Constitution of Ireland
Encyclopedia
The Constitution of Ireland is the fundamental law
of the Irish state
. The constitution falls broadly within the liberal democratic
tradition. It establishes an independent state based on a system of representative democracy
and guarantees certain fundamental rights, along with a popularly elected non-executive president, a bicameral parliament based on the Westminster system
, a separation of powers and judicial review.
It is the second constitution of the state since independence, replacing the 1922 Constitution of the Irish Free State
. It came into force on 29 December 1937 after having been passed by a national plebiscite on 1 July 1937. The constitution may only be amended by referendum
.
The Constitution of Ireland replaced the Constitution of the Irish Free State
which had been in effect since the independence of the Irish state from the United Kingdom
on 6 December 1922. There were two main motivations for replacing the constitution in 1937. Firstly, the Statute of Westminster 1931
granted parliamentary autonomy to the six UK Dominions within a Commonwealth of Nations. The Irish Free State constitution of 1922 was, in the eyes of many, associated with the still controversial Anglo-Irish Treaty
. The largest political group in the anti-treaty faction, who opposed the treaty initially by force of arms, had boycotted the institutions of the new Irish Free State
until 1926. In 1932 they were elected into power as the Fianna Fáil
party. Since 1932, under the provisions of the Statute, some of the articles of the Constitution of the Irish Free State required by the Anglo-Irish Treaty, had been dismantled by acts of the Dáil. Such amendments had removed references to the Oath of Allegiance
, appeals to the United Kingdom's Judicial Committee of the Privy Council
, the British Crown and the Governor General
. The sudden abdication of Edward VIII
in December 1936 was quickly used to redefine the royal connection. Nevertheless, the Fianna Fáil government, led by Éamon de Valera
, still desired to replace the constitutional document they saw as having been imposed by the UK government in 1922.
The second motive for replacing the original constitution was primarily symbolic. De Valera wanted to put an Irish stamp on the institutions of government, and chose to do this in particular through the use of Irish Gaelic nomenclature.
(now called the Department of Foreign Affairs). It was translated into Irish over a number of drafts by a group headed by Micheál Ó Gríobhtha (assisted by Risteárd Ó Foghludha), who worked in the Irish Department of Education. De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney General or someone from the Department of the President of the Executive Council. He also received significant input from John Charles McQuaid
, the Archbishop of Dublin, on religious, educational, family and social welfare issues.
There are a number of instances where the texts in English and Irish clash, a potential dilemma which the Constitution resolves by favouring the Irish text.
The draft constitution was presented personally to the Vatican for review and comment on two occasions by the Department Head at External Relations, Joseph P. Walsh, prior to its tabling in Dáil Éireann and presentation to the Irish electorate in a plebiscite. In an obfuscatory Vatican comment on the final amended draft by Secretary of State Eugenio Cardinal Pacelli, the future Holy Father Pius XII responded "We do not approve, neither do we disapprove; We shall maintain silence." The quid pro quo for this indulgence of the Catholic Church's interests in Ireland was the degree of respectability which it conferred on De Valera's formerly denounced republican faction and it's reputation as the 'semi-constitutional' political wing of the 'irregular' anti-treaty terrorist minority.
(then the sole house of parliament, the Senate having been abolished the previous year).
The draft constitution was then put to a plebiscite on 1 July 1937 (the same day as the 1937 general election
), when it was passed by a plurality. 56% of voters were in favour, comprising 38.6% of the whole electorate. The constitution formally came into force on 29 December 1937.
Among the groups who opposed the constitution were supporters of Fine Gael
and the Labour Party
, the major opposition parties, Unionist
s, and some independents and feminists. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".
The Irish Government received a message of goodwill from 268 United States congressmen including eight senators. The signatories expressed "their ardent congratulations on the birth of the State of Ireland and the consequent coming into effect of the new constitution", adding that "We regard the adoption of the new constitution and the emergence of the State of Ireland as events of the utmost importance."
The constitution also includes a number of "Transitory Provisions" (Arts. 51-63) which have, in accordance with their terms, been omitted from all official texts since 1941. These provisions are still in force but are now mostly spent.
The Irish text of the Constitution takes precedence over the English text (Articles 25.4.6° and 63). However, the second amendment included changes to the Irish text to align it more closely with the English text, rather than vice versa.
The Constitution provides for a number of Irish language terms that are to be used even in English. The old Irish terms Taoiseach
and Tánaiste
, for the head and deputy head of government, made their first appearance in the 1937 Constitution, whilst the terms Oireachtas
, Dáil Éireann
and Seanad Éireann
had previously featured in the Free State constitution
.
. It provides for a directly elected, largely ceremonial President of Ireland
(Article 12), a head of government called the Taoiseach
(Article 28), and a national parliament called the Oireachtas
(Article 15). The Oireachtas has a dominant directly elected lower house known as Dáil Éireann
(Article 16) and an upper house Seanad Éireann
(Article 18), which is partly appointed, partly indirectly elected and partly elected by a limited electorate. There is also an independent judiciary
headed by the Supreme Court (Article 34).
or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty (Article 15.5.2°), introduced by an amendment made in 2001, is an absolute exception to these powers.
There have been two national emergencies since 1937: an emergency declared in 1940 to cover the threat to national security posed as a consequence of World War II
(although the state remained formally neutral throughout that conflict), and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.
, and lack of religious belief.
The "Directive Principles of Social Policy" feature little in contemporary parliamentary debates. However, no proposals have yet been made for their repeal or amendment.
The principles require, in summary, that:
Under their own terms the transitory provisions are today omitted from all official texts of the constitution. The provisions required that Article 51 be omitted from 1941 onwards and the remainder from 1938. However, paradoxically, under their own provisions Articles 52 to 63 continue to have the full force of law and so may be considered to remain an integral part of the constitution, even though invisible. This created the anomalous situation that, in 1941, it was deemed necessary, by means of the Second Amendment
, to make changes to Article 56 despite the fact that it was no longer a part of the official text.
The precise requirements of the transitory provisions were that Articles 52 to 63 would be omitted from all texts published after the day on which the first president assumed office (this was Douglas Hyde
who was inaugurated in 1938) and that Article 51 would be omitted from the third anniversary of this inauguration (1941). Unlike the other articles, Article 51 expressly provides that it would cease to have legal effect once it was removed from the document.
The procedure for amendment of the Constitution is set out in Article 46. An amendment must first be passed by both Houses of the Oireachtas, then be submitted to a referendum, and then finally must be signed into law by the President.
Twenty-four amendments have been enacted since the Constitution first came into operation. Controversial amendments have dealt with such topics as abortion
, divorce
, and the European Union
.
the quite broad meaning of certain articles has come to be explored and expanded upon since 1937. The Supreme Court ruled, before their alteration in 1999, that Articles 2 and 3 did not impose a positive obligation upon the state that could be enforced in a court of law. The reference in Article 41 to the family's "imprescriptable rights, antecedent and superior to all positive law" has been interpreted by the Supreme Court as conferring upon spouses a broad right to privacy in marital affairs. In the 1974 case of McGee v. The Attorney General the court invoked this right to strike down laws banning the sale of contraceptives. The court has also issued a controversial interpretation of Article 40.3, which prohibits abortion. In the 1992 case of the Attorney General v. X
(more commonly known simply as the "X case") the Supreme Court ruled that the state must permit someone to have an abortion where there is a danger to her life from suicide.
