Constitution of Ireland

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Éamon de Valera , the spiritual father of the constitution

The Irish Constitution is the legal basis of the Republic of Ireland and is liberal-democratic. The constitution establishes an independent state with the system of representative democracy and guarantees various basic rights. The constitution was passed by referendum on July 1, 1937 and replaced the constitution of the Irish Free State . The Constitution may only by referendum changed be. The constitution is predominantly referred to with the Irish title Bunreacht na hÉireann .

background

The Constitution of Ireland in 1937 replaced the Constitution of the Irish Free State , which had been in force since independence from the United Kingdom in 1922. There were two main reasons for completely revising the old constitution:

  • First, was old constitution closely with the Anglo-Irish Treaty linked and since 1932 was Fianna Fáil in government power, which originally were opponents of the treaty. Since 1922, many of the original articles have already been changed and redesigned, e.g. For example, concerning the oath of allegiance or the governor general, but the government of Eamon de Valera felt that it was better to draft a new constitution to replace the old constitution, which was partly shaped by the British government.
  • The second reason was that the constitution now seemed very piecemeal, as the government had the right to implement constitutional amendments by means of simple laws, some of which were implemented quite quickly and poorly. Hence, it was considered better to venture a fresh start.

Development process

The Irish Constitution of 1937 is based on the law of 1867 by Ferenc Deák . The constitution was the work of Eamon de Valera (President of the Executive Council of the Irish Free State ). It was drafted in two languages: Irish by Micheál Ó Gríobhtha (Ministry of Education officer) and English by John J. Hearne (Foreign Secretary). Although it is often believed that the Constitution was written in English and then translated into Irish, in reality both language versions were written almost simultaneously. The result, however, was that both language versions differed in terms of content in some points. In these cases it was determined that the Irish version took precedence (which, ironically, was linguistically less sophisticated).

Although controversial, de Valera's work has received a lot of international praise. The work is considered a model constitution in terms of clear language and structure and has been compared with the French constitution of 1958 .

Come into effect

Fine Gael "Say No" Poster used in the Irish constitutional referendum of 1937.jpg

The constitution was approved by the Dáil Éireann on June 14 and by referendum on July 1, 1937 ; it came into force on December 29, 1937. Former supporters of the opposition parties Fine Gael and the Labor Party , as well as unionists , supporters of the Commonwealth and women voted against the new constitution . 1,775,055 people were entitled to vote; the turnout was 75.84% and 56.52% voted for the new constitution.

Lawfulness

At the time of entry into force there was some uncertainty as to whether the new constitution, from the point of view of the ( old ) Irish Free State Constitution, came about legally (read: constitutional amendment to the Free State Constitution) or should be considered a kind of peaceful revolution .

There were two reasons to doubt the legality of the entry into force of the new constitution:

  • The method by which the new constitution came into force differed from the form prescribed (in the Free State Constitution) for constitutional amendments. For the Free State Constitution, constitutional amendments could be introduced like normal laws by parliament and enforced without a referendum. However, the new constitution only came into force after the people had voted in favor of it.
  • The Free State Constitution was never adopted as a stand-alone document - it was merely framed by appropriate laws (approved by the British Parliament and Third Dáil ) . These laws did not contain any provisions that they could be amended or withdrawn and some lawyers believed that Parliament had no right to do so.

Eamon de Valera , whose government had introduced the new constitution, argued publicly that, in accordance with the principles of popular sovereignty, the new constitution need not exist under the guidelines of the old constitution since it was approved by referendum. He admitted to the Dáil, however, " I don't think we can change the old constitution this way, but nobody can accuse us of exceeding our powers, as the people will vote on it ." To ensure that the legality of the new constitution is not reviewed by the courts, the judges in the Supreme Court and various other courts had to formally declare that they would uphold the new constitution if they wanted to remain in office.

Changes to the Constitution Acts

The complex structure through which the Free State Constitution came into effect arose from the fact that its entry into force coincided with the separation of the Free State from the United Kingdom . The fundamental basis of the Free State was created through three documents:

  • Constitution of the Irish Free State
  • Constitution of the Irish Free State Act (from an Irish perspective)
  • Irish Free State (Saorstát Éireann) Constitution Act (from a British perspective)

The 1937 Constitution makes no reference to British law. With regard to the other two documents, Article 48 states that the Free State Constitution ... and the Constitution of the Irish Free State Act of 1922 ... are hereby repealed .

