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The Irish Constitution: A Critical Review
A lay reading of Ireland’s founding document
Mark Twain said that the classics are the books that everyone wants to have read and nobody wants to read. Something similar must be true of constitutions. Political discourse so often circles around ‘the Constitution’, but few have read it from cover to cover. So, I did; here’s what stuck out to me.
Some background on the Irish Constitution
Ireland gained independence from Great Britain, through the Anglo-Irish treaty, in 1922. The Constitution of Saorstát Éireann (the Irish Free State) was in place from 1922 until 1937, before being replaced by Bunreacht na hÉireann (The Constitution of Ireland) in 1937. This Constitution birthed a new republic, officially just called Éire or Ireland, to replace the Irish Free State.
The Irish parliament (Oireachtas) has two houses – the Dáil (lower house) and the Seanad (senate). The Head of State is the president, and the Constitution can only be changed by a referendum.
Since 1937, 38 amendments to the Constitution have been proposed by the Dáil, although some never made it to the public vote stage.
Irish as the primary official language
Most copies of Bunreacht na hÉireann are provided in both English and Irish.
Even when the Constitution was written, Irish was not widely spoken – nonetheless, it is the first official language and English is the second official language (Article 8). Laws can be written and passed in either language, but must be translated into the other.
Interestingly, if there is a conflict between both languages (Article 25.4.6), then the national language (Irish) prevails. Translators of bills passed in English have quite a bit of power!
One obvious difference between the two versions is that the Irish version often uses the word “duine”, meaning person, whereas the English version uses “man”. There is another discrepancy whereby the English version allows presidential candidates to have reached their thirty-fifth year (i.e. be 34), whereas the Irish version requires that the president be at least 35.
Under the Anglo-Irish Treaty, Northern Ireland was to be part of the Irish Free State unless its parliament opted out, which it did. Éamon de Valera, who was the leader of the (unrecognised) independent Irish government, was strongly opposed to the treaty and to Northern Ireland existing as a separate entity. The drafting of the 1937 Constitution was overseen by de Valera and made claim to the entire island of Ireland:
The national territory consists of the whole island of Ireland, its islands and the territorial seas.
This long remained as a source of aggrievement for unionists in Northern Ireland. In 1998, the Good Friday Agreement was assented to by a majority of people north and south of the border. New text was introduced to Article 3 of the Constitution as part of the Nineteenth Amendment. The Irish Constitution now states that Northern Ireland and the Republic of Ireland can be reunited if, and only if, a majority of those in Northern Ireland and, separately, in the Republic, vote for unity.
. . . a united Ireland shall be brought about only by peaceful means, with the consent of a majority of the people, democratically expressed, in both jurisdictions of the Island.
(No) citizenship by birth
In Ireland, unlike in the US, you don’t automatically get citizenship by being born here. That’s not what you would think when reading Article 2, which seems to imply birthright citizenship:
It is the entitlement and birthright of every person born in the island of Ireland . . . to be part of the Irish Nation.
(Notice how the above sentence includes the entire island of Ireland! Anyone born on the island is entitled to citizenship, including those born in Northern Ireland.)
However, reading on to Article 9, there is an important restriction:
Notwithstanding any other provision of this Constitution, a person born in the island of Ireland . . . who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship . . .
This restriction was clarified by the Twenty-seventh Amendment in 2004. Anyone born on the island of Ireland before January 1st, 2005 is entitled to citizenship; since then, you only automatically get citizenship by having at least one parent who is an Irish citizen or is entitled to be one.1
At the time the Constitution was written, immigration to Ireland was practically non-existent. Today, Ireland is 17% foreign-born – and the topic of citizenship has become more salient.
What can the president do?
The Irish president is elected for a term of seven years by a popular vote (instant runoff system2) and may hold a maximum of two terms. The minimum age on the day of election is 35. To remove the president, there must be a two-thirds vote from each of the two houses (this has never happened before).
