The Constitution And an Element of Change.

The Treaty!

• It provided that Ireland should have the status of a self-governing dominion within the British Empire.
• Its parliament would have powers to make laws for the peace, order and government of Ireland.
• It gave way to the presence of a Governor General.
• It gave the British retention of certain defense facilities, i.e. the treaty ports.
• It made way for the existence of partition and therefore a divided country.
• There was a right of appeal from the courts of the state to the Privy Council in London.
• An oath of allegiance had to be sworn to the King of England.

The treaty split the cabinet in Dublin with 3 voting against it but the remaining four in favour of it. It was then sent to the Dail for voting where it was marginally passed by 64 votes to 57 on 7th January 1922. This resulted in De Valera and his followers refusing to enter the Dail due to the oath. What was to result was a civil war due the occupation of several buildings by anti- treaty IRA republicans. The war began when Michael Collins gave the order to attack the four courts in Dublin but he had done so against his will, as most of the occupants were former colleagues. It was not until 1923 that the fighting was to end with the Pro- treaty campaigners winning if it can be said that anyone wins a civil war.

1922 Constitution!

In 1922 a constitution was drawn up but before it could be implemented it had to be checked by the British government to ensure that it complied with the treaty and Westminster legislation. On 6th December 1922 the constitution of the Irish Free State (Saorstat Eireann) came into force. It was an 83-article document and it contained an article that said that the treaty would be referred to as well as the constitution (article 2).

• Article 12 made reference to the Governor General representing the king, a legislative known as the Oireachtas, popularly elected chambers known as Dail Eireann and An Seanad.
• It declared that all power of government and all authority legislative, executive and judiciary in Ireland were derived from the people.
• The Dail was to be the superior house and elected not just the President of the Executive Council but it also approved the Presidents nominees for the Executive council.
• Voting was to be by proportional representation and each T.D had to represent between 20,000 and 30,000 people.
• The Seanad had 60 members and could delay bills for 270 days.
• Article 17 made reference to the oath of allegiance by all Dail and Seanad members.
• Amendment of the constitution was to be by popular referendum but for the first eight years it could be done by legislation and in 1929 it was extended for a further eight years.

When the civil war had ended De Valera, was imprisoned after emerging from hiding to contest the August 1923 General elections. Here Sinn Fein won 44 seats but Cumann Na Gael was now the dominant party. Due to Sinn Fein’s refusal to take their seats they became less popular and in 1925 by elections they faired bad. De Valera now sought a new direction, as he knew he was going nowhere if this remained. He subsequently said that if the oath were abolished he would enter the Dail. Sinn Fein rejected this and he resigned as leader and started his own party, Fianna Fail. Over his new party De Valera had absolute power and complete control of the parties direction. The parties program was first set out in June 1927:

• Reunification of the country as a republic.
• Restoration of the Irish language.
• Harnessing of the countries resources for the benefit of the people.
• Achieve economic independence
• Establishment of as many families as possible on the land.
• Intensive program of rural industrialisation to counteract the drift towards the cities.

The party was quick to gain support due to the strong system of the party, which De Valera had brought with him from his leadership of Sinn Fein.

De Valera spent the next 5 years building up his party and in the 1932 general election they won enough seats to form an inter party government with labour. The change over of power was a historical step in Irish politics and democracy as it had been a peaceful one. De Valera had only got one intention when he came to power and that was to achieve external association, which was to require the demolition of the treaty. In order to begin he needed to have sole government power. In 1933 he called a general election and Fianna Fail won an overall majority and therefore set up a one party government.

        In 1933 he successfully removed the oath of allegiance and beforehand had attacked the office of Governor General by advising the King to remove James MacNeill from the office and appoint Domhnall O Buachalla who De Valera was to have personal control over. 1933 also saw an end to the system of appeals to the Privy Council and in 1936 the king was to be divested of all constitutional authority and functions within the Irish Free State.

Economic Issues!

The 1932- 8 so called economic war was as a result of De Valera’s withholding of the land annuities, which were repayable to Britain under the Land acts. The British government then placed a 20% tax on all Irish exports but De Valera was quick to react with similar measures. In 1935 the Coal- Cattle pact offered some relief with Britain giving coal in place of our cattle. However the conclusion of the war was not to come about until 1938 with the agreement of a single payment of £10 million.