, its islands and the territorial seas" formed a single "national territory", while Article 3 asserted that the Oireachtas had a right "to exercise jurisdiction over the whole of that territory". These articles offended Unionists in Northern Ireland
, who considered them tantamount to an illegal extraterritorial claim.
Under the terms of the 1998 Belfast Agreement
, Articles 2 and 3 were amended to remove any reference to a "national territory", and to state that a united Ireland should only come about with the consent of majorities in both the jurisdictions on the island of Ireland. The amended Articles also guarantee the people of Northern Ireland the right to be a "part of the Irish Nation", and to Irish citizenship.
Article 44.1 as originally enacted explicitly "recognised" a number of Christian denominations, such as the [Protestant] Church of Ireland
, the Presbyterian Church in Ireland
, as well as "the Jewish Congregations"; most controversially of all, it also recognised the "special position" of the Roman Catholic Church. These provisions were removed by the Fifth Amendment in 1973 (see below). Nevertheless the constitution still contains a number of explicit religious references, such as in the preamble, the declaration made by the President, and the remaining text of Article 44.1, which reads:
The Constitution has also, since 1983, contained a controversial prohibition of abortion. However, this does not apply in cases where there is a threat to the life of the mother (including from risk of suicide) and may not be used to limit the distribution of information about abortion services in other countries or the right of freedom of travel to procure an abortion.
A number of ideas still found in the Constitution reflect the Catholic social teachings current in the 1930s, when the original text was drafted. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy, as well as the system of vocational panels used to elect the Senate. The Constitution also grants very broadly worded rights to the institution of the family.
As originally enacted, the Constitution also included a prohibition on divorce. The ban on divorce was not removed until 1996.
Few contemporary commentators argue that the original text of the Constitution would be fully appropriate today. Those that have argued that:
The remaining religious provisions of the Constitution, including the wording of the Preamble, remain controversial and widely debated.
Article 41.2.1° could, however, be viewed in the context of the 1930s, and some point out that it is not coercive and that there is no constitutional obligation for women to stay in the home. Indeed, some have argued that the provision highlights the value of the unremunerated role that women in the home contribute to society.
Debate largely focuses on the question of whether, before 1949, the head of state was the President of Ireland
, or King George VI
. The Constitution did not directly refer to the King, but also did not (and still does not) state that the President was head of state. The President exercised most of the usual internal functions of a head of state, such as formally appointing the Government, and promulgating laws.
In 1936, before the enactment of the existing Constitution, George VI had been declared "By the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India" and, under the External Relations Act of the same year, it was this King who formally represented the state in its foreign affairs. Treaties, for example, were signed in the name of the King, who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Head of State in the eyes of foreign nations.
However, the removal of the King's constitutional position within Ireland was brought about in 1948 not by any change to the Constitution, but by ordinary law (the Republic of Ireland Act 1948). Since the Irish state was unambiguously a republic after 1949 (when the 1948 Act came into operation), and the same Constitution was in force prior to that time, some have argued that the Irish state was in reality a republic from the Constitution's enactment in 1937.
The institution of marriage enjoys a privileged position in the Constitution. A family exclusively based on marriage is envisaged: Article 41.3.1° states that "[t]he State pledges itself to guard with special care the institution of Marriage, on which the Family is founded". The effect is that non-marital unit members are not entitled to any of the encompassed protections, including those under the realms of tax, inheritance, and social welfare, granted by Article 41. For example, in State (Nicolaou) v. An Bord Uchtála [1966] IR 567, where an unmarried father, who had become estranged from the mother of his child some months after living and caring for the same child together, was prevented from invoking the provisions of Article 41 to halt the mother’s wishes of putting the child up for adoption. The then Mr. Justice Walsh of the Supreme Court stated that "the family referred to in [Article 41 was] the family which is founded on the institution of marriage".
1966: The then Taoiseach, Seán Lemass
, encouraged the establishment of an informal Oireachtas
committee, which undertook a general review of the Constitution and issued a report in 1967.
1968: A draft report was produced by a legal committee, chaired by the Attorney General
Colm Condon
. No final report was published.
1972: The Inter-Party Committee on the Implications of Irish Unity addressed constitutional issues in relation to Northern Ireland. Its work was continued by the 1973 All-Party Oireachtas Committee on Irish Relations and later by the 1982 Constitution Review Body, a group of legal experts under the chairmanship of the Attorney General. Neither of the 1972 groups published a report.
1983–1984: The New Ireland Forum
was established in 1983, and its report in 1984 covered some constitutional issues.
1988: The Progressive Democrats
published a review entitled Constitution for a New Republic.
1994–1997: In October 1994, the government established a Forum for Peace and Reconciliation, which considered some constitutional issues relating to Northern Ireland
. The Forum suspended its work in February 1996 but met once more in December 1997.
1995–1996: The Constitution Review Group was an expert group established by the government in 1995, and chaired by Dr T.K. Whitaker. Its 700-page report, published in July 1996, has been described as "the most thorough analysis of the Constitution from the legal, political science, administrative, social and economic perspectives ever made".
1996– : The first All-Party Oireachtas Committee on the Constitution was set up in 1996.
TD Jim O'Keeffe
, published two progress reports in 1997:
TD Brian Lenihan
. It published five progress reports:
The second committee also published two commissioned works:
TD Denis O'Donovan
. It describes its task as being to "complete the programme of constitutional amendments begun by the earlier committees, aimed at renewing the Constitution in all its parts, for implementation over a number of years". It describes the job as "unprecedented", noting that "no other state with the referendum as its sole mechanism for constitutional change has set itself so ambitious an objective".
The committee has divided its work into considering three types of amendment:
The current All-Party Committee has published three reports:
The committee summarises its remaining tasks as being to consider:
1937 Dáil debates:
Other:
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of the Irish state
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
. The constitution falls broadly within the liberal democratic
Liberal democracy
Liberal democracy, also known as constitutional democracy, is a common form of representative democracy. According to the principles of liberal democracy, elections should be free and fair, and the political process should be competitive...
tradition. It establishes an independent state based on a system of representative democracy
Representative democracy
Representative democracy is a form of government founded on the principle of elected individuals representing the people, as opposed to autocracy and direct democracy...
and guarantees certain fundamental rights, along with a popularly elected non-executive president, a bicameral parliament based on the Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
, a separation of powers and judicial review.
It is the second constitution of the state since independence, replacing the 1922 Constitution of the Irish Free State
Constitution of the Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State Act 1922, of which it formed a part...
. It came into force on 29 December 1937 after having been passed by a national plebiscite on 1 July 1937. The constitution may only be amended by referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
.
Background
Constitution of the Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State Act 1922, of which it formed a part...
which had been in effect since the independence of the Irish state from the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
on 6 December 1922. There were two main motivations for replacing the constitution in 1937. Firstly, the Statute of Westminster 1931
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
granted parliamentary autonomy to the six UK Dominions within a Commonwealth of Nations. The Irish Free State constitution of 1922 was, in the eyes of many, associated with the still controversial Anglo-Irish Treaty
Anglo-Irish Treaty
The Anglo-Irish Treaty , officially called the Articles of Agreement for a Treaty Between Great Britain and Ireland, was a treaty between the Government of the United Kingdom of Great Britain and Ireland and representatives of the secessionist Irish Republic that concluded the Irish War of...
