Saturday 16 December 2017

Kevin Myers: 'Let's make it unconstitutional to hold referendums'

Kevin Myers

HAVING authorised the constitutional guarantee that children in Ireland shall henceforth live in a perpetual paradise guaranteed by that most august of institutions, the Irish State, we have just enough time to pass another constitutional amendment to celebrate the 75th birthday of the implementation of Constitution on December 29. It is this. "Any further attempt to alter, improve, modify, ameliorate, liberalise or in any way modernise this Constitution shall be considered an Unconstitutional Act, for which offenders shall be taken to a place of public execution and there preached to death by human-rights lawyers, with neither mercy nor any right of appeal."

Our Constitution is, like any such document, a creature of its time: so all things considered, it has weathered the changing ethos rather well. Its primary draughtsman, John Hearne, clearly did a pretty good job. However, it is too often seen as a sort of moral talisman, which can be adjusted to suit contemporary requirements – hence the ludicrous abortion referendum of nearly 30 years ago, and the equally ludicrous referendum last weekend. The exquisitely difficult problems of medical ethics cannot be – and were not – solved by grand constitutional statements. Nor can the rights of one section of the community be especially constitutionally protected by a particular amendment without causing unpredictable imbalances, which will only become evident once the Supreme Court is called on to consider all the various implications. For example, the latest amendment recognises and affirms the natural and imprescriptible rights of a child, which the State shall vindicate and protect. Since the very first "natural" right of any child, after the right to life, is that of bodily integrity, how can anyone now lawfully circumcise a boy-child? That the state, under the aegis of a Jewish Minister for Justice, might now have effectively made circumcision illegal, is a splendid example of the unintended consequences that can emanate from any constitutional change (one, incidentally, that I would welcome, since I regard all genital mutilations of a baby, of whatever sex, for purposes of religious ritual to be an anachronistic barbarity).

Chief Justice Denham wrote recently that the dignity of the person is a central concept within the Constitution, and the right to human dignity is now recognised at an international and European level. No doubt; but it wasn't so long ago that this same Constitution was adjudged by our courts to confer legal protection against extradition upon anyone who had murdered in pursuit of a United Ireland, provided the killer used a handgun. Yes, that was the law in Ireland: so much for an earlier judicial interpretation of "human dignity".

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