The Irish president’s powers are quite limited and any messages to the nation must be approved by the cabinet (more on that later). While the president is in charge of confirming many positions, such as the Taoiseach (prime minister) and the Attorney General, confirmations are largely ceremonial and the president must follow the nominations of, for example, the Taoiseach or the Dáil.
Here are a few things the president can do:
The president can dissolve the Dáil (i.e. move to a new election, which must be within 30 days), if requested to do so by the Taoiseach. If the Taoiseach doesn’t have majority support in the Dáil, the president can refuse such a dissolution (though this power has never been invoked). I suppose this is intended to allow the government to keep passing bills if needed.
Convene a meeting of the Oireachtas.
If a bill is passed by both houses, but the president determines the bill may violate the Constitution, then the president can refer the bill to the Supreme Court for consideration.
The president can decide that a bill is important enough for the public to weigh in on, provided there is first a petition by a majority of the Seanad and at least one-third of the Dáil. The bill is put to the people either via referendum or via dissolution of the Dáil, followed by a new election and the Dáil voting afresh on the bill. The president has never invoked this power.
These ‘ordinary referendums’ called for by the president pass by default unless they are rejected by over 50% of the vote and at least one-third of registered voters vote against it. Referendums on constitutional changes have no such threshold for voter turnout.
This is the main house of parliament and is elected at least every five years using a single transferable vote system.3 Currently, there are 160 members of the Dáil; the exact number of seats is not specified by the Constitution. Rather, there must be no more than one representative per 20,000 people, and no fewer than one per 30,000. Each constituency must also have at least three representatives, and in practice, no constituency has more than five.
You can vote for Dáil members at age 18, but you have to be 21 to get elected.
The Dáil can create bills and pass bills. If the Seanad doesn’t approve a bill, but the Dáil does, then Dáil must wait for 180 days before the bill is automatically passed. The only other way a bill can be stopped is by the president referring the bill to the Supreme Court or to the public.
Dáil and Seanad business is all public, except if two-thirds of either house vote to have a private session.
The Seanad (Senate)
Plato says in the Republic that if you’re in choppy waters and there’s a captain on board, you’re not going to be having a democratic vote on how to manage the sails. The Seanad is an effort to embody this idea – to make the government less directly democratic and more wise.
Three of the key drawbacks of a pure representative democracy are that:
Democratic elections don’t lead to the best candidates winning.
Public sentiment is volatile.
With elections, decision-making is influenced by short-term political pressures.
The Seanad, with its indirectly elected representatives, provides some insulation from volatile public sentiment and allows, in part, for rule by those with specialised knowledge.
The senate, elected at the same time as the Dáil, has sixty members, of which eleven are nominated by the Taoiseach, six are voted in by graduates of universities4 and forty-three are elected by members of five panels, which roughly correspond to 1) industry, 2) agriculture, 3) labour, 4) social services and 5) culture. The Constitution allows for new groups to be added to this list, so long as the total number of Senators remains the same (Article 19). Exactly how these forty-three members are elected is largely unspecified by the Constitution. I wager that most people in Ireland have no idea how this works.
Elections for the Seanad are conducted by single transferable vote, using postal ballots only (Article 18). Despite being mandatory for the Seanad, postal voting for the Dáil is severely restricted; Irish people are only allowed to vote while abroad if they meet very specific conditions.
While the Seanad can propose a bill (although not a Money Bill – more on that later) and vote on bills, the Seanad has no pure veto power and can only:
Delay the passage of the bill by 180 days.
Make a petition to the president for the bill to be brought to the public for voting. For this to happen requires the support of at least one-third of the members of the Dáil, in addition to the president granting the petition.
The role of the Seanad is perhaps better described as one of forced contemplation in the system rather than as veto power. In practice, the Seanad also provides useful recommendations for bills and catches errors and oversights in bills proposed by the Dáil – a useful role, but not a veto.