. The largest political group in the anti-treaty faction, who opposed the treaty initially by force of arms, had boycotted the institutions of the new Irish Free State
Irish Free State
The Irish Free State was the state established as a Dominion on 6 December 1922 under the Anglo-Irish Treaty, signed by the British government and Irish representatives exactly twelve months beforehand...
until 1926. In 1932 they were elected into power as the Fianna Fáil
Fianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
party. Since 1932, under the provisions of the Statute, some of the articles of the Constitution of the Irish Free State required by the Anglo-Irish Treaty, had been dismantled by acts of the Dáil. Such amendments had removed references to the Oath of Allegiance
Oath of Allegiance (Ireland)
The Irish Oath of Allegiance was a controversial provision in the Anglo-Irish Treaty of 1921, which Irish TDs and Senators were required to take, in order to take their seats in Dáil Éireann and Seanad Éireann .-Text of the Oath:The Oath was included in Article 17 of the Irish Free State's 1922...
, appeals to the United Kingdom's Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, the British Crown and the Governor General
Governor-General of the Irish Free State
The Governor-General was the representative of the King in the 1922–1937 Irish Free State. Until 1927 he was also the agent of the British government in the Irish state. By convention the office of Governor-General was largely ceremonial...
. The sudden abdication of Edward VIII
Edward VIII of the United Kingdom
Edward VIII was King of the United Kingdom and the Dominions of the British Commonwealth, and Emperor of India, from 20 January to 11 December 1936.Before his accession to the throne, Edward was Prince of Wales and Duke of Cornwall and Rothesay...
in December 1936 was quickly used to redefine the royal connection. Nevertheless, the Fianna Fáil government, led by Éamon de Valera
Éamon de Valera
Éamon de Valera was one of the dominant political figures in twentieth century Ireland, serving as head of government of the Irish Free State and head of government and head of state of Ireland...
, still desired to replace the constitutional document they saw as having been imposed by the UK government in 1922.
The second motive for replacing the original constitution was primarily symbolic. De Valera wanted to put an Irish stamp on the institutions of government, and chose to do this in particular through the use of Irish Gaelic nomenclature.
Drafting process
De Valera personally supervised the writing of the Constitution. It was drafted initially by John Hearne, legal adviser to the Department of External AffairsDepartment of Foreign Affairs (Ireland)
The Department of Foreign Affairs and Trade is a department of the Government of Ireland that is responsible for promoting the interests of Ireland in the European Union and the wider world...
(now called the Department of Foreign Affairs). It was translated into Irish over a number of drafts by a group headed by Micheál Ó Gríobhtha (assisted by Risteárd Ó Foghludha), who worked in the Irish Department of Education. De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney General or someone from the Department of the President of the Executive Council. He also received significant input from John Charles McQuaid
John Charles McQuaid
John Charles McQuaid, C.S.Sp. was the Catholic Archbishop of Dublin and Primate of Ireland between December 1940 and February 1972.- Early life 1895-1914:...
, the Archbishop of Dublin, on religious, educational, family and social welfare issues.
There are a number of instances where the texts in English and Irish clash, a potential dilemma which the Constitution resolves by favouring the Irish text.
The draft constitution was presented personally to the Vatican for review and comment on two occasions by the Department Head at External Relations, Joseph P. Walsh, prior to its tabling in Dáil Éireann and presentation to the Irish electorate in a plebiscite. In an obfuscatory Vatican comment on the final amended draft by Secretary of State Eugenio Cardinal Pacelli, the future Holy Father Pius XII responded "We do not approve, neither do we disapprove; We shall maintain silence." The quid pro quo for this indulgence of the Catholic Church's interests in Ireland was the degree of respectability which it conferred on De Valera's formerly denounced republican faction and it's reputation as the 'semi-constitutional' political wing of the 'irregular' anti-treaty terrorist minority.
Enactment
The text of the draft constitution, with minor amendments, was approved on 14 June by Dáil ÉireannDáil Éireann (Irish Free State)
Dáil Éireann served as the directly elected lower house of the Oireachtas of the Irish Free State from 1922 to 1937. The Free State constitution described the role of the house as that of a "Chamber of Deputies". Until 1936 the Free State Oireachtas also included an upper house known as the Seanad...
(then the sole house of parliament, the Senate having been abolished the previous year).
The draft constitution was then put to a plebiscite on 1 July 1937 (the same day as the 1937 general election
Irish general election, 1937
The Irish general election of 1937 was held on 1 July 1937, just over two weeks after the dissolution of the Dáil on 14 June. A plebiscite to ratify the Constitution of Ireland was held on the same day...
), when it was passed by a plurality. 56% of voters were in favour, comprising 38.6% of the whole electorate. The constitution formally came into force on 29 December 1937.
Among the groups who opposed the constitution were supporters of Fine Gael
Fine Gael
Fine Gael is a centre-right to centrist political party in the Republic of Ireland. It is the single largest party in Ireland in the Oireachtas, in local government, and in terms of Members of the European Parliament. The party has a membership of over 35,000...
and the Labour Party
Labour Party (Ireland)
The Labour Party is a social-democratic political party in the Republic of Ireland. The Labour Party was founded in 1912 in Clonmel, County Tipperary, by James Connolly, James Larkin and William X. O'Brien as the political wing of the Irish Trade Union Congress. Unlike the other main Irish...
, the major opposition parties, Unionist
Unionism in Ireland
Unionism in Ireland is an ideology that favours the continuation of some form of political union between the islands of Ireland and Great Britain...
s, and some independents and feminists. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".
Legal continuity
At the time the constitution was adopted there was uncertainty over whether its enactment amounted to a 'legal' amendment of the Free State constitution or a violation of its terms. If the enactment of the constitution were considered to be illegal in this way it could be considered an act of peaceful revolution. De Valera's government insisted that, owing to the principle of popular sovereignty, provided it was approved by the people in a plebiscite it was not necessary for the new constitution be adopted legally under the terms of the old. Nonetheless, in order to avoid a challenge to the new constitution in the courts, senior judges were required to make a formal declaration that they would uphold the new constitution in order to be permitted to remain in office once it had come into force.International response
When the new constitution was enacted, the British government, according to the New York Times "contented itself with a legalistic protest". Its protest took the form of a communiqué on 30 December 1937 in which the British stated:The Irish Government received a message of goodwill from 268 United States congressmen including eight senators. The signatories expressed "their ardent congratulations on the birth of the State of Ireland and the consequent coming into effect of the new constitution", adding that "We regard the adoption of the new constitution and the emergence of the State of Ireland as events of the utmost importance."
Main provisions
The official text of the constitution consists of a Preamble and fifty Articles arranged under sixteen headings. Its overall length is approximately 16,000 words. The headings are:- The Nation (Arts. 1–3)
- The State (Arts. 4–11)
- The PresidentPresident of IrelandThe President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
(Arts. 12–14) - The National ParliamentOireachtasThe Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
(Arts. 15–27) - The Government (Art. 28)
- Local Government (Art. 28A)
- International Relations (Art. 29)
- The Attorney GeneralAttorney General of IrelandThe Attorney General is a constitutional officer who is the official adviser to the Government of Ireland in matters of law. He is in effect the chief law officer in Ireland. The Attorney General is not a member of the Government but does participate in cabinet meetings when invited and attends...