        It was also during this time that Fianna Fail encouraged industrial development and they set up the Industrial Credit Co. to fund semi state projects. The results of this can still be seen today as companies such as Bord Na Mona and Irish sugar co. were stared during this time.

Neutrality!

The views of DeV on the issue of neutrality do not reflect only his view but they reflected the view of every Irish person. It was the ideas set forth by De Valera that we owe our neutrality to, today. However there is speculation that the Nice Treaty may have limited such.

By 1936 De Valera was at the height of his power in that he was the President of the Executive Council, leader of a majority political party and was the owner of the “Irish Press” which was the countries largest newspaper. It is obvious from his dismantlement of the treaty and the 1922 constitution that De Valera was about to develop the Ireland that he wanted. This was to be implemented by the proposal of a new constitution and the invention of a New Ireland. It was to include his own political views and enter many provisions for fundamental rights (articles 40- 44), as well as having to take into account the findings of the Supreme Court on the case of The State (Ryan) v. Lennon 1935. Here an argument that amendment No 16 of the 1922 constitution which had extended the period of amendment by ordinary legislation from 8 to 16 years, was invalid as it had not been approved in a referendum and that amendment No 17 was not valid- and the prosecutors considered as an ordinary statute it impermissibly conflicted therewith, for it authorised the exercise of judicial power by persons who were not judges; contrary to article 64 and permitted trial without a jury contrary to article 72. All of the 3 judges agreed that in determining the right of the Oireachtas to amend the constitution the key document was the Constituent Act which by section 2 built the treaty into the constitutional structure and Oireachtas had no power to amend that therefore leaving many amendments in doubt.

Churches Influence!

DeValera viewed Ireland as being a fundamentally Catholic state and believed in a unification of the church and state. He viewed the rights and duties of the state and church as being two circles, not separate but overlapping. This view was to result in the incorporation in the new constitution of the Catholic Church as having a special role in the state as well as the imputing of Catholic social teachings in other clauses and particularly on the issues of fundamental rights, (articles 40-44). The idea of the family being based on marriage, a child’s right to education all show Catholic views.  The status that women are given in the constitution may also be looked at from being that of a society dominated by a male church, which saw women as being the mothers of our children and little more.

When the drafting was taking place DeValera consulted the Vatican for clearance on certain issues and met with Catholic bishops regularly and with James Mac Quid the then President of Blackrock College. The article on religion was left blank until the very end of the constitution talks.

The church at this time was the sole influence at a social level and therefore the constitution had to be friendly to it as it had a major influence on the public. The church saw themselves as being “the final arbiters of right and wrong even in political matters”. In enshrining Catholic values in the constitution, DeValera was only continuing the process of putting the church first and therefore safeguarding moral standards. Sean T O Ceallaigh said that the constitution was “worthy of a Catholic country”.

Influence of Women!

This is a very controversial issue indeed due to the constitution doing so much to enshrine formally a Victorian perception of women’s role in society. De Valera had an unusual perception of women and this may have been due to an unnormal domestic upbringing and abandonment by his mother. When drafting was taking place he was not keen to meet women’s groups who were extremely upset and outraged at the constitutions perception of women. These groups accused him and his predominantly male government of being remote from the experience of women. Only after some severe pressure did he agree to slightly amend it.  

British Influence!

The influence of our closest neighbour on our daily lives is most evident by the language we speak, having abandoned native Irish for English. However they also had a major influence on the 1937 constitution. They influenced it in many ways including the system of government, etc that we have, the area of partition is as a result of the 1920 Government of Ireland Act, the 1922 Constitution was influenced and checked by them to ensure compliance with the Treaty and the build of De Valera’s idea of external association was due to hundreds of years of British rule.

In the 1922 constitution the British system of government was enshrined as well as their civil service system. If you look at the 1937 constitution the articles in relation to these issues are changed very little and in some parts nearly are word for word.