Since the Free States Constitution in Ireland of an annex Constitution of the Irish Free State (Saorstát Éireann) Act came into force, Parliament (was Oireachtas ) in 1937 but not the organ that the Constitution of the Irish Free State (Saorstát Éireann) Act originally approved had (this was the Presidential Commission ). On the contrary: the Oireachtas was only created by the Act and actually bound by its guidelines. Hence, it has been argued that while Parliament could amend the Constitution , an amendment to the Constitution Act would constitute an overstepping of powers. However, the 1937 Constitution was not the first law to change the Constitution Act ; Changes had already been made with the Constitution (Removal of Oath) Act of 1933.

The question of whether the Constitution Act could be amended was a problem for Irish law, not British law. While from the Irish perspective the Free State Constitution drew its legality from the Constitution Act , legality under British law is based on the Irish Free State Constitution Act , which stipulated that the Free State Constitution was also valid under British law and was given to the British Parliament in the first few years the right to change this Act . But in 1931 the British Parliament signed the Statute of Westminster that u. a. Stripped the British of all legislative power in Ireland and gave the Irish Parliament the power to amend all documents relating to the Free State (including the two Constitution Acts ). From the point of view of British politics and its law, the abolition of the Constitution Acts could well be considered legal, a fact that - paradoxically - the Irish Parliament could not accept if it had been tantamount to recognizing that British law ( Westminster Statute) are constitutionally valid in Ireland.

Change of the old constitution

Constitutional amendments were regulated by Article 50 of the Free State Constitution and could be implemented by parliament by means of a simple bill. De Valera's government saw the Free State Constitution as non-republican and imposed from outside , so that the new constitution should be adopted by an actually illegal procedure (namely by referendum). The Preamble to the Free State Constitution described it as an enactment of the Presidential Commission . In order to strengthen the republican idea further, the new constitution should not by a political body but by a referendum adopted are - therefore in the preamble of the current constitution and by " we, the people of Éire " is mentioned. For this, the guidelines of the Dáil were even changed so that it could approve the constitution without the constitution coming into force directly.

Content of the constitution

structure

The official text of the constitution consists of a preamble and 50 articles, divided into 16 sections. When the constitution came into force, some transitional regulations still existed, but they have been irrelevant since 1941.

These are the 16 sections of the Constitution (the articles in brackets).

  • 1. The Nation (1-3)
  • 2. The State (4–11)
  • 3. The President of Ireland (12-14)
  • 4. The Parliament (Oireachtas) (15-27)
  • 5. The Government (28)
  • 6. International Relations (29)
  • 7. The Attorney General (government advisor on legal issues) (30)
  • 8. The Council of State (31–32)
  • 9. Accountants and auditors (33)
  • 10. The Courts (34–37)
  • 11. Criminal proceedings (38–39)
  • 12. Fundamental Rights (40-44)
  • 13. Principles of social and economic policy (45)
  • 14. Constitutional amendments (46)
  • 15th referendum (47)
  • 16. Revocation of the Free State Constitution and continued existence of the laws (48–50)

The preamble (original text)

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 .

Cornerstones of the state

  • National sovereignty: Article 1 explains the right of the Irish people to self-determination. The state is sovereign and independent (Article 5).
  • United Ireland : Articles 2 and 3 give every citizen born on the island of Ireland the right to be “part of the Irish nation” and guarantee (under certain conditions) the right to Irish citizenship at birth . Furthermore, Articles 2 and 3 express the will of the Irish citizens for a unified Ireland, as long as this happens peacefully and by mutual consent.
  • Name: The official name of the state is according to Article 4 "Éire" (in Irish ) or "Ireland" (in English). 1
  • Flag: According to Article 7, the " Irish tricolor ".
  • Capital: Parliament must sit in or in the immediate vicinity of Dublin (Article 15) - the official residence of the President must also be in this area (Article 12).
  • Sovereignty of the people: According to Article 6, all powers of the government come “under God, from the people”.

language

Irish is the national language and the first official language according to Article 8. English is the second official language. However, the government is free to decide which language to use and to what extent. The Irish text of the constitution is higher than that of the English version (Articles 25 and 63), but the Supreme Court tries to find a compromise between the two versions on constitutional issues should they differ.

