Monday 11 December 2017

Be critical of a few bad articles but proud of the good in the Constitution

This month sees the 90th anniversary of the Irish Free State Constitution, which was, in many ways, a radical and far-seeing document. It borrowed from the US Constitution the idea of judicial review of legislation, ie, the idea that laws that infringed human rights could be invalidated as unconstitutional by the courts.

The committee borrowed concepts of direct democracy from Switzerland and the idea that any fundamental changes in the rules governing our society could only be changed by referendum.

Finally, the committee borrowed from the inter-war constitutions of continental Europe for the contents of the human rights protections, particularly the much-admired German constitution (Weimar constitution) of 1919. The Weimar constitution has served as a model for every subsequent new Constitution on continental Europe, not least those of Germany, Italy and Spain. For various reasons, the Constitution of the Irish Free State was not a success.

A major drafting flaw meant that the Oireachtas could easily amend it and no referendum was held during its lifetime. Just as critically, the Constitution was bound up with the terms of the 1921 Anglo Irish Treaty and as that treaty was gradually dismantled, so too did the seams of the 1922 Constitution come apart.

By the middle of the 1930s, a fresh start was necessary – and hence this month is the 75th anniversary of the entry into force of the Constitution of Ireland. The 1937 document is a more elegantly drafted one and its style nd structure is a distinct improvement on its 1922 predecessor, albeit that much that was good from the 1922 version was retained.

Much of this is due to De Valera's inspired choice of the principal drafter, the supremely talented John Hearne, then legal adviser to the Department of Foreign Affairs.

The Weimar Constitution – drafted, incidentally, by a liberal German Jewish socialist, Hugo Preuss – served as his model and even though the Irish public seem completely unaware of this, significant elements of our Constitution have similar wording, structure and content to the major continental constitutions, which also followed the Weimar model.

It is easy to point to the Constitution's obvious faults and flaws: these are well known and well documented. Many think that some of the more nationalist and religious references that remain do not match the prevailing social and political culture as well as they once did.

But what I find intriguing is the extent to which the Constitution's obvious strengths and considerable achievements are almost never mentioned in this public discourse. It is a testament to Hearne's considerable drafting skills that the Constitution – with very few exceptions – fits together so well and in an integrated whole. 75 years of evolving and ever-changing constitutional case laws are living proof of this. Recall how difficult, complex and problematic the drafting of even specific and isolated constitutional amendments has proved over the last three decades or so. It is a measure of Hearne's unique talent that he could – and did – draft an entire document with little enough assistance in so short a period.

In the period since the Constitution has been enacted, there have been over 75 declarations that particular laws and rules were unconstitutional. Important new rules promoting fairness in criminal trials, administrative decision-making and referendums have been developed by the courts based on the Constitution's requirements.

Much of this seems nowadays either to be forgotten or taken for granted by the general public: in other countries, achievements of this kind would be a source of pride and admiration.

Much of the criticism of the Constitution seems directed at the proposition that many of its provisions are unique and special to Ireland, redolent of an agrarian, nationalist and very religious society that is no more. I seriously dispute that proposition. I think that you would rather find that much of the Constitution has very close comparators – for all the reasons that I have mentioned – with its continental counterparts.

The fundamental rights – equality, liberty, family, education and children, the home, free speech, religion and freedom of thought, property – all are protected in very similar fashion and in language that represents part of the common European legal heritage since the French Revolution ("inviolable", "inalienable and imprescriptible", "respect", "defend and vindicate"). I might here give two examples.

Article 40.5 protects the "inviolability" of the dwelling ("sanctity of the home"). The exact same language ("inviolability") with reference to the home may be found in the constitutions of Germany, Italy, Belgium and Denmark, and similar language is also found in a variety of other continental constitutions.

Most continental constitutions also protect the family and the right to education, even though many Irish people have been led to believe that the provisions dealing with the family in Article 41 and Article 42 of the Constitution are unique and exceptional to Ireland.

Thus, for example, Article 42.1 refers to the "inalienable right" of parents to rear and educate their children, and both the "old" Article 42.5/ "new" Article 42A.2 (following the recent referendum) allow for the State to step in where parents "fail in their duty" towards their children.

Yet Article 6(2) of the German Basic Law (Constitution) (1949) says that "the care and upbringing of children are a natural right of parents" and Article 6(3) allows the German state to intervene where the parents "fail in their duty" to their children. Is there anything so different between those provisions, not least given the exact same language ("fail in their duty") is also used in both documents?

Many of these constitutions have provisions that we would consider odd and eccentric. Nearly all of them have overtly religious references, many of them far more striking than anything that was ever contained in the "special position of the Roman Catholic Church" clause in Article 44, which was removed by referendum in 1972. Many understandably object to the "mother in the home" clause in Article 41.2.2 of our constitution, but Weimar had versions of this (Article 119 and Article 161), and even today Article 6(4) of the German Basic Law provides for the special protection of mothers and motherhood.

While, therefore, some of the criticisms of the Constitution's more contentious clauses are all too well founded, the criticisms directed at the bulk of the document generally are not. It appears to be another example of all-too-typically Irish characteristics of negativity, lack of self-belief and lack of civic pride in our institutions and in our own achievements.

The promise, nevertheless, of the newly established Constitutional Convention is that, should they so recommend and, ultimately, the people will it, the intentions of the drafters in 1937 as reflected in the constitution's preamble that the "dignity and freedom of the individual be assured" can be re-invigorated; that the Constitution can be given a new birth of freedom, which will refresh our democracy, renew our commitment to the protection of human rights and, above all, rekindle a civic pride in our State and its fundamental law and hold out fresh hope for better times in the future.

Gerard Hogan is a judge of the High Court

Irish Independent Supplement

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