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

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