Constitution of Ireland

The constitution of Ireland (Irish language: Bunreacht na hÉireann, pronounced bun-rockt na hair-inn) is the constitution of Éire, also known since 1949 as the Republic of Ireland.

NB: It should be noted that this page has been the subject of many revisions, most of which concern the interpretation of the Constitution of Ireland as a pro-Catholic document reflecting the idea of a 'Catholic Ireland for a Catholic People'. The revision history has been deleted, and the current page contents reflect the contended view that the Irish Constitution has little or no Catholic bias. The reader is encouraged to view the original document.

Table of contents

1 The Drafting of Bunreacht na hÉireann

2 The Bunreacht's Main Innovations

3 'Myths' about the Bunreacht

4 Footnote

The Drafting of Bunreacht na hÉireann

It was the work of Eamon de Valera, President of the Executive Council (prime minister) of the Irish Free State. The constitution was actually drafted in two languages, Gaelic (the Irish language) and English; in Gaelic by Micheál Ó Gríobhtha, who worked in the Irish Department of Education, and in English by John Hearne[?], legal advisor to the Department of External Affairs[?] (now called the Department of Foreign Affairs). 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.

Though many presumed that the constitution was drafted in English and merely translated into Gaelic, in reality it was in effect written in both languages almost simultaneously, with each co-author borrowing from the other's work. The result unfortunately is that at a number of points the texts clash. In the event of such a clash, the Irish language, though ironically the less well worded legally, given that its author was not a lawyer, takes precedence.

The 1937 constitution was meant to assert the completion of the process of "constitutional autochthony" (the assertion of legal nationalism) that had seen de Valera amend the previous 1922 Constitution to remove references to the Anglo-Irish Treaty, the Oath of Allegiance, Appeals to the Privy Council, the British Crown[?], and Governor-General of the Irish Free State in the previous five years.

Bunreacht na hÉireann was passed by Dáil Éireann and then approved narrowly in a plebiscite of voters on July 1, 1937. It came into operation on December 29, 1937. Among the groups who voted against it were the opposition Fine Gael and Labour[?] supporters, unionists, Commonwealth supporters and women. Its main support came from Fianna Fáil supporters and republicans.

The Constitution consists of a Preamble and 50 Articles arranged under 16 headings. These are:-

1. The Nation (1-3).
2. The State (4-11).
3. The President (12-14).
4. The National Parliament (15-27).
5. The Government (28).
6. International Relations (29).
7. The Attorney General (30).
8. The Council of State (31-32).
9. The Comptroller and Auditor General (33).
10.The Courts (34-37).
11. Trial of Offences (38-39)
12. Fundamental Rights (40-44).
13. Directive Principles of Social Policy (45).
14. Amendment of the Constitution (46).
15. The Referendum (47).
16. Repeal of Constitution of Saorstát Éireann and Continuance of Laws (48-50).

The Transitory Provisions (Articles 51-63) which dealt with the transitional amendment of the Constitution, the transition and reconstitution of the Parliament and Government, the continuance of the Civil Service, the entry upon office of the first President,the temporary continuance of the Courts, the continuance of Attorney General, Comptroller and Auditor General, Defence and Police Forces; coming into force of the Constitution and the text of the Constitution, ceased to have any legal effect on the third anniversary of the inauguration of the first President (Douglas Hyde, 1938) and have been ommitted from all official texts since 1941.

The Bunreacht's Main Innovations

The renaming of the twenty-six county Irish state as 'Éire' in Article 4 (It gives the term 'Ireland' as the translation of 'Éire', but because that can be confused with the island of Ireland, which also includes Northern Ireland, and because the Irish language has priority in the constitution, Éire is the strictly more correct term to use, and is the term that appeared on Irish coinage before adoption of the euro. Since 1949, the term 'Republic of Ireland' has been the most widely used name of all.);

The creation of the office of President of Ireland to replace the Governor-General of the Irish Free State and the Crown;

The assertion in the controversial Articles 2 and 3[?] that the Irish National Territory consisted of the entire island of Ireland, its islands and territorial seas, while acknowledging that in reality, it only exercised control over the twenty-six county state formerly known as the Irish Free State;

The use of Gaelic, not just in the entire text, but in the names of institutions and state offices (e.g., president translated as Uachtaráin (pronounced 'ook-tar-on'), prime minister named 'taoiseach (pronounced 'tee-shoch' - 'ch' pronounced as in 'loch'), a deputy prime minister called Tánaiste (pronounced 'taw-nish-ta')) etc.