The idea of a senate emerged originally in 1893 when the ‘Second Home Rule Bill’ was brought to the British parliament. At the time, the purpose of the senate was to provide representation for Irish Protestants at a time when 70% of the population was Catholic. In 1922, the Constitution of the Irish Free State included a senate consisting of:
. . . citizens who shall be proposed on the grounds that they have done honour to the Nation by reason of useful public service or that, because of special qualifications or attainments, they represent important aspects of the Nation’s life.
That senate existed from 1922 until 1937, with W.B. Yeats being among its notable members. The new Seanad was introduced in the Constitution of 1937. In 2013, there was a referendum to abolish the Seanad, and it was rejected by a vote of 52% to 48%.
Article 28A states that, in addition to the Oireachtas, Ireland will have a system of local government. The Constitution is vague about what this is for and what powers it will have:
The State recognises the role of local government in providing a forum for the democratic representation of local communities, in exercising and performing at local level powers and functions conferred by law and in promoting by its initiatives the interests of such communities.
There must be local elections at least once every five years – though they are generally out of sync with Dáil and Seanad elections.
‘The Government’ consists of between seven and fifteen members (called ministers) from the Dáil (except there can be up to two from the Seanad). In any other country, this would be called a cabinet, but, oddly, the Irish Constitution calls it ‘the Government’. To minimise confusion, I’ll just refer to it as the cabinet.
In a Dáil of 160, there are at most fifteen ministers, which creates a lot of pressure to spread power more widely. The solution has been to create a new form of position, the ‘junior minister’. Junior ministers assist bona fide ministers, and some of them are allowed to attend cabinet meetings, but they aren’t technically cabinet members.
A few other things about the cabinet:
Only the Dáil is allowed to declare war (the cabinet can’t independently do so).
The cabinet cannot do anything that would be in breach of bills passed by the Oireachtas (unless Ireland is being invaded).
All cabinet business is conducted in private (unless the High Court deems something must be released publicly).
Any bills that deal with taxation and government debt are called ‘Money Bills’, and they have looser requirements for getting passed. First off, the president can’t refer a Money Bill to the Supreme Court to say whether it is constitutional or not. Further, Money Bills can be passed even without waiting for the 180-day delay that can be imposed by the Seanad.
If Money Bills were as easy to block as other bills, then it would be too difficult for the state to function. In theory, Money Bills don’t affect constitutional rights (such as the right to private property), but they could theoretically tax it at such a high rate as to be functionally equivalent. More on private property later.
“Don’t give me penalty points for speeding!”
This extract from Article 15 is rumoured to have been used by members of the houses to avoid getting fines or penalties from the Gardaí (police) by claiming they “are on the way to the Dáil”:
The members of each House of the Oireachtas shall . . . be privileged from arrest in going to and returning from, and while within the precincts of, either house, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.
On a serious note, this is an important rule to ensure there is freedom of speech in the houses and freedom to get there to speak.
EU: Excuse me, Ireland, let me ask you that question one more time!
In 2001, the Twenty-fourth Amendment was proposed, via referendum, to ratify the Treaty of Nice, a reform to the structures of the EU. That referendum didn’t pass, so another referendum was brought in 2002, which then did pass (after assurances had been obtained on Irish neutrality).
Another EU treaty, the Treaty of Lisbon, passed in 2008 with 67% support in Ireland and involved the following:
[A] more powerful European Parliament forming a bicameral legislature alongside the Council of Ministers . . . a consolidated legal personality for the EU and the creation of a long–term President of the European Council . . . The Treaty also made the Union's bill of rights, the Charter of Fundamental Rights, legally binding. For the first time, the treaty gave member states the explicit legal right to leave the EU, and established a procedure by which to do so.
Ireland is unique in the EU in requiring a public vote to adopt, or modify, any substantial EU treaty. Ratification of the Treaty of Lisbon resulted in changes to Article 29 to include language attesting that:
No provision of this Constitution invalidates laws enacted, acts done or laws enacted by the State, before, on, or after entry into force of the Treaty of Lisbon . . .