(Art. 30) - The Council of State (Arts. 31–32)
- The Comptroller and Auditor GeneralComptroller and Auditor GeneralComptroller and auditor-general is the abbreviated title of a government official in a number of jurisdictions, including the UK, the Republic of Ireland, India, and China....
(Art. 33) - The CourtsCourts of the Republic of IrelandThe Courts of the Republic of Ireland consist of the Supreme Court, the Court of Criminal Appeal, the High Court, the Circuit Court and the District Court. The courts apply the laws of Ireland. Ireland is a common law jurisdiction and trials for serious offences must usually be held before a jury...
(Arts. 34–37) - Trial of Offences (Arts. 38–39)
- Fundamental Rights (Arts. 40–44)
- Directive Principles of Social Policy (Art. 45)
- Amendment of the ConstitutionAmendments to the Constitution of IrelandAn amendment may be made to any part of the Constitution of Ireland but only by referendum. An amendment must first be approved by both Houses of the Oireachtas , then submitted to a referendum, and finally signed into law by the President....
(Art. 46) - The Referendum (Art. 47)
- Repeal of Constitution of Saorstát Éireann and Continuance of Laws (Arts. 48–50)
The constitution also includes a number of "Transitory Provisions" (Arts. 51-63) which have, in accordance with their terms, been omitted from all official texts since 1941. These provisions are still in force but are now mostly spent.
Preamble (full text)
- In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
- We, the people of Éire,
- Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,
- Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
- And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
- Do hereby adopt, enact, and give to ourselves this Constitution.
Characteristics of the nation and state
- National sovereignty: The constitution asserts the "inalienable, indefeasible, and sovereign right" of the Irish people to self-determinationSelf-determinationSelf-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
(Article 1). The state is declared to be "sovereign, independent, [and] democratic" (Article 5). - Popular sovereignty: It is stated that all powers of government "derive, under God, from the people" (Article 6.1). However, it is also stated that those powers "are exercisable only by or on the authority of the organs of State" established by the Constitution (Article 6.2).
- Name of the stateNames of the Irish stateThere have been various names of the Irish state, some of which have been controversial. The constitutional name of the contemporary state is Ireland, the same as the island of Ireland, of which it comprises the major portion...
: The Constitution declares that "[the] name of the State is ÉireÉireis the Irish name for the island of Ireland and the sovereign state of the same name.- Etymology :The modern Irish Éire evolved from the Old Irish word Ériu, which was the name of a Gaelic goddess. Ériu is generally believed to have been the matron goddess of Ireland, a goddess of sovereignty, or...
, or, in the English language, Ireland" (Article 4). Under the Republic of Ireland Act 1948 the term "Republic of Ireland" is the official "description" of the state; as ordinary legislation, however, this has left unaltered "Ireland" as the formal name of the state as defined by the Constitution. - United Ireland: Article 2Articles 2 and 3 of the Constitution of IrelandArticle 2 and Article 3 of the Constitution of Ireland were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment which took effect on 2 December 1999...
, as substituted after the Good Friday Agreement, asserts that "every person born in the island of IrelandIrelandIreland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
" has the right "to be part of the Irish Nation"; however, Article 9.2 now limits this to persons having at least one parent as an Irish citizen. Article 3Articles 2 and 3 of the Constitution of IrelandArticle 2 and Article 3 of the Constitution of Ireland were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment which took effect on 2 December 1999...
declares that it is the "firm will of the Irish Nation" to bring about a united Ireland, provided that this occurs "only by peaceful means", and only with the express consent of the majority of the people in Northern IrelandNorthern IrelandNorthern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. - National flag: The national flagFlag of IrelandThe national flag of Ireland is a vertical tricolour of green , white, and orange. It is also known as the Irish tricolour. The flag proportion is 1:2...
is defined as "the tricolour of green, white and orange" (Article 7). - Capital city: The Houses of the OireachtasOireachtasThe Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
(parliament) must usually meet in or near Dublin (Article 15.1.3°) ("or in such other place as they may from time to time determine"), and the President's official residence must be in or near the city (Article 12.11.1°).
Languages
Article 8 of the Constitution states the following:The Irish text of the Constitution takes precedence over the English text (Articles 25.4.6° and 63). However, the second amendment included changes to the Irish text to align it more closely with the English text, rather than vice versa.
The Constitution provides for a number of Irish language terms that are to be used even in English. The old Irish terms Taoiseach
Taoiseach
The Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
and Tánaiste
Tánaiste
The Tánaiste is the deputy prime minister of Ireland. The current Tánaiste is Eamon Gilmore, TD who was appointed on 9 March 2011.- Origins and etymology :...
, for the head and deputy head of government, made their first appearance in the 1937 Constitution, whilst the terms Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
, Dáil Éireann
Dáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
and Seanad Éireann
Seanad Éireann
Seanad Éireann is the upper house of the Oireachtas , which also comprises the President of Ireland and Dáil Éireann . It is commonly called the Seanad or Senate and its members Senators or Seanadóirí . Unlike Dáil Éireann, it is not directly elected but consists of a mixture of members chosen by...
had previously featured in the Free State constitution
Constitution of the Irish Free State
The Constitution of the Irish Free State was the first constitution of the independent Irish state. It was enacted with the adoption of the Constitution of the Irish Free State Act 1922, of which it formed a part...
.
Organs of government
The Constitution establishes a government under a parliamentary systemParliamentary system
A parliamentary system is a system of government in which the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined....
. It provides for a directly elected, largely ceremonial President of Ireland
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
(Article 12), a head of government called the Taoiseach
Taoiseach
The Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
(Article 28), and a national parliament called the Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
(Article 15). The Oireachtas has a dominant directly elected lower house known as Dáil Éireann
Dáil Éireann
Dáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
(Article 16) and an upper house Seanad Éireann
Seanad Éireann
Seanad Éireann is the upper house of the Oireachtas , which also comprises the President of Ireland and Dáil Éireann . It is commonly called the Seanad or Senate and its members Senators or Seanadóirí . Unlike Dáil Éireann, it is not directly elected but consists of a mixture of members chosen by...
(Article 18), which is partly appointed, partly indirectly elected and partly elected by a limited electorate. There is also an independent judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
headed by the Supreme Court (Article 34).
National emergency
Under Article 28.3.3° the Constitution grants the state sweeping powers "in time of war or armed rebellion", which may (if so resolved by both Houses of the Oireachtas) include an armed conflict in which the state is not a direct participant. During a national emergency the Oireachtas may pass laws that would otherwise be unconstitutional, and the actions of the executive cannot be found to be ultra viresUltra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty (Article 15.5.2°), introduced by an amendment made in 2001, is an absolute exception to these powers.
There have been two national emergencies since 1937: an emergency declared in 1940 to cover the threat to national security posed as a consequence of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
(although the state remained formally neutral throughout that conflict), and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.
International relations
- European Union: Under Article 29.4.6° EU lawEuropean Union lawEuropean Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law...
takes precedence over the Constitution if there is a conflict between the two, but only to the extent that such EU law is "necessitated" by Ireland's membership. The Supreme Court has ruled that any EUEuropean UnionThe European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
Treaty that substantially alters the character of the Union must be approved by a constitutional amendment. For this reason separate provisions of Article 29 have permitted the state to ratify the Single European ActSingle European ActThe Single European Act was the first major revision of the 1957 Treaty of Rome. The Act set the European Community an objective of establishing a Single Market by 31 December 1992, and codified European Political Cooperation, the forerunner of the European Union's Common Foreign and Security Policy...
