Constitution of the Irish Free State
Encyclopedia
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 independent Irish 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...
. It was enacted with the adoption of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, of which it formed a part. In 1937 it was replaced by the modern Constitution of Ireland
Constitution of Ireland
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...
.
As originally enacted, the Constitution was firmly shaped by the requirements of the Anglo-Irish Treaty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...
that had been negotiated between the British government and Irish leaders in 1921. However, following a change of government in 1932
Irish general election, 1932
The Irish general election of 1932 was held on 16 February 1932, just over two weeks after the dissolution of the Dáil on 29 January. The newly elected 153 members of the 7th Dáil assembled at Leinster House on 9 March 1932 when the new President of the Executive Council and Executive Council of...
a series of amendments progressively removed many of the provisions that were required by the Treaty.
The Constitution established a parliamentary system
Parliamentary 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....
of government under a form of constitutional monarchy
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...
, and contained guarantees of certain fundamental rights
Fundamental rights
Fundamental rights are a generally-regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or "rights." Such rights thus belong without presumption or cost of privilege to all...
. It was originally intended that the Constitution would be a rigid document that, after an initial period, could be amended only 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...
. However, a loophole in the Constitution's amendment procedure meant that all amendments were in fact made by a simple Act of the Oireachtas
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
(parliament).
Origins
Irish nationalists who fought the War of Independence believed themselves to be fighting on behalf of a newly formed state called the Irish RepublicIrish Republic
The Irish Republic was a revolutionary state that declared its independence from Great Britain in January 1919. It established a legislature , a government , a court system and a police force...
. The Irish Republic had its own president, an elected assembly called Dáil Éireann, and a judicial system in the form of the Dáil courts
Dáil Courts
During the Irish War of Independence, the Dáil Courts were the judicial branch of government of the short-lived Irish Republic. They were formally established by a decree of the First Dáil Éireann on 29 June 1920, replacing more limited Arbitration Courts that had been authorised a year earlier...
. However this self-proclaimed republic was recognised neither by the British government nor any other state. In the negotiations leading to the Anglo-Irish Treaty the British government insisted that the new Irish state must remain within the Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
and not be a republic
Republic
A republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
. Furthermore, while the Irish Republic had a constitution, of sorts, in the form of the Dáil Constitution
Dáil Constitution
The Constitution of Dáil Éireann , more commonly known as the Dáil Constitution, was the constitution of the 1919–22 Irish Republic. It was adopted by the First Dáil at its first meeting on 21 January 1919 and theoretically remained in force for four years. As adopted it consisted of only five...
, this was a very brief document and had been intended to be only provisional. It was therefore clear, when, in 1921, the British government agreed to the creation of a largely independent Irish state, that a new constitution was needed. The Anglo-Irish Treaty made a number of requirements of the new constitution. Among these were that:
- The new state would be called the Irish Free State and would be a dominion of the British CommonwealthCommonwealth of NationsThe Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
. - The King would be the head of stateHead of StateA head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
and would be represented by a Governor-General. - Members of the Oireachtas (parliament) would swear an oath of allegiance to the Irish Free State and declare their fidelity to the King. This Free State Oath of AllegianceOath 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...
was controversial. - 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...
would be included in the Irish Free State unless its ParliamentParliament of Northern IrelandThe Parliament of Northern Ireland was the home rule legislature of Northern Ireland, created under the Government of Ireland Act 1920, which sat from 7 June 1921 to 30 March 1972, when it was suspended...
decided to opt outPartition of IrelandThe partition of Ireland was the division of the island of Ireland into two distinct territories, now Northern Ireland and the Republic of Ireland . Partition occurred when the British Parliament passed the Government of Ireland Act 1920...
(which it ultimately did).
Constitution Committee
The Constitution of the Irish Free State was drafted by a committee under the nominal chairmanship of Michael CollinsMichael Collins (Irish leader)
Michael "Mick" Collins was an Irish revolutionary leader, Minister for Finance and Teachta Dála for Cork South in the First Dáil of 1919, Director of Intelligence for the IRA, and member of the Irish delegation during the Anglo-Irish Treaty negotiations. Subsequently, he was both Chairman of the...