The use of contemporary Roman Catholic social theory on marriage, the family and society. Hence the banning of divorce and the 'recognition' of women's 'role in the home'.

Popular ownership of the constitution, with the requirement that it could be changed only by referendum of the people;

The ability to continue to use the Crown through statute law, if parliament so desired, for whatever functions parliament specified.

'Myths' about the Bunreacht

Some myths, however, have surrounded the text.

That it was a uniquely Catholic constitution that discriminated against non-Catholics. Detailed academic studies have questioned that claim's accuracy.

- It reflected the concept of incorporating Catholic social teaching in law, which was prevalent in the 1930s. Such ideas occurred in many constitutions of Catholic states of the era, and Ireland in the 1930s was more than 95% Roman Catholic. Divorce, for example, was banned in many states. Italy only repealed its ban in the 1970s. Ireland removed its ban in 1996 by constitutional amendment. At the time de Valera produced the constitution, many constitutions reflected the religious ethos and beliefs of the majority religious faith in their state.

- In the teeth of far-right lobbying by Roman Catholic groups like Maria Duce, de Valera refused to make Catholicism the state religion. Instead he recognised what he called its 'special position' (a largely meaningless phrase) and even then, not as the 'true church', as Roman Catholicism viewed itself, but merely as the religion with the most adherents, a concept that ran contrary to Catholicism's view of itself, its rights, and its superiority in the era before the Second Vatican Council.

- To the fury of right-wing Catholics, de Valera recognised the existence and right to exist of the Anglican Church of Ireland and various other Christian faiths. (The first President of Ireland, Douglas Hyde, was a member of the minority Church of Ireland, a religion that had been the established church under British rule in Ireland until 1871.)

- In a remarkable clause for the 1930s, when anti-Semitism was rife throughout Europe, de Valera's constitution explicitly recognised the existence and right to exist of the Jewish community in Ireland.

- The article which recognises marriage may, however, require amendment to enable Ireland to recognise same-sex marriages or gay 'partnerships' as an alternative to marriage. Ireland already has some of the most progressive gay rights legislation, all passed since 1993, when homosexuality was decriminalised.

- The constitution does however include a Preamble that is explicitly Roman Catholic in tone and content, referring to 'Divine Lord, Jesus Christ' but more controversially, speaking 'In the Name of the Most Holy Trinity' .

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

That the constitution claimed Northern Ireland.

- The controversial Articles 2 and 3 asserted that there was an all-island "Irish nation" or national territory. Such an idea had been widely accepted, even by the Dublin-born Irish unionist leader Edward Carson. Partition in 1937 was only fifteen years old; the concept of an all-island Ireland dated back centuries, having been introduced in law in 1541, when the Kingdom of Ireland was created, or perhaps even as far back as 1171, when the Lordship of Ireland was conceived. While years later, Articles 2 and 3 may have looked as if they challenged the existence of Northern Ireland, they reflected the widely held view in 1937. But in asserting in Article 3 that Éire would only govern the twenty-six-county state previously called the Irish Free State and which had its boundaries largely set in the Government of Ireland Act, 1920[?], de Valera was de facto acknowledging partition and the existence of Northern Ireland.

That the constitution created an Irish Republic.

- The word 'Republic' is never mentioned in Bunreacht na hÉireann. The term 'Republic of Ireland' was in fact created by the Republic of Ireland Act, 1948. Strictly speaking the 'Republic of Ireland' is a description, not a name, though it is used as a name.
- While Éire regarded the President of Ireland as Irish head of state, no such term is used in the constitution. In fact, King George VI was implicitly acknowledged as King of Ireland under the External Relations Act, 1936, and named as such when proclaimed king throughout the Commonwealth. Because of that Act, and a section of the constitution that allowed the use of an 'external organ' to represent the state internationally, the diplomatic world was united in accepting the king as Ireland's head of state. This was only clarified by the repeal of the External Relations Act and the passage of the Republic of Ireland Act 1948, which came into force in 1949, at which time the President of Ireland was unambiguously the Irish head of state.

That the Irish constitution is sexist and anti-woman

- De Valera's constitution, and in particular its 'recognition' of women's place in the home, though out of tune with modern concepts of sexual equality and the rights of women, did reflect the prevailing attitude of the 1930s. He himself argued that in recognising the role played by 1930s women in real life he was granting women a recognition that had not existed before in Irish law. However, even in the 1930s, the constitution's references to women were condemned by women's organisations, many of whom urged women to vote against the constitution as a result. However, as the clause which 'recognises' women in the home is not one that has any legally enforceable status, it has generally been ignored. It will in time no doubt either be repealed or amended to more accurately reflect modern concepts of sexual equality.

