The present Constitution was adopted in 1937. It replaced the 1922 Irish Free State Constitution, which arose out of the Anglo-Irish Treaty of 1921.
The 1922 Constitution had provided a role for the King, acting through a Governor General, equivalent to the President in the 1937 Constitution. It had also provided for an oath of allegiance and other features which, the Fianna Fail Government elected in 1932, found objectional.
The 1922 Constitution could be changed by a vote of the Oireachtas within its first eight years. This eight years period was itself extended to 16 years (until 1938). As a result, the 1922 Constitution was radically amended, in both the mechanics of government and the curtailment of human rights protections.
The Governor General’s role was reduced and removed in 1936. The Senate was abolished in the same year. Political violence caused the human rights provisions to be greatly reduced and restricted. Ultimately, emergency public safety legislation was expressly permitted to override key human rights protections.
The Constitution sets out the basic rules which govern the various organs or institutions of State. These rules cannot be changed other than by referendum.
The Constitution is published in Irish and English. The Irish text prevails. The Court can refer to either. The Constitution can only be changed by referendum.
Originally, the Constitution claimed to apply to the whole island of Ireland. This was altered in 1998, in the context of the Good Friday or British Irish agreement. It declares an aspiration for a unity of the island with the consent of the people of Ireland and Northern Ireland.
The Constitution provides a framework for the government of the State and the operation of the legal system. It establishes the key governmental bodies and offices of State and confers their powers and functions. The Government, the Courts and the Oireachtas are limited in their powers, by what constitution provide
The Constitution regulates the relationship between the State and citizens. It contains protections for basic human rights. Legislation inconsistent with the Constitution is void. If the government exercises at its powers in administration or enforcement in a way that inconsistent with the Constitution, the Courts may invalidate the purported action.
The human rights provisions have been developed and effectively changed by court interpretation over time. The Courts take the view that the fundamental human rights protections should be interpreted in the context of prevailing views and ideas of what represents the common good.
The Preamble to the Constitution reads:
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.
The Preamble has been quoted in Supreme Court decisions, particular in earlier time as informing the spirit of the Constitution. However, the court so acknowledged that its rights change in accordance with prevailing idea. Because of its generality its invocation tends to be rhetorical.
A number of older cases referred to the religious aspect of the Preamble. There have been proposals over time to remove the religious references from the Constitution and replace them with secular language.
On occasions the reference to the religious aspect had been used to justify certain principles which have a religious origin.
The People and the State
The Constitution refers to the Irish nation, the Irish State, and the people namely citizens. The People are sovereign and have the right to designate the rulers of the State and decide ultimately on all questions of national policy. The Preamble implies that the powers of government held by the State derives under God from the people.
The method of enactment of the 1937 Constitution by the people contrast with the adoption of the 1922 Constitution by the constituent assembly / Third Dail, elected for the purposes of making the 1922 Constitution.
Article 1 of the Constitution states that the Irish nation has an inalienable, indefeasible, and sovereign right to choose its own form of Government an to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.
Article 6 provides that: 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. The powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.
Article 6 provides that the people have the right to designate the rulers of the State. In a final appeal, they are to decide all questions of policy. In practical terms this is reflected in the provision for referendum for amendment of the Constitution.
A significant aspect of so-called popular sovereignty is illustrated in the famous case of Byrne v Ireland. Formerly, it was assumed that the State is immune from civil claim on the basis that it was soverign. This followed from the preexisting United Kingdom theory by which the soverign was immune from legal suit and accordingly as representative or embodiment of the State, the State was immune.
In Byrne v Ireland , the Supreme Court analysed that the Constitution had been adopted by the people as a soverign independent democratic state. The State could be sued in its official name Ireland. The Court noted that all powers derived under God from the people whose right is to designate the rules of the State. The court decided that State could be sued in its own court and will subject to the Constitution which is subject to the people. The courts enforce the Constitution and therefore persons were entitled to enforce their rights against the State in court.
Flag & Language
Article 4 read; The name of the State is Éire, or, in the English language, Ireland.