. Collins attended only the first meeting of the Committee, and Darrell Figgis
Darrell Figgis
Darrell Edmund Figgis was an Irish writer, Sinn Féin activist and independent parliamentarian in the Irish Free State. The little that has been written about him has attempted to highlight how thoroughly his memory and works have been excised from Irish popular culture.-Early life:Darrell Figgis...
, the vice-Chairman became acting Chair. The committee produced three draft texts, designated A, B and C. A was signed by Figgis, James McNeill
James McNeill
James McNeill was an Irish politician and diplomat, who served as first High Commissioner to London and second Governor-General of the Irish Free State....
and John O’Byrne. B was signed by James G. Douglas
James G. Douglas (Irish senator)
-Political career:James Douglas was an Irish nationalist Quaker who managed the Irish White Cross from 1920 to 1922. He was appointed by Michael Collins as chairman of the committee to draft the Irish Free State Constitution following the Irish War of Independence.Douglas went on to become a very...
, C.J. France and Hugh Kennedy
Hugh Kennedy
Hugh Kennedy was the only Attorney-General of Southern Ireland and the first Attorney-General of the Irish Free State, and later the first Chief Justice of the Irish Free State. As a member of the Irish Free State Constitution Commission, he was also one of the constitutional architects of the...
and it differed substantially from A only in proposals regarding the Executive. This difference was intended by Douglas to permit the Anti-treaty faction a say in the final proposed constitution before its submission to the British Government. As such it was, according to Douglas, an attempt to ameliorate the pro- and anti-Treaty split. Draft C was the most novel of the three. It was signed by Alfred O'Rahilly
Alfred O'Rahilly
Alfred O'Rahilly was a noted academic, President of University College Cork and Teachta Dála for Cork City.-Education and academia:Born in Listowel, County Kerry and educated at St...
and James Murnaghan, and provided for the possibility of representation for the people of the northern counties in the Dáil in the event of that area opting out of the proposed Free State.
The official Irish text was then drafted as a translation of the English text. The Irish language
Irish language
Irish , also known as Irish Gaelic, is a Goidelic language of the Indo-European language family, originating in Ireland and historically spoken by the Irish people. Irish is now spoken as a first language by a minority of Irish people, as well as being a second language of a larger proportion of...
version was drafted by a committee which included the Minister for Education, Eoin MacNeill
Eoin MacNeill
Eoin MacNeill was an Irish scholar, nationalist, revolutionary and politician. MacNeill is regarded as the father of the modern study of early Irish medieval history. He was a co-founder of the Gaelic League, to preserve Irish language and culture, going on to establish the Irish Volunteers...
; the Leas-Cheann Comhairle (deputy speaker), Pádraic Ó Máille
Pádraic Ó Máille
Pádraic Ó Máille was an Irish politician. He was born in County Galway and was a farmer. He was a founder member of Sinn Féin and of the Gaelic League in Galway. He was a member of the Irish Volunteers from 1917–1921....
; the Clerk of the Dáil, Colm Ó Murchadha; Piaras Béaslaí
Piaras Béaslaí
Piaras Béaslaí was a member of the Irish Republican Brotherhood, a member of Dáil Éireann and also an Irish author, playwright, biographer and translator....
; Liam Ó Rinn and Professors Osborn Bergin
Osborn Bergin
Osborn Joseph Bergin was a scholar of the Irish language and Early Irish literature. He was born in Cork and was educated at Queen's College Cork , then went to Germany for advanced studies in Celtic languages, working with Heinrich Zimmer at the Friedrich Wilhelm University of Berlin...
and T. F. O'Rahilly
T. F. O'Rahilly
Thomas Francis O'Rahilly was an Irish scholar of the Celtic languages, particularly in the fields of Historical linguistics and Irish dialects. He was a member of the Royal Irish Academy.-Biography:He was born in Listowel, County Kerry, Ireland...
.
Method of adoption
The Constitution was adopted by means of a complex process involving both the Parliament of the United KingdomParliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
and the Irish Dáil. The method used was complicated by the fact that the Free State was seceding 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...
