The Gazette 1972

Constitutional Implications of the

Third Amendment Bill

by FRANKLIN O'SULLIVAN, LL.B. (Solicitor)

Delivered at Nullamore University Residence on February 24th

The Government's proposal to amend a number of

Articles of the Constitution by way of an addition to

Article 29 raises initially the question whether this

method of amendment is itself constitutional or morally

just and the Courts should be asked to give a ruling on

the issue before the amendment is submitted to the

people for decision by way of referendum. Article 46

of the Constitution allows for amendment by way of

variation, addition or repeal. The amendment, how-

ever, in effect proposes to alter unspecified sections of

the Constitution by adding to Article 29 a sub-section

which enables the State to accede to the European

Goal and Steel Community, European Atomic Energy

Community and the European Economic Community

(EEC) and states that "no provisions of this Constitu-

tion invalidates laws enacted, acts done or measures

adopted by the State necessitated by the obligations of

membership of the Communities or prevents laws enac-

ted, acts done or measures adopted by the Communities,

or institutions thereof, from having the force of law in

the State."

People should know precisely extent of amendments

It seems, to say the least, contrary to the spirit of

constitutional amendments, to leave the people uncer-

tain of the extent to which their fundamental law will

be altered or possibly abrogated by the measure to

which the Government is seeking assent. The interpre-

tation of the amendment ultimately will not lie with our

own Courts but with the Court established under the

Treaty of Rome.

Our national role in world peacemaking as a neutral

nation may be irrevocably lost; our claim that Ireland

is a thirty-two county island may be abrogated, and our

fundamental rights in the fields of religion, freedom of

association, family and property may be affected. The

proposals by Dr. Mansholt to withdraw family allow-

ances from large families demonstrate that those rights

will in fact be affected seriously. We should as a people

be fully aware of the extent and meaning of the consti-

tutional consequences which will flow from this Third

Amendment Bill. Our legislators in failing to demand

this clarification are failing in their public responsibility

and when elected leaders fail in their responsibilities the

people, on the record of history, have a habit of seeking

leaders who will not fail them.

Article 235 of the Treaty of Rome

In the longer term view we must be seriously con-

cerned by the provisions of Article 235 of the Treaty of

Rome which confers on the Council of Ministers the

right to enact, on the recommendation of the Commis-

sioners, any legislation necessary to achieve the (psycho-

logically unattainable) aim of economic harmony, under

the Treaty.

This clause has been described as Henry VIII clause

which, under the Statute of Proclamations passed in

1539, conferred on the King the right to set forth

proclamations with legislative effect. It was repealed in

the reign of Edward the Sixth because it was contrary

to the whole tenor of the Common Law. We are now

asked to consent to its reintroduction despite our un-

savoury experience with executive orders under the

coercion acts and our unceasing efforts to bring execu-

tive action under the control of a supreme constitu-

tional law. This is far too serious to be approved under

a general amendment as proposed in the present Bill

now passed by Dail and Seanad.

Methods of constitutional alteration

Looking to the future we must observe that Consti-

tutions are altered by more than formal amendments.

Judicial review, usage and convention, ecological devel-

opment, semantic evolution, all contribute to constitu-

tional change. Marx saw economics as the determinant

of man's condition but as a Christian people we have

never accepted this simplification but, following the

Papal Social Encyclicals, we have seen that defects in

man's condition are not due to a simple cause—whether

economic, spiritual or psychological. The various aspects

are inter-related and as Erich Fromm has brilliantly

shown "only by simultaneous changes in the sphere of

industrial and political organisation, of spiritual and

philosophical orientation, of character structure and of

cultural activities" can sanity and mental health be

achieved.

In 1864 a commentator saw that the transition from

mother and daughter power to water and steam power

was a great one—"greater by far than many have as yet

begun to conceive, one that is to carry with it a com-

plete revolution of domestic life and social manners."

Radical transplant of Constitution

In the proposed amendment we are asked to accept a

radical and untried transplant which subjects our Con-

stitution to the over-riding control of an economic

organisation. We must sincerely hope that by agreeing

to this radical surgery we are not submitting our lives

to a change which is "greater by far than many have

as yet begun to conceive."

Hitherto we have relied on our Courts to protect

our constitutional rights. We do not have the strong

democratic maturity of the Swiss people who do not

rely on the Courts in these matters but use instead their

right of initiative in referenda.

The style of our Constitution with its strong emphasis

on the spiritual dimensions of society is to be remoulded

in the procrustean design of a new Brussels bureaucracy

and a semi-secret Council of Ministers.

As societies pass through and beyond the mass-con-

sumption style of living, man may look forward to the

creation, in Rostows imaginative phrase, of "new inner

frontiers in substitution for the imperatives of scarcity.

Before subjecting our Constitution to the imperatives

of current economic theory, we should satisfy ourselves,

before we take that irrevocable constitutional decision,

that we are not submitting the supreme law of our land

to a deadly metamorphosis which will deprive us of our

freedom to act in accordance with our style and ex-

pressed aspirations, and which will have uncontrollable,

unhealthy and unpredictable effects on our society, on

our culture and in our personal lives.