207 | 100.00% |
| Voter turnout | 75.84% | |
| Electorate | 1,775,055 | |
At the time the constitution was adopted there was uncertainty over whether its enactment amounted to a 'legal' amendment of the Free State constitution or a violation of its terms. If the enactment of the constitution were considered to be illegal in this way it could be considered an act of peaceful revolution. De Valera's government insisted that, owing to 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. Nonetheless, in order to avoid a challenge to the new constitution in the courts, senior judges were required to make a formal declaration that they would uphold the new constitution in order to be permitted to remain in office once it had come into force.
When the new constitution was enacted, the British government, according to the New York Times "contented itself with a legalistic protest".[6] Its protest took the form of a communiqué on 30 December 1937 in which the British stated:[7][8]
"His Majesty's Government in the United Kingdom has considered the position created by the new Constitution ... of the Irish Free State, in future to be described under the Constitution as 'Eire' [sic] or 'Ireland' ... [and] cannot recognize that the adoption of the name 'Eire' or 'Ireland', or any other provision of those articles [of the Irish constitution], involves any right to territory ... forming part of the United Kingdom of Great Britain and Northern Ireland ... They therefore regard the use of the name 'Eire' or 'Ireland' in this connection as relating only to that area which has hitherto been known as the Irish Free State."
The Irish Government received a message of goodwill from 268 United States congressmen including eight senators. The signatories expressed "their ardent congratulations on the birth of the State of Ireland and the consequent coming into effect of the new constitution", adding that "We regard the adoption of the new constitution and the emergence of the State of Ireland as events of the utmost importance."[9]
The official text of the constitution consists of a Preamble and fifty Articles arranged under sixteen headings. Its overall length is approximately 16,000 words. The headings are:
The constitution also includes a number of "Transitory Provisions" (Arts. 51-63) which have, in accordance with their terms, been omitted from all official texts since 1941. These provisions are still in force but are now mostly spent.
Article 8 of the Constitution states the following:
1. The Irish language as the national language is the first official language.
2. The English language is recognised as a second official language.
3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.
The Irish text of the Constitution takes precedence over the English text (Articles 25.4.6° and 63). However, the second amendment included changes to the Irish text to align it more closely with the English text, rather than vice versa.
The Constitution provides for a number of Irish language terms that are to be used even in English. The old Irish terms Taoiseach and Tánaiste, for the head and deputy head of government, made their first appearance in the 1937 Constitution, whilst the terms Oireachtas, Dáil Éireann and Seanad Éireann had previously featured in the Free State constitution.
The Constitution establishes a government under a parliamentary system. It provides for a directly elected, largely ceremonial President of Ireland (Article 12), a head of government called the Taoiseach (Article 28), and a national parliament called the Oireachtas (Article 15). The Oireachtas has a dominant directly elected lower house known as Dáil Éireann (Article 16) and an upper house Seanad Éireann (Article 18), which is partly appointed, partly indirectly elected and partly elected by a limited electorate. There is also an independent judiciary headed by the Supreme Court (Article 34).
Under Article 28.3.3° the Constitution grants the state sweeping powers "in time of war or armed rebellion", which may (if so resolved by both Houses of the Oireachtas) include an armed conflict in which the state is not a direct participant. During a national emergency the Oireachtas may pass laws that would otherwise be unconstitutional, and the actions of the executive cannot be found to be ultra vires or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty (Article 15.5.2°), introduced by an amendment made in 2001, is an absolute exception to these powers.
There have been two national emergencies since 1937: an emergency declared in 1940 to cover the threat to national security posed as a consequence of World War II (although the state remained formally neutral throughout that conflict), and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.
Irish law currently also forbids discrimination in employment and services (from both the public and private sectors) on grounds of sex (including transsexuals), marital status, family status, sexual orientation, age, disability, race (including nationality), membership of the Traveller community, and lack of religious belief.
Article 45 outlines a number of broad principles of social and economic policy. Its provisions are, however, intended solely "for the general guidance of the Oireachtas", and "shall not be cognisable by any Court under any of the provisions of this Constitution" (preamble to Article 45).
The "Directive Principles of Social Policy" feature little in contemporary parliamentary debates. However, no proposals have yet been made for their repeal or amendment.
The principles require, in summary, that:
The transitory provisions of the constitution consist of thirteen articles that provide for a smooth transition from the state's pre-existing institutions to the newly established state. Article 51 provides for the transitional amendment of the constitution by ordinary legislation. The remaining twelve deal with such matters as the transition and reconstitution of the executive and legislature, the continuance of the civil service, the entry into office of the first president, the temporary continuance of the courts, and with the continuance of the attorney general, the comptroller and auditor general, the Defence Forces and the police.