, that the British wished to incorporate a mechanism whereby the new constitution would be subordinate to the Anglo-Irish Treaty and that the new constitution had to be legitimate both in British law and within the constitutional theory of Irish nationalists. A three stage process was followed, involving
- The Constitution of the Irish Free State (Saorstát Éireann) Act 1922 (enacted by the Irish Constituent Assembly)
- The Irish Free State Constitution Act 1922Irish Free State Constitution Act 1922The Irish Free State Constitution Act 1922 was an Act of the Parliament of the United Kingdom, passed in 1922 to confirm the Constitution of the Irish Free State, and to ratify the 1921 Anglo-Irish Treaty....
(enacted by the UK Parliament) - A royal proclamation to bring the constitution into effect.
To begin with elections were held for the Third Dáil
Third Dáil
The Third Dáil, also known as the Provisional Parliament or the Constituent Assembly, was:*the "provisional parliament" or "constituent assembly" of Southern Ireland from 9 August 1922 until 6 December 1922; and...
, which was to sit as an Irish constituent assembly
Constituent assembly
A constituent assembly is a body composed for the purpose of drafting or adopting a constitution...
for the enactment of the Constitution. This assembly enacted the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 on 25 October of that year; this Irish Act was to be the overall fundamental law of the new state, and incorporated the document known more specifically as the Constitution of the Irish Free State as its first schedule. The British Parliament at Westminster then the Irish Free State Constitution Act 1922 on 5 December, which provided that the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 would have the force of law. The entire text of the Irish Act was reproduced as a schedule to the British Act.
Both the British and Irish Acts provided that the Constitution would be brought into force by a royal proclamation, which was accordingly issued on 6 December. The Constitution thus came into force on 6 December, the latest possible date allowed for by the Constitution itself. On this date the members of the Dáil took the Oath of Allegiance, and nominated the members of the Executive Council
Executive Council of the Irish Free State
The Executive Council was the cabinet and de facto executive branch of government of the 1922–1937 Irish Free State. Formally, the role of the Executive Council was to "aid and advise" the Governor-General who would exercise the executive authority on behalf of the King...
(cabinet).
The means by which the Constitution was adopted resembled, in some respects, the way in which constitutions were granted to other Commonwealth nations. For example the current Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
was adopted by the British Parliament–it is a schedule to the Commonwealth of Australia Constitution Act 1900. The law adopted in 1922 at Westminster had the structure of a Russian doll
Matryoshka doll
A matryoshka doll is a Russian nesting doll which is a set of wooden dolls of decreasing size placed one inside the other. The first Russian nested doll set was carved in 1890 by Vasily Zvyozdochkin from a design by Sergey Malyutin, who was a folk crafts painter at Abramtsevo...
, containing within it the entire text of the Irish Act, which in turn contained within it the whole text of the new constitution.
Incorporation of the Treaty
The Constitution of the Irish Free State (Saorstát Éireann) Act 1922 contained two schedules. One schedule contained the new constitution, and the other the text of the Anglo-Irish Treaty. As enacted in 1922, Section 2 of the Act provided for the supremacy of the Treaty's provisions, voiding any part of the Constitution or other Free State law that was "repugnant" to it. Similarly, both Section 2 of the Act and Article 50 of the Constitution provided that no constitutional amendment would stand so far as it violated the terms of the Treaty.Under British constitutional legal theory, the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 held the force of law because of the enactment of the United Kingdom's Irish Free State Constitution Act 1922, thus entrenching the primacy of the Treaty. The British also viewed Irish compliance with the terms of the Treaty as a moral obligation.
The enactment by the British Parliament of the Statute of Westminster
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...
in 1931 changed the legal framework as understood by the British. The Statute was designed to increase the legislative autonomy of all the dominions. In contrast with certain of the other dominions, the Statute did not specifically place any reservation on this power as exerciseable by the Free State, and thus granted it the power to alter Irish law in any way it chose. The new government under 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...
soon used this new freedom to enact the Constitution (Removal of Oath) Act 1933. Besides abolishing the Oath of Allegiance, a requirement of the Anglo-Irish Treaty, the Act also expressly repealed the provisions both of the constitution proper and of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 that required compliance with the Treaty. Subsequent legislation soon began to dismantle other constitutional provisions that had been required or limited by the Treaty's terms.
