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CORRESPONDENCE
Amendment of the Constitution
79 Barton Drive,
Rathfarnham, Dublin 14.
The Editor of the Gazette,
Incorporated Law Society,
Dear Sir,
I wish to commend your courage in challenging the
proposed amendment to the Constitution which has
been put forward by the Government and supported in
a slightly altered form by Fine Gael.
You say that the amendment is unduly wide and
unnecessary and with this I wholeheartedly agrée. How-
ever, your implied suggestion that an amendment which
would exclude fundamental rights from its operation
could be supported, is questionable. Articles 1 and 2
proclaim respectively the sovereignty of the Irish
nation and define its territory as 'the whole island of
Ireland, its islands and the territorial seas'.
Should it transpire that the third amendment has
abrogated that claim in any way, future generations
will not thank us. Indeed, in view of the short history
of our State, those who reside or work in the Four
Courts should show very great caution when implying
that these articles are not important or relevant to-day.
The substantial transfer of power from national in-
stitutions to the E.E.C. requires, I suggest, a very
careful approach to Constitutional amendments. What
will be the effect of the proposed amendment on
Article 28. 3. 1., which states that 'War shall not be
declared and the State shall not participate in any war
save with the assent of Dail Eireann'. And how will
the amendment affect the provisions of Article 29
(paras 5 and 6) which concerns International Agree-
ments. Neutrality appears to be ruled out by the Treaty
of Rome. A safeguard in the amendment would appear
necessary. The transfer of all questions of interpreta-
tion of the Treaty of Rome to the Court of the European
Community
de facto
makes that Court the interpreter of
our Constitution under the proposed amendment. This,
surely, is an aspect of the matter requiring pause and
reflection. Indeed the blanketing and indiscriminate
nature of the amendment raises, at this state, the ques-
tion whether this form of amendment is in itself un-
constitutional.
Another fundamental issue is the absence of demo-
cratic and constitutional control over the actions of our
Minister in the Council of Ministers. By virtue of
Article 235 of the Treaty, described elsewhere as 'Henry
VIII Clause', our Minister by unanimous agreement
with his colleagues in the Council, can procure the
enactment of any provision necessary to achieve the
aims of the Treaty, and there is, apparently, no con-
stitutional means of controlling this executive action-
This is a most dangerous departure from the safe-
guards enhrined in our Constitution. (The law on
'European companies' has, I understand, been intro-
duced under the powers conferred by Section 235).
These are but a few of the major issues, which in
addition to fundamental rights, are raised by the
Government's proposals. As the aim of the Treaty
of Rome is to progressively approximate the economic
policies of Member States, we may sadly conclude that
the shape and style of our Constitution is to be re-
moulded in the procrustean design of Common Market
economics and bureaucratic requirements.
To put it another way. Our Constitution is to be
prised open by a powerful economic instrument. For
the sake of future generations we must sincerely hope
that by assenting to it we are not opening a Pandora's
bos, which will have unsavoury, uncontrollable and un-
foreseeable Constitutional consequences.
Yours sincerely,
Franklin J. O'Sullivan (Solicitor).
Hotel Licences and Publican's Licences
20th December 1971
to
The Secretary
Incorporated Law Society
Dear Mr. Plunkett,
Recently I came across a case which I think would be
of great interest to the profession. A colleague pur-
chased a hotel to which was attached what was
described as a publican's licence. The sale was com-
pleted in the normal way and the licence duly trans-
ferred to the new owner of the hotel. Some time later
the owner of the hotel decided to extend his premises
and instructed his solicitor to apply to have the licence
expended to cover the new buildings. The usual statu-
tory notice was served on the Guards, the District
Court Clerk and other appropriate authorities. On
receipt of this notice by the Gardai authorities, the
Superintendent phoned the solicitor and informed him
that the licence attaching to the hotel was not a pub-
lican's licence but a hotel licence. Enquiries were made
at the local District Court Office when the official
there confirmed that the licence was in fact a publican's
licence according to the records in his office. The soli-
citor informed the Garda Superintendent of this fact,
but the latter indicated that reference should be made
to the original order made by the Circuit Court on the
granting of the licence approximately fifteen years pre-
viously. On enquiring at the Circuit Court Office, the
solicitor was informed that the order in fact was for a
hotel licence. The Gardai then moved in on the prem-
ises and informed the proprietor that he would have to
cease operating the bar. The sequel to this case was
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