The Gazette 1972

follow that decision. In the recent

Paraic Haughey

case

the Supreme Court jealously guarded the rights of an

individual citizen, where a Committee of the Legis-

lature tried to take upon itself judicial functions con-

trary to the Constitution. All these cases and others

show that, those of us who value freedom, are greatly

indebted to our present Courts.

E.E.C. Amendment

The manner in which the Constitution could be

amended so as to enable us to enter the European

Communities was nebulous until the government pub-

lished last week the Third Amendment of the Constitu-

tion Bill, 1971. Since its publication, reaction has been

varied. It seems people are relieved that the amendment

is framed so as to avoid saying whether membership of

the E.E.C. is compatible with our sovereignty. It would

also appear that the proposed amendment would not

bind us to any future military undertakings of the

Communities.

Part of the proposed amendment reads as follows :

"No provision of this Constitution invalidates laws

enacted, acts done or measures adopted by the State

consequent on membership of the Communities or pre-

vents laws enacted, acts done or measures adopted by

the Communities, or institutions thereof, from having

the force of law in the State."

Senator Mary Robinson, Reid Professor of Con-

stitutional Law in Trinity College, stated last week

that "This section is dangerously wide because it

would grant immunity from constitutional challenge

to any Irish legislation or any acts done or measures

adopted 'consequent on membership of the Communi-

ties'." She continued: "Very far-reaching, changes

might be made in this way without the possibility of

judicial challenge by our Courts, on the grounds that

they were 'consequent on' entry."

There are two points I would like to make on this

issue. (1) We all know that if we enter Europe the

Oireachtas's exclusive power of legislating for this coun-

try will no longer exist and that the Supreme Court's

status as the final Court of Appeal cannot apply in

matters relating to the interpretation of the Treaty of

Rome under Article 177. The proposed amendment

covers these issues. (2) It does not seem as if, the govern-

ment will be able to use the "consequent on entry" clause

to pass legislation which will deprive us of certain

fundamental freedoms. If they tried to do so, it would

appear to be open to the Courts to ask the government

to prove that certain legislation was "consequent on

entry" and if they failed to do this, then the proposed

legislation could be examined in the ordinary way by

the Courts.

If the reasoning on this issue is not correct than it is

suggested that, the recommendation made earlier about

the enacting of the European Convention on Human

Rights as part of our domestic law, be brought a step

further. It could be made part of the Constitution

itself by making another amendment to Article 29

which would state that the Convention was to be consid-

ered as part of the Constitution.

If this were done, we could become members of the

E.E.C. and yet have no doubts as to our constitutional

stability.

One further very recent development was Mr. Harold

Wilson's proposals on a Constitution for a re-united

Ireland. It is not intended to discuss Mr. Wilson's

rcommendations as they lie outside the scope of this

paper. However, if that desired result—a re-united

country—were to come about it would seem that a new

Constitution would have to be drafted, not only to

guarantee the rights of Northern Unionists in certain

matters but also to cover North-South relations and the

powers and functions of the reconstituted local authori-

ties. In short, this would seem to entail a federal

Constitution somewhat similar to Canada's which would

have to be drafted and ratified.

We have at the moment, in this part of our tragically

divided country, a Constitution with a number of

defects, some of which have been outlined. Despite

these defects we should be reasonably proud of it as it

gives us the basis for democratic and just government.

It is suggested that if some of the amendments pro-

posed, taken in conjunction with the present Supreme

Court policy, were accepted, our Constitution would

be one of which any democratic country could be proud.

In conclusion the following point which is perhaps the

most important of all should be stressed. A Constitution

by its wording and contents may appear to be perfect,

but its functioning as a perfect Constitution depends on

those who are granted power under it—the executive,

the legislature and the judiciary. It is they who are

responsible for maintaining a true and just democracy

in a country and if they were so minded they could

ignore all constitutional guarantees and impose a

tyrannical system on the people. We are dependent on

our rulers and it is up to us to ensure that we elect

rulers who act justly. Our rulers, like all human beings,

are not infallible—and are thus prone to make mistakes.

Therefore, the onus lies on the electorate to ensure that

the rulers they choose are just and adhere to a genuine

democracy. Ultimately it is the people who can insist on

freedom, justice and fair government. Though we have

been reasonably fortunate in this country so far—let us

not become complacent. There is still much room for

improvement.

The

Minister for Lands, Mr. Sean Flanagan

said

that in considering the theme of the inaugural address

by the auditor, Andrias O Ruiarc, "The Constitution—•

A Time for Change", one had regard to the Constitu-

tion as it was administered under the Supreme Court.

In this context one could ask whether in limited cases

the Supreme Court had gone too far. "What of the

rights of the elderly?" asked the Minister. "What of the

plight of people, old and feeble, who were being

attacked by young thugs, who were being robbed and

intimidated? Was it proper that when these thugs were

brought to justice they should be freed on bail?"

Time to reconsider position of bail

One saw bail granted to robbers masquerading as

patridts, said Mr. Flanagan. In such cases, he felt, there

should be provision for the Supreme Court to reverse

its own decisions. "I believe," he said, "that in the atti-

tude laid down in the decision in the O'Callaghan case

(1966) on bail, the Court was misguided."

"I am not taking from the objectives of those who

framed the Constitution; I went out and actively sought

support for it," he continued. "But times change and

circumstances change, the fact must now be recognised

that they tried to say and do too much."

Mr. Flanagan referred to the development of a united

Ireland as he saw it. "What matters," he said, "is that

the British recognise our right to unity and, given good

will, the rest will follow.

"Would a new Parliament for the whole of Ireland

endorse divorce?" he asked. "Would it copy the British

health service? These and other problems will bé easily

solved, accepting as a basic fact the laying aside of our

present Constitution."