The issue of partition was a big area to be considered, as it had not been solved. When he formed Fianna Fail he had threatened to punish Ulster economically but in reality it was far from that original view. He regarded partition as an economical, political and a social disaster but conceded that there was nothing that he could do about it. It was subsequently dealt with in articles 2 and 3. The former stating that the national territory was the whole island of Ireland and the latter limits the applicability of the constitution to the 26 southern counties pending reintegration of the national territory. (Now amended).

If any one area of the constitution were to be looked at it would have to be the view that De Valera held in relation to external association. Determined, as he was to remove the British right to rule from Irish politics he set about this in 1932 and he slowly deleted aspects of British manipulation or of the 1922 constitution. All of this change was to come to an end when he introduced the 1937 constitution, as this document was a sole development of the Irish political system.

Fundamental Rights!

It has been suggested that the basic rights that we are guaranteed under articles 40 – 44 are the personal views of De Valera himself as they include far more detail and more of them were entered in the 1937 than in the 1922 constitution. (See Also Churches Influence). However this is not fact even though it is highly probable.

1937 Constitution!

The 1937 constitution is a very complex document but the speed in which it was drafted is amazing as it was done by such a small number of people. The first discussion of the Executive council on the new constitution was in March 1937 and at this time it was not even in printed form. It was not until the end of the month that a printed version was first issued. De Valera wanted a number of different government departments to look over it in detail and to return their views. In early May the second reading took place and at this time De Valera spoke at length about each of the articles. His speech was approximately 6 hours and it raises the question of “ Was the constitution all De Valera’s own work? ”. On The 14th June the Dail approved it and a referendum was arranged for the 1st July in order for the people to vote on it.

In the referendum 76% of those eligible to vote turned out. The new constitution was passed by 685,105 votes to 526,945 votes. Bunreacht Na Eireann came into effect on 31st December 1937.

        We have come along way since the 1798 rebellion and our right to govern our own country is as a result of not only the spilling of blood but as a result of the mind of one man. A man who due to years of powerful views against Britain, people believed a dictatorship was possible if he ever got power. However he done the exact opposite and created a democratic state and gave its people a right to choose who they want to govern them. His views he called Bunreacht Na Eireann.

Constitutional Amendment!

Articles 46 and 47!

The process by which an amendment to the constitution can be made is set out in article 46. This article states that the proposed bill to amend the constitution must be submitted to both houses of the Oireachtas.  The Dail dealing with it first. When passed by both houses it is then sent to the people who will vote on it. If a majority vote is returned in favour of the amendment the President signs the bill and the constitution will then be amended accordingly.

The referendum process is governed by article 47. It allows everyone who has a right to vote in the Dail elections, to vote in the referendum on the proposed amendment. If the people vote in favour of the bill it is deemed accepted by the people and enacted into law by the above method.

Nineteenth Amendment!

To date there have been 26 amending acts to the constitution ranging from 2nd September 1939 to our latest one on 7th November 2002 which ratified the Nice Treaty.

However for the purpose of this document I have decided to look at the 19th amendment of the constitution act 1998 which allowed the state to consent to be bound by the British- Irish agreement (Good Friday Agreement), done at Belfast on 10th April 1998. The agreement provided that certain further amendments to the constitution, notably to the articles 2 and 3 would come into effect when that agreement entered into force. The proposed bill was sent to the people for their choice on 3rd June 1998. In order to understand just how and why the amendment came to be proposed I feel that a run back in time throw an era of terror and conflict is necessary and to reflect on “The Troubles”.

        It wasn’t out of thin air and for no reason that the conflict in Northern Ireland began. In fact it may be traced back to the first mention of partition in the 1920 Government of Ireland Act. The partitioning of the country was not just to have an immediate impact on every republican but a lasting one as they were reminded by there arch rivals, the protestants, that they were a minority in the six counties and that’s how it was to remain. This discrimination of the Catholics by the Unionist majority was not just on religious and political grounds but also on a social and cultural front. In 1963 Terrance O’ Neill became the Prime Minister of Northern Ireland and he began to show some sympathy for the Catholics and in 1965 he met the Taoiseach, Sean Lemass. This meeting was to result in O’ Neill receiving much criticism from fellow party members such as William Craig and from the Rev. Ian Paisley. Paisley’s recently formed newspaper, the Protestant Telegraph, was a source of much of this criticism and in the process it make remarks about Catholics.

