Free State Constitution
Overview
The Irish Free State Constitution followed the examples of many international constitution in providing for a declaration of personal constitutional rights. This included the following
- liberty of the person inviolable
- person may not be detained or imprisoned except in accordance with law
- dwellinghouse inviolable
- freedom of conscience and free profession or religion subject to public order and morality
- free expression of opinion
- right to assembly,
- no legal distinction between classes or churches.
Article 10 declared that all citizens of the Irish Free State have a right to free elementary education.
The State was declared to be a coequal member of the community of nations forming the British Commonwealth of Nations. It declared the sovereignty of the people providing that all powers of government, all authority, legislative, executive and judicial in Ireland are derived from the people of Ireland and the same are exercised in the Irish Free State through the organisations established under and in accordance with the Constitution.
Legislature
The Irish Free State legislature comprised two houses; the Dail and Senate. There was provision for direct initiation of legislation by the people. This possibility was not implemented in practice.
The Constitution provided for the separation of the legislative, executive and judicial branches of government. The High Court and the Supreme Court on appeal had original (direct) jurisdiction in all matters.
Dail
The Lower house was Dáil Éireann based on direct suffrage of persons over 21 years. Elections were by proportional representation with a single transferable vote. The Dáil term was six years subject to the earlier power of dissolution by the governor general.
The Dáil was composed of 153 deputies elected by universal suffrage. This was reduced to 136 in 1934. The term of the Dáil was increased from four to six years.
The IFS Constitution provided for a legislative power of initiative through referendum. This was abolished by the tenth amendment. The Oireachtas became exclusive lawmaker. The Oireachtas comprised the two houses, Dáil and Seanad Éireann and the Crown.
Senate
The Senate (Seanad) had considerably less powers than the Dáil particularly in financial matters
The first Senate was comprised of 30 members nominated by the President of the Executive Council and 30 elected by the Dáil.
The Senate (Seanad) with 60 members, was originally elected directly by citizens over 30 years. Later it was elected by the members of both houses. A senator was required to be 30 years. One quarter of the Senate retired every third year. An election was to be held to fill the 15 vacancies as would as vacancies caused by death and resignation.
The Dáil resolved that is was expedient that the President in nominating members of the Senate should provide for representation of all groups not adequately represented in the Dail. Regard was to be had to the advice of certain professional bodies and the certain local authorities.
Under the original form or Senate (Seanad) election, the country was a single constituency with election by PR. A panel was to be prepared comprising three times as many candidates as vacancies as well as senators seeking re-election. The lists were determined by Dáil Éireann voting in accordance with PR, nominating twice as many qualified persons as they were to be elected, while the Senate on the same principle nominated an equal number to be elected.
The Constitution provided that the Seanad Éireann was to be composed of citizens who shall be proposed in the grounds that they have done honour to the nation by reason of useful public service, because of special qualifications or attainments they represent important aspects of the nation’s lifestyle.
This mode of election under the Constitution was used only in 1925, when a quarter of Senators and four coopeted senators sought election. It was boycotted by Sinn Fein, voters generally exercised one preference only and were bewildered by the list of candidates. Apathy was as much a factor as confusion; the turnout was less than 25%.
The above method was abolished by a series of amendments in 1928. Senators were to be elected by members of the Dáil and Senate (Seanad) voting together under proportional representation. The panel was to have twice as many candidates as vacancies. Half were to be nominated by the Dáil and Senate respectively. Elections were held in 1928 and 1931 for a quarter of the Senate. The panels were comprised of political nominee.
Powers of Oireachtas
The sole and exclusive power of making laws was vested in the Oireachtas. The practical effect of the King in parliament was theoretical and contrary to the spirit of most of the Constitution.
The powers of the Oireachtas (parliament) were limited by the Constitution. No discretionary power was left to the Crown or Governor General
The Oireachtas had the exclusive power to regulate and maintain armed force. Save in the case of actual invasion, the Free State was not to be committed to active participation in a war without the consent of the Oireachtas. This was intended to prevent the State becoming involved in a war by reason of association with the Commonwealth.
