The Gazette 1972

measure "necessitated by membership" and gives any Community measure the force of law irrespective of our Constitution. The Dáil had the good sense to amend the original Bill by changing the words "consequent on" to "necessitated by". Mr. John Temple Lang, had suggested such an alteration when writing in the Irish Times last December. I expressed the hope then that the phrase "consequent on membership" was the result of shoddy draftmanship and not a deliberate policy. There are still one or two matters which have not been dealt with. As has been pointed out the Fundamental Rights articles are not excluded and I believe like the Editor that they should be. The Court of Justice of the Communities in December 1970 emphasised that "it is necessary to consider whether there has been a failure to provide under Community law a guarantee that corresponds [to fundamental rights under national con- sttutions] for respect of fundamental rights belongs to the general legal principles whose observance the Courts of Justice must ensure." There is also considerable doubt as to the desirability of an omnibus clause being added to the Constitution. There are several valid reasons why the changes needed to the Constitution for example by altering the state- ment that the Supreme Court is the Final Court of Appeal, should be set out clearly, and not covered by an omnibus clause. Minister opposed to change in Constitution When the Minister for Justice, Mr. O 'Malley, rose to propose a vote of thanks to the auditor, a group of people at the back of the hall began to shout "Sieg Heil," "Release the Republican prisoners," and "Sus- pend the Offences against the State Act". After Gardai spoke to the hecklers the interruptions diminished. Some had to be ejected. Mr. O'Malley said before beginning his address that he wanted to take the opportunity to express his regret and horror at the attempt earlier in the evening, in Armagh, to murder Mr. John Taylor. "I abhor and deplore activity of that kind and I express the hope that Mr. Taylor will make a speedy and full recovery." Constitution will stay Our present Constitution was described by Mr. O'Malley as an admirable fundamental law—even if a few of its provisions might legitimately be the subject of argument. He told the meeting that he wished to scotch a notion that appeared to be entertained by quite a number of people—namely, that Bunreacht na hEireann was tottering to its grave and that a brand new Constitution was lurking in the wings ready to make a dramatic entrance. Nothing could be further from the truth, he said, adding that he did not accept that the Constitution was sectarian and that he was Declaring that he believed some decisions on the part of our Courts had been too restrictive in their interpre- tation of the Constitution, Mr. O'Malley said that he accepted that insofar as this tendencv was motivated by concern for the freedom of the individual it had its merits. However, individual freedom must conform to the freedom of the community and freedom, like prop- erty. had its duties no le c s than its rights. "Freedom must be defended but freedom must not be confused with licence and should be-«o restricted in the general interest that it does not lead to anarchv." Asking if it was not fair to suggest that the crimina 1 law must take full account of the need to protect certain it did not operate as such. Freedom distinguished from licence

society as well as the need to protect the individual, the Minister commented that democracy and the protection of people's liberties and homes had been slowly and painfully won in this country. "All our gains would disappear very rapidly if we were to allow those who represent nobody except them- selves to take over the Government of this country and to terrify the people of this country into submission to distorted notions of freedom, liberty and human rights." He said it was salutary to reflect that most of those who shout loudest about certain actions being anti- democratic were invariably those who, if they came to power, would quickly put an end to democracy. Present guarantees on divorce and religion should stay The Minister said that if the Constitution was being put before the people for the first time now, some of its provisions might not find a place in it—at any rate not in their present form. The provisions, which attracted most criticism in recent times, were those relating to divorce and to religion. It was mainly on the basis of those particular provisions that the Constitution had been castigated as being sectarian. Article 44 did not provide a basis for discriminating in favour of any particular religion nor was it in any way offensive to persons who had no religion. While the prohibition on divorce might accord with the official teaching of the Catholic Church, it also reflected the thinking of the vast majority in the 1930s and he had no doubt it now commanded very strong support in the thirty-two counties, not because it was the teaching of the Catholic Church but because very many people considered that social stability suffered where divorce was permitted. Divorce was not introduced in the North until 1939 and it was still far less easy to obtain it there than it was in England. The general experience in other countries was that once divorce was introduced, any restrictions on the right thereto which originally obtained were gradually whittled away until divorce by mutual consent was finally permitted. The Minister suggested that if it were proposed to remove or amend the prohibition on divorce there would be strong opposition from people whose interests were in no sense sectarian. Articles 41 and 44 might have to be changed but it would not be easy to frame an acceptable law on divorce. However, a prohibition or. divorce for one's own citizens did not mean that foreign divorces could not be recognised, even under existing law. No real defects in Constitution Mr. O'Malley added that the academic exercises undertaken to dissect the Constitution and expose its defects had produced little more than a limited list of possible abuses that could arise if both the Legislature and the Judiciary at one and the same time were per- verse. These alleged defects were of no great practical consequence but they would naturally come up for consideration if the Constitution was being reviewed at all. Distorted notion of freedom In a reference to democracy, the Minister said that all our gains would disappear very rapidly if we were to allow those who represented nobody but themselves to take over the Government of this country and to terrifv the people of this country into submission to distorted notions of freedom, liberty and human rights. At this stage the group of people at the back of the hall began to chant: "No military courts." They were