The Gazette 1972

follow that decision. In the recent Paraic Haughey case the Supreme Court jealously guarded the rights of an individual citizen, where a Committee of the Legis- lature tried to take upon itself judicial functions con- trary to the Constitution. All these cases and others show that, those of us who value freedom, are greatly indebted to our present Courts. E.E.C. Amendment The manner in which the Constitution could be amended so as to enable us to enter the European Communities was nebulous until the government pub- lished last week the Third Amendment of the Constitu- tion Bill, 1971. Since its publication, reaction has been varied. It seems people are relieved that the amendment is framed so as to avoid saying whether membership of the E.E.C. is compatible with our sovereignty. It would also appear that the proposed amendment would not bind us to any future military undertakings of the Communities. Part of the proposed amendment reads as follows : "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State consequent on membership of the Communities or pre- vents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State." Senator Mary Robinson, Reid Professor of Con- stitutional Law in Trinity College, stated last week that "This section is dangerously wide because it would grant immunity from constitutional challenge to any Irish legislation or any acts done or measures adopted 'consequent on membership of the Communi- ties'." She continued: "Very far-reaching, changes might be made in this way without the possibility of judicial challenge by our Courts, on the grounds that they were 'consequent on' entry." There are two points I would like to make on this issue. (1) We all know that if we enter Europe the Oireachtas's exclusive power of legislating for this coun- try will no longer exist and that the Supreme Court's status as the final Court of Appeal cannot apply in matters relating to the interpretation of the Treaty of Rome under Article 177. The proposed amendment covers these issues. (2) It does not seem as if, the govern- ment will be able to use the "consequent on entry" clause to pass legislation which will deprive us of certain fundamental freedoms. If they tried to do so, it would appear to be open to the Courts to ask the government to prove that certain legislation was "consequent on entry" and if they failed to do this, then the proposed legislation could be examined in the ordinary way by the Courts. If the reasoning on this issue is not correct than it is suggested that, the recommendation made earlier about the enacting of the European Convention on Human Rights as part of our domestic law, be brought a step further. It could be made part of the Constitution itself by making another amendment to Article 29 which would state that the Convention was to be consid- ered as part of the Constitution. If this were done, we could become members of the E.E.C. and yet have no doubts as to our constitutional stability. One further very recent development was Mr. Harold Wilson's proposals on a Constitution for a re-united Ireland. It is not intended to discuss Mr. Wilson's rcommendations as they lie outside the scope of this paper. However, if that desired result—a re-united country—were to come about it would seem that a new

Constitution would have to be drafted, not only to guarantee the rights of Northern Unionists in certain matters but also to cover North-South relations and the powers and functions of the reconstituted local authori- ties. In short, this would seem to entail a federal Constitution somewhat similar to Canada's which would have to be drafted and ratified. We have at the moment, in this part of our tragically divided country, a Constitution with a number of defects, some of which have been outlined. Despite these defects we should be reasonably proud of it as it gives us the basis for democratic and just government. It is suggested that if some of the amendments pro- posed, taken in conjunction with the present Supreme Court policy, were accepted, our Constitution would be one of which any democratic country could be proud. In conclusion the following point which is perhaps the most important of all should be stressed. A Constitution by its wording and contents may appear to be perfect, but its functioning as a perfect Constitution depends on those who are granted power under it—the executive, the legislature and the judiciary. It is they who are responsible for maintaining a true and just democracy in a country and if they were so minded they could ignore all constitutional guarantees and impose a tyrannical system on the people. We are dependent on our rulers and it is up to us to ensure that we elect rulers who act justly. Our rulers, like all human beings, are not infallible—and are thus prone to make mistakes. Therefore, the onus lies on the electorate to ensure that the rulers they choose are just and adhere to a genuine democracy. Ultimately it is the people who can insist on freedom, justice and fair government. Though we have been reasonably fortunate in this country so far—let us not become complacent. There is still much room for improvement. The Minister for Lands, Mr. Sean Flanagan said that in considering the theme of the inaugural address by the auditor, Andrias O Ruiarc, "The Constitution—• A Time for Change", one had regard to the Constitu- tion as it was administered under the Supreme Court. In this context one could ask whether in limited cases the Supreme Court had gone too far. "What of the rights of the elderly?" asked the Minister. "What of the plight of people, old and feeble, who were being attacked by young thugs, who were being robbed and intimidated? Was it proper that when these thugs were brought to justice they should be freed on bail?" Time to reconsider position of bail One saw bail granted to robbers masquerading as patridts, said Mr. Flanagan. In such cases, he felt, there should be provision for the Supreme Court to reverse its own decisions. "I believe," he said, "that in the atti- tude laid down in the decision in the O'Callaghan case (1966) on bail, the Court was misguided." "I am not taking from the objectives of those who framed the Constitution; I went out and actively sought support for it," he continued. "But times change and circumstances change, the fact must now be recognised that they tried to say and do too much." Mr. Flanagan referred to the development of a united Ireland as he saw it. "What matters," he said, "is that the British recognise our right to unity and, given good will, the rest will follow. "Would a new Parliament for the whole of Ireland endorse divorce?" he asked. "Would it copy the British health service? These and other problems will bé easily solved, accepting as a basic fact the laying aside of our present Constitution." 38