The existence of three “treaty” ports would have meant most likely that but for the amendments to Constitution in the 1930s, the economic war and the Anglo-Irish Agreement 1938, Ireland would have de facto become involved in a war in the event that Britain became involved in a widespread war (as happened shortly afterwards).
The Constitution provided that the sole exclusive power of making laws for the peace order and good government of the Irish Free State was vested in the Oireachtas. This provision was directed against the supposed power of the Imperial Parliament to legislate for dominions.
Ultimately the Statute of Westminster 1931 declared that that the parliament of a dominion has full power to make laws having extraterritorial operation. It provided further that no act of the Imperial Parliament shall extend to a dominion unless the dominion has consented to the enactment.
Executive
The Crown was included in the Oireachtas as a formality. The Constitution provided that the Oireachtas would be summoned and dissolved by the representatives of the Crown in the name of the King. However, it provided that Dáil Éireann should fix the date of reassembly and conclusion.
The Crown’s representative, the governor general, had no role in relation to dissolution of the Dáil. He must sign and signify the royal assent to any bill before it could have the force of law. However, he could not withhold that consent or reserve the bill for the King’s pleasure.
The executive power nominally resided with the Governor General but was exercised by the Dáil ministry. The ministry(government) was the Executive Council nominated by the President of the Council (prime minister) elected by the Dáil. The Council was responsible to the Dáil.
An Executive Council which lost the support of the Dáil was obliged to resign. The Executive Council is equivalent to the government under the current Constitution. The President of the Executive Council was equivalent to the Taoiseach.
In addition to Ministers comprising the council, there was the possibility of extern ministers nominated by the Dáil are not part of the Executive Council. This did not occur in practice, because of the strength of the party system.
Extern Ministers
The Constitution provided for so called extern ministers. The most important offices were to be parliamentary ministers. The extern ministers could be non-parliamentary minister. They would not be members of either House. The non-parliamentary ministers would possess the privileges of the members of the Dáil. They would be entitled to speak. They would be required to attend the Dáil to answer questions. They would hold office for the term of the Dáil.
The non-parliamentary Ministers unlike the other ministers nominated by the President of the Executive Council were to be nominated by a special committee of the Dáil. The Dáil was to nominate a minister to a particular ministry. Each nomination was to be separate.
They were also to act collectively as an executive with the parliamentary ministers. They were to be individually responsible to the Dáil for their ministry. During their term of office, a minister could not be removed unless a report is presented by a parliamentary committee declaring that he had been guilty of misfeasance, incompetence or unsatisfactory performance.
The President nominated TDs to the Executive Council. He could then submit a list of ministries whose heads would not be members. A committee elected by the Dáil voting on PR was to elects the minister. The committee only could nominate members and all extern ministers were nominees of the Executive Council and were all members of the Dáil.
The appointment of external ministers was not mandatory. In the First Dáil after the Constitution three extern ministers were appointed. Four were appointed in the following Dáil. None was chosen from outside the Dáil; nor from the opposition despite the requirement to be impartially representative of Dáil Eireann
In the above circumstances the continued existence of extern ministers proved anomalous and the provisions were effectively abolished in 1927. The cabinet system along the lines of the United Kingdom effectively prevailed.
Referendum
Extern Ministers
The Constitution provided for so called extern ministers. The most important offices were to be parliamentary ministers. The extern ministers could be non-parliamentary minister. They would not be members of either House. The non-parliamentary ministers would possess the privileges of the members of the Dáil. They would be entitled to speak. They would be required to attend the Dáil to answer questions. They would hold office for the term of the Dáil.
The non-parliamentary Ministers unlike the other ministers nominated by the President of the Executive Council were to be nominated by a special committee of the Dáil. The Dáil was to nominate a minister to a particular ministry. Each nomination was to be separate.
They were also to act collectively as an executive with the parliamentary ministers. They were to be individually responsible to the Dáil for their ministry. During their term of office, a minister could not be removed unless a report is presented by a parliamentary committee declaring that he had been guilty of misfeasance, incompetence or unsatisfactory performance.
The President nominated TDs to the Executive Council. He could then submit a list of ministries whose heads would not be members. A committee elected by the Dáil voting on PR was to elects the minister. The committee only could nominate members and all extern ministers were nominees of the Executive Council and were all members of the Dáil.