Structure
As originally enacted, the constitution proper consisted of 83 separate Articles, totalling around 7,600 words. The Constitution of the Irish Free State (Saorstát Éireann) Act 1922 consisted of only a short preamble and three short sections, but was a far longer document because, as noted above, it included as schedules the full text of both the constitution proper and the Anglo-Irish Treaty.The articles of the constitution proper were not formally grouped together under headings, save for the final ten articles (which came under the title of "Transitory Provisions"). However, divided by subject matter the articles of the Constitution broke down roughly as follows:
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Preamble
The constitution itself had no preamble. However the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 began with the following words:Dáil Éireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in the confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of The Irish Free State (otherwise called Saorstát Éireann) and in the exercise of undoubted right, decrees and enacts as follows:—
Characteristics of the state
- Commonwealth membership: Article 1 stated that the state would be a "co-equal member" of the British Commonwealth.
- Popular sovereignty: It was stated that the "all powers of government... are derived from the people of Ireland" (Article 2).
- Citizenship: The constitution provided that those living in the state at the time of its coming into force who had been born in Ireland, had parents born in Ireland or had been resident in the state for seven years would become citizens. However anyone who was the citizen of another state could choose not to become an Irish citizen (Article 3).
- National language: It was provided that Irish was the "National Language" but English was "equally recognised as an official language" (Article 4). The constitution included the terms Saorstát Éireann (as one name for the Irish Free State), Oireachtas (for the legislature), and Dáil Éireann and Seanad Éireann (for the houses of the legislature), all of which were intended for use even in English speech.
Individual rights
Unlike the then constitutions of AustraliaAustralia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the constitution included a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
, in Articles 6-10. Rights were also protected by a number of provisions contained in other articles.
- Prohibition of titles of nobility: It was provided that no title of honour could be conferred on an Irish citizen without the consent of the Executive Council (Article 5). In practice this amounted to a complete ban.
- Liberty and habeas corpus: Article 6 provided that no-one could be deprived of liberty except in accordance with the law, and that 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...
would be upheld. The military forces were granted an exemption from this article during time of war or rebellion. - Inviolability of the home: The home could not be entered except in accordance with the law (Article 7).
- Freedom of conscience and worship: Protected by Article 9 subject to "public order and morality" (Article 8).
- Prohibition of establishment: The state could not "endow" any religion (Article 8).
- Religious discrimination: The state could not discriminate on religious grounds (Article 8).
- Freedom of speech, assembly and association: All guaranteed subject to "public morality". Laws regulating freedom of assembly and association could not be discriminatory (Article 9).
- Right to education: Free elementary education guaranteed to all citizens (Article 10).
- Trial by jury: Guaranteed by Article 72, which granted an exemption for minor offences and offences triable by court martial.
Organs of government
The constitution provided for a parliamentary system of government. The legislatureLegislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
was called the Oireachtas
Oireachtas of the Irish Free State
The Oireachtas of the Irish Free State was the legislature of the Irish Free State from 1922 until 1937. It was established by the 1922 Constitution of Ireland which was based from the Anglo-Irish Treaty...
and had two houses: the Dáil Éireann
Dáil 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...
was established as the lower house
Lower house
A lower house is one of two chambers of a bicameral legislature, the other chamber being the upper house.Despite its official position "below" the upper house, in many legislatures worldwide the lower house has come to wield more power...
, and Seanad Éireann
Seanad Éireann (Irish Free State)
Seanad Éireann was the upper house of the Oireachtas of the Irish Free State from 1922–1936. It has also been known simply as the Senate, or as the First Seanad. The Senate was established under the 1922 Constitution of the Irish Free State but a number of constitutional amendments were...
as the senate or upper house
Upper house
An upper house, often called a senate, is one of two chambers of a bicameral legislature, the other chamber being the lower house; a legislature composed of only one house is described as unicameral.- Possible specific characteristics :...
. However the Seanad had only limited powers of delay so it was the Dáil that was the dominant house. The executive branch consisted, in practice, of a cabinet called the Executive Council
Executive Council of the Irish Free State
The Executive Council was the cabinet and de facto executive branch of government of the 1922–1937 Irish Free State. Formally, the role of the Executive Council was to "aid and advise" the Governor-General who would exercise the executive authority on behalf of the King...
headed by a prime minister, the President of the Executive Council
President of the Executive Council of the Irish Free State
The President of the Executive Council of the Irish Free State was the head of government or prime minister of the Irish Free State which existed from 1922 to 1937...
