Highlights and reflections from Bunreacht na hÉireann
Here follow some random remarks from a 33-year old who lived in Ireland from 0 until 21 and has been living again in Ireland since age 31.
Some background on the Irish Constitution
The start of Ireland’s independence from Great Britain is marked by the Easter Rising of 1916, just two years before the end of WWI in 1918. Independence – in the form of the Anglo-Irish treaty – came in 1921/2, with some civil war in 1922/3, and the constitution didn’t come into effect until 1937 – only 85 years ago.
The Irish system looks a bit like – and apparently was modelled on – the system in the US. We have two houses – the Dáil (parliament) and the Seanad (senate). There is a president, a judiciary, and a constitution that can only be changed by a popular vote.
Since 1937, there have been 38 amendments to the constitution, although quite a few of them didn’t pass the public vote, and some never even made it to the public vote stage.
Here, I’ll go through some of the articles in the constitution that stood out to me, including some notes on the amendments.
Irish as the primary official language
Most copies of Bunreacht na hÉireann (the Irish Constitution) are provided in both English and Irish.
Irish is the first official language and English is the second official language (Article 8). Laws can be written and passed in either language, but must then be translated into the other language.
Interestingly, if there is a conflict between both languages (Article 25.4.6), then the national language (Irish) prevails. This must lead to an interesting situation whereby translators of bills passed in English have quite a bit of power!
One obvious difference in the two versions is that the Irish version often uses the word “duine”, meaning person, whereas the English version uses “man”. That said, there are limited places where the Irish version uses the word “é”, meaning “him”.
Article 3 is part of the first section of the constitution called “The State”. There is no explicit reference to Northern Ireland in Article 3, but this is what is being referred to. The Irish constitution’s current position is that a united Ireland could only be brought about by having a majority of those in the North of Ireland and, separately, in the Republic, vote for unity.
…a united Ireland shall be brought about only by peaceful means, with the consent of a majority of the people, democratically expressed, in both jurisdictions of the Island.
(No) Citizenship by Birth
In Ireland, unlike in the US, you don’t automatically get citizenship by being born here. That’s not what you would think when reading Article 2, which seems to imply a birthright to Irish citizenship
It is the entitlement and birthright of every person born in the island of Ireland, …, to be part of the Irish Nation.
(BTW, notice how the above sentence includes the entire island of Ireland! Anyone born on the island is entitled to citizenship, not just born in the Republic!).
However, reading on to Article 9, there is an important exception to the above rule:
Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, …, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship…
This exception was made explicit in the 27th constitutional amendment in 2004.
What can the President do?
The Irish president is elected for a term of 7 years by a popular vote (proportional representation system) and may hold a maximum of two terms. The minimum age on the day of election is 35. To kick the president out, there needs to be a two thirds vote from each of the two houses.
The Irish president’s powers are quite limited and any messages to the nation must be approved by government (more on how government is defined later). While the president is in charge of confirming many positions, such as the Taoiseach (prime minister) and the attorney general, confirmations are largely ceremonial and the president must follow the nominations of, for example, the Taoiseach or the Dáil (the parliament).
Here are a few things the president can do:
The president summons and dissolves the Dáil (the main house of parliament). If the Taoiseach (the head of the Dáil) loses the support of a majority of the Dáil members, then the president can dissolve the Dáil (i.e. move to a new election), but the president has the right to *not dissolve* the Dáil. I suppose this could allow government to keep passing bills if needed. It does seem odd if the Taoiseach is asking for parliament to be dissolved and the president says no.
The president can convene a meeting of the houses of parliament (known as the Oireachtas).
If a bill is passed by the houses, but the President determines the bill may violate the constitution, then the President can refer the bill to the Supreme Court for consideration. So, there is a check here on laws that they are consistent with the constitution.
The president can decide that a bill (passed by the houses) is important enough for the people to weigh in on, provided there first is a petition by a majority of the Seanad (the non-democratically elected house) and at least one third of the Dáil (the democratically elected house). The bill is “put to the people” either via referendum, or via dissolution of the Dáil, followed by a new election and the Dáil voting afresh on the bill.
This is the main house of parliament and is elected at least every five years using a proportional representation system. There is one representative for every 20,000 – 30,000 people, but there must be at least three representatives for each electoral region (called a constituency). In practise, there are no more than 5 per constituency and in 2022, there are 160 members of the Dáil.
You can vote for Dáil members at age 18, but you have to be 21 to get elected.
The Dáil can create bills and also pass bills (that the Dáil creates or that the Seanad creates). If the Seanad doesn’t approve a bill, but the Dáil does, then Dáil has to wait for 180 days before the bill is automatically passed. The only other way a bill gets stopped is by the president referring the bill to the Supreme Court or back to the people (which first requires a petition by the Seanad).
Dáil and Seanad business is all public, except if two thirds of either house vote to have a private session.
The Seanad (Senate)
The senate, elected at the same time as the Dáil, has 60 members, of which 11 are nominated by the Taoiseach, six are voted in by graduates of universities and forty three are elected by members of five panels, which roughly correspond to 1) industry, 2) agriculture, 3) labour, 4) social services and 5) culture. Exactly how these 43 members are elected is largely nondescript in the constitution and left to laws. Most people (myself included before reading the constitution) have no idea how this works.
