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Ireland 1937 Pair First Day Covers Constitution

Bunreacht na nEireann. Ireland 1937 Constitution. Pair of First Day Covers. Date of Issue: Dec-29, 1937. Designer: R.J. King

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Ireland 1937 Constitution

  • Pair of First Day Covers

Date of Issue

  • Dec-29, 1937

Designer:

  • R.J. King

Numbers Issued:

  • n/a

Catalog Refs:

  • SC 99/100, SG 105/6, Mi 65/6, Yv71/2

Constitution of Ireland

The Constitution of Ireland is the founding legal document of the state known today as the Republic of Ireland. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy, and guarantees certain fundamental rights. The constitution was adopted in 1937 by referendum, and may only be amended in the same manner. It is also widely referred to in English by its Irish language title, Bunreacht na hÉireann

Historical origins

 

Background

The Constitution of Ireland replaced the Constitution of the Irish Free State which had been in effect since the southern state became independent from the United Kingdom in 1922. There were two main motivations for replacing the old constitution in 1937. Firstly, the old constitution was indelibly associated with the controversial Anglo-Irish Treaty. Those opposed to the treaty initially boycotted the institutions of the new Irish Free State but in 1932 were elected into power as the Fianna Fáil party. Since 1922 many of the provisions of the Free State constitution demanded by the Anglo-Irish Treaty had been dismantled piece by piece under the doctrine of 'constitutional autochthony' or legal nationalism. So, for example, amendments had removed references to the Oath of Allegiance, appeals to the Privy Council, the British Crown, and the Governor General. Nevertheless, the Fianna Fáil government, led by Eamon de Valera, still believed it desirable that a new, entirely native constitution replace one that had been the partial imposition of the British government.

The second motive for replacing the old constitution was that since its adoption it had been subjected to a great many, often rather ad hoc amendments. After 1922 the government of the Free State regularly exploited a provision of the constitution that allowed it to be amended by a simple act of parliament. Sometimes a normal act of parliament would contain within it a blanket provision stating that, if it were found to be incompatible with the constitution, the act should be interpreted as an implicit amendment to it. For these reasons, as well, many saw it as desirable that the old constitution be abandoned entirely, in favour of a clean slate.

Drafting process

The Bunreacht was the work of Eamon de Valera, President of the Executive Council (prime minister) of the Irish Free State. It was actually drafted in two languages, Irish and English: in Irish by Micheál Ó Gríobhtha, who worked in the Irish Department of Education, and in English by John Hearne, legal advisor to the Department of External Affairs(now called the Department of Foreign Affairs). De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney-General or someone from the Department of the President of the Executive Council.

Though many presumed that the constitution was drafted in English and merely translated into Irish, in reality it was in effect written in both languages almost simultaneously, with each co-author borrowing from the other's work. The result unfortunately is that at a number of points the texts clash. In the event of such a clash, the Irish language, though ironically the less well worded legally, given that its author was not a lawyer, takes precedence.

Though controversial, de Valera's work has received international praise. Notwithstanding its actual contents, it is widely seen as a model constitution in terms of its clear legal language, order and structure. It has often been compared to the 1958 Constitution of the French Fifth Republic, which is generally seen by political scientists as inferior in terms of clarity and structure. The Bunreacht has been studied worldwide, for example in Nehru's India and Mandela's South Africa. Its office of President of Ireland was one of six studied closely by Australia's Republic Advisory Committee as Australia considered becoming a republic. The Constitution is currently being reviewed by the All-Party Oireachtas Committee on the Constitution.

Enactment

Bunreacht na hÉireann was passed by Dáil Éireann (the sole house of parliament) on 14 June and then approved narrowly in a plebiscite of voters on 1 July 1937. It came into force on 29 December 1937. Among the groups who voted against it were supporters of the Fine Gael and Labour opposition parties, Unionists, supporters of the Commonwealth and women. Its main support came from Fianna Fáil supporters and republicans. The question put to voters was simply 'Do you approve of the Draft Constitution which is the subject of this plebiscite?'.

Electorate Total poll () Spoilt () For () Against ()
1,775,055 1,346,207 (75.8) 134,157 (10) 685,105 (56.5) 526,945 (43.5)
 

Legal continuity

At the time the Bunreacht was adopted there was uncertainty as to whether its enactment amounted to a 'legal' amendment of the Free State constitution or a violation of its terms. If the enactment of the Bunreacht were considered to be illegal in this way it could be considered an act of peaceful revolution. De Valera's government insisted that, owing to the principle of popular sovereignty, provided it was approved by the people in a plebiscite it was not necessary for the new constitution be adopted legally under the terms of the old. Nonetheless, in order to avoid a challenge to the new constitution in the courts, senior judges were required to make a formal declaration that they would uphold the constitution in order to be permitted to remain in office once the Bunreacht had come into force.