. The cabinet was chosen by the Dáil, which could also dismiss it by a vote of no confidence. The constitution provided that the 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...
would consist of the Supreme Court, the High Court, and any lower courts established by law.
The head of state
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
was the King
Monarchy in the Irish Free State
The Irish Free State was, in accordance with its constitution, governed formally under a form of constitutional monarchy. The British monarch was the head of state of the Irish Free State from 1922 to 1931, when the Statute of Westminster came into effect, and thereafter the Irish Free State had a...
, represented by a 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...
. Notionally the Governor-General was responsible for appointing and dismissing the cabinet, and could veto laws, but, in accordance with constitutional convention, he exercised merely a ceremonial role. Both the senate and the office of Governor-General were abolished by constitutional amendments during the Free State's final days.
Initiative and referendum
As originally adopted the constitution contained (in Articles 47, 48 and 50) innovative provisions for direct democracyDirect democracy
Direct democracy is a form of government in which people vote on policy initiatives directly, as opposed to a representative democracy in which people vote for representatives who then vote on policy initiatives. Direct democracy is classically termed "pure democracy"...
but, owing to constitutional amendments, these provisions were never permitted to come into effect. The provisions stated that the referendum and initiative would operate on the same franchise as the Dáil; this was universal suffrage
Universal suffrage
Universal suffrage consists of the extension of the right to vote to adult citizens as a whole, though it may also mean extending said right to minors and non-citizens...
beginning at the age of 21. The constitution provided for three forms of direct democracy:
- Constitutional referendum: After an initial period all constitutional amendmentConstitutional amendmentA constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
s would be subject to a mandatory, binding referendumReferendumA 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...
. An amendment would not be deemed to have been passed unless at least a majority of registered voters participated in the referendum and the votes in favour were equal to either: (1) a majority of all eligible voters, or (2) a two-thirds majority of votes cast. This provision was stricter than the modern Constitution of Ireland, which merely requires a majority of votes cast. - Veto of legislation: Once a bill had been approved by both houses of the Oireachtas (or just by the Dáil, if it had overridden the Senate) its enactment into law could be suspended if, within seven days, either a majority of the Senate or 40% of all members of the Dáil so requested. There would then be a further period of ninety days within which either 5% of all registered voters, or a 60% majority in the Senate, could demand a referendum on the bill. The referendum would be decided by a majority of votes cast. If rejected the bill would not become law. These provisions did not apply to money billMoney billIn the Westminster system , a money bill or supply bill is a bill that solely concerns taxation or government spending , as opposed to changes in public law.- Conventions :...
s or bills declared by both houses to be "necessary for the immediate preservation of the public peace, health or safety". - Initiative: Ordinary citizens would have the right, through an initiativeInitiativeIn political science, an initiative is a means by which a petition signed by a certain minimum number of registered voters can force a public vote...
process, to draft both constitutional amendments and ordinary laws, and insist that they be submitted to a referendum. The constitution provided a general frame-work for how the initiative would work, empowering the Oireachtas to fill in the details with legislation. It required that a proposal could be initiated by a petition of 50,000 registered voters. Once initiated a proposal would be referred to the Oireachtas, but if the Oireachtas did not adopt the law it would be obliged to submit it to a binding referendum. The constitution gave the Oireachtas two years to adopt a law allowing voters to introduce initiatives. However after this time voters had power to force the issue. This is because the initiative process itself could then by made the subject of an initiative. After two years the introduction of an initiative process would be put to a referendum if demanded by a petition of not less than 75,000 voters on the register (not more than fifteen thousand of whom could be voters in any one constituency).
The Achilles' heel
Achilles' heel
An Achilles’ heel is a deadly weakness in spite of overall strength, that can actually or potentially lead to downfall. While the mythological origin refers to a physical vulnerability, metaphorical references to other attributes or qualities that can lead to downfall are common.- Origin :In Greek...
of the direct democracy provisions was contained in Article 50 which provided that, for eight years after the constitution came into force, the Oireachtas could amend the constitution without a referendum. As interpreted by the courts, this even included the power to amend the article itself and extend this period.