, Maastricht TreatyMaastricht TreatyThe Maastricht Treaty was signed on 7 February 1992 by the members of the European Community in Maastricht, Netherlands. On 9–10 December 1991, the same city hosted the European Council which drafted the treaty...
, Amsterdam TreatyAmsterdam TreatyThe Amsterdam Treaty, officially the Treaty of Amsterdam amending the Treaty of the European Union, the Treaties establishing the European Communities and certain related acts, was signed on 2 October 1997, and entered into force on 1 May 1999; it made substantial changes to the Maastricht Treaty,...
, Nice Treaty and Treaty of LisbonTreaty of LisbonThe Treaty of Lisbon of 1668 was a peace treaty between Portugal and Spain, concluded at Lisbon on 13 February 1668, through the mediation of England, in which Spain recognized the sovereignty of Portugal's new ruling dynasty, the House of Braganza....
. - International law: Under Article 29.6 international treaties to which the state is a party are not to be considered part of Ireland's domestic law unless the Oireachtas has so provided. Under Article 29.3 it is declared that the state "accepts the generally recognised principles of international law as its rule of conduct in its relations with other States", but the High Court has ruled that this provision is merely aspirational, and not enforceable.
As enumerated under the heading "Fundamental Rights"
- Equality before the law: Equality of all citizens before the law is guaranteed by Article 40.1.
- Prohibition on titles of nobility: The state may not confer titles of nobility, and no citizen may accept such a title without the permission of the Government (Article 40.2). In practice, governmental approval is usually a formality.
- Personal rights: The state is bound to protect "the personal rights of the citizen", and in particular to defend "the life, person, good name, and property rights of every citizen" (Article 40.3).
- Unenumerated rights: The language used in Article 40.3.1° has been interpreted by the courts as implying the existence of unenumerated rights afforded to Irish citizens under natural law. Such rights upheld by the courts have included the right to marital privacy and the right of the unmarried mother to custody of her child.
- Prohibition of abortion: Abortion is prohibited by Article 40.3.3°, except in cases in which there is a threat to the life of the mother. However, this prohibition may be lawfully circumvented as it is expressly stated not to interfere with the right to travel abroad; there also exists a qualified right to obtain and distribute information of "services lawfully available in another state" (such as abortion).
- Habeas corpus: The citizen's right to personal liberty is guaranteed by Article 40.4, which section also sets out in detail the procedure for obtaining habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
. However, these rights are specifically excepted from applying to the actions of the Defence ForcesIrish Defence ForcesThe armed forces of Ireland, known as the Defence Forces encompass the Army, Naval Service, Air Corps and Reserve Defence Force.The current Supreme Commander of the Irish Defence forces is His Excellency Michael D Higgins in his role as President of Ireland...
during a "state of war or armed rebellion" (Article 40.4.5°). Since the Sixteenth AmendmentSixteenth Amendment of the Constitution of IrelandThe Sixteenth Amendment of the Constitution of Ireland provided that a court could refuse bail to a suspect where it feared that while at liberty they would commit a serious criminal offence...
it has also been constitutional for a court to deny bail to someone charged with a crime where "it is reasonably considered necessary", in order to prevent that person from committing a "serious offence" (Article 40.4.6°). - Inviolability of the home: A citizen's home may not be forcibly entered, except as permitted by law (Article 40.5).
- Freedom of speech: Subject to "public order and morality", a qualified right of freedom of speech is guaranteed by Article 40.6.1°. However, "the State shall endeavour to ensure that organs of public opinion" (such as the news media) "shall not be used to undermine public order or morality or the authority of the State". Furthermore, "the publication or utterance of blasphemous, seditious, or indecent matter" is specifically stated to be a criminal offence. In Corway v. Independent Newspapers (1999), the Supreme Court dismissed an attempt to bring a prosecution for blasphemy on the basis that, amongst other things, no coherent definition of the offence was provided by law. Such a definition is now provided by the Defamation Act 2009 which defines it as the publication of matter "grossly abusive or insulting in relation to matters held sacred by any religion, thereby [intentionally] causing outrage among a substantial number of the adherents of that religion".
- Freedom of peaceful assembly: Subject to "public order and morality", the right of citizens to peaceful assembly "without arms" is guaranteed by Article 40.6.1°. However, the Oireachtas is empowered to limit this right by law when a meeting may be "calculated to cause a breach of the peace or to be a danger or nuisance to the general public"; the Oireachtas is similarly empowered to limit this right in relation to meetings held "in the vicinity" of either House.
- Freedom of association: Subject to "public order and morality", the right of citizens "to form associations and unions" is also guaranteed by Article 40.6.1°; however, the exercise of this right may be regulated by law "in the public interest".
- Family and home life: Under Article 41.1 the state promises to "protect the Family", and recognises the family as having "inalienable and imprescriptible rights, antecedent and superior to all positive law". Under Article 41.2 the state is required to ensure that "economic necessity" does not oblige a mother "to engage in labour to the neglect of [her] duties in the home". Article 41.3 sets out conditions that must be fulfilled before a court may grant a divorce, including that adequate financial provision has been made for both spouses and any of their children.
- Education: Article 42 guarantees parents the right to determine where their children shall be educated (including at home), provided a minimum standard is met. Under the same article the state must provide for free primary level education. Currently Irish law also guarantees free secondSecondary schoolSecondary school is a term used to describe an educational institution where the final stage of schooling, known as secondary education and usually compulsory up to a specified age, takes place...
and third levelTertiary educationTertiary education, also referred to as third stage, third level, and post-secondary education, is the educational level following the completion of a school providing a secondary education, such as a high school, secondary school, university-preparatory school...
education. - Private property: The right to own and transfer private property is guaranteed by Article 43, subject to "the principles of social justice", and in accordance with laws passed reconciling the right "with the exigencies of the common good" (Article 43).
- Religious freedom: A citizen's freedom of religious conscience, practice, and worship is guaranteed, "subject to public order and morality", by Article 44.2.1°. The state may not "endow" any religion (Article 44.2.2°), nor discriminate on religious grounds (Article 44.2.3°).
As enumerated under other headings
- Prohibition of the death penalty: Since the enactment of the twenty-first amendmentTwenty-first Amendment of the Constitution of IrelandThe Twenty-first Amendment of the Constitution of Ireland introduced a constitutional ban on the death penalty and removed all references to capital punishment from the text...
, signed into law in 2002, the Oireachtas is prohibited from enacting any law that imposes the death penalty (Article 15.5.2°); this restriction even applies during a time of war or armed rebellion (Article 28.3.3°). - Prohibition of ex post facto laws: The Oireachtas may not enact ex post factoEx post facto lawAn ex post facto law or retroactive law is a law that retroactively changes the legal consequences of actions committed or relationships that existed prior to the enactment of the law...
criminal laws (Article 15.5.1°). - Due process and trial by jury: Trial for any alleged criminal offence may only be "in due course of law" (Article 38.1). All trials for a serious offence of a person not subject to military law must be before a jury (Article 38.5), except where "special courts" have been established by law because "the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order", and except where military tribunals have been established by law "to deal with a state of war or armed rebellion".