The appointment of external ministers was not mandatory. In the First Dáil after the Constitution three extern ministers were appointed. Four were appointed in the following Dáil. None was chosen from outside the Dáil; nor from the opposition despite the requirement to be impartially representative of Dáil Eireann
In the above circumstances the continued existence of extern ministers proved anomalous and the provisions were effectively abolished in 1927. The cabinet system along the lines of the United Kingdom effectively prevailed.
Under original Constitution, the Senate (Seanad) had the right to demand a referendum on a legislative proposal. The bill might be suspended for up to 90 days by two fifth of the members of the Dáil and a majority of the Senate.
Such a demand had to be presented to the President of the Executive Council within seven days of passage of the bill. The bill could then be presented to referendum if demanded before the expiration of 90 days either from resolution of the Senate assented by three fifth of its members, or on a petition signed by one twentieth of the voters. This power did not apply to money bills or urgent bills. The power was never invoked by the Senate and was deleted by the tenth amendment.
The Constitution provided for amendment only by referendum / vote of the people after an eight-year transitional period. 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: a majority of all eligible voters, or a two-thirds majority of votes cast.
However, eight-year period during which amendments of the constitution could be made by ordinary legislation from was extended from eight to sixteen years (to 1938). Therefore, for its whole existence it could be amended by ordinary legislation
The Constitution provided that the Oireachtas might provide for by implementing legislation a process for the initiation of laws or constitutional amendment. If the Oireachtas t did not do implement the initiative within two years, the proposal might proceed through a popular initiative. The Constitution provided that the proposals might be initiated on a petition of 50,000 voters and if the legislator rejects the proposal, it would be submitted for referendum.
If the mechanism was not implemented, then on a petition of not less than 75,000 voters, not more than 15,000 to be within a single constituency, the Oireachtas was required to make provision and submit the questions to decision by referendum. The Oireachtas did not adopt the implementing within the two years stipulated by the constitution. A petition of 96,000 signature was gathered to trigger a referendum. The Oireachtas responded by removing the provisions from the Constitution in 1928.
Role of the Crown
Fianna Fail attempted to commence an initiative to abolish the oath to the Crown. A petition was presented to the Dáil in 1928. Because of the lack of standing orders dealing with the provision, consideration of the petition was postponed. The government in the meantime deleted the provisions of the Constitution.
The Irish Free State Constitution provided formally for a constitutional monarchy. In substance, it was much closer to a republican model. The Governor General was to be appointed in the light manner as the Governor General of Canada. The government of the Irish Free Sate was to be consulted in relation to the candidate, before being recommended for appointment by the King. The initiative and selection remained with the Cabinet in Britain.
The Imperial Conference in 1926 declared that the Governor General of dominion was representative of the Crown, but not the representative of the British Government.
The Imperial Conference in 1930 modified the practice in relation to appointments of governors general. It was provided that the King was to act on the advice of the ministers in the relevant dominion. The British cabinet was no longer involved, and the dominion cabinet communicated directly with the King. The first two governors general were distinguished national figures in Ireland. The third Governor General appointed on the nomination of Fianna Fail was deliberately a low-key appointment.
The Governor General
The Governor General appointed the Executive Council to aid and advice in the government of the Irish Free State. The Governor General had no discretion in the appointment. The Executive Council was the government.
A very few statutes gave non-discretionary functions to the governor general. In each case the Governor General acted on the advice of the Executive Council.
The dominion practice of allowing the Governor General discretion to refuse a dissolution of parliament was not permitted to the governor general. A governor could not refuse a dissolution to a President of the Executive Council who retained the support of the majority in Dáil Éireann. A defeated President may not advice a dissolution.
Courts
The Constitution provided that the courts were to comprise courts of first instance and a court of final appeal called the Supreme Court. Judges of the High Court and Supreme Court were to be barristers of 12 years’ standing.
The Courts of First Instance were to include a High Court with full original jurisdiction. There were also to be courts of local and limited jurisdiction.
All questions regard to the validity of the law under the Constitution was to be within the jurisdiction of the High Court. The Supreme Court was a court of appeal. It was to be the final court in respect of issues of constitutionality.