The constitution has undergone a significant number of amendments since its passage in 1937, all enacted by referendum.

All articles recognising religion were deleted. (1972)

Ireland allowed to join the European Economic Community. (1972)

Voting age lowered from 21 to 18.(1972)

Adoptions protected from being invalidated (1979).

A controversial subsection on abortion, on the 'right to life of the unborn, with due regard to the equal right to life of the mother' was added. (1983)

Voting rights extended to certain non-nationals (1984).

Ratification of Single European Act (1987).

Guarantee of right to travel for abortion (1992).

Guarantee of freedom of information on abortion (1992).

Ratification the Treaty of Maastricht (1992).

Divorce was legalised. (1995).

Changes to bail laws (1996).

Confidentiality of Government discussions given constitutional protection (1997).

The replacement of Articles 2 and 3 by new articles which acknowledged explicitly the right of Northern Ireland to exist and the nationalist desire for Irish unity, as well as allowing Éire to ratify and implement the Good Friday Agreement. (1998)

Ratification of the Treaty of Amsterdam (1998).

Constitutional abolition of the death penalty - the last execution took place in 1952 (2001).

Ratification of Ireland's membership of the International Criminal Court (2001).

Ratification of the Treaty of Nice (2002).

Under the Transitory Provisions (Articles 52 to 63), which expired in 1941, two amendments passed in 1939 and 1941 were enacted without a referendum. The 1939 amendment dealt with the enactment of emergency laws necessitated by the outbreak of WW2. The 1942 amendment was a composite "tidying up" of various Articles.

Four amendments proposed by the Government over the years have been rejected by the people. Two attempts to abolish the Irish system of proportional representation by means of the single transferable vote (STV) have failed as have two proposals to tighten restrictions on the right to abortion.

The rights in the Articles of the constitution can be superseded by the declaration of a 'National Emergency'. Two such emegencies have existed - an emergency declared in 1940 to cover the threat to national security posed by World War Two and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA

Furthermore, under judicial review, the concepts and meanings of articles have been explored and expanded by the Irish Supreme Court[?], most notably under the period of Chief Justice Cearbhall Ó Dálaigh, who later became President of Ireland. Among the rights ruled to exist implicitly in the constitution's Articles were:

The right to bodily integrity (i.e., the right to contraception);
An interpretation of Articles 2 and 3;
The right to abortion in limited circumstances;

The Constitution is currently being reviewed by the All-Party Oireachtas Committee on the Constitution[?]. Until recently the committee was chaired by Brian Lenihan[?], TD of Fianna Fáil.

Though controversial, de Valera's work is widely regarded as one of the world's best constitutions. Whatever about the nature of its contexts, its clear legal language, order, and structure make it a model of how constitutions should be structured. It has often been compared to the 1958 Constitution of the French Fifth Republic, which is generally seen by political scientists as inferior in terms of clarity and structure. De Valera's constitution has been studied worldwide, by everywhere from Nehru's India to Mandela's South Africa. Its office of President of Ireland was one of six studied closely by Australia's Republic Advisory Committee as Australia considered becoming a republic.

Copies of Bunreacht na hÉireann are available from the Irish Government Publications Office[?] in Dublin. Details on the debate about its passage can be found on the Oireachtas Website (http://www.irlgov.ie/oireachtas/)

Footnote

The death penalty had already been abolished in statute law decades earlier. The constitutional amendment merely removed (i) mention of its use, and (ii) the President's role in granting a term of life imprisonment in place of the death sentence.

Copies of Bunreacht na hÉireann

Copies of Bunreacht na hÉireann are available from the Irish Government Stationary Office, Molesworth St, Dublin 2 or at

http://www.taoiseach.gov.ie/upload/static/256.pdf
most recent version of Bunreacht na hÉireann/Contitution of Ireland website (http://193.178.1.117/upload/publications/297.htm)

The earlier 1922 constitution is regrettably no longer in print. (It was last available in the 1980s). It can be downloaded in Act form as the Irish Free State (Constitution) Act, 1922 from the website of the Attorney-General for Ireland, through the Oireachtas website mentioned above. See also Irish Free State Constitution