While the Seanad can propose a bill (although not a money bill – more on that later) and vote on bills, the Seanad has no pure veto power and can only:
delay the passage of the bill (if it has the support of the Dáil) by 180 days, according to constitutional provisions for time required before a bill passes.
make a petition to the president for the bill to be brought to the people for voting. For this to happen requires the support of at least one third of the members of the Dáil, in addition to the President granting the petition.
So, the role of the Seanad is perhaps better described as one of forced contemplation in the system rather than as a veto power (like the US Senate). I’ve heard that, in practise, the Seanad also provides useful recommendations for new bills and catches errors and oversights in bills proposed by the Dáil – a useful role, but not a veto.
In 2013 there was a referendum to get rid of the Seanad, but it didn’t pass. If the whole idea of the constitution is to incorporate the judgement, not just of the public, but of specialised thinkers (elites!) and participants with longer decision time frames (e.g. the constitution, the judiciary, and – to a lesser degree – the president), then abolishing the Seanad seems like a bad idea. The complaint is that the senate is undemocratic, but that’s the whole purpose of the senate – to be undemocratic and pull in expertise.
I think it’s a Plato story or something, but if you’re in rocky seas and there’s a captain on board, you’re not going to be having a democratic vote on how to manage the sails. The system needs some elites for doing specialised things… perhaps as long as there’s a way to kick them out. Maybe that’s an idea.. There is no term limit on the Dáil, so maybe put one in for the Seanad?Maybe three terms, enough for some experience to stay around for at least a while?
Ok, back to the constitution…
This consists of between seven and fifteen members that must all be from the Dáil (except there can be up to two from the Seanad).
This provides a practical problem for Irish governments that they only have 15 positions to dole out when they form a government. The solution has been to create a new form of position, the “junior minister”. “Junior ministers” go to government meetings, but they aren’t technically “government” because that’s limited to 15.
A few other things about the government:
* Only the Dáil is allowed to declare war. (The government can’t independently do so).
* The Government cannot do anything that would be in breach of bills passed by the houses of parliament (unless in a time of war).
* All government business is conducted in private (unless the High Court deems something must be released publicly).
Any bills that deal with taxation and government debt are called “Money Bills”, and they seem to have more lax requirements for getting passed. First off, the president can’t refer a money bill to the Supreme Court to say whether it is constitutional or not. Further, Money Bills can be passed even without waiting for the 180 day delay that is imposed if the Seanad didn’t vote in favour of the bill.
My interpretation here is that, if Money Bills were as easy to block as other bills, then it would be too hard for the state to function. In theory, money bills don’t affect constitutional rights (such as the right to private property), but they could tax it at a really high rate that would be functionally equivalent. More on private property later.
The “Don’t Give me Penalty Points for Speeding” Rule
I haven’t full confidence in this, but this extract from Article 15 is said to have been used by members of the houses to avoid getting fines from the Gardaí (police) by claiming they “are on the way to the Dáil”:
The members of each House of the Oireachtas shall, …, be privileged from arrest in going to and returning from, and while within the precincts of, either house, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.
On a serious note, it does seem like an important rule to make sure there is freedom of speech in the houses and freedom to get there to speak.
EU: Excuse me, Ireland, let me ask you that question one more time!
In 2001, the 24th amendment was proposed, via referendum, to ratify the Treaty of Nice. That referendum didn’t pass, so another referendum was brought in 2002, which did then pass (after assurances had been obtained on Irish neutrality).
On the matter of EU referendums, there was another called the Lisbon Treaty in 2008, that passed with 67% support and involved the following (taken from Wikipedia):
“Prominent changes included the move from unanimity to qualified majority voting in at least 45 policy areas in the Council of Ministers, a change in calculating such a majority to a new double majority, a more powerful European Parliament forming a bicameral legislature alongside the Council of Ministers under the ordinary legislative procedure, a consolidated legal personality for the EU and the creation of a long-term President of the European Council and a High Representative of the Union for Foreign Affairs and Security Policy. The Treaty also made the Union’s bill of rights, the Charter of Fundamental Rights, legally binding. For the first time, the treaty gave member states the explicit legal right to leave the EU, and established a procedure by which to do so.”
Unlike many European states, which ratified treaties only in their parliaments, Ireland’s constitution required referendums. Treaty ratification resulted in changes to Article 29 to include language attesting that:
No provision of this Constitution invalidates laws enacted, acts done or laws enacted by the State, before, on, or after entry into force of the Lisbon Treaty…
It seems messy to have a constitution retrospectively attest that nothing in the constitution invalidates a later (and surely substantially overlapping?) set of new laws coming from the EU – even if the Irish constitution was somewhat adjusted to be consistent. My reading is that, with Article 29, it’s not enough to just read the Irish constitution, you have to go and read all of the European treaties that (may?) have precedence. So, I’m falling short here in my review of the entire Irish constitution… if we consider that the EU rules are incorporated by reference.
