(The Nationalist, 1 June 2001)
Voters in the Republic will be asked on 7 June [2001] to give their decision in three referenda to amend the Constitution. The first is about abolishing the death penalty, the second about accepting the jurisdiction of the International Criminal Court, and the third about ratifying the Treaty of Nice, which will change the structures of the European Union. There was to have been a fourth, about the separation of powers of government, to change the ways in which judges may be held accountable for misconduct, but that proposal was dropped.
With the exception of the amendment on the Treaty of Nice, there was little information for the public and little discussion of the merits of the proposed changes. It was the same two years ago when an amendment was passed – with a small voter turnout – on local government elections. To my mind, that’s not the way to handle the process of changing the country’s fundamental law. The Constitution – and the people – deserve better.
The Constitution of the Irish Free State, which has been described as the British Constitution in writing, was amended twenty eight times in the fifteen years of its life, from 1922 to the adoption of the present Constitution in 1937. Such frequency of change belittles a Constitution.
It seems that, by mid-June, our Constitution will have been amended twenty four times in its 63 years. By contrast, the US Constitution, adopted over 200 years ago, has been amended less often. Why do we change ours so often? I believe it arises from the nature of the Constitution itself.
As it stands, our Constitution is very detailed; it seems anxious not to forget anything. By trying to cover all the details it became locked in its own time and culture. The four proposed amendments, with the exception, perhaps, of the one on the Treaty of Nice, should have been able to be dealt with by simple legislation rather than constitutional amendment.
Much of what the Constitution says is aspirational in character and therefore hard for lawyers educated in the British legal tradition – which is what Irish law is based on – rather than the natural law tradition, to get a handle on when it comes to drafting legislation. It was formed in a nationalistic mould, before anyone could have imagined that a European Union would come into existence. It was influenced substantially by the social teaching of the then pope, Pius XI, whose social thinking stands somewhat outside the main stream of Catholic social thought.
In short, we need a substantial revision to our Constitution to prune it, focussing on essentials, leaving less important matters to be dealt with through the normal legislative process. That would mean fewer amendments, and perhaps greater respect for the Constitution.