        In May of 1966 the Ulster Protestant Volunteers increased its sectarian attacks and in response the Northern Ireland Civil Rights Association (NICRA) was set up in February of 1967. This was to mark the beginning of the so called, Troubles. The NICRA was politically mobilising Catholics for the first time since the 6 counties had been formed in 1920. Ever since then Catholics were not allowed to hold government office, were treated as second class to Unionists and by a system called “gerrymandering” Unionists ensured that they held a majority on all local councils.

        On 5th October 1968 in Derry this power was confronted by a peaceful protest. William Craig had banned the march as they seen the NICRA as being nothing more than a political front for the IRA. It was on this day that police officers were captured by RTE cameras brutally beating marchers off the street and this was to prove a great turning point in history. Catholics after the attacks lost any faith they had in the RUC. They continued to organise more marches and Paisley organised counter demonstrations, which resulted in riots between both sides.

Influences of Infamous Happenings!

Battle of the Bogside, Derry 13th August 1969.

By 1969 the situation in the North was treating to spiral out of control. It was soon to happen. As the apprentice boy annual parade passed by the mainly Catholic area of Bogside, sectarian attacks occurred. The RUC intervened backed by a protestant mob. The rioters threw stones and petrol bombs at police for two days and by now the police were becoming exhausted. James Chichester Clarke the then Prime Minister sent word to the British Government for troops to be sent to Derry. Plans for such had already been made and by 4pm British troops arrived there to relieve the police. This resulted in the riot slowly being brought under control by the direct intervention of Britain in Northern Ireland affairs. Before the end an attempt by Catholics in Belfast to divide forces and relieve their fellow rioters at the Bogside had failed. All that resulted was the death of 6 people on Belfast streets.

Bloody Sunday, 30th January 1072.

“The next thing he suddenly gasped and threw his hands up in the air and fell on his face… We got him to the top of the street… But he was dead…” 

An illegal march against the internment without trial all went horribly wrong when British forces opened fire on a group of people killing 13 and injuring many more. The soldiers claimed that they were fired on first but civilians believe that 13 unarmed people were murdered (Enquires on the matter still continue today). The incident sparked outrage and the British Embassy in Dublin was burned down and by the 29th March it was concluded that direct rule from London on Northern Ireland was to be introduced for the first time since 1920. This attack also resulted in the IRA increasing its bombing campaign. In an attack on the Aldershot headquarters an IRA bomb was responsible for the death of 3 civilians.

Bloody Friday, 21st July 1972.

“There were the lacerations. There were the limbless. And there were the dead”.

After the killing of a 24 years old Catholic man in the early hours of the morning in Belfast the IRA placed and detonated no less than 20 bombs around the city. These bombs were all detonated within a 65-minute period in the height of a busy shopping afternoon. Warning was given for some and not for others. In total that day 39 bombs exploded and many lives were claimed before nightfall. The death tally was to rise even further in the coming days.

Sunningdale Agreement, 9th December 1973.

This was an agreement between the governments of Britain and Ireland, which had for the first time ever had resulted in a power sharing executive arrangement and therefore a withdrawal of Westminster Rule. However after a serious of Protestant strikes and disputes this agreement was rescinded and direct rule was re-imposed within 5 months.

Anglo- Irish Agreement 1985.

This agreement in its own right gave the Irish government a consultative role on behalf of Catholics in some matters relating to Northern Ireland. Constant sectarian attacks threatened this agreement but this deal resulted in our government being a legitimate player in Northern Irelands affairs for the first time ever.

Downing Street Declaration.

In the early 1990’s the British government launched multi-party talks in order to try and establish a Northern Ireland assembly and to forge new relations between the North and the Republic. These were to no avail but less than a year later the Downing Street Declaration was announced which invited Sinn Fein and the Democratic Loyalist parties to join the talks if both groups renounced violence. The chances of this were “slim and none”. However in 1994 the IRA made an announcement stating that they were making a “complete cessation of military operations”. This announcement lead the way for Sinn Fein to enter talks in the future.

Good Friday Agreement- The forerunner of our constitutional change.