The Oireachtas did not adopt legislation providing for the initiative within the two years stipulated by the constitution and, eventually, a petition of 96,000 signature was gathered by the opposition in order to trigger a referendum forcing the Oireachtas to introduce an initiative process. The Oireachtas responded by removing all provisions for direct democracy from the constitution, save for the requirement that, once the eight year transitional period had passed, it would be necessary to hold referendums on all constitutional amendments. Then in 1929 the Oireachtas extended this period to sixteen years. This meant that, by the time the constitution was replaced in 1937, the provisions for the constitutional referendum had still not come into force.
Method of amendment
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
from the Governor-General. However, as already noted, the requirement for a referendum was postponed by the Oireachtas so that during the entire period of the Irish Free State the constitution could be amended by means of an ordinary law. As noted above it was originally provided that any amendments that violated the Anglo-Irish Treaty would be inadmissible, but this sole restriction was removed in 1933.
The Oireachtas readily used its powers of amendment so that, during the fifteen years of the constitution's operation, 25 formal constitutional amendments were made. This can be contrasted with the fact that, during its first sixty years, the current Constitution of Ireland was amended only sixteen times. In addition to the adoption of formal constitutional amendments, the courts ruled that the Oireachtas could also implicitly amend the constitution. When the Oireachtas adopted the Public Safety Act 1927, which affected civil rights, it included a section requiring that should the Act be found to be unconstitutional it would be treated as a constitutional amendment. Section 3 of the Act provided that:
Every provision of this Act which is in contravention of any provision of the Constitution shall to the extent of such contravention operate and have effect as an amendment [...] of the Constitution.
In the Attorney General v. McBride (1928) it was ruled that this kind of section was unnecessary because even if a law did not contain such a provision it could be interpreted as a tacit amendment of the constitution anyway, owing to the doctrine of implied repeal
Implied repeal
The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed...
. This meant that, in addition to formal amendments, almost any Act of the Oireachtas could be considered an amendment of the constitution. The long process of ad hoc amendment that occurred until 1937 meant that, by the time it was replaced the constitution had become, according to President (of the Executive Council) 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...
, a "tattered and torn affair".
While Article 50 provided for the amendment of the constitution proper, there was no explicit provision in any law for the amendment of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922. Some jurists therefore maintained that the Oireachtas did not have power to amend the Act; rather, if it were possible to alter the law at all, it might be necessary to ask the British Parliament to do so, or to elect another constituent assembly. Chief Justice Kennedy was among those who took the view that the Act could not be altered by the Oireachtas. Nonetheless changes were eventually made to the Act, when the Oireachtas passed the Constitution (Removal of Oath) Act 1933, and when it was repealed in its entirety with the adoption of the 1937 constitution.
When the new constitution was drafted lessons had been learned from the Free State constitution. It too granted the Oireachtas a temporary power to make constitutional amendments by ordinary law, but, unlike the Free State constitution, it expressly forbid the legislature from using this power to extend the transitional period. Article 46 of the new constitution required that constitutional amendments be approved by referendum while Article 51 of the Transitory Provisions suspended this requirement for an initial three years (beginning when the first President assumed office). However Article 46 forbid the legislature from amending either itself or Article 51. In the event the Oireachtas used its transitional power only twice, when it adopted the First Amendment
First Amendment of the Constitution of Ireland
The First Amendment of the Constitution of Ireland was effected by the First Amendment of the Constitution Act, 1939, and signed into law on 2 September 1939. Its purpose was to extend the constitutional definition of "time of war" to include a period during which a war is occurring in which the...
and 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...
. The new constitution then settled down and was not amended again for thirty years. Another difference from the Free State constitution is that the modern constitution requires constitutional amendments to be expressly identified as such. Every amendment must have the long title "An Act to amend the Constitution".
