The Gazette 1972

The Constitution-A Time for Change

The inaugural meeting of the Law Society was held in

University College, Earlsfort Terrace, Dublin, on the

2nd December 1971. The Auditor, Mr. Aindrias O

Ruairc, delivered his address on "The Constitution—A

Time for Change", and Dr. Geoffrey Hand, Dean of

the Faculty of Law, presided.

Mr. O Ruairc

said in the course of his auditorial

address :

Our Constitution, though it is the fundamental law of

this country and is, therefore, the law to which all

others must conform, is also a political document

because its very enactment was a conscious political

decision taken by a majority of the electorate who voted

m the referendum of 1937. Therefore, it is essential

that the layman as well as the lawyer should be con-

cerned with it and should be very slow to acquiesce in

any proposed amendment to its provisions. In order to

facilitate the task set, I shall conveniently divide my

Paper into two areas—one, a review of what I would

roughly term "political" provisions. The other a consid-

eration of "legal" provisions. The dividing line between

them is not very clear.

When one speaks of "political" provisions, one in-

cludes those articles which many people would like to

see amended or deleted in order to convert the Consti-

tution into a purely pluralist one, part of their reason

being to make it allegedly more acceptable to Northern

Unionists in the event of the re-unification of our

country. That particular reason does not appeal to me.

*f it is considered that the Constitution should be

amended, the

only valid reason for doing so should be

to improve its provisions

and not to use it as a sop to

Northern Unionists. If we are honest with ourselves then

the Unionists may be more inclined to listen to us. If we

•eel that certain provisions would discriminate against

Northern Unionists then, surely, these same provisions

must at the present time discriminate against the small

minority of Southern Protestants. If we are to amend

these provisions let us do so because justice demands

they be amended and not in the hope that it will fool

°ur Northern neighbours into believing that we are

truly ecumenical when in fact we are not.

Recognition of specified denominations

Article 44 recognises, by virtue of Subsection 2, the

Pecial position of the Roman Catholic Church in this

country. Subsection 3 recognises four named Protestant

Uhurches, the Jewish congregation and "the other reli-

Rious denominations existing in Ireland at the date of

me coming into operation of this Constitution". It is

generally believed now that these two subsections are

perfluous and that their removal could not change in

anv wav, the status of religion in Ireland. The All-Partv

Committee on the Constitution (1967) recommended

Unanimously that Subsections 2 and 3 be deleted from

be Constitution. Church leaders in Ireland voiced no

°bjection to this proposal so it would appear that in

.y referendum to amend Article 44 little or no oppo-

tion would be made to the deletion of these provisions

mch have only led to confusion. Therefore, their

emoval would clarify once and for all the other pro-

t o n s in the Constitution which guarantee freedom of

toligion. Any misunderstanding which might now exist

°uld thus be removed.

Amendment to Divorce Prohibition

A far more serious problem is posed by Article 41

(3) (1) which reads as follows : "No law shall be enacted

providing for the grant of a dissolution of marriage."

The All-Party Committee recommended its deletion and

its replacement by a provision on the following lines :

"In the case of a person who was married in accordance

with the rites of a religion, no law shall be enacted

providing for the grant of a dissolution of that mar-

riage on grounds other than those acceptable to that

religion." The reason they recommended such a change

was that they considered that the Article as it now

stands discriminates against a minority and that in the

context of North-South relations, it is a barrier to

reconciliation? This is a submission which should be

rejected.

Any discussion on the introduction of facilities for

divorce should centre around the effect it would have

on society as a whole and not on the tenets of a parti-

cular religion. Personally, I would oppose the intro-

duction of divorce, because I believe it would funda-

mentally damage Irish society, embracing both Catholics

and non-Catholics. The many people who would dis-

agree with me would argue that the absolute prohibi-

tion on divorce is nothing more than a majority of the

people forcing their beliefs on a minority. It is admitted

that this is in effect what happens, but it is submitted

that there are certain values inherent in every society

and to safeguard these values, it is sometimes necessary

to make absolute laws. A society must protect itself and

if in so doing it deprives a minority of certain rights

demanded, then that minority, if it desires to remain

part of that society, must needs submit to the will of

the majority.

Lord Devlin on the Protection of Society

Lord Devlin in his work

The Enforcement of Morals

stated the position thus : " . . . The law exists for the

protection of societv. It does not discharge its function

by protecting the individual from injury, annoyance,

corruption, and exploitation, the law must protect also

the institutions and the community of ideals, political

and moral, without which people cannot live together.

Society cannot ignore the morality of the individual

any more than it can his loyalty; it flourishes on both

and without either it dies." Lord Devlin's statement

was not made in the context of divorce, but rather in

that of the enforcement of morality

vis-á-vis

the crim-

inal law and whether or not the State had a right to

legislate against such matters as abortion, homosexu-

ality, etc., I believe, however, that the general principle

he outlines is particularly relevant in the present context.

Mv opposition to divorce has now been clearly stated.

If, however, a majority in this country decided to delete

Article 41 (3) (2) from the Constitution and thereby

permit divorce, it is to be hoped the deleted clause

would not be rep'aced by the one recommended by the

All-Party Committee, and which has already been

quoted. Their proposal amounts to the following: That

divorce (and later remarriage) should be allowed, but

only for those whose religion permits it. In an article in

the

Gazette

, a vear ago, Mr. John Temple Lang put

forward a number of seriously valid objections to this

idea. The Committee's provision would compel the

Protestant Churches to take official positions on divorce,