- Sexual discrimination: The sex of an individual cannot be a reason to deny them the right to citizenship (Article 9.1.3°), nor to deny them a vote for (or membership of) Dáil Éireann (Article 16.1).
Statutory rights
Irish law currently also forbids discrimination in employment and services (from both the public and private sectors) on grounds of sex (including transsexuals), marital status, family status, sexual orientation, age, disability, race (including nationality), membership of the Traveller communityIrish Traveller
Irish Travellers are a traditionally nomadic people of ethnic Irish origin, who maintain a separate language and set of traditions. They live predominantly in the Republic of Ireland, the United Kingdom and the United States.-Etymology:...
, and lack of religious belief.
Directive Principles of Social Policy
Article 45 outlines a number of broad principles of social and economic policy. Its provisions are, however, intended solely "for the general guidance of the Oireachtas", and "shall not be cognisable by any Court under any of the provisions of this Constitution" (preamble to Article 45).The "Directive Principles of Social Policy" feature little in contemporary parliamentary debates. However, no proposals have yet been made for their repeal or amendment.
The principles require, in summary, that:
- "justice and charity" must "inform all the institutions of the national life".
- Everyone has the right to an adequate occupation.
- The free market and private property must be regulated in the interests of the common good.
- The state must prevent a destructive concentration of essential commodities in the hands of a few.
- The state must supplement private industry where necessary.
- The state should ensure efficiency in private industry and protect the public against economic exploitation.
- The state must protect the vulnerable, such as orphans and the aged.
- No one may be forced into an occupation unsuited to their age, sex or strength.
Transitory provisions
The transitory provisions of the constitution consist of thirteen articles that provide for a smooth transition from the state's pre-existing institutions to the newly established state. Article 51 provides for the transitional amendment of the constitution by ordinary legislation. The remaining twelve deal with such matters as the transition and reconstitution of the executive and legislature, the continuance of the civil service, the entry into office of the first president, the temporary continuance of the courts, and with the continuance of the attorney general, the comptroller and auditor general, the Defence Forces and the police.Under their own terms the transitory provisions are today omitted from all official texts of the constitution. The provisions required that Article 51 be omitted from 1941 onwards and the remainder from 1938. However, paradoxically, under their own provisions Articles 52 to 63 continue to have the full force of law and so may be considered to remain an integral part of the constitution, even though invisible. This created the anomalous situation that, in 1941, it was deemed necessary, by means of the Second Amendment
Second Amendment of the Constitution of Ireland
The Second Amendment of the Constitution of Ireland was an omnibus amendment to a variety of articles aimed at implementing a list of many different changes...
, to make changes to Article 56 despite the fact that it was no longer a part of the official text.
The precise requirements of the transitory provisions were that Articles 52 to 63 would be omitted from all texts published after the day on which the first president assumed office (this was Douglas Hyde
Douglas Hyde
Douglas Hyde , known as An Craoibhín Aoibhinn , was an Irish scholar of the Irish language who served as the first President of Ireland from 1938 to 1945...
who was inaugurated in 1938) and that Article 51 would be omitted from the third anniversary of this inauguration (1941). Unlike the other articles, Article 51 expressly provides that it would cease to have legal effect once it was removed from the document.
Amendments
Any part of the Constitution may be amended, but only by referendum.The procedure for amendment of the Constitution is set out in Article 46. An amendment must first be passed by both Houses of the Oireachtas, then be submitted to a referendum, and then finally must be signed into law by the President.
Twenty-four amendments have been enacted since the Constitution first came into operation. Controversial amendments have dealt with such topics as abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
, divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
, and the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
.
Judicial review of laws
The Constitution states that it is the highest law of the land and grants the Supreme Court authority to interpret its provisions, and to strike down the laws of the Oireachtas and activities of the Government it finds to be unconstitutional. Under judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
the quite broad meaning of certain articles has come to be explored and expanded upon since 1937. The Supreme Court ruled, before their alteration in 1999, that Articles 2 and 3 did not impose a positive obligation upon the state that could be enforced in a court of law. The reference in Article 41 to the family's "imprescriptable rights, antecedent and superior to all positive law" has been interpreted by the Supreme Court as conferring upon spouses a broad right to privacy in marital affairs. In the 1974 case of McGee v. The Attorney General the court invoked this right to strike down laws banning the sale of contraceptives. The court has also issued a controversial interpretation of Article 40.3, which prohibits abortion. In the 1992 case of the Attorney General v. X
Attorney General v. X
Attorney General v. X was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide....
(more commonly known simply as the "X case") the Supreme Court ruled that the state must permit someone to have an abortion where there is a danger to her life from suicide.
The "national territory"
As originally enacted in 1937, Article 2 asserted that "the whole island of IrelandIreland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
, its islands and the territorial seas" formed a single "national territory", while Article 3 asserted that the Oireachtas had a right "to exercise jurisdiction over the whole of that territory". These articles offended Unionists in Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, who considered them tantamount to an illegal extraterritorial claim.
Under the terms of the 1998 Belfast Agreement
Belfast Agreement
The Good Friday Agreement or Belfast Agreement , sometimes called the Stormont Agreement, was a major political development in the Northern Ireland peace process...
, Articles 2 and 3 were amended to remove any reference to a "national territory", and to state that a united Ireland should only come about with the consent of majorities in both the jurisdictions on the island of Ireland. The amended Articles also guarantee the people of Northern Ireland the right to be a "part of the Irish Nation", and to Irish citizenship.
Religion
The Constitution guarantees freedom of worship, and forbids the state from creating an established church.Article 44.1 as originally enacted explicitly "recognised" a number of Christian denominations, such as the [Protestant] Church of Ireland
Church of Ireland
The Church of Ireland is an autonomous province of the Anglican Communion. The church operates in all parts of Ireland and is the second largest religious body on the island after the Roman Catholic Church...
, the Presbyterian Church in Ireland
Presbyterian Church in Ireland
The Presbyterian Church in Ireland , is the largest Presbyterian denomination in Ireland, and the largest Protestant denomination in Northern Ireland...
, as well as "the Jewish Congregations"; most controversially of all, it also recognised the "special position" of the Roman Catholic Church. These provisions were removed by the Fifth Amendment in 1973 (see below). Nevertheless the constitution still contains a number of explicit religious references, such as in the preamble, the declaration made by the President, and the remaining text of Article 44.1, which reads:
The Constitution has also, since 1983, contained a controversial prohibition of abortion. However, this does not apply in cases where there is a threat to the life of the mother (including from risk of suicide) and may not be used to limit the distribution of information about abortion services in other countries or the right of freedom of travel to procure an abortion.
A number of ideas still found in the Constitution reflect the Catholic social teachings current in the 1930s, when the original text was drafted. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy, as well as the system of vocational panels used to elect the Senate. The Constitution also grants very broadly worded rights to the institution of the family.
As originally enacted, the Constitution also included a prohibition on divorce. The ban on divorce was not removed until 1996.
Few contemporary commentators argue that the original text of the Constitution would be fully appropriate today. Those that have argued that:
- incorporating Catholic social teaching into law was common to many predominantly Catholic countries in the 1930s. Divorce, for example was banned in other states such as Italy, which repealed its ban in the 1970s.