To me, Article 29 diminishes the clarity and strength of the Irish constitution because there is complicated abdication of certain authority to the EU.
Ireland and Nuclear Power
Article 29 mentions that the “State may become a member of the European Atomic Energy Community”, which dates back to a treaty signed in Rome in 1957. This was allowed as part of the 3rd amendment, which was passed by referendum in 1972 and allowed Ireland to join European Coal and Steel Community and the European Economic Community as well.
Although Ireland did become a member and still is a member of the European Atomic Energy Community, it is illegal to produce nuclear fission power for the Irish grid according to the Electricity Regulation Act, 1999 (Section 18).
The three main courts are the High Court, the Court of Appeal and the Supreme Court. As their names suggest, the big cases go to the High Court, which can be appealed to the Court of Appeal. The Supreme Court takes on a final appeals – at its discretion and if it believes the case is in the national interest. As previously mentioned, the Supreme Court also serves to judge whether a bill – referred by the president – is constitutional or not.
Interestingly, there is an exception here to this court system whereby Special Courts and Military Tribunals can be set up that fall outside of this system of appeals. I’m assuming that the Special Criminal Court (set up by legislation rather than in the constitution) falls under this bracket.
The special criminal court always comes up when RTE news (state news) talks about drug lords and terrorism, but I don’t know a lot of detail. These types of court – like the definition of “national emergency” – are always controversial because, while they allow discretion for governments to handle extreme events, they also side-step the due process that is built into the constitution around appeals.
Make sure you get permission to be knighted
With American citizenship, you have to report your taxes no matter where you live in the world. With Irish citizenship, you just have to give the Taoiseach a heads up before any knighting ceremony.
No title of nobility or honour may be accepted by any citizen except with the prior approval of the government.
There are a few specific mentions of women in the constitution in Article 41:
…the State recognises that by her life within the home, woman [sic] gives to the State a support without which the common good cannot be achieved.
The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
The State shall endeavour to ensure the the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter avocations unsuited to their sex, age or strength.
Aside from the language being outdated, the typo seems to comes from an overly literal translation from Irish.
Section 40 of the Irish constitution covers Personal Rights. For example, Article 40, Section 1 says:
All citizens shall, as human persons, be held equal before the law.
Section 40.3 then goes on with the following two sub-sections:
1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
In the original constitution, those were the only two paragraphs in Section 40.3. A third paragraph was then introduced in with the 8th amendment, back in 1983, which provided for an equal right to life for the unborn and for the mother:
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This is the 8th amendment that “Repeal the 8th” refers to.
Then in 1992, although abortion wasn’t allowed, it was decided that travel to other states and provision of information on services in other states wouldn’t be disallowed. This resulted in the addition of two more paragraphs to section 14.3, as follows:
This subsection shall not limit freedom to travel between the State and another state.
This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.
In 2002, a referendum failed to pass that would have meant that:
the right of a pregnant woman to avail of abortion if she is suicidal would end
medical procedures necessary to save the life of the mother would not be considered to be abortion in its criminal sense
The vote failed to pass by a margin of 50.42% (No) to 40.48% (Yes). The text addition to the constitution would have been a mess and refers to related legislation that would have had to pass following the referendum, so I won’t get into it.
In 2018 came the thirty-eighth amendment, which passed with 66%+ of the vote and replaced all of the paragraphs that were added to the original constitution (including from the 8th amendment) and replaced them with a short sentence:
Provision may be made by law for the regulation of termination of pregnancy.
Referendums involve popular vote, yes or no, and can be employed either for:
a) A change to the constitution
b) Getting popular input on a bill of national interest (created via a petition by the Seanad that is supported by the President and one third of the Dáil)
A referendum on constitutional change either passes or is veto’d according to whether a majority vote for or against.
All other referendums pass by default unless they are rejected by over 50% of the vote and at least one third of registered voters vote to reject! That makes it pretty hard to reject because the voter turnout has to be at least 66.66% in order for the vote to possibly be vetoed!
The state … guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.
Of course, the state can pass a money bill and tax private property. Also, there is a provision that the rights to private ownership are subject to considerations of social justice.
The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
Still, it would be interesting to see if constitutional challenges could come into play if the government became strongly socialist or communist.
A review wouldn’t be complete without a mention of God, who makes an appearance in seven places (eight if you include “Lord”, and nine if you include his Irish language glory), first appearing in Article 6:
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
Jesus makes one appearance right at the start:
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, …
Mary doesn’t make an appearance, but “summary” and “primary” make seven appearances in total, so at least that’s something.
And with that, I’ll sign off, as does the constitution:
Dochum Glóire Dé agus Onóra na hÉireann
(Bring God’s Glory and Honour of Ireland)
Edits – Sept. 20th 2022
-An earlier version incorrectly stated that the 1992 amendment was the “Irish solution to an Irish problem”. In fact, “an Irish solution to an Irish problem” referred to Haughey’s 1979 bill allowing contraception to be used only by prescription: https://en.wikipedia.org/wiki/An_Irish_solution_to_an_Irish_problem