Article 5 reads : The State is a sovereign, independent, democratic state.
Article 7 provides: The national flag is the tricolour of green, white and orange.
Article 8 provides that: The Irish language as the national language is the first official language. The English language is recognised as a second official language. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.
Nature of State
The Irish State is known as Ireland or Eire under the Constitution. It is labelled a Republic under legislation passed some 10 years after the Constitution was enacted. The State’s name remains unchanged.
The State is a legal entity. It can sue and be sued. The Constitution makes clear that although the State is run by the government the responsibility of the people to decide who will be the rules of the State and all questions of national policy remains with the people.
The State can sue and be sued. It can own property, enter contracts and do much the same things as any legal person can do. The State is a democratic state. It is also a public democratic state in that it is operated in accordance with the Constitution passed by the people and governed by the democratically elected government. The State can only do what is legally entitled to do under laws properly passed and made that the constitution.
The State is described as a republican although not described as such in the Constitution. The features of a Republic are ruled by the people, democracy and the division of powers typically between the law making executive and judicial functions of the State.
Law Binds the State
In Ireland the people as opposed to the State or the King, Queen or sovereign. Strictly speaking, the State is sovereign but subject to the will of the people. The people are sovereign. In practical terms, the State is sovereign but subject to the will of the people.
Formerly the State could not be sued by the basis of the so called royal prerogative by which the King being the UK sovereign enjoyed sovereign. In a famous case, the Supreme Court decided that the State was not the successor to the Crown and accordingly was not immune. Therefore the State could be sued for negligence.
Similarly, other exemptions enjoyed by the British Crown such as the privilege against production of confidential documents were found inconsistent with the Constitution. The State is not entitled to disobey its own laws.
Formerly it was assumed the Planning Act should not apply to the State on the basis that of similar presumptions that apply in respect of the UK Crown. However, it was decided that the State was not immune from its own laws. This necessitated a change in the planning permission rules.
The State is sovereign in international relationships. Only the State may determine Ireland\’s political foreign policy.
The Irish State is party to numerous international treaties. However, these international treaties do not become part of the law unless made law by the Oireachtas. This is unlike the case of certain other countries, in particular, the United States where international agreements become part of law automatically on approval by the Senate.
For example, Ireland has been party to the European Convention on Human Rights for many years. However, it could not be directly enforced in Ireland. Applications could be made for debt to the European Court of Human Rights to the effect that Ireland’s actions were inconsistent with it. However, this did not have an internal effect. In 2003 the European Convention on Human Rights was made part of domestic Irish law and can now be relied on directly in the Court.
The position of the European Union represents a significant limitation of domestic Irish sovereignty. The European Union treaties have been adopted by various referenda in Ireland. European Union law prevails over Irish law. It can even take precedence over the terms of the Constitution.
This arises from the principle of supremacy of European Union law. The Constitution itself gives effect to the supremacy of EU law. The supremacy of EU law only applies to the requirements which necessarily arise from EU membership.
EU law can become directly effective without being approved by the Oireachtas. EU regulations have direct effect throughout the EU. Directors are addressed to governments and must be implemented in law within a certain time limit. However, under certain circumstances, individuals can rely directly on directives even where they have not been made into law. Furthermore, if directives have been made into law in a way that is inconsistent with the directives the individuals can rely on the law as it should have been implemented under the directive.
A vast quantity of EU law becomes law in the State by Ministerial Orders under the European Communities Act. These European communities’ regulations give effect to directives. There are up to a hundred EU regulations a year many of which are equivalent to laws made by the Oireachtas. This differs from other statutory instruments which fill in the detail of laws. They may vary or alter the existing inconsistent pieces of legislation.
The famous Crotty case in 1986/87 decided that if changes in European Union rules inconsistent with the original community treaties would not be covered by the terms of the existing provision in the Constitution mandating EU action. Once significant changes were made or where a constitutional amendment may be required. If the amendment is a development of the existing aims no referendum will be required. If the changes are significant a new referendum would be required.