- the reference to the Catholic Church's special position was of no legal effect and there was significance in the fact that the "special position" of Catholicism was held to derive merely from its greater number of adherents, a concept that ran contrary to the Church's view of itself before the Second Vatican CouncilSecond Vatican CouncilThe Second Vatican Council addressed relations between the Roman Catholic Church and the modern world. It was the twenty-first Ecumenical Council of the Catholic Church and the second to be held at St. Peter's Basilica in the Vatican. It opened under Pope John XXIII on 11 October 1962 and closed...
. Notably, Éamon De Valera resisted pressure from right-wing Catholic groups such as Maria DuceMaria DuceMaria Duce was a small ultra-conservative Catholic group in Ireland, founded in 1945 by Fr Denis Fahey, a priest associated with antisemitic opinions....
to make Catholicism an established church or to declare it the "one true religion". - the prohibition on divorce was supported by senior members of the (Protestant) Church of IrelandChurch of IrelandThe Church of Ireland is an autonomous province of the Anglican Communion. The church operates in all parts of Ireland and is the second largest religious body on the island after the Roman Catholic Church...
. - the Constitution's explicit recognition of the Jewish community was progressive in the climate of the 1930s.
The remaining religious provisions of the Constitution, including the wording of the Preamble, remain controversial and widely debated.
Status of women
The Constitution guarantees women the right to vote and to nationality and citizenship on an equal basis with men. However, it also contains a provision that was objected to by women's organisations at the time of its enactment in 1937. Article 41.2 states:Article 41.2.1° could, however, be viewed in the context of the 1930s, and some point out that it is not coercive and that there is no constitutional obligation for women to stay in the home. Indeed, some have argued that the provision highlights the value of the unremunerated role that women in the home contribute to society.
A republic?
In 1949 the Irish state abandoned its few remaining constitutional ties with the British monarchy, and it was declared by an Act of the Oireachtas that the term "Republic of Ireland" could be used as a "description" for the Irish state. However, there is debate as to whether or not the state was a republic in the period 1937–1949; between these dates the state was not described in any law as a republic. The current text of the Constitution does not mention the word "republic", but does for example assert that all power is derived, "under God, from the people" (Article 6.1).Debate largely focuses on the question of whether, before 1949, the head of state was the President of Ireland
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
, or King George VI
George VI of the United Kingdom
George VI was King of the United Kingdom and the Dominions of the British Commonwealth from 11 December 1936 until his death...
. The Constitution did not directly refer to the King, but also did not (and still does not) state that the President was head of state. The President exercised most of the usual internal functions of a head of state, such as formally appointing the Government, and promulgating laws.
In 1936, before the enactment of the existing Constitution, George VI had been declared "By the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India" and, under the External Relations Act of the same year, it was this King who formally represented the state in its foreign affairs. Treaties, for example, were signed in the name of the King, who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Head of State in the eyes of foreign nations.
However, the removal of the King's constitutional position within Ireland was brought about in 1948 not by any change to the Constitution, but by ordinary law (the Republic of Ireland Act 1948). Since the Irish state was unambiguously a republic after 1949 (when the 1948 Act came into operation), and the same Constitution was in force prior to that time, some have argued that the Irish state was in reality a republic from the Constitution's enactment in 1937.
Name of the state
The constitution begins with words "We, the people of Éire". It then declares, in Article 4, that the name of the state is "Éire, or, in the English language, Ireland". The text of the draft constitution as originally introduced into the Dáil had simply stated that the state was to be called Éire, and that term was used throughout the text of the draftconstitution. However, the English text of the draft constitution was amended during the parliamentary debates to replace "Éire" with "Ireland". (The only exceptions were the preamble, in which "Éire" is used alone, and Article 4, which was amended so as to refer to both "Éire" and the alternative English language name of "Ireland".) The name of the state was the subject of a long dispute between the British and Irish governments which has since been resolved.Non-traditional family units
Article 41.1.1° of the Constitution "recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law", and guarantees its protection by the state. However, these rights and protections are not extended to every family unit, such as single parents, unmarried opposite-sex co-habiters, and same-sex couples.The institution of marriage enjoys a privileged position in the Constitution. A family exclusively based on marriage is envisaged: Article 41.3.1° states that "[t]he State pledges itself to guard with special care the institution of Marriage, on which the Family is founded". The effect is that non-marital unit members are not entitled to any of the encompassed protections, including those under the realms of tax, inheritance, and social welfare, granted by Article 41. For example, in State (Nicolaou) v. An Bord Uchtála [1966] IR 567, where an unmarried father, who had become estranged from the mother of his child some months after living and caring for the same child together, was prevented from invoking the provisions of Article 41 to halt the mother’s wishes of putting the child up for adoption. The then Mr. Justice Walsh of the Supreme Court stated that "the family referred to in [Article 41 was] the family which is founded on the institution of marriage".
Discrepancies between the Irish and English texts
A number of discrepancies have been identified between the Irish and English texts of the Constitution. According to Article 25.5.4° the Irish text prevails in such cases.Minimum age requirement for the President
Perhaps the most signficant discrepancy between the two texts of the Constitution is to be found in the subsection stipulating the minimum age for a candidate to be eligible for election as President (Art. 12.4.1°). According to the English text, an eligible candidate "has reached his thirty-fifth year of age", whereas the Irish text has this as "ag a bhfuil cúig bliana tríochad slán" ("has completed his thirty-five years"). Because a person's thirty-fifth year of life begins on his or her thirty-fourth birthday, this means there is a one year's difference between the minimum ages as stated in the two texts. Various proposals have been made to amend the Constitution so as to eliminate this discrepancy.Constitutional reviews
The Constitution has been subjected to a series of formal reviews during the last 40 years or so.1966: The then Taoiseach, Seán Lemass
Seán Lemass
Seán Francis Lemass was one of the most prominent Irish politicians of the 20th century. He served as Taoiseach from 1959 until 1966....
, encouraged the establishment of an informal Oireachtas
Oireachtas
The Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
committee, which undertook a general review of the Constitution and issued a report in 1967.
1968: A draft report was produced by a legal committee, chaired by the Attorney General
Attorney General of Ireland
The Attorney General is a constitutional officer who is the official adviser to the Government of Ireland in matters of law. He is in effect the chief law officer in Ireland. The Attorney General is not a member of the Government but does participate in cabinet meetings when invited and attends...
Colm Condon
Colm Condon
Colm Condon was Attorney General of Ireland from 1965 until 1973. He served in office during the beginning of the Troubles in Northern Ireland in the late 1960s....
. No final report was published.
1972: The Inter-Party Committee on the Implications of Irish Unity addressed constitutional issues in relation to Northern Ireland. Its work was continued by the 1973 All-Party Oireachtas Committee on Irish Relations and later by the 1982 Constitution Review Body, a group of legal experts under the chairmanship of the Attorney General. Neither of the 1972 groups published a report.
1983–1984: The New Ireland Forum
New Ireland Forum
The New Ireland Forum was a forum in 1983–84 at which Irish nationalist political parties discussed potential political developments that might alleviate the Troubles in Northern Ireland. The Forum was established by Garret FitzGerald, then Taoiseach, under the influence of John Hume. The Forum was...
was established in 1983, and its report in 1984 covered some constitutional issues.