Although this agreement was not reached until 10th April 1998 the talks on such an agreement stared in November 1995. These talks culminated in the setting up on the 10th June 1996 of the multi-party talks. They failed to advance quickly due to the failure to agree on the issue of decommissioning of weapons by paramilitary organisations that had been associated with some parties who were or might be in the talks.

With the new election of Tony Blair as the British Prime Minister the talks were set to move forward quickly and on 24th September 1997 the issues on decommissioning were finally laid down by both governments.

January of the New Year marked the introduction of the Heads of Agreement by the two governments. These Heads agreed that:

• Constitutional change in both countries was inevitable.
• Creation of a Northern Ireland assembly with powers to govern the 6 counties.
• New British-Irish Agreement to replace the 1985 agreement. It would include:

• Intergovernmental council to meet twice a year
• North/South ministerial council
• Intergovernmental machinery between both governments covering issues of mutual interest in Northern Ireland.

• Provisions to protect both Catholic and Protestant communities in Northern Ireland by arrangement for the comprehensive protection of fundamental, human, civil, political, social, economic and cultural rights.
• Practical measures to deal with policing, decommissioning, security and prisoners. (See below).

In the same month the Ulster Democratic Party (UDA), withdrew after a closely linked paramilitary organization engaged in terrorist activity but there readmission was allowed on 23rd February after the UFF announced an unequivocal and unqualified ceasefire.

        In February Sinn Fein were told by both governments that they were not entitled to participate in the talks as they were too closely linked with the IRA who had recently killed two men in retaliation to opposition attacks. However as the deadline of having to reach an agreement by Good Friday was closing in there was constant contact with Sinn Fein on issues relating to them. They rejoined the talks on 9th March. It was at this stage that the two governments said that the talks were at a fragile stage and that any further upsets by the Ulster Democratic Party or Sinn Fein might be the final bullet in the process. (Excuse the pun)

The final weeks of the talks were marked by intensification and the public worry as to whether an agreement would be reached was increasing, as they were not in support of a return to violence. However it was on the 10th April that this worry was laid to rest with the announcement, by Senator George Mitchell who had chaired the talks, that an agreement was reached and he formally dissolved the talks.

Main Areas of the Agreement!

The agreement mandated new institutional arrangements to reflect the British and Irish governments altered expressions over Northern Ireland. (Set out above)

It was agreed that all the participants of the talks would encourage the disarmment of all paramilitary organizations and such was to be achieved within two years.

The development of a peaceful environment can and should mean a normalisation of security arrangements and practices with the reduction of British troops, removal of security installations and the removal of emergency powers in the 6 counties. The Irish government agreed to review the Offences Against the State Acts 1939- 65 to reform and dispense of elements relating to the North.

A police force that is capable of attracting and sustaining support from the community, as a whole was required and that such a force shall be routinely unarmed. It must be capable of maintaining law and order including responding effectively to crime and to any terrorist threat and public order problems.

The aim of the criminal justice system is to deliver a fair and impartial system, be responsive to community concerns and to gain the confidence of the community as a whole.

The most controversial part of the agreement was that the two governments were to put in place a mechanism for the accelerated release of prisoners who will qualify under new legislation to be enacted. This area of the agreement was critisised heavily by left wing opposition i.e. Workers Socialist parties, as they said it was the early release of murders.

The most important issue to our country was that the backing of a majority on both sides of the border could only bring about a united Ireland.

Changes to the constitution!

The changes to the articles 2 and 3 of the constitution were to be embedded in article 29 of the constitution until the Agreement was actually declared law in all three jurisdictions. However when the Irish constitution was being changed it had to be ensured that the Nationalist and Republican communities of the North did not feel abandonment by the Republic. The changes to be made were as follows:

Article 2!

Previously this article read: The national territory consists of the whole island of Ireland, its islands and its territorial seas.

The new articles reads as follows: It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish nation. That is also the entitlement of all persons otherwise qualified in accordance with the law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with the people of Irish ancestry living abroad who share its cultural identity and heritage.

Article 3!

Previously this article read: Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that parliament shall have the like area and extent of application as the laws of Saorstat Eireann and the like extra-territorial effect.

