The Gazette 1972

The Constitution-A Time for Change The inaugural meeting of the Law Society was held in University College, Earlsfort Terrace, Dublin, on the 2nd December 1971. The Auditor, Mr. Aindrias O Ruairc, delivered his address on "The Constitution—A Time for Change", and Dr. Geoffrey Hand, Dean of the Faculty of Law, presided. Mr. O Ruairc said in the course of his auditorial address : Amendment to Divorce Prohibition A far more serious problem is posed by Article 41 (3) (1) which reads as follows : "No law shall be enacted providing for the grant of a dissolution of marriage." The All-Party Committee recommended its deletion and its replacement by a provision on the following lines : "In the case of a person who was married in accordance with the rites of a religion, no law shall be enacted providing for the grant of a dissolution of that mar- riage on grounds other than those acceptable to that religion." The reason they recommended such a change was that they considered that the Article as it now stands discriminates against a minority and that in the context of North-South relations, it is a barrier to reconciliation? This is a submission which should be rejected.

Our Constitution, though it is the fundamental law of this country and is, therefore, the law to which all others must conform, is also a political document because its very enactment was a conscious political decision taken by a majority of the electorate who voted m the referendum of 1937. Therefore, it is essential that the layman as well as the lawyer should be con- cerned with it and should be very slow to acquiesce in any proposed amendment to its provisions. In order to facilitate the task set, I shall conveniently divide my Paper into two areas—one, a review of what I would roughly term "political" provisions. The other a consid- eration of "legal" provisions. The dividing line between them is not very clear. When one speaks of "political" provisions, one in- cludes those articles which many people would like to see amended or deleted in order to convert the Consti- tution into a purely pluralist one, part of their reason being to make it allegedly more acceptable to Northern Unionists in the event of the re-unification of our country. That particular reason does not appeal to me. *f it is considered that the Constitution should be amended, the only valid reason for doing so should be to improve its provisions and not to use it as a sop to Northern Unionists. If we are honest with ourselves then the Unionists may be more inclined to listen to us. If we •eel that certain provisions would discriminate against Northern Unionists then, surely, these same provisions must at the present time discriminate against the small minority of Southern Protestants. If we are to amend these provisions let us do so because justice demands they be amended and not in the hope that it will fool °ur Northern neighbours into believing that we are Article 44 recognises, by virtue of Subsection 2, the s Pecial position of the Roman Catholic Church in this country. Subsection 3 recognises four named Protestant Uhurches, the Jewish congregation and "the other reli- Rious denominations existing in Ireland at the date of me coming into operation of this Constitution". It is generally believed now that these two subsections are Su perfluous and that their removal could not change in anv wav, the status of religion in Ireland. The All-Partv Committee on the Constitution (1967) recommended Unanimously that Subsections 2 and 3 be deleted from be Constitution. Church leaders in Ireland voiced no °bjection to this proposal so it would appear that in a . n .y referendum to amend Article 44 little or no oppo- sl tion would be made to the deletion of these provisions w mch have only led to confusion. Therefore, their r emoval would clarify once and for all the other pro- t o n s in the Constitution which guarantee freedom of toligion. Any misunderstanding which might now exist v °uld thus be removed. truly ecumenical when in fact we are not. Recognition of specified denominations

Any discussion on the introduction of facilities for divorce should centre around the effect it would have on society as a whole and not on the tenets of a parti- cular religion. Personally, I would oppose the intro- duction of divorce, because I believe it would funda- mentally damage Irish society, embracing both Catholics and non-Catholics. The many people who would dis- agree with me would argue that the absolute prohibi- tion on divorce is nothing more than a majority of the people forcing their beliefs on a minority. It is admitted that this is in effect what happens, but it is submitted that there are certain values inherent in every society and to safeguard these values, it is sometimes necessary to make absolute laws. A society must protect itself and if in so doing it deprives a minority of certain rights demanded, then that minority, if it desires to remain part of that society, must needs submit to the will of the majority. Lord Devlin on the Protection of Society Lord Devlin in his work The Enforcement of Morals stated the position thus : " . . . The law exists for the protection of societv. It does not discharge its function by protecting the individual from injury, annoyance, corruption, and exploitation, the law must protect also the institutions and the community of ideals, political and moral, without which people cannot live together. Society cannot ignore the morality of the individual any more than it can his loyalty; it flourishes on both and without either it dies." Lord Devlin's statement was not made in the context of divorce, but rather in that of the enforcement of morality vis-á-vis the crim- inal law and whether or not the State had a right to legislate against such matters as abortion, homosexu- ality, etc., I believe, however, that the general principle he outlines is particularly relevant in the present context. Mv opposition to divorce has now been clearly stated. If, however, a majority in this country decided to delete Article 41 (3) (2) from the Constitution and thereby permit divorce, it is to be hoped the deleted clause would not be rep'aced by the one recommended by the All-Party Committee, and which has already been quoted. Their proposal amounts to the following: That divorce (and later remarriage) should be allowed, but only for those whose religion permits it. In an article in the Gazette , a vear ago, Mr. John Temple Lang put forward a number of seriously valid objections to this idea. The Committee's provision would compel the Protestant Churches to take official positions on divorce, 35