1988: The Progressive Democrats
Progressive Democrats
The Progressive Democrats , commonly known as the PDs, was a pro-free market liberal political party in the Republic of Ireland.Launched on 21 December 1985 by Desmond O'Malley and other politicians who had split from Fianna Fáil and Fine Gael, the Progressive Democrats took liberal positions on...
published a review entitled Constitution for a New Republic.
1994–1997: In October 1994, the government established a Forum for Peace and Reconciliation, which considered some constitutional issues relating to Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
. The Forum suspended its work in February 1996 but met once more in December 1997.
1995–1996: The Constitution Review Group was an expert group established by the government in 1995, and chaired by Dr T.K. Whitaker. Its 700-page report, published in July 1996, has been described as "the most thorough analysis of the Constitution from the legal, political science, administrative, social and economic perspectives ever made".
1996– : The first All-Party Oireachtas Committee on the Constitution was set up in 1996.
All-Party Oireachtas Committee
The All-Party Oireachtas Committee on the Constitution was established in 1996.First committee
The first All-Party Committee (1996–97), chaired by Fine GaelFine Gael
Fine Gael is a centre-right to centrist political party in the Republic of Ireland. It is the single largest party in Ireland in the Oireachtas, in local government, and in terms of Members of the European Parliament. The party has a membership of over 35,000...
TD Jim O'Keeffe
Jim O'Keeffe
Jim O'Keeffe is a former Irish Fine Gael politician. He served as a Teachta Dála for Cork South West constituency from 1977 to 2011....
, published two progress reports in 1997:
- 1st Progress Report, 1997
- 2nd Progress Report, 1997
Second committee
The Second All-Party Oireachtas Committee on the Constitution (1997–2002) was chaired by Fianna FáilFianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
TD Brian Lenihan
Brian Lenihan, Jnr
Brian Joseph Lenihan was an Irish Fianna Fáil politician and barrister who served in the government of Ireland as Minister for Justice, Equality and Law Reform from 2007 to 2008 and as Minister for Finance from 2008 to 2011...
. It published five progress reports:
- 3rd Progress Report: The President, 1998
- 4th Progress Report: the courts and judiciary, 1999
- 5th Progress Report: abortion, 2000
- 6th Progress Report: the referendum, 2001
- 7th Progress Report: Parliament, 2002
The second committee also published two commissioned works:
- A new electoral system for Ireland?, by Michael Laver (1998)
- Bunreacht na hÉireann: a study of the Irish text, by Micheál Ó Cearúil (1999)
Third committee
The current (2002) committee is chaired by Fianna FáilFianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
TD Denis O'Donovan
Denis O'Donovan
Denis O'Donovan is an Irish Fianna Fáil politician and a member of Seanad Éireann on the Agricultural Panel.A native of Bantry, he was elected to Cork County Council in 1985, and re-elected in 1991 and 1999. He was nominated by the Taoiseach to the Seanad in 1989...
. It describes its task as being to "complete the programme of constitutional amendments begun by the earlier committees, aimed at renewing the Constitution in all its parts, for implementation over a number of years". It describes the job as "unprecedented", noting that "no other state with the referendum as its sole mechanism for constitutional change has set itself so ambitious an objective".
The committee has divided its work into considering three types of amendment:
- technical/editorial: changes in form but not in substance, for example changing "he" to "he or she" where it is clear that a provision in the Constitution applies to both men and women.
- non-contentious: changes in substance generally agreeable to the people, for example describing the President as Head of State.
- contentious: changes in substance which of their nature divide people, for example changes in the character and scope of human rights.
The current All-Party Committee has published three reports:
- 8th Progress Report: Government, 2003
- 9th Progress Report: Private Property, 2004
- 10th Progress Report: The Family, 2006
The committee summarises its remaining tasks as being to consider:
- fundamental rights (apart from the right to life and property rights, which have already been considered)
- Article 45 (Directive Principles of Social Policy)
- a miscellany ranging from the Preamble, the name of the state, the position of the Irish language, to the transitory provisions.
See also
- Politics of the Republic of IrelandPolitics of the Republic of IrelandIreland is a parliamentary, representative democratic republic and a member state of the European Union. While the head of state is the popularly elected President of Ireland, this is a largely ceremonial position with real political power being vested in the indirectly elected Taoiseach who is...
- History of the Republic of IrelandHistory of the Republic of IrelandThe Irish state originally came into being in 1922 as the Irish Free State, a dominion of the British Commonwealth, having seceded from the United Kingdom under the Anglo-Irish Treaty. It comprises of 26 of Ireland's 32 counties...
- List of Ireland-related topics
Further reading
- Paper copies of the constitution are available from the Irish Government Publications Office, Molesworth St, Dublin 2.
- Brian Farrell, De Valera's Constitution and Ours
- Brian Doolan, Constitutional Law and Constitutional Rights in Ireland
- Jim Duffy, "Overseas studies: Ireland" in An Australian Republic: The Options - The Appendices (Republic Advisory Committee, Vol II, Commonwealth of Australia, 1993) ISBN 0-644-32589-5
- Michael Forde, Constitutional Law of Ireland
- John M. KellyJohn M. Kelly (politician)John Maurice Kelly was an Irish legal academic and senior Fine Gael politician.-Education:Kelly received his primary and secondary education at St Conleth's College in Dublin 4 and at the Glenstal Abbey boarding school in County Limerick, respectively.He attended University College Dublin between...
, The Irish Constitution - Dermot KeoghDermot KeoghDermot Keogh is Professor of History and Emeritus Jean Monnet Professor of European Integration Studies at University College, Cork.-Bibliography:*Church and Politics in Latin America ISBN 0312028156...
and Andrew McCarthyAndrew McCarthyAndrew Thomas McCarthy is an American actor. He is known for his roles in the 1980s films St. Elmo's Fire, Mannequin, Weekend at Bernie's, Pretty in Pink, and Less Than Zero, and more recently for his role in the television shows Lipstick Jungle, White Collar and Royal Pains.-Career:McCarthy...
, 'The making of the Irish Constitution 1937', Mercier Press, Cork, 2007, ISBN 978-1-85635-561-2 - Tim Murphy & Patrick Twomey, Ireland's Evolving Constitution 1937–1997: Collected Essays
- Micheál Ó Cearúil, Bunreacht na hÉireann: A Study of the Irish Text (published by the All Party Oireachtas Committee on the Constitution, The Stationery Office, 1999).
- James Casey, "Constitutional Law in Ireland"
- Séamas Ó Tuathail, "Gaeilge agus Bunreacht"
External links
Text of the constitution:- Current text, accurate up to and including the Twenty-Eighth Amendment from Department of the Taoiseach:
- Original text:
- Original text of the Constitution of Ireland - Full text of the document as it was adopted in 1937, from Wikisource
- Transitory Provisions of the Constitution of Ireland - Full text from Wikisource.
- The Unabridged Constitution of Ireland - An unofficial variorum edition with amendments alongside the original text. Only accurate up until the Twentieth Amendment in 1999.
1937 Dáil debates:
- Draft Constitution:
- Plebiscite (Draft Constitution) Act, 1937: First Reading: 25 May; Second Reading: 1 June; Money Resolution: 1 June; Committee and Final stages: 1 June
- Constitution (Consequential Provisions) Act, 1937: First Reading: 24 November; Second Reading: 10 December; Committee Stage: 16 December
Other: