The Gazette 1972

Solicitors Apprentices Debating Society

Inaugural on the Irish Constitution

The inaugural address of the Solicitors Apprentices

Debating Society of Ireland was held in the Library,

Solicitors Buildings, Four Courts, Dublin, on Friday,

25th February 1972, when the Auditor,

Mr. Laurence

K. Shields, B

.L.,

delivered an address entitled:

'Bunreacht na hEireann : Quo Vadis?" In the course

of his address, Mr. Shields made the following points.

It would not be realistic if indeed possible to attempt

to cover all that the title of this address embraces. All

that I can do, restricted as I am by time and qualifi-

cation, is to indicate some of the areas that are consid-

ered to be the more important and to make a few

suggestions. For this purpose I have accordingly decided

to divide my address into three parts. (1) General chan-

ges, which I believe if adopted would undoubtedly

uuprove our Bunreacht and lead to a more democratic

society. (2) Fundamental human rights. (3) A Constitu-

tion for a united Ireland and also the question of the

possible advent of this country into the E.E.C.

Democratic nature of State could be improved

The general changes cover a wide area. Ireland,

According to Article 5, is a "sovereign, independent,

democratic state. It seems that the democratic nature

°f the Republic of Ireland— and indeed in the future,

°f a United Ireland — could be considerably improved.

Abraham Lincoln has defined democracy as a govern-

ment of all the people, by all the people, for all the

people; a government after the principles of eternal

Justice and the ever-changing law of God. Democracy,

therefore, connotes simply the participation of the

greatest possible number of the people in the decision

making process. It is clear that in Ireland we are

unfortunately not availing of some of the processes of

direct democracy known to the modern world. The

introduction of more direct democracy to a revised

Constitution would seem necessary. This I feel could be

achieved in different ways : (1) by the retention of the

so-called "compulsory referendum" procedure as enun-

ciated in our present Constitution, namely a referendum

mplied by the nature of the legislation, for example, a

constitutional amendment; (2) by the introduction of

me "protest referendum" which enables a group of

People who object to a particular piece of legislation to

ensure that a referendum would be held by the presen-

J^tion of a petition; (3) by the reintroduction of the

mitiative" to our Bunreacht; this form of direct demo-

cracy which exists both in Switzerland and in the United

states of America provides the electorate with an oppor-

tunity to initiate leigslation at their own request. The

mitiative obviously does not extend to specified legis-

ation like budgets or treaties. The protest referendum

and the initiative should require the signature of from

^°,000 to 50,000 petitioners. Article 48 of the Free

^tote Constitution of 1922 contained somewhat similar

Provisions but were not re-enacted in the 1937 Consti-

tion. But for these procedures to work effectively the

bcoDle must involve themselves wholeheartedly and

*h enthusiasm.

Votes at eighteen should be introduced. There is no

justification for excluding people from the democratic

processes who are eligible to join the Army, to get

married and are obliged to pay taxes. Mr. Justice Walsh

recently pointed out that it is open to argument whether

a change in the Constitution is necessary to facilitate

votes at eighteen. The present Constitution, he stated,

guaranteed as a right the granting of votes at the age

of twenty-one but there was nothing embodied in it to

prohibit parliament extending this right to younger

people. (It has been announced that a Referendum on

this issue will be held in the Autumn.)

Constitutional review every ten years

It would seem that an article dealing with the ques-

tion of constitutional review should be incorporated in

our Constitution. It should be mandatory that the

Constitution be reviewed say every ten years by a

commission. The late Taoiseach, Mr. Seán Lemass,

agreed with the idea of a regular review. He was re-

ported in the

Irish Times

in March 1966 as saying:

"The democratic principles on which the Constitution

was founded had a strong emotional and intellectual

appeal here. The manner in which these principles were

expressed and the procedures by which it was decided

to apply them might not, however, be as suitable to our

present requirements as they were thirty years ago.

There was a case for carrying out a general review of

the provisions of the Constitution." He continued •

"That was something that might be worth doing every

twenty-five years or so." It seems to me that this period

should be shortened to a ten-year period. The commis-

sion could usefully sit from time to time throughout the

ten years and put forward constitutional proposals

every tenth year. The composition of Such a constitu-

tional commission is of the utmost importance. While

the Report of the Committee on the Constitution pub-

lished in December 1967 contains some useful material,

yet it is undoubtedly too politically orientated. The

following sentiment is too often expresred in the report:

"We feel political considerations are more relevant."

This is understandable when one considers that that

committee was confined to parliamentary representatives.

Indubitably, any future constitutional commission

should be vocational in nature, composed of persons

representing as far as possible all interests throughout

the Státe, as for instance political parties, trade unions,

religious bodies, professional organisations and the

judiciary.

Bills referred by President to Supreme Court

The most important prerogative conferred upon the

President under the Constitution is his power by virtue

of Article 26 to refer Bills to the Supreme Court after

consultation with the Council of State. This Article

has been criticised on three grounds bv a number of

academic writers arid in particular by Professor

R. J.

O'Hanlon. (1) Bills are considered in vacuo—that is

before they have had a chance to operate in practice.

(2) Once á decisiori has beeri handed down by the