The Gazette 1987

GAZETTE Viewpoint Hold that Constitution The growth of Summer Schools as forums for debate on significant social or political issues in Ireland has become a feature of recent years. This year's MacGill Summer School at Glenties, Co. Donegal, devoted its attention to the Irish Constitution. The contributors to the debate, mostly politicians of different hues, appeared to accept as axiomatic that our 50-year-old Constitution needed radical revi- sion. Fortunately, perhaps, all they seemed to have in common was the desire for change. Our Courts in interpreting the Constitution have, arguably, prov- ed more adept than the Oireachtas in taking the temperature of the na- tion as far as social attitudes are concerned. Indeed, the attempts that have been made by various Governments to change the Con- stitution on significant political or social issues have not been remarkably successful. The pro- posed changes in relation to pro- portional representation (twice) and divorce were lost. However much politicians who wou ld describe themselves as "liberal" may wish to change those provi- sions of the 1937 Constitution which they would regard as illiberal — such as the restriction on divorce — it is clear that the people are not ready to endorse such changes. To assert that there has been an utter transformation in Irish Society since 1937 is to fly in the face of the evidence offered by the recent Divorce and Right to Life Referendums that, at least so far as constitutional change is concern- ed, the transformation is far from complete. It was argued that the Constitu- tion over-emphasizes the right to private property and that this poses a substantial obstacle to the renewal of centres of our towns and cities or, indeed, the acquisi- tion of property for any public pur- pose. There have been suggestions that vast sums of compensation

GAZETTE

SEPTEMBER 1987

INCORPORATE D LAW SOCIETY OF IRELAND Vol. 81 No. 7 Septembe r

In this Issue Viewpoint

1987

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The Running of time in Professional Negligence Cases Maracycle Fundraising for the SBA Licensed Hauliers and the Road Transport Act, 1986

have been paid to landowners because of some constitutional. requirements. Those arguing along these lines do not seem to have paid much attention to recent Supreme Court decisions, the effect of which seems to be that a law providing for expropriation of an individual's property would only be unconstitutional if it represented an unust attack on individual property rights. It can hardly be contemplated that a constitution would only permit expropriation of property where fair compensation is being paid. The Fifth Amend- ment to the U.S. Constitution provides a useful precedent, "nor shall private property be taken for public use without just compen- sation". In truth, the incompetence of ad- ministrators (in one significant case, the inability to repeat legis- lative provisions verbatim) have opened the doors to claims for what appear to be excessive amounts of compensation, rather t han any cons t i t u t i onal pro- tections. Another criticism which has been made seems to bring with it its own internal contradiction. If, as one distinguished academic has said, the Cons t i t u t i on " h a s become a prison which we have reinforced by divisive referendums on morality" there can be little im- mediate prospect that we can " put behind us the confessional nature of the Constitution", as he sug- gests. The Constitution has to be adopted by the people. Since 1791 when the "Bill of Rights" was passed, the United States has seen only 16 amend- ments (one being a repeal of an earlier one). It certainly is not the case that the U.S. Constitution is a simple document capable of ins- tant and literal interpretation. What it does, and here it sets a headline for all succeeding constitutions, is to set out certain fundamental prin- ciples. These must be sufficiently (contd. on p. 214)

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Practice Note Book Review

Younger Members Committee Quiz Nights 224 In Brief 226 Correspondence 226 How do you know — Licensing Law 229 Professional Information 233 * Executiva Editor: Mary Buckley Editorial Board: Charles R. M. Meredith, Chairman John F. Buckley Gary Byrne Daire Murphy Michael V. O'Mahony Maxwell Sweeney Advertising: Liam 0 hOisin. Telephone: 305236 307860 Printing: Turner's Printing Co. Ltd., Longford. The views expressed in this publication, save where otherwise indicated, are the views of the contributors and not necessarily the views of the Council of the Society. The appearance of an advertisement in this publication does not necessarily indicate approval by the Society for the product or service advertised. Published at Blackhall Place, Dublin 7. Tel.: 710711. Telex: 31219 Fax: 710704.

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