Saturday 18 January 2020

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".

Now, Chief Justice Denham has also made it plain that the judges of the Supreme Court will not attempt to impose their own morality on the laws they have to adjudicate upon. Which means that they are rather like car mechanics working on an engine: it is our splendid law-makers in Leinster House who create the crankshaft and pistons, according to the blueprint of the Constitution. Rewrite the blueprint, even to a small degree, and sooner or later, just everything and everybody working to that blueprint might well have to change their practices.

Now, we have the extraordinary situation that the Supreme Court ruled, two days before the referendum, that the Government had behaved unconstitutionally in backing a Yes vote – though the Supreme Court did not, as it might have done, then injunct the referendum. But there is probably a madman in an attic somewhere who will take legal action against the Supreme Court for not injuncting the Government, and sooner or later the Supreme Court will be solemnly reflecting upon the constitutionality of its own inaction.

Which is all the Supreme Court needs, because as Chief Justice Denham recently pointed out, it will probably have a total of 500 new appeals to face this year. It would, she said, take three and a half years just to hear these appeals, during which of course, the people of Ireland would not retire to a cave with a handloom, peacefully spinning and awaiting the outcome, but would instead be furiously generating even more appeals.

BUT the knee-buckling, will-breaking problem here is that to reduce the workload for the Supreme Court would itself require another Constitutional change. Chief Justice Denham has proposed an amendment which would authorise the Dail to create additional courts. Yet is it constitutionally possible for the Government to actively promote any measure which would reduce the already impossible workload faced by the Supreme Court?

That's a question only the Supreme Court can decide upon; and then of course, the madman in the attic will probably file an appeal to the Supreme Court against its own ruling. The lunatic aside, and recognising that the Chief Justice knows best, perhaps we should give her this final constitutional change permitting more judges, with an additional and connected proviso conferring a binding obligation upon the State to execute, slowly and excruciatingly, anyone who proposes any further amendments. And then for at least a generation, we haul up the drawbridge on John Hearne's Constitution.

Irish Independent

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