For a constitution to have the force of law it must have the appropriate legitimacy (Doolan, 1988). Legislation is law because it is enacted by a competent authority. Therefore, in what circumstances can a constitution claim to have this legal right? By what criteria do those whose task it is to administer the law recognise that a certain document, described as a constitution, is part of the law? The supremacy of the constitution over all other forms of law is achieved by giving it a quality of uniqueness against which all other laws are to be judged (Doolan, 1988). If a law infringes upon the constitution it is declared to be null and void no matter how necessary and useful it may in itself appear to be (Doolan, 1988). Even though the constitution is regarded as supreme when it comes to judging the law, and supposedly the people supreme when it comes to amending it, it can ultimately be the interpretation by the judiciary that reigns supreme when enforcing, or as others may see it, developing it (Doolan, 1988). The Irish constitution, like most constitutions, is considered to be rigid – that is, less easily amended than ordinary legislation (Coakley and Gallagher, 2005). Ireland is one of the few countries where every constitutional amendment requires the consent of the people via referendum. The 1980’s brought about a referendum which caused deep division within, as well as between the parties. Article 40.3.3 was amended in 1983 and inserted what its proponents termed a ‘pro-life’ amendment, to the effect that the state acknowledges the right to life of the unborn, and undertakes by its laws, to defend and vindicate that right (Coakley and Gallagher, 2005). However, the ‘X’ case, which arose in early 1992, concerned a 14 year old girl who had become pregnant, allegedly as a result of being raped. She intended to travel to Britain to obtain an abortion, but the Attorney General, the legal adviser to the government, obtained a High Court injunction to prevent her travelling out of the country, on the grounds that she intended to terminate the life of her unborn child, which he believed would be in direct violation of Article 40.3.3 of the constitution (Coakley and Gallagher, 2005). This decision caused uproar in Ireland and earned the country unfavourable international publicity.
In March 1992 the Supreme Court overturned this injunction. It declared that Article 40.3.3 did in fact confer a right to an abortion on a woman, whose life would be threatened by continuing with a pregnancy, including cases where this risk arose from the possibility of suicide by the mother (Coakley and Gallagher, 2005). This decision was welcomed by pro-choice groups and liberals in general, though there was concern that the Supreme Court had not taken this further and explicitly affirmed that a woman had the right to travel out of the country no matter what the reason for wanting to do so (Coakley and Gallagher, 2005). This decision was bitterly criticised by anti-abortion groups, who complained that when the Irish people voted in 1983 to add the ‘pro-life’ amendment, they had intended this to have the effect of completely outlawing abortion (Coakley and Gallagher, 2005). The judges, in their view, had undemocratically imposed their own interpretation of the article in question (Coakley and Gallagher, 2005). In response to the Supreme Courts decision on the ‘X’ case, there were further amendments to Article 40.3.3, stating that there should be no limit either on freedom to travel outside the state or the freedom to obtain information about services lawfully available in another state (Coakley and Gallagher, 2005). These were passed with the support of both liberal and centrist voters and all of the political parties. However, the latter part of the amendment on the freedom to obtain information was in stark contrast with a decision from 1991 in one of the ‘information’ cases. In 1991 the European Court of Justice ruled that, although abortion is a service under EC law, the students' unions could be prohibited from distributing information on it, because they had no financial link with the clinics providing the service in England. The Irish Government then entered a Protocol to the Maastricht Treaty removing the issue from the jurisdiction of EC law (Chubb, 1991).
In conclusion, the reading of the constitution, like the reading of other material, leads to some interpretation as to its meaning. Because it is a legal document some legal terminology must be used though essentially the constitution is a document that may be read and understood by the lay person (Doolan, 1988). Of course there must be some institution or persons that can give an authoritative interpretation. Also, it should not be imagined that the constitution can be changed only by amending it. Rather, there is another important procedure to be considered in this respect, namely judicial interpretation (Chubb, 1978). Therefore, presented with the cases in this paper it would seem that the judiciary indeed do have the power to shape the constitution through their interpretation of it. For example, the pro-lifers ‘assumed’ that the 1983 amendment would cover all aspects of outlawing abortion, although this wasn’t to be the case after judicial interpretation. With the cases presented it could be argued that the judiciary were indeed shaping and developing the constitution, However, it could also be argued that they were doing so against the wishes of the people. My opinion is as long as it can be shown that the judiciary are not abusing this power and are seen to be further developing the constitution, in that they are keeping it in line with the trends of today’s society, then that can only be a good thing to keep it alive and vibrant. Constitutional reform on the go.
In light of some judicial decisions since 1960 should the power of judges in relation to the Irish Constitution of 1937 be re-assessed
Steven McMaster
B.I.F.H.E.
References
Coakley, J. and Gallagher, M. (2005) Politics in the Republic of Ireland. London: Routledge.
Chubb, C. (1978) The Constitution and Constitutional change in Ireland. Dublin: Institute of Public Administration.
Chubb, C. (1991) The Government and Politics of Ireland. Dublin: Institute of Public Administration.
Collins English. (1995) Dictionary and Thesaurus. Glasgow: HarperCollins.
Doolan, B. (1988) Constitutional Law and Constitutional Rights in Ireland. Dublin: Gill and MacMillan.
Watts, D. (2003) Understanding US/UK Government and Politics. Manchester: Manchester University Press.