Main provisions

Structure

The official text of the constitution consists of a Preamble and fifty articles arranged under sixteen headings. Its overall length is approximately 16,000 words. When adopted, it also included a number of Transitory Provisions. However these are now likely to be of no legal effect and have been omitted from all official texts since 1941. The headings are:

  • 1. The Nation (1-3)
  • 2. The State (4-11)
  • 3. The President (12-14)
  • 4. The National Parliament (15-27)
  • 5. The Government (28)
  • 6. International Relations (29)
  • 7. The Attorney General (30)
  • 8. The Council of State (31-32)
  • 9. The Comptroller and Auditor General (33)
  • 10.The Courts (34-37)
  • 11. Trial of Offences (38-39)
  • 12. Fundamental Rights (40-44)
  • 13. Directive Principles of Social Policy (45)
  • 14. Amendment of the Constitution (46)
  • 15. The Referendum (47)
  • 16. Repeal of Constitution of Saorstát Éireann and Continuance of Laws (48-50)

Preamble (full 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.

Characteristics of the nation and state

  • National sovereignty: The constitution declares the right of the Irish people to self-determination (Article 1). The state is declared to be sovereign and independent (Article 5).
  • United Ireland: Article 2 states that everyone born on the island of Ireland has the right 'to be part of the Irish Nation', and grants citizenship to all such people (if at least one of their parents are Irish). Article 3 declares the will of the Irish people to create a united Ireland, provided this occurs peacefully, and with the consent of the people of Northern Ireland.
  • Name of the state: The constitution declares that the name of the state is 'Éire, or, in the English language, Ireland' (Article 4). The term Republic of Ireland has been widely used since the adoption of Republic of Ireland Act in 1949 but, so as not to violate the constitution, was at that time declared to be merely the official description of the state.
  • National flag: The national flag is defined as the Irish tricolour (Article 7).
  • Capital city: The Houses of the Oireachtas (parliament) must usually meet in or near Dublin (Article 15), and the President's official residence must be in or near the city (Article 12).
  • Popular sovereignty: It is stated that all powers of government 'derive, under God, from the people' (Article 6).

National language

Irish is declared as 'the national language' and 'the first official language', and English as 'a second official language' (Article 8). However, the constitution leaves the government largely free as to what degree of recognition it gives either language in practice. The Irish text of the constitution takes precedence over the English text (Articles 25 and 63). However, the second amendment included changes to the Irish text to bring it in line with the English text. In practice the Supreme Court tries to find an interpretation compatible with both versions. The constitution provides for a number of Irish language terms that are to be used even in English speech. The terms Éire for the state, and Taoiseach for the head of government appear first in the Bunreacht. The terms Oireachtas, Dáil Éireann and Seanad Éireann had also featured in the Free State constitution.

Organs of government

The Constitution establishes a government under a parliamentary system. It provides for a directly elected, ceremonial President of Ireland (Article 12), a head of government called the 'Taoiseach' (Article 28) and a national parliament called the 'Oireachtas' (Article 15). The Oireachtas has a dominant, directly elected lower house known as 'Dáil Éireann' (Article 16). There is also an independent judiciary under a Supreme Court (Article 34).

National emergency

Under Article 28, the constitution grants the state sweeping powers during a 'time of war or armed rebellion', which may include an armed conflict in which the state is not a direct participant. In such circumstances a 'national emergency' may be declared to exist by both houses of the Oireachtas (parliament). During such a period the Oireachtas may pass laws that would otherwise be unconstitutional and the actions of the executive cannot be found to be ultra vires or unconstitutional provided they at least 'purport' to be in pursuance of such a law. However, the constitutional prohibition on the death penalty is absolute and it may not be introduced during a 'time of war'. Two national emergencies have existed since 1937: an emergency declared in 1940 to cover the threat to national security posed by World War II, and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.

International relations

  • European Union: Under Article 29 EU law takes precedence over the constitution in the event of a conflict. The Supreme Court has ruled that any EU treaty that substantially alters the character of the Union must be approved by a constitutional amendment. For this reason separate provisions of Article 29 permit the state to ratify the Single European Act, Maastricht Treaty, Amsterdam Treaty and Nice Treaty.
  • International law: Under Article 29 international treaties to which the state is a party are not considered part of the domestic law of the state unless the Oireachtas (parliament) decides otherwise. The article also declares that 'Ireland accepts the generally recognised principles of international law', but the High Court has ruled that this provision is merely aspirational and is not enforceable in a court of law.

Individual rights

Under 'Fundamental Rights' title

  • Equality before the law: Guaranteed by Article 40.1.
  • Prohibition on titles of nobility: The state may not confer titles of nobility and no citizen may accept such a title without the permission of the Government (in practice this is usually a mere formality) (Article 40.1).
  • 'Personal rights': The state is bound to protect 'the personal rights of the citizen' and in particular to defend the 'life, person, good name and property rights of every citizen' (Article 40.2).
  • Prohibition of abortion: Prohibited by Article 40.3, except in cases in which there is a threat to the life of the mother.
  • Habeas Corpus: Guaranteed by Article 40.4. The Defence Forces are exempt from habeas corpus during time of rebellion or war. Since the Sixteenth Amendment it has also been constitutional for a court to deny bail to someone charged with a crime where it suspects they may commit an offence.
  • Inviolabili