Subjects of amendments
Some amendments made minor changes, such as removing the requirement that elections occur on a public holiday, but others were more radical. These included extending the term of the Dáil in 1927, the abolition of the initiative and of direct elections to the Senate in 1928, extending the period during which the Oireachtas could amend the constitution in 1928, and the introduction of draconian provisions for trial by military tribunals in 1931. From 1933 onwards a series of further amendments were made that gradually dismantled the Treaty settlement by, for example, abolishing the Oath of Allegiance and the office of Governor-General. Because a majority of its members disagreed with this process, the Senate was abolished in 1936.List of amendments
The titles given to the amendments below are in an abbreviated form. The full title of Amendment No.1 was the Constitution (Amendment No. 1) Act 1925, Amendment No. 2 was the Constitution (Amendment No. 2) Act 1927, and so forth. The only amendment not to follow this pattern was the Constitution (Removal of Oath) Act 1933. It can be seen that the official numbering of constitutional amendments did not necessarily coincide with the order in which they were adopted. Equally confusing is the fact that there were formally no Amendments No. 18, 19 or 25.- Amendment No. 1 (11 July 1925): Made changes relating to the terms of office of senators, and the date on which senatorial elections were to be held.
- Amendment No. 3 (4 March 1927): Removed the requirement that the day of any general electionGeneral electionIn a parliamentary political system, a general election is an election in which all or most members of a given political body are chosen. The term is usually used to refer to elections held for a nation's primary legislative body, as distinguished from by-elections and local elections.The term...
would be declared a public holiday. - Amendment No. 4 (4 March 1927): Extended the maximum term of the Dáil from four to six years. The Electoral (Amendment) Act, 1927, enacted in May of the same year, set a limit of five years in ordinary law. The overall outcome, therefore, was that the term of the Dáil was increased by only one year.
- Amendment No. 2 (19 March 1927): Introduced a system of automatic re-election of the Ceann ComhairleCeann ComhairleThe Ceann Comhairle is the chairman of Dáil Éireann, the lower house of the Oireachtas of Ireland. The person who holds the position is elected by members of the Dáil from among their number in the first session after each general election...
(chairman) of the Dáil in a general election. - Amendment No. 5 (5 May 1927): Increased the maximum membership of the Executive Council from seven to twelve members.
- Amendment No. 10 (12 July 1928): Removed all direct democracy provisions except the requirement that, after a transitional period, a referendum be held on all constitutional amendments. However this remaining provision would never be allowed to come into effect.
- Amendment No. 6 (23 July 1928): Replaced the direct election of the Senate with a system of indirect election.
- Amendment No. 13 (23 July 1928): Extended the Senate's power of delay over legislation from nine months to twenty months. This was intended to compensate the Senate for the loss of its right to force a referendum on certain bills that had been removed by Amendment No. 6.
- Amendment No. 8 (25 October 1928): Reduced the age of eligibility for senators from 35 to 30.
- Amendment No. 9 (25 October 1928): Altered provisions relating to the procedure for nominating candidates to stand in senatorial elections.
- Amendment No. 7 (30 October 1928): Reduced the term of office of senators from twelve to nine years.
- Amendment No. 14 (14 May 1929): Clarified a technical matter relating to the relationship between the two houses of the Oireachtas.
- Amendment No. 15 (14 May 1929): Permitted one member of the Executive Council to be a senator, where previously it had been required that all be members of the Dáil. It was still required that the President, Vice-President and Minister for Finance hold seats in the Dáil.
- Amendment No. 16 (14 May 1929): Extended the period during which amendments of the constitution could be made by ordinary legislation from eight to sixteen years.
- Amendment No. 11 (17 December 1929): Altered the method for filling premature vacancies in the Senate.
- Amendment No. 12 (24 March 1930): Altered provisions relating to the Committee of Privileges that had authority to resolves disputes over the definition of a money bill.
- Amendment No. 17 (17 October 1931): Introduced Article 2A, which included draconian provisions for trial by military tribunals.
- Constitution (Removal of Oath) Act (3 May 1933): Abolished the Oath of Allegiance and removed requirements that the constitution and laws of the Free State be compatible with the Anglo-Irish Treaty. This involved repealing Section 2 of the Constitution of the Irish Free State (Saorstát Éireann) Act 1922, as well as altering provisions of the constitution.
- Amendment No. 20 (2 November 1933): Removed the Governor-General's role in recommending appropriations of money to the Dáil. This function was vested expressly in the Executive Council. In practice this change was merely symbolic.
- Amendment No. 21 (2 November 1933): Removed provisions granting the Governor-General the theoretical right to both veto bills and reserve them "for the King's pleasure".
- Amendment No. 22 (16 November 1933): Abolished the right of appeal to the Privy Council.
- Amendment No. 26 (5 April 1935): Made a technical change to Article 3, which dealt with citizenship.