Government organs

The constitution establishes a government under a parliamentary system with a directly elected president with ceremonial duties (Article 12), a head of government ( Taoiseach - Article 28), and a national parliament ( Oireachtas - Article 15). The parliament consists of a (dominant) directly elected lower house ( Dáil Éireann - Article 16) and an upper house ( Seanad Éireann ). Article 34 provides for an independent judiciary by means of a Supreme Court .

National emergency

Article 28 grants extensive powers in "times of war or armed rebellion", including (world) wars in which Ireland does not directly intervene ( Ireland was neutral during World War II). The state of emergency must be declared by both houses of parliament. During this time parliament can pass laws that would otherwise be against the constitution and the actions of the government cannot be viewed as "outside of the power". The reintroduction of the death penalty is, however, excluded from these regulations and finally excluded by the constitution. Since 1937 there have been two periods of national emergency: 1940 (due to the dangers of the Second World War) and 1976 (endangerment of national security due to the Provisional IRA ).

Foreign relations

  • European Union : Article 29 gives EU law precedence over the Irish Constitution in the event of a conflict of content. However, the Supreme Court has also ruled that any EU treaty that changes the Irish Constitution must be passed by referendum.
  • International law: Article 29 states that international treaties accepted by Ireland are not part of domestic law unless Parliament decides otherwise. The article also states that “Ireland generally recognizes the principles of international law,” but the High Court ruled that this general power of attorney could not be brought to court.

The rights of the individual

Fundamental foundations

  • Equality before the law (Article 40.1)
  • Granting of titles of nobility only allowed by the government (Article 40.1)
  • Personal rights: the state must protect the personal rights of citizens, in particular life, person, name and property (Article 40.2)
  • Prohibition of abortion except in cases where the mother's life is at risk (Article 40.3)
  • Habeas Corpus - with the exception of the defense forces in times of national emergency (Article 40.4)
  • Inviolability of dwelling; Exception: search warrant (Article 40.5)
  • Free speech - Exceptions are statements that undermine public order or the authority of the state (Article 40.6.1)
  • Freedom of assembly; peaceful, unarmed (Article 40.6.1)
  • Freedom to form an association, unless it is regulated by law (Article 40.6)
  • Protection of family and private life; Divorce (article 41)
  • Education: Free schooling and free choice of school (Article 42)
  • Regulations on private property and public property (Article 43)
  • Religious freedom (Article 44.2.1)
  • The state must not support or discriminate against any religion (Articles 44.2.2 and 44.2.3)

Further regulations

  • The irrevocable prohibition of the death penalty (Articles 15 and 28)
  • Prohibition of retroactive criminal law (Article 15)
  • Judicial proceedings in serious cases before a jury (Article 38).
  • Prohibition of Sexual Discrimination (Articles 9 and 16)

Principles of social and economic policy

Article 45 outlines a number of principles of social and economic policy. However, these guidelines only serve as a framework for the legislature and are not enforceable in court. Although this article plays almost no role in current politics, no attempt has yet been made to remove it by means of a constitutional amendment.

Transitional guidelines

The transitional regulations contained Articles 51 to 63 and made provisions for the smooth transition of the previous state institutions to the new state .

According to their own regulations, the transitional articles are no longer listed in all official editions since 1941, although Articles 52 to 63 (but not 51) still have full legal force today. In 1941 this led to the strange situation that Article 56 had to be changed as a result of the second constitutional amendment , although it was no longer printed in the official texts.

The inauguration of the first Irish President was set as the date from which Articles 52 to 63 were no longer to appear in the official texts . In contrast, Article 51 was removed from it three years after the constitution came into force (also in 1941) and has not been valid since then.

Constitutional amendments

Main article: Constitutional amendment (Ireland)

Any part of the constitution can be changed by referendum. The procedure for a constitutional amendment is laid down in Article 46. A change must first be approved in both houses of parliament and then by referendum before it comes into force with the signature of the president.

Legal review

The constitution is the highest law in the country and can only be interpreted and evaluated by the Supreme Court . The Supreme Court can invalidate laws of parliament and government activities if they violate the constitution. Many of the articles have been interpreted extensively since 1937 and their precise meanings have been established (e.g. through the abortion debates in the early 1990s ).

See also

Web links

footnote

  1. The term “Republic of Ireland” has been used extensively since the Republic of Ireland Act was adopted in 1949 - in order not to violate the Constitution, it is used as an official description of the state.

Individual evidence

  1. ↑ Referendum Results 1937-2015 (pdf, 2 MB)