It is messy to have a constitution retrospectively attest that nothing in it invalidates a later (and substantially overlapping?) set of new laws coming from the EU – even if the Irish Constitution was somewhat adjusted to be consistent. My understanding is that, with Article 29, it’s not enough to just read the Irish Constitution, you have to go and read all of the European treaties that (may?) have precedence. So, I’m falling short here in my review of the entire Irish Constitution, if we consider that the EU rules are incorporated by reference.
To me, Article 29 diminishes the clarity and strength of the Irish Constitution because there is a complicated abdication of certain authority to the EU.
Ireland and nuclear power
Article 29 mentions that the “State may become a member of the European Atomic Energy Community”, which dates back to the Treaty of Rome in 1957. This was allowed as part of the Third Amendment, which passed by referendum in 1972 and also allowed Ireland to join the European Economic Community.
Although Ireland did become a member and still is a member of the European Atomic Energy Community, it is illegal to supply nuclear fission power to the Irish grid according to the Electricity Regulation Act. Interestingly, we could legally use fusion!
The three highest courts in Ireland are the High Court, the Court of Appeal and the Supreme Court. As their names suggest, the big cases go to the High Court, which can be appealed to the Court of Appeal. The Supreme Court takes on final appeals – at its discretion and if it believes the case is in the national interest. As previously mentioned, the Supreme Court also serves to judge whether a bill – referred by the president – is constitutional.
Interestingly, there is an exception to this court system whereby special courts and military tribunals can be set up which have no juries. The special criminal court was set up as part of the Offences against the State Act 1939. It is made up of an odd number (minimum of three) judges appointed by the cabinet, and has been used to try terrorism, particularly by members of the IRA. More recently, the special criminal court has been used to tackle organised crime, including gangland operations. The court is controversial because, while it deals with cases in which it would be difficult to find an unbiased jury, it also sidesteps a degree of due process.
Make sure you get permission to be knighted
With Irish citizenship, you must give the Taoiseach a heads-up before any knighting ceremony.
No title of nobility or honour may be accepted by any citizen except with the prior approval of the Government.
The Constitution also says that “titles of nobility shall not be conferred by the state”, and this has been interpreted to include civilian honours like knighthoods or the Presidential Medal of Freedom. Thus, Ireland has no formal honours system – which strikes me as a shame.
There are a few specific mentions of women in the Constitution in Article 41:
[T]he State recognises that by her life within the home, woman [sic] gives to the State a support without which the common good cannot be achieved.
The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
The State shall endeavour to ensure the the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter vocations unsuited to their sex, age or strength.
Aside from the language being outdated, the typo seems to come from an excessively literal translation from Irish.
Marriage and divorce
In 1995, the Fifteenth Amendment made divorce legal in Ireland – provided that the couple had been separated for at least four out of the past five years. This waiting period was removed from the Constitution in 2018 (the Thirty-eighth Amendment).
In 2015, the Thirty-fourth Amendment legalised same-sex marriage – making Ireland the first country in the world to do so by popular vote. That there were only 20 years between allowing divorce and allowing gay marriage is one of the most striking facts about Ireland’s stunning turnaround in social attitudes.
Freedom of speech
In Ireland, the constitutional protections for freedom of speech are not especially strong. Article 40, Section 4.6 provides a “right of the citizens to express freely their convictions and opinions”. While “Organs of public opinion, such as the radio, the press” and “the cinema” are allowed to criticise the government, they “shall not be used to undermine public order or the authority of the state”. The publication or utterance of “seditious or indecent matter” is considered a criminal offence.
Despite this, Ireland de facto enjoys a high level of freedom of speech. This, of course, was not always so; for much of the 20th century, Ireland was a rather censorious nation.
