The Gazette 1987

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GAZETTE SEPTEMBER 1987
In
this
Issue
Viewpoint 207
Maracycle Fundraising for
the SBA 213
Licensed Hauliers and the
Road Transport Act,
1986 217
Practice Note
Book Review
221
222
Younger Members
Committee Quiz Nights 224
How do you know —
Licensing Law 229
Professional Information 233
*
Executiva Editor:
Mary Buckley
Editorial Board:
Charles R. M. Meredith, Chairman
John F. Buckley
Gary Byrne
Daire Murphy
Michael V. O'Mahony
Maxwell Sweeney
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save where otherwise indicated, are the
views of the contributors and not
necessarily the views of the Council of
the Society.
The appearance of an advertisement in
this publication does not necessarily
indicate approval by the Society for the
product or service advertised.
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GAZETTE INCORPORATE D
LAW SOCIETY
OF IRELAND
Vol. 81 No. 7 Septembe r 1987
Viewpoint
Hold that Constitution
The growth of Summer Schools
as forums for debate on significant
social or political issues in Ireland
has become a feature of recent
years. This year's MacGill Summer
School at Glenties, Co. Donegal,
devoted its attention to the Irish
Constitution. The contributors to
the debate, mostly politicians of
different hues, appeared to accept
as axiomatic that our 50-year-old
Constitution needed radical revi-
sion. Fortunately, perhaps, all they
seemed to have in common was
the desire for change.
Our Courts in interpreting the
Constitution have, arguably, prov-
ed more adept than the Oireachtas
in taking the temperature of the na-
tion as far as social attitudes are
concerned. Indeed, the attempts
that have been made by various
Governments to change the Con-
stitution on significant political or
social issues have not been
remarkably successful. The pro-
posed changes in relation to pro-
portional representation (twice)
and divorce were lost. However
much politicians who wou ld
describe themselves as "liberal"
may wish to change those provi-
sions of the 1937 Constitution
which they would regard as illiberal
— such as the restriction on
divorce — it is clear that the people
are not ready to endorse such
changes. To assert that there has
been an utter transformation in
Irish Society since 1937 is to fly in
the face of the evidence offered by
the recent Divorce and Right to Life
Referendums that, at least so far as
constitutional change is concern-
ed, the transformation is far from
complete.
It was argued that the Constitu-
tion over-emphasizes the right to
private property and that this poses
a substantial obstacle to the
renewal of centres of our towns
and cities or, indeed, the acquisi-
tion of property for any public pur-
pose. There have been suggestions
that vast sums of compensation
have been paid to landowners
because of some constitutional.
requirements. Those arguing along
these lines do not seem to have
paid much attention to recent
Supreme Court decisions, the
effect of which seems to be that a
law providing for expropriation of
an individual's property would only
be unconstitutional if it represented
an unust attack on individual
property rights. It can hardly be
contemplated that a constitution
would only permit expropriation of
property where fair compensation
is being paid. The Fifth Amend-
ment to the U.S. Constitution
provides a useful precedent, "nor
shall private property be taken for
public use without just compen-
sation".
In truth, the incompetence of ad-
ministrators (in one significant
case, the inability to repeat legis-
lative provisions verbatim) have
opened the doors to claims for
what appear to be excessive
amounts of compensation, rather
t han any cons t i t u t i onal pro-
tections.
Another criticism which has
been made seems to bring with it
its own internal contradiction. If, as
one distinguished academic has
said, the Cons t i t u t i on " h a s
become a prison which we have
reinforced by divisive referendums
on morality" there can be little im-
mediate prospect that we can " put
behind us the confessional nature
of the Constitution", as he sug-
gests. The Constitution has to be
adopted by the people.
Since 1791 when the "Bill of
Rights" was passed, the United
States has seen only 16 amend-
ments (one being a repeal of an
earlier one). It certainly is not the
case that the U.S. Constitution is
a simple document capable of ins-
tant and literal interpretation. What
it does, and here it sets a headline
for all succeeding constitutions, is
to set out certain fundamental prin-
ciples. These must be sufficiently
(contd. on p. 214)
207