The Gazette 1967/71

person Proportional representation, which the Irish people have twice voted to retain, and the principle of "one man one vote", now both part of our Constitution, could be abolished at any time by a majority of the Dail. The Dail could be abolished, and the Government given absolute powers to make laws, perfectly legally. There would no longer be any legal protection against a take-over of the country by Fascists or Communists, once they had secured a majority, even a temporary one, in the Dail. If politicians are really considering amending the Constitution to speed the end of Partition, to make the Constitution changeable by ordinary legislation or even by a three-quarters majority of both Houses. This would be a mistake. Indeed it would probably be a fatal mistake. Whatever fundamental rights former Unionists would want to have in a United Ireland, those rights would have to be guaranteed to them, and guarantees mean embodiment in a Constitution not alterable by a majority of the legislature. Unionists, since they would consititute less than 25 per cent, of the population of a United Ireland, might even wish to make certain changes, for example, on religious freedom, alterable only by a majority of, say, 80 per cent, of the people voting in a referendum. We rightly criticise Northern Ireland for not abiding by the fundamental democratic principle of one man one vote; we could not continue to do so if a Fianna Fail majority in the Dail two years ago had abolished that principle here. Yet this is just what would have happened if the last referendum had not been necessary in order to amend our present Constitution. The second bad idea now being discussed is for a change in the present clause in the Irish Con stitution prohibiting divorce. It is suggested that this should be altered so as to allow divorce (and later re-marriage)—but only for those whose religion permits it. There are a number of serious practical ob jections to 'this idea. It would compel the Protes tant Churches to take official positions on divorce which they would almost certainly be unwilling to take. It would not solve in a way compatible with any religion the case of a person who alters his or her beliefs. For example, a person who is divorced would be presumably free to remarry 172 indefinitely without trial.

ordinary Act, no legislation passed by the Oir eachtas could subsequently be declared invalid. If it was contrary to the Constitution as it pre viously stood, the Act would have to be treated as having amended the Constitution. (It could be arranged that the Constitution could only be amended by an Act saying that it did so, but this would provide no safeguard; any Act likely to be incompatible with the Constitution would simply be declared to be an amendment of it, and that would be that). The Constitution would no longer be a frame work within which the political party for the time being in power in the Dail would have to work. It would become a set of rules which the winning political party would be free to change at will (subject only to the present right of the Senate to delay Bills). This would substantially defeat the purpose of having a Constitution, which is to take the basic rules of the State out of the hands of a perhaps temporary (or perhaps temporarily en raged) majority political party. It would enable a majority of the Dail to alter the principles on which the State is based. It would enable personal rights that we now rightly regard as fundamental to be whittled gradually away. It would encourage sterile and academic political debate in the Dail about the basic laws of the State, to the neglect of practical problems. And it would be an imitation of the worst feature of the British unwritten Con stitution. There are similar objections to the idea of making it possible to amend the Constitution by a two-thirds or three-quarters majority of the two Houses of the Oireachtas. Only Bills passed by a majority of the Dail, but not by the required majority of both Houses, could be declared un constitutional by the courts. Other Bills would or could easily be declared to amend the Constitu tion. The preservation of personal rights and of the fundamental principles on which the State is based would depend on fifty or sixty individuals, all of them subject to public and private pressure and perhaps to public vilification if they stood up for the interests of an unpopular minority or an unpopular point of view. The Oireachtas could authorise the Minister for Justice, or any member of the Garda Siochana (or anyone else, for that matter) to imprison any