Under their own terms the transitory provisions are today omitted from all official texts of the constitution. The provisions required that Article 51 be omitted from 1941 onwards and the remainder from 1938. However, paradoxically, under their own provisions Articles 52 to 63 continue to have the full force of law and so may be considered to remain an integral part of the constitution, even though invisible. This created the anomalous situation that, in 1941, it was deemed necessary, by means of the Second Amendment, to make changes to Article 56 despite the fact that it was no longer a part of the official text.
The precise requirements of the transitory provisions were that Articles 52 to 63 would be omitted from all texts published after the day on which the first president assumed office (this was Douglas Hyde who was inaugurated in 1938) and that Article 51 would be omitted from the third anniversary of this inauguration (1941). Unlike the other articles, Article 51 expressly provides that it would cease to have legal effect once it was removed from the document.
Any part of the Constitution may be amended, but only by referendum.
The procedure for amendment of the Constitution is set out in Article 46. An amendment must first be passed by both Houses of the Oireachtas, then be submitted to a referendum, and then finally must be signed into law by the President.
Twenty-four amendments have been enacted since the Constitution first came into operation. Controversial amendments have dealt with such topics as abortion, divorce, and the European Union.
The Constitution states that it is the highest law of the land and grants the Supreme Court authority to interpret its provisions, and to strike down the laws of the Oireachtas and activities of the Government it finds to be unconstitutional. Under judicial review the quite broad meaning of certain articles has come to be explored and expanded upon since 1937. The Supreme Court ruled, before their alteration in 1999, that Articles 2 and 3 did not impose a positive obligation upon the state that could be enforced in a court of law. The reference in Article 41 to the family's "imprescriptable rights, antecedent and superior to all positive law" has been interpreted by the Supreme Court as conferring upon spouses a broad right to privacy in marital affairs. In the 1974 case of McGee v. The Attorney General the court invoked this right to strike down laws banning the sale of contraceptives. The court has also issued a controversial interpretation of Article 40.3, which prohibits abortion. In the 1992 case of the Attorney General v. X (more commonly known simply as the "X case") the Supreme Court ruled that the state must permit someone to have an abortion where there is a danger to her life from suicide.
As originally enacted in 1937, Article 2 asserted that "the whole island of Ireland, its islands and the territorial seas" formed a single "national territory", while Article 3 asserted that the Oireachtas had a right "to exercise jurisdiction over the whole of that territory". These articles offended Unionists in Northern Ireland, who considered them tantamount to an illegal extraterritorial claim.
Under the terms of the 1998 Belfast Agreement, Articles 2 and 3 were amended to remove any reference to a "national territory", and to state that a united Ireland should only come about with the consent of majorities in both the jurisdictions on the island of Ireland. The amended Articles also guarantee the people of Northern Ireland the right to be a "part of the Irish Nation", and to Irish citizenship.
The Constitution guarantees freedom of worship, and forbids the state from creating an established church.
Article 44.1 as originally enacted explicitly "recognised" a number of Christian denominations, such as the [Protestant] Church of Ireland, the Presbyterian Church in Ireland, as well as "the Jewish Congregations"; most controversially of all, it also recognised the "special position" of the Roman Catholic Church. These provisions were removed by the Fifth Amendment in 1973 (see below). Nevertheless the constitution still contains a number of explicit religious references, such as in the preamble, the declaration made by the President, and the remaining text of Article 44.1, which reads:
The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
The Constitution has also, since 1983, contained a controversial prohibition of abortion. However, this does not apply in cases where there is a threat to the life of the mother (including from risk of suicide) and may not be used to limit the distribution of information about abortion services in other countries or the right of freedom of travel to procure an abortion.
A number of ideas still found in the Constitution reflect the Catholic social teachings current in the 1930s, when the original text was drafted. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy, as well as the system of vocational panels used to elect the Senate. The Constitution also grants very broadly worded rights to the institution of the family.
As originally enacted, the Constitution also included a prohibition on divorce. The ban on divorce was not removed until 1996.
Few contemporary commentators argue that the original text of the Constitution would be fully appropriate today. Those that have argued that:
The remaining religious provisions of the Constitution, including the wording of the Preamble, remain controversial and widely debated.[10]
The Constitution guarantees women the right to vote and to nationality and citizenship on an equal basis with men. However, it also contains a provision that was objected to by women's organisations at the time of its enactment in 1937. Article 41.2 states:
1° [...] the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
Article 41.2.1° could, however, be viewed in the context of the 1930s, and some point out that it is not coercive and that there is no constitutional obligation for women to stay in the home. Indeed, some have argued that the provision highlights the value of the unremunerated role that women in the home contribute to society.
