Thursday 22 February 2018

A changed land needs a changed Constitution

Those who drafted our Constitution did not trust the people and the increasingly regular amendments prove that we need a new one

A tide of votes: Ballot papers are delivered for counting in the 2002 amendment
A tide of votes: Ballot papers are delivered for counting in the 2002 amendment

Emer O'Kelly

Our Constitution has been amended 28 times since it was drafted and enacted in 1937. We have voted 35 times in total on proposed amendments. But it is the timescale of the amendments which makes the most interesting reading.

In the first 30 years in which we lived under Bunreacht na hEireann, there were only two amendments proposed to and passed by the electorate. The first was in 1939, when it was amended to allow us to retain our neutrality in World War II.

Proponents still admire it, and the De Valera government which passed it, for ensuring that we were not forced to get involved in something that had "nothing to do with us"; others still feel shame that we allowed our loathing of Britain to let us think that the defeat of Nazism had nothing to do with us.

The second amendment, in 1941, made absolute sense: it was a tidying up process on various bits and bobs in the document itself, a not unnatural requirement for such a massive undertaking as the drafting had been.

And then there was silence. Until 1972, when the Constitution was amended to allow us to join the then European Economic Community. It was a watershed.

We joined for entirely selfish reasons. We were a tiny, poverty-stricken country on the periphery of Europe with no natural resources; the economics would be all in one direction, a massive monetary boost for Ireland. Being good Europeans dedicated to unity was not even on our horizon: we intended to continue in our narrow nationalism. Europe was there merely to loosen its purse strings and fill the coffers of the nation.

But it was hugely significant: cracks began to appear in the Constitution, which had so steadfastly prescribed that we would be closed off from the alien breezes of internationalism and social liberalism, a holy and wholly Catholic entity even after the "special position" of the Catholic Church was removed (by amendment) in the 1970s.

There were five amendments to the Constitution in the 1970s, three in the 1980s, nine in the 1990s, five in the first decade of this century, and three so far in this decade.

And with the necessity of each succeeding amendment, it should have begun to make us realise that the document which was regarded by Irish people as a perfection of what passed for democracy and inclusiveness was, in fact, narrowly bigoted. And it had such deliberately enclosed parameters that it could never be fit for purpose beyond the moment in time in which it was drafted.

Those who drafted and enacted it wanted it that way: they wanted their moment in time to encase us in amber for all time to come; in a supposedly simple Utopia of limited achievement and limited aspiration, protected from alien modernity,

When the late Oliver J Flanagan TD, father of our current Minister for Foreign Affairs, said on the floor of Dail Eireann in the 1960s that "there was no sex in Ireland before television" he was, even then, ridiculed. But he was, in many ways, quite right. Sex was dark then: a marital duty, sometimes a forced marital duty, often a violation and brutalising of children. Outside the bonds of sanctified marriage, it was an offence against decency.

We know that now; but then, we were living in Holy Ireland, and societies which allowed children to have rights, to speak up for themselves, in which wives could make an economic contribution to the nation state, and had equal rights with husbands, where individual bodily integrity was a matter of individual choice, all were alien: "pagan" and "godless".

It was that apocalyptic amendment to our Constitution, which we saw as merely an economic bandwagon, which ended Ireland's closed society forever - it exploded the myth of our Constitution as a suitable basis for a modern society with opportunities for all, regardless of colour, creed, or gender.

Only seven of the constitutional amendments since 1972 have related to our governance as a member of the European Community itself. Almost all of the others have involved social issues, which in most civilised societies, allowed rights in accordance with the UN Declaration of Human Rights as a matter of course.

They were demanded as our EU membership allowed us to see the wider world, and recognise how far behind it we were in so many aspects of personal dignity and rights.

Increasingly, our Constitution has been found to ensure that we have been flailing against human progress. It is quoted as fervently by its admirers as the Bible is quoted by the religious faithful, never to be questioned or doubted, rather than seen as a document of its time, and even in its time as prescriptive as it was defensive.

Amendments involving social progress along international norms have been fought tooth and nail by elements in our society. Currently, the amendment passed three years ago which gives constitutional status to children as members of society in their own right, is being challenged in the courts.

The right to challenge such proposals (challenges which would seem bizarre in most civilised societies), exist because our Constitution was drafted by people who did not trust their own people: they dedicated the people to subservience to a given religion, and were determined that their document would ensure that laws would never be passed which offended that religion. They did not envisage that within 50 years, even that religion would have made changes (a very few changes, admittedly) in its rules.

They made no allowances for Ireland becoming part of the community of nations; but we still revere their blinkered lack of vision: Ireland was forever to be defined as a state free of British "domination", nothing more. Despite all of that, we have fought ourselves into a comparatively free society, although not free enough. But we are still so in thrall to our national Holy Writ that we ignore the faulty foundations on which it was built.

Most recently, an amendment allowed for the establishment of a Court of Appeal. We need to wake up to the symbolism of that term, and appeal to our own common sense. We need a new Constitution which trusts the legislators. Then, of course, we will need to elect legislators, not localised messenger boys.

Sunday Independent

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