The Gazette 1972

Constitutional Implications of the Third Amendment Bill by FRANKLIN O'SULLIVAN, LL.B. (Solicitor) Delivered at Nullamore University Residence on February 24th

asked to consent to its reintroduction despite our un- savoury experience with executive orders under the coercion acts and our unceasing efforts to bring execu- tive action under the control of a supreme constitu- tional law. This is far too serious to be approved under a general amendment as proposed in the present Bill now passed by Dail and Seanad. Methods of constitutional alteration Looking to the future we must observe that Consti- tutions are altered by more than formal amendments. Judicial review, usage and convention, ecological devel- opment, semantic evolution, all contribute to constitu- tional change. Marx saw economics as the determinant of man's condition but as a Christian people we have never accepted this simplification but, following the Papal Social Encyclicals, we have seen that defects in man's condition are not due to a simple cause—whether economic, spiritual or psychological. The various aspects are inter-related and as Erich Fromm has brilliantly shown "only by simultaneous changes in the sphere of industrial and political organisation, of spiritual and philosophical orientation, of character structure and of cultural activities" can sanity and mental health be achieved. In 1864 a commentator saw that the transition from mother and daughter power to water and steam power was a great one—"greater by far than many have as yet begun to conceive, one that is to carry with it a com- plete revolution of domestic life and social manners." Radical transplant of Constitution In the proposed amendment we are asked to accept a radical and untried transplant which subjects our Con- stitution to the over-riding control of an economic organisation. We must sincerely hope that by agreeing to this radical surgery we are not submitting our lives to a change which is "greater by far than many have as yet begun to conceive." Hitherto we have relied on our Courts to protect our constitutional rights. We do not have the strong democratic maturity of the Swiss people who do not rely on the Courts in these matters but use instead their right of initiative in referenda. The style of our Constitution with its strong emphasis on the spiritual dimensions of society is to be remoulded in the procrustean design of a new Brussels bureaucracy and a semi-secret Council of Ministers. As societies pass through and beyond the mass-con- sumption style of living, man may look forward to the creation, in Rostows imaginative phrase, of "new inner frontiers in substitution for the imperatives of scarcity. Before subjecting our Constitution to the imperatives of current economic theory, we should satisfy ourselves, before we take that irrevocable constitutional decision, that we are not submitting the supreme law of our land to a deadly metamorphosis which will deprive us of our freedom to act in accordance with our style and ex- pressed aspirations, and which will have uncontrollable, unhealthy and unpredictable effects on our society, on our culture and in our personal lives. 84

The Government's proposal to amend a number of Articles of the Constitution by way of an addition to Article 29 raises initially the question whether this method of amendment is itself constitutional or morally just and the Courts should be asked to give a ruling on the issue before the amendment is submitted to the people for decision by way of referendum. Article 46 of the Constitution allows for amendment by way of variation, addition or repeal. The amendment, how- ever, in effect proposes to alter unspecified sections of the Constitution by adding to Article 29 a sub-section which enables the State to accede to the European Goal and Steel Community, European Atomic Energy Community and the European Economic Community (EEC) and states that "no provisions of this Constitu- tion invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enac- ted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State." People should know precisely extent of amendments It seems, to say the least, contrary to the spirit of constitutional amendments, to leave the people uncer- tain of the extent to which their fundamental law will be altered or possibly abrogated by the measure to which the Government is seeking assent. The interpre- tation of the amendment ultimately will not lie with our own Courts but with the Court established under the Treaty of Rome. Our national role in world peacemaking as a neutral nation may be irrevocably lost; our claim that Ireland is a thirty-two county island may be abrogated, and our fundamental rights in the fields of religion, freedom of association, family and property may be affected. The proposals by Dr. Mansholt to withdraw family allow- ances from large families demonstrate that those rights will in fact be affected seriously. We should as a people be fully aware of the extent and meaning of the consti- tutional consequences which will flow from this Third Amendment Bill. Our legislators in failing to demand this clarification are failing in their public responsibility and when elected leaders fail in their responsibilities the people, on the record of history, have a habit of seeking leaders who will not fail them. Article 235 of the Treaty of Rome In the longer term view we must be seriously con- cerned by the provisions of Article 235 of the Treaty of Rome which confers on the Council of Ministers the right to enact, on the recommendation of the Commis- sioners, any legislation necessary to achieve the (psycho- logically unattainable) aim of economic harmony, under the Treaty. This clause has been described as Henry VIII clause which, under the Statute of Proclamations passed in 1539, conferred on the King the right to set forth proclamations with legislative effect. It was repealed in the reign of Edward the Sixth because it was contrary to the whole tenor of the Common Law. We are now