When it was shown in Ireland, the film Casablanca was required to cut all references to Rick and Ilsa’s love affair (making the characters’ motivations… opaque). During the War, Casablanca was banned outright under the Emergency Powers Act for (you can’t make this stuff up) portraying Nazi Germany in a “sinister light”, and therefore violating neutrality. Thousands of other films and books were edited or banned altogether, including Monty Python’s The Life of Brian.
Section 40 of the Irish Constitution covers personal rights. For example, Article 40, Section 1 says:
All citizens shall, as human persons, be held equal before the law.
Section 40.3 then goes on with the following two sub–sections:
1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
In the original Constitution, those were the only two paragraphs in Section 40.3. A third paragraph was introduced with the Eighth Amendment in 1983, which provided for an equal right to life for the unborn and for the mother:
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This is the Eighth Amendment that “Repeal the Eighth” refers to.
While abortion was illegal in Ireland, many women travelled to other countries for abortions. In 1992, the Thirteenth and Fourteenth Amendments were passed, which made it clear that travel to other countries and providing information about services available in other countries were allowed:
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
In 2002, a referendum failed to pass that would have meant:
The right of a pregnant woman to avail of abortion if she is suicidal would end.
Medical procedures necessary to save the life of the mother would not be considered to be abortion in its criminal sense.
The vote failed to pass by a margin of 50.42% (No) to 49.58% (Yes). If this had passed, it would have become the Twenty-fifth Amendment (Failed referendums have created the odd situation in which there are no 12th, 22nd, 24th, 25th, 32nd, or 35th amendments.)
In 2018 came the Thirty-eighth Amendment, which passed with 66%+ of the vote and replaced all of the paragraphs that were added (including from the Eighth Amendment) with a short sentence:
Provision may be made by law for the regulation of termination of pregnancy.
The state . . . guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.
Of course, the state can pass a Money Bill and tax private property. Also, there is a provision that the rights to private ownership are subject to considerations of social justice.
The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
Still, it would be interesting to see if constitutional challenges could come into play if the government became socialist or communist.
A review of the Irish Constitution wouldn’t be complete without a mention of God. The Fifth Amendment in 1973 removed the special position of the Catholic Church from the Constitution, as well as the recognition of other named religious denominations. Still, God makes an appearance in seven places (eight if you include “Lord”), first appearing in Article 6:
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
Jesus makes one appearance right at the start:
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial . . .
Finally, the Constitution ends with the line:
Dochum Glóire Dé agus Onóra na hÉireann
(To the Glory of God and the Honour of Ireland.)
The Irish Constitution is young. Some of its provisions have never been tested. This, in a way, makes its success difficult to evaluate. Parts of the Constitution are outdated. But the basic mechanism of the Oireachtas, reigned in by direct public votes, has been robust – and has much to be said in its favour.
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To be clear, people with no Irish ancestry can become citizens – just not automatically.
The Constitution goes against standard usage here. It says that the president will be elected by “proportional representation by means of a single transferable vote”, but proportional representation refers only to multi-winner elections. It is impossible for an election with a single winner to be “proportional”. The correct term for this system is instant runoff.
Voters rank candidates in order of preference. If any candidate reaches a certain threshold of first-preference votes, they are elected instantly, and any votes above the threshold are redistributed. If not, the worst-performing candidate is eliminated, and his or her 2nd preference votes are distributed. This process is repeated until the desired number of candidates have been elected. Ireland uses the droop method for calculating thresholds; the share of the vote required to be elected is 100% divided by the one more than the number of seats in that constituency.
Specifically, graduates of the National University of Ireland and the University of Dublin. The University of Dublin is the parent organisation of Trinity College Dublin; University of Dublin was intended to be built with an Oxbridge-style collegiate system, but they forgot to do the part where you build more than one college. NUI is not so much a university as a university system, consisting of four universities and two non-university colleges. In 1979, the Seventh Amendment allowed for the eligibility to be broadened to all graduates of third-level education. Periodically, a government will promise to do this – but it seems to be at the bottom of a very long list of legislative priorities.