{"id":4965,"date":"2018-12-30T19:48:19","date_gmt":"2018-12-30T19:48:19","guid":{"rendered":"http:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/"},"modified":"2023-07-16T21:39:58","modified_gmt":"2023-07-16T21:39:58","slug":"basic-institutions-of-the-state-i","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/","title":{"rendered":"Constitution of State"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#Constitution_Background\" title=\"Constitution Background\">Constitution Background<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#Basic_Features\" title=\"Basic Features\">Basic Features<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#The_Preamble\" title=\"The Preamble\">The Preamble<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#The_People_and_the_State\" title=\"The People and the State\">The People and the State<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#People\" title=\"People\">People<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#Flag_Language\" title=\"Flag &amp; Language\">Flag &amp; Language<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#Nature_of_State\" title=\"Nature of State\">Nature of State<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#Law_Binds_the_State\" title=\"Law Binds the State\">Law Binds the State<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#International_Status\" title=\"International Status\">International Status<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/basic-institutions-of-the-state-i\/#European_Union\" title=\"European Union\">European Union<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Constitution_Background\"><\/span>Constitution Background<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The present Constitution was adopted in 1937. \u00a0It replaced the 1922 Irish Free State Constitution, which arose out of the Anglo-Irish Treaty of 1921.<\/p>\n<p>The 1922 Constitution had provided a role for the King, acting through a Governor General, equivalent to the President in the 1937 Constitution.\u00a0 It had also provided for an oath of allegiance and other features which, the Fianna Fail Government elected in 1932, \u00a0found objectional.<\/p>\n<p>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). \u00a0As a \u00a0result, the 1922 Constitution was radically amended, \u00a0in both the mechanics of government and the curtailment of human rights protections.<\/p>\n<p>The Governor General&#8217;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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Basic_Features\"><\/span>Basic Features<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Constitution sets out the basic rules which govern the various organs or institutions of State.\u00a0 These rules cannot be changed other than by referendum.<\/p>\n<p>The Constitution is published in Irish and English.\u00a0 The Irish text prevails. \u00a0The Court can refer to either. The Constitution can only be changed by referendum.<\/p>\n<p>Originally, the Constitution claimed to apply to the whole island of Ireland.\u00a0 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.<\/p>\n<p>The Constitution provides a framework for the government of the State and the operation of the legal system. \u00a0It establishes the key governmental bodies and offices of State and confers their powers and functions. The Government, the Courts and the Oireachtas \u00a0are limited in their powers, by what constitution provide<\/p>\n<p>The Constitution regulates the relationship between the State and citizens.\u00a0 It contains protections for basic human rights. Legislation inconsistent with the Constitution is void.\u00a0 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.<\/p>\n<p>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\u00a0 ideas of what represents the common good.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_Preamble\"><\/span>The Preamble<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The\u00a0Preamble to the Constitution reads:<\/p>\n<p><em>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,\u00a0We, the people of \u00c9ire,<\/em><\/p>\n<ul>\n<li><em>Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ,<\/em><\/li>\n<li><em>Who sustained our fathers through centuries of trial,\u00a0Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,<\/em><\/li>\n<li><em>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,<\/em><\/li>\n<\/ul>\n<p><em>Do hereby adopt, enact, and give to ourselves this Constitution.<\/em><\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>On occasions the reference to the religious aspect had been used to justify certain principles which have a religious origin.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_People_and_the_State\"><\/span>The People and the State<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Constitution refers to the Irish nation, the Irish State, and the people namely citizens.\u00a0 The People are sovereign and have the right to designate the rulers of the State and decide ultimately on all questions of national policy.\u00a0 The Preamble implies that\u00a0the powers of government held by the State derives under God from\u00a0 the people.<\/p>\n<p>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.<\/p>\n<p>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.<\/p>\n<p>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.\u00a0 The powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"People\"><\/span>People<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 6 provides that the people have the right to designate the rulers of the State.\u00a0 In a \u00a0final appeal, they are to decide all questions of policy.\u00a0 In practical terms this is reflected in the provision for referendum for amendment of the Constitution.<\/p>\n<p>A significant aspect of so-called popular sovereignty is illustrated in the famous case of Byrne v \u00a0Ireland.\u00a0 Formerly, it was assumed that the State is immune from civil claim on the basis that it was soverign.\u00a0 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.<\/p>\n<p>In Byrne v Ireland , the Supreme Court analysed that the Constitution had been adopted by the people as a soverign independent democratic state.\u00a0 The State could be sued in its official name Ireland.\u00a0 The Court noted that all powers derived under God from the people whose right is to designate the rules of the State. The \u00a0court decided that State could be sued in its own court and will subject to the Constitution which is subject to the people.