In 1949 the Irish state abandoned its few remaining constitutional ties with the British monarchy, and it was declared by an Act of the Oireachtas that the term "Republic of Ireland" could be used as a "description" for the Irish state. However, there is debate as to whether or not the state was a republic in the period 1937–1949; between these dates the state was not described in any law as a republic. The current text of the Constitution does not mention the word "republic", but does for example assert that all power is derived, "under God, from the people" (Article 6.1).
Debate largely focuses on the question of whether, before 1949, the head of state was the President of Ireland, or King George VI. The Constitution did not directly refer to the King, but also did not (and still does not) state that the President was head of state. The President exercised most of the usual internal functions of a head of state, such as formally appointing the Government, and promulgating laws.
In 1936, before the enactment of the existing Constitution, George VI had been declared "By the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India" and, under the External Relations Act of the same year, it was this King who formally represented the state in its foreign affairs. Treaties, for example, were signed in the name of the King, who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Head of State in the eyes of foreign nations.
However, the removal of the King's constitutional position within Ireland was brought about in 1948 not by any change to the Constitution, but by ordinary law (the Republic of Ireland Act 1948). Since the Irish state was unambiguously a republic after 1949 (when the 1948 Act came into operation), and the same Constitution was in force prior to that time, some have argued that the Irish state was in reality a republic from the Constitution's enactment in 1937.
The constitution begins with words "We, the people of Éire". It then declares, in Article 4, that the name of the state is "Éire, or, in the English language, Ireland". The text of the draft constitution as originally introduced into the Dáil had simply stated that the state was to be called Éire, and that term was used throughout the text of the draftconstitution. However, the English text of the draft constitution was amended during the parliamentary debates to replace "Éire" with "Ireland".[11] (The only exceptions were the preamble, in which "Éire" is used alone, and Article 4, which was amended so as to refer to both "Éire" and the alternative English language name of "Ireland".) The name of the state was the subject of a long dispute between the British and Irish governments which has since been resolved.[12]
Article 41.1.1° of the Constitution "recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law", and guarantees its protection by the state. However, these rights and protections are not extended to every family unit, such as single parents, unmarried opposite-sex co-habiters, and same-sex couples.
The institution of marriage enjoys a privileged position in the Constitution. A family exclusively based on marriage is envisaged: Article 41.3.1° states that "[t]he State pledges itself to guard with special care the institution of Marriage, on which the Family is founded". The effect is that non-marital unit members are not entitled to any of the encompassed protections, including those under the realms of tax, inheritance, and social welfare, granted by Article 41. For example, in State (Nicolaou) v. An Bord Uchtála [1966] IR 567, where an unmarried father, who had become estranged from the mother of his child some months after living and caring for the same child together, was prevented from invoking the provisions of Article 41 to halt the mother’s wishes of putting the child up for adoption. The then Mr. Justice Walsh of the Supreme Court stated that "the family referred to in [Article 41 was] the family which is founded on the institution of marriage".
A number of discrepancies have been identified between the Irish and English texts of the Constitution. According to Article 25.5.4° the Irish text prevails in such cases.
Perhaps the most signficant discrepancy between the two texts of the Constitution is to be found in the subsection stipulating the minimum age for a candidate to be eligible for election as President (Art. 12.4.1°). According to the English text, an eligible candidate "has reached his thirty-fifth year of age", whereas the Irish text has this as "ag a bhfuil cúig bliana tríochad slán" ("has completed his thirty-five years"). Because a person's thirty-fifth year of life begins on his or her thirty-fourth birthday, this means there is a one year's difference between the minimum ages as stated in the two texts. Various proposals have been made to amend the Constitution so as to eliminate this discrepancy.[13]
The Constitution has been subjected to a series of formal reviews during the last 40 years or so.[14]
The All-Party Oireachtas Committee on the Constitution was established in 1996.
The first All-Party Committee (1996–97), chaired by Fine Gael TD Jim O'Keeffe, published two progress reports in 1997:
The Second All-Party Oireachtas Committee on the Constitution (1997–2002) was chaired by Fianna Fáil TD Brian Lenihan. It published five progress reports:
The second committee also published two commissioned works:
The current (2002) committee is chaired by Fianna Fáil TD Denis O'Donovan. It describes its task as being to "complete the programme of constitutional amendments begun by the earlier committees, aimed at renewing the Constitution in all its parts, for implementation over a number of years". It describes the job as "unprecedented", noting that "no other state with the referendum as its sole mechanism for constitutional change has set itself so ambitious an objective".[28]
The committee has divided its work into considering three types of amendment:
The current All-Party Committee has published three reports:[29]
The committee summarises its remaining tasks as being to consider:
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