- Amendment No. 23 (24 April 1936): Abolished the two university constituenciesUniversity constituencyA university constituency is a constituency, used in elections to a legislature, that represents a university rather than a geographical area. University constituencies may involve plural voting, in which eligible voters are permitted to vote in both a university constituency and a geographical...
in the Dáil. - Amendment No. 24 (29 May 1936): Abolished the Senate.
- Amendment No. 27 (11 December 1936): Abolished the office of Governor-General and removed all reference to the King from the constitution. The functions of the Governor-General were transferred to various other branches of government.
Civil rights in practice
The constitution empowered the courts to strike down laws they found to be unconstitutional. However judicial review of legislation was made largely meaningless by the ease with which the Oireachtas could alter the constitution. Furthermore, as the state had only recently seceded from the UK, Irish judges were trained in British jurisprudence. To this tradition, founded on deference to the legislature and parliamentary sovereigntyParliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
, constitutional review was an alien concept. This meant that despite the adoption of a new, more rigid constitution in 1937, constitutional review did not become a significant feature of Irish jurisprudence until the 1960s. During the entire period of the Free State, only two pieces of legislation were declared by the courts to be unconstitutional.
The Free State had significant problems with public order in early years. It was founded during the Irish Civil War
Irish Civil War
The Irish Civil War was a conflict that accompanied the establishment of the Irish Free State as an entity independent from the United Kingdom within the British Empire....
which did not come to an end until May 1923, and thereafter there were continuing problems of public disorder and subversive activities by the IRA
Irish Republican Army (1922–1969)
The original Irish Republican Army fought a guerrilla war against British rule in Ireland in the Irish War of Independence 1919–1921. Following the signing of the Anglo-Irish Treaty on 6 December 1921, the IRA in the 26 counties that were to become the Irish Free State split between supporters and...
. This situation led to an erosion of civil rights in the new state. During the Civil War a law provided the death penalty
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
for the crime of unlawful possession of a firearm
Firearm
A firearm is a weapon that launches one, or many, projectile at high velocity through confined burning of a propellant. This subsonic burning process is technically known as deflagration, as opposed to supersonic combustion known as a detonation. In older firearms, the propellant was typically...
, and more than seventy people were executed for the offence. Draconian measures continued to be used after the war's conclusion; these included internment
Internment
Internment is the imprisonment or confinement of people, commonly in large groups, without trial. The Oxford English Dictionary gives the meaning as: "The action of 'interning'; confinement within the limits of a country or place." Most modern usage is about individuals, and there is a distinction...
of former rebels and the punishment of flogging for arson
Arson
Arson is the crime of intentionally or maliciously setting fire to structures or wildland areas. It may be distinguished from other causes such as spontaneous combustion and natural wildfires...
and armed robbery, introduced in 1924.
In 1931, acting in response to IRA violence, the Oireachtas adopted Amendment No. 17 of the constitution. This added a new draconian set of provisions called Article 2A to the constitution. Article 2A was very large, consisting of five parts and 34 sections. Among other provisions it granted powers of arrest, detention and trial of people before military tribunals not bound by normal rules of evidence, despite the fact that many crimes triable before the tribunals carried a mandatory death sentence. In order to protect itself from being undermined by the courts, Article 2A was drafted to state that it took precedence over all other provisions of the constitution (save Article 1).
The provisions for military tribunals were challenged in 1935 in the case of The State (Ryan) v. Lennon. In this case the majority of the Supreme Court reluctantly held that, because Amendment No. 17 had been duly adopted in accordance with the correct procedure, it was not open to the judges to strike it down. However Chief Justice Kennedy disagreed, arguing, in a dissenting opinion, that the Article 2A violated natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
.
External links
- Constitution of the Irish Free State (Saorstát Eireann) Act, 1922 – Full text of the Act passed by the Irish Constituent Assembly. From the Irish Statute Book, maintained by the Attorney General of IrelandAttorney 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...
- Irish Free State Constitution Act, 1922 – Text of the Act adopted by the British Parliament, in order to bring the Act of the Constituent Assembly into force. The large schedule is not included, as it is merely a complete reproduction of the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922. From Wikisource.
- Acts of the Oireachtas – Database of all Acts of the Oireachtas since 1922.