The Gazette 1972

which they would almost certainly be unwilling to take. The proposed amendment would not solve in a way compatible with any religion the position of a person who alters his or her beliefs. It would fail to deal ade- quately with certain mixed marriages. In effect, the result would be total confusion. Finally, the proposal would seem to be incompatible with Article 44 (2) (1) and (3) which is worded as follows: "Freedom of conscience and the free profession and practice of reli- gion are, subject to public order and morality, guaran- teed to every citizen" and "The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status." If divorce is to be introduced into this country, it should be available to all the people, not just those whose religion allows it. It is not the function of the State to enforce any particular religious beliefs, be it Catholicism or Protestantism, but if the recommen- dation of the All-Party Committee were accepted this is in actual fact what would happen. Therefore, any pub- lic debate on the subject of permitting divorce should centre around its effect on a society which proclaims itself both North and South of the border, to be a Christian society and not on the beliefs of any one particular religion. Amendments of Articles 2 and 3 From time to time amendments have been suggested to other articles in the Constitution. These proposals have included among others, a redrafting of Articles 2 and 3, which state that the national territory is the whole island of Ireland and its territorial seas and that, pending the reintegration of the national territory, legis- lation is only to apply to the present twenty-six county area. Furthermore, a review of the composition of the Seanad and the method of election to it as well as a review of the limited powers of the President, would appear to be called for. Time precludes me from dis- cussing them but as regards Articles 2 and 3 I doubt if any useful purpose would be served by amending them. Vote recommended at 18 years I would like to advocate a change in Article 16 (1) (ii) which states that every person who reaches the age of twenty-one shall be entitled to vote in a national election. If the majority of the electorate agrees the age- limit should be reduced to eighteen years. All three main political parties in this country are now appar- ently in favour of such an amendment so it would seem that if any such proposal were laid before the people in a referendum it would be accepted by a majority. This, I think is only right. It has already been stated that the Constitution is the fundamental law of the country and it is this aspect of it that I would now like to consider. Before doing so, however, it must be stressed that the guarantees of fundamental and personal rights contained in the Constitution are so important that they deserve to be reviiewed at some length. When this has been done I will have only one major change to recommend, whose effects, if accepted, would be so far reaching that any other proposed amendment would, it is submitted, be superfluous. The Theory of the Separation of Powers The theory of Separation of Powers maintains that to ensure just government each of the three organs of government, the Executive, the Legislature and the Judiciary must be independent of each other. If there is, as there must be, a certain amount of overlapping

between them, then a fair system of checks and balances must operate; i.e. that, though none of the three organs is separate, neither of the other two is sufficiently strong to downgrade the third to a negligible status. The Con- stitution of the United States is based on this theory. In America the Presidency, the Houses of Congress and the Judiciary are all to a very large extent independent of each other and are seen to be so. In this country, how- ever, due to our unfortunately adopting the British system of cabinet government, there are in practice only two independent branches, the Executive and the Judiciary. The two Houses of the Oireachtas are to all intents and purposes subordinate to the wishes of the Cabinet. For this reason it is imperative that the Judici- ary should be as independent as possible of the Execu- tive and that this should be seen to be the case. This has been especially so in latter years, though the method of appointing Judges to the Bench directly by the Execu- tive is questionable. Independent Judiciary essential The importance of an independently minded Judi- ciary must be stressed because it is they who are the custodians of the Constitution by virtue of Articles 26 and 34, and this enables them to declare Acts of the Oireachtas to be unconstitutional. It is they who stand between the people and an oppressive government which would try to deny the people their guaranteed funda- mental rights. If the Judiciary fail in this task, the Oireachtas, and therefore the government, can become absolute rulers and this was not envisaged by the Constitution. Our Constitution contains many guarantees for the citizens of the country, these intlude among others the right to regular elections and the right to be tried only in accordance with law and by a jury. Articles 40 to 44 are headed "Fundamental Rights", and they provide for certain rights which one would expect to find in any democratic country. However, in discussing these articles of the Constitution we must remember that the impor- tant factor is not so much what is written in them, but how they are interpreted by the Judiciary. The following statement, taken from a Canadian Parliamentary debate, illustrates this point: "The experience in many, of the countries that have constitutional guarantees is that it is the state of judicial opinion, in the light of the state of public opinion which determines to what extent constitutional guarantees of human rights and fundamental freedoms are to possess reality and effectiveness and this in spite of all the guarantees which may be given in any Constitution." This view is re-enforced by a statement of the Chief Justice, reported in The Irish Times on 9th September 1964: "Judicial review is crucial if the effectiveness of guarantees of personal rights is to be ensured and the other limitations of government are to be observed." Judicial interpretation as regards freedom of the citizen Perhaps the most important case in the area of "per- sonal liberty" was that of in re Offences Against the State (Amendment) Bill 1940 (1940, I.R.). The Bill, which gave the government power to intern people without trial, was referred to the Supreme Court by the President, under Article 26 (1) (i). The issue before the Court was whether the provisions of the Bill were consistent with Article 40 (4) (i) which states: "That no citizen shall be deprived of his personal liberty save in accordance with law," It was obvious that the Court's decision would depend on the interpretation they gave to the phrase "save in accordance with the 36