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measure "necessitated by membership" and gives any
Community measure the force of law irrespective of our
Constitution. The Dáil had the good sense to amend
the original Bill by changing the words "consequent on"
to "necessitated by". Mr. John Temple Lang, had
suggested such an alteration when writing in the
Irish
Times
last December. I expressed the hope then that
the phrase "consequent on membership" was the result
of shoddy draftmanship and not a deliberate policy.
There are still one or two matters which have not been
dealt with. As has been pointed out the Fundamental
Rights articles are not excluded and I believe like the
Editor that they should be. The Court of Justice of the
Communities in December 1970 emphasised that "it is
necessary to consider whether there has been a failure
to provide under Community law a guarantee that
corresponds [to fundamental rights under national con-
sttutions] for respect of fundamental rights belongs to
the general legal principles whose observance the Courts
of Justice must ensure."
There is also considerable doubt as to the desirability
of an omnibus clause being added to the Constitution.
There are several valid reasons why the changes needed
to the Constitution for example by altering the state-
ment that the Supreme Court is the Final Court of
Appeal, should be set out clearly, and not covered by
an omnibus clause.
Minister opposed to change in Constitution
When the Minister for Justice, Mr.
O
'Malley, rose
to propose a vote of thanks to the auditor, a group
of people at the back of the hall began to shout "Sieg
Heil," "Release the Republican prisoners," and "Sus-
pend the Offences against the State Act". After Gardai
spoke to the hecklers the interruptions diminished. Some
had to be ejected.
Mr. O'Malley said before beginning his address that
he wanted to take the opportunity to express his regret
and horror at the attempt earlier in the evening, in
Armagh, to murder Mr. John Taylor. "I abhor and
deplore activity of that kind and I express the hope that
Mr. Taylor will make a speedy and full recovery."
Constitution will stay
Our present Constitution was described by Mr.
O'Malley as an admirable fundamental law—even if a
few of its provisions might legitimately be the subject
of argument. He told the meeting that he wished to
scotch a notion that appeared to be entertained by
quite a number of people—namely, that Bunreacht na
hEireann was tottering to its grave and that a brand
new Constitution was lurking in the wings ready to
make a dramatic entrance. Nothing could be further
from the truth, he said, adding that he did not accept
that the Constitution was sectarian and that he was
certain it did not operate as such.
Freedom distinguished from licence
Declaring that he believed some decisions on the part
of our Courts had been too restrictive in their interpre-
tation of the Constitution, Mr. O'Malley said that he
accepted that insofar as this tendencv was motivated
by concern for the freedom of the individual it had its
merits. However, individual freedom must conform to
the freedom of the community and freedom, like prop-
erty. had its duties no le
c
s than its rights.
"Freedom must be defended but freedom must not
be confused with licence and should be-«o restricted in
the general interest that it does not lead to anarchv."
Asking if it was not fair to suggest that the crimina
1
law must take full account of the need to protect
society as well as the need to protect the individual, the
Minister commented that democracy and the protection
of people's liberties and homes had been slowly and
painfully won in this country.
"All our gains would disappear very rapidly if we
were to allow those who represent nobody except them-
selves to take over the Government of this country and
to terrify the people of this country into submission to
distorted notions of freedom, liberty and human rights."
He said it was salutary to reflect that most of those
who shout loudest about certain actions being anti-
democratic were invariably those who, if they came to
power, would quickly put an end to democracy.
Present guarantees on divorce and religion should stay
The Minister said that if the Constitution was being
put before the people for the first time now, some of its
provisions might not find a place in it—at any rate not
in their present form. The provisions, which attracted
most criticism in recent times, were those relating to
divorce and to religion. It was mainly on the basis of
those particular provisions that the Constitution had
been castigated as being sectarian.
Article 44 did not provide a basis for discriminating
in favour of any particular religion nor was it in any
way offensive to persons who had no religion. While
the prohibition on divorce might accord with the official
teaching of the Catholic Church, it also reflected the
thinking of the vast majority in the 1930s and he had
no doubt it now commanded very strong support in the
thirty-two counties, not because it was the teaching of
the Catholic Church but because very many people
considered that social stability suffered where divorce
was permitted.
Divorce was not introduced in the North until 1939
and it was still far less easy to obtain it there than it was
in England. The general experience in other countries
was that once divorce was introduced, any restrictions
on the right thereto which originally obtained were
gradually whittled away until divorce by mutual consent
was finally permitted.
The Minister suggested that if it were proposed to
remove or amend the prohibition on divorce there
would be strong opposition from people whose interests
were in no sense sectarian. Articles 41 and 44 might
have to be changed but it would not be easy to frame
an acceptable law on divorce. However, a prohibition
or. divorce for one's own citizens did not mean that
foreign divorces could not be recognised, even under
existing law.
No real defects in Constitution
Mr. O'Malley added that the academic exercises
undertaken to dissect the Constitution and expose its
defects had produced little more than a limited list of
possible abuses that could arise if both the Legislature
and the Judiciary at one and the same time were per-
verse. These alleged defects were of no great practical
consequence but they would naturally come up for
consideration if the Constitution was being reviewed
at all.
Distorted notion of freedom
In a reference to democracy, the Minister said that
all our gains would disappear very rapidly if we were to
allow those who represented nobody but themselves to
take over the Government of this country and to terrifv
the people of this country into submission to distorted
notions of freedom, liberty and human rights.
At this stage the group of people at the back of the
hall began to chant: "No military courts." They were