The new article reads as follows: 1. It is the firm will of the Irish nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognizing that a united Ireland shall be brought about only by peaceful means with the consent of the majority of the people, democratically expressed, in both jurisdictions of the island. Until then, the laws enacted by the Parliament established by this constitution shall have the like area and extent of application as the laws enacted by the parliament that existed immediately before the coming into operation of this constitution.

2. Institutions with the executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.

Referendum!

Campaigning

The final agreement was by no means perfect but it was a starting point that could be built upon, as was the treaty in 1921. The left wing parties who were campaigning for a “NO” vote stated that “Neither a yes nor a no vote will advance the cause of the ordinary man” meaning that the worker was going to get little benefit from the agreement. However they were not looking at the large issue on hand. The issue was trying to develop a society in the North that would result in their being a safe and peaceful environment. An issue that needed to be resolved as over 3400 lives had been lost in the North in less than 30 years. The “NO” campaigners also took up the view that any agreement, which lets murderers and bombers out of jail early, albeit only by a few months or years, should be totally rejected. 

A “YES” vote was almost going to inevitable in the days running up to the actual referendum. In Stats issued it was predicting an 80% Yes vote from those who were going to vote. 9% said they would vote No with the remainder not sure as to which side to vote on.

Voting

At the polling stations around the country we saw a 55.6% turn out to vote. The wording of the question asked in relation to the Good Friday Agreement was:

Do you approve of the proposal to amend the constitution contained in the under mentioned Bill?

Nineteenth Amendment of the Constitution Bill 1998

The “yes” vote was an overwhelming 94.4% with a mere 5.6% opposing the change. The highest yes vote was in the Cork East constituency with a massive 96.34% in favour with the no vote achieving its highest vote in Kerry South with 6.18%. The referendum results showed that the Irish people wanted to solve the issue of the North sooner rather than later.

In the North the agreement was accepted by 71% of the electorate.

Enactment!

Although it was voted on in May of 1998 the articles 2 and 3 were not formally changed until 2nd December 1999. Until this date the amended articles were stored in Article 29 of the constitution. Following a declaration by the government on 2nd December 1999 the articles were thereafter changed to their proper position in the text. From this time on the state has become bound by the British- Irish Agreement of 1998.

The amendments in effect, no longer regard the unification as “a constitutional imperative” as determined by the Supreme Court in the case of McGimpsey v. An Taoiseach 1990. As the Taoiseach put it, the changes to articles 2 and 3 bring the immense psychological gain of “defining our nation in generous and inclusive 32-county terms by putting people before territory”.

These constitutional changes however, do not mean abandonment by the Republic of the belief in unification. The new article 3 states that it is “the firm will of the nation… to unite all the people who share the territory of the island of Ireland….”.

The Future!

However a future debate that may arise is one of the Irish language. If we do achieve unity of the whole island would it be reasonable to leave reference in the constitution to the Irish language? After all it is almost extinct.  (Not a personal view)

So with change comes, in the eyes of different people, good and bad. Since the situation in the North has yet to resolve the good is still pending from our constitutional change. However one thing is for sure, the Irish people as a nation long for the peace of the whole island of Ireland.

Bibliography

1. Constitutional Law and Constitutional Rights in Ireland, Brian Doolan, 3rd edition.
2. Constitutional Law of Ireland, Michael Forde.
3. Constitutional Law in Ireland, James Casey, 3rd edition, 2000.
4. The Politics of the Irish Constitution, Basil Chubb, 1991.
5. Finally and in Conclusion, Barry Desmond, 2000.
6. Ireland 1912- 1985 Politics and Society, J.J Leigh, 1989.
7. The Making of Ireland- A History, James Lydon, 1998.
8. Life and Times, Eamon De Valera, No. 3.
9. History in the making Ireland, 1868- 1966, M. E. Collins.

The Constitution

And an

Element of Change.

By

Darran O’ Dea

Student No:00085138

Part I

Influences

Of

The

Constitution

Part II

A

Constitutional

Amendment

I hereby declare that the document that you are about to read is all of my own work and research. The work of anyone else contained herein is properly credited to that person.

____________________                        _______________

Darran O’ Dea.                                        Date.

 

 

        

        

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