\u00a0 The courts enforce the Constitution and therefore persons were entitled to enforce their rights against the State in court.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Flag_Language\"><\/span>Flag &amp; Language<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 4 read; The name of the State is \u00c9ire, or, in the English language, Ireland.<\/p>\n<p>Article 5 reads : The State is a sovereign, independent, democratic state.<\/p>\n<p>Article 7 provides: The national flag is the tricolour of green, white and orange.<\/p>\n<p>Article 8 provides that: The Irish language as the national language is the first official language.\u00a0 The English language is recognised as a second official language.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Nature_of_State\"><\/span>Nature of State<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Irish State is known as Ireland or Eire under the Constitution.\u00a0 It is labelled a Republic under legislation passed some 10 years after the Constitution was enacted.\u00a0 The State\u2019s name remains unchanged.<\/p>\n<p>The State is a legal entity.\u00a0 It can sue and be sued.\u00a0 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.<\/p>\n<p>The State can sue and be sued.\u00a0 It can own property, enter contracts and do much the same things as any legal person can do.\u00a0 The State is a democratic state.\u00a0 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.\u00a0 The State can only do what is legally entitled to do under laws properly passed and made that the constitution.<\/p>\n<p>The State is described as a republican although not described as such in the Constitution. \u00a0The 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Law_Binds_the_State\"><\/span>Law Binds the State<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Ireland the people as opposed to the State or the King, Queen or sovereign.\u00a0 Strictly speaking, the State is sovereign but subject to the will of the people.\u00a0 The people are sovereign.\u00a0 In practical terms, the State is sovereign but subject to the will of the people.<\/p>\n<p>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.\u00a0 In a famous case, the Supreme Court decided that the State was not the successor to the Crown and accordingly was not immune.\u00a0 Therefore the State could be sued for negligence.<\/p>\n<p>Similarly, other exemptions enjoyed by the British Crown such as the privilege against production of confidential documents were found inconsistent with the Constitution.\u00a0 The State is not entitled to disobey its own laws.<\/p>\n<p>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.\u00a0 However, it was decided that the State was not immune from its own laws.\u00a0 This necessitated a change in the planning permission rules.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"International_Status\"><\/span>International Status<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The State is sovereign in international relationships.\u00a0 Only the State may determine Ireland\\&#8217;s political foreign policy.<\/p>\n<p>The Irish State is party to numerous international treaties. \u00a0However, these international treaties do not become part of the law unless made law by the Oireachtas.\u00a0 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.<\/p>\n<p>For example, Ireland has been party to the European Convention on Human Rights for many years.\u00a0 However, it could not be directly enforced in Ireland.\u00a0 Applications could be made for debt to the European Court of Human Rights to the effect that Ireland\u2019s actions were inconsistent with it.\u00a0 However, this did not have an internal effect.\u00a0 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.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"European_Union\"><\/span>European Union<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The position of the European Union represents a significant limitation of\u00a0 domestic Irish sovereignty. \u00a0The European Union treaties have been adopted by various referenda in Ireland. \u00a0European Union law prevails over Irish law. \u00a0It can even take precedence over the terms of the Constitution.<\/p>\n<p>This arises from the principle of supremacy of European Union law.\u00a0 The Constitution itself gives effect to the supremacy of EU law. \u00a0The\u00a0supremacy of EU law only applies to the requirements which necessarily arise from EU membership.<\/p>\n<p>EU law can become directly effective without being approved by the Oireachtas.\u00a0 EU regulations have direct effect throughout the EU.\u00a0 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.\u00a0 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.<\/p>\n<p>A vast quantity of EU law becomes law in the State by Ministerial Orders under the European Communities Act.\u00a0 These European communities\u2019 regulations give effect to directives.\u00a0 There are up to a hundred EU regulations a year many of which are equivalent to laws made by the Oireachtas.\u00a0 This differs from other statutory instruments which fill in the detail of laws.\u00a0 They may vary or alter the existing inconsistent pieces of legislation.<\/p>\n<p>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. \u00a0Once significant changes were made or where a constitutional amendment may be required. \u00a0If the amendment is a development of the existing aims no referendum will be required. \u00a0If the changes are significant a new referendum would be required.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4965\" data-postid=\"4965\" class=\"themify_builder_content themify_builder_content-4965 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Constitution Background The present Constitution was adopted in 1937. \u00a0It 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.\u00a0 It had also provided for an [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[329],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4965"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4965"}],"version-history":[{"count":13,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4965\/revisions"}],"predecessor-version":[{"id":22052,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4965\/revisions\/22052"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4965"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4965"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4965"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}