Constitutional amendment Q.

edgal

I realise that in Article 46.2 amendments can only be passed by a referendum, but what if the proposed amendment were so that the government could amend the constitution with acts of parliament (i.e., Acts, government orders) rather than full referendums, would this be legal?
(assuming the majority have voted in favor of the above amendment - via a proper referendum - effectively seeding power/sovereignty to the Oireachtas)

Also, is it legal to abolish / amend fundamental rights in the constitution?

Tom Young

I'm restarting this discussion with OPs permission. Slightly amended query.

ResearchWill

My opinion yes such a constitutional amendment would be constitutional. Many people incorrectly say that the UK does not have a constitution but it does, it is largely unwritten or to put it another way not all written in one document. (The Human Rights Act aside) The UK does see parliament as supreme. So can the Irish Nation/state give ourselves a constitution where parliament is supreme well yes, in the same way the US gave its self a constitution where the states are supreme.

Also in some ways the EU treaties is far more important than our constitution, yet the only people who get to vote on it usually are the people of Ireland, for the most part it is ratified by each countries parliament.

Peregrinus

Could an amendment, passed by referendum, allow future amendments to the Constitution to be passed without a referendum?

Interesting question.

Bit of background: The terms of the Free State Constitution, adopted in 1922, said that it could be amended by a measure approved by both houses of the Oireachtas, then submitted to a referendum and approved by a qualified majority, and finally assented to by the Governor General. However there were two qualifications to this. First, no amendment was allowed which would violate the terms of the Anglo-Irish Treaty of 1922. Secondly, for an intitial period of eight years, amendments could be made by the Oireachtas alone, with no referendum. (The expectation was, I think, that there would be a couple of transitional or “bedding down” problems that would emerge in practice, and it would be convenient to be able to sort these out without a referendum.)

By Act of the Oireachtas in 1929, this eight-year intial period was extended to 16 years, i.e. to 1938.

By Act of the Oireachtas in 1933, the restriction in the Constitution that required amendments not to violate the Anglo-Irish Treaty was removed. (At the same time the Constitution was amended to remove the Oath of Allegiance, which was a violation of the Anglo-Irish Treaty, and numerous other amendments, inconsistent with the Treaty, were made in the following years.)

The Free State Constitution was superseded by the Constitution of 1937. Had it not been, no doubt the period for amendments by the Oireachtas alone would have been extended again.

The result was that what as originally intended as a practical measure for “fine-tuning” the Free State Constitution in its early years was used to turn it into, in substance, nothing more than another Act of the Oireachtas. In the event between 1925 and 1936 the Free State Constitution was amended by twenty-five separate Acts, some of which made more than one amendment.

Although de Valera made extensive use of the freedom this gave him, he was determined that the 1937 Constitution would not suffer from the same weakness. So the 1937 Constitution contained “transitory provisions”, one of which (Article 51) said that for a three-year period the Oireachtas could amend the Constitution by simple Act provided:

(a) the Oireachtas could not do so if the President considered that the amendment was “of such a character and importance that the will of the people ought to be ascertained thereon by referendum”, and

(b) the Oireachtas could not in any event amend Article 51 itself (and so could not extend the three-year period) or Article 46 (which lays down the amendment-by-referendum procedure which would have to be followed after the three year period).

The power of the Oireachtas to amend the 1937 Constitution by Act was exercised twice; once in 1939 to allow the declaration of a state of emergency in relation to a conflict in which Ireland was not a belligerent, and once in 1941 to make a rag-bag of minor “tidying-up” amendments.

The referendum procedure in Art. 46 was entrenched against amendment by the Oireachtas under Art. 51, but it is not entrenched against amendment by the people in a referendum. So the people could pass an amendment which removed their own right to decide on future amendments by referendum, and left amendments to the Oireachtas. But in light of this history it is a brave and foolish government which would put such a proposal to the people.

Could an amendment alter or abolish fundamental rights?

Even more interesting question!

There is no explicit limitation in Art. 46 on the amendments that can be effected by referendum, so the Constitutional provisions dealing with fundamental rights can be altered in any way, or completely abolished.

And indeed the fundamental rights provisions have been altered in ways that restrict (rather than expanding) them. For example the right-to-life-of-the-unborn guarantee in Art. 40(3) (itself inserted in 1983) was modified by amendment in 1992 to provide that it did not limit freedom to travel abroad, or freedom to circulate information regarding services lawfully available abroad. The right to personal liberty in Art. 40(4) (in the Constitution from the beginning) was modified in 1996 to provide that people could be refused bail “where it is considered reasonably necessary to prevent the commission of a serious offence”.

Both of these amendments were made to overturn Supreme Court rulings about the effect of the constitutional provisions concerned so they did, in fact, remove rights previously held to be constitutionally guaranteed. So it can be done.

But - there’s always a but - there’s an as-yet-untested argument around Art. 40(3) and Art. 41(1).

Art. 40(3) provides that "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. The language here is interesting, because it indicates that the state doesn’t purport to grant rights. Rights seem to exist as a natural reality, and the state recognises their reality, and guarantees to respect, defend and vindicate them. It’s already been held that this wording leaves it open to the courts to recognise rights which are not actually specified in the Constituion, e.g. the right of marital privacy, which prevents the state from banning contraceptives. It’s not a huge leap to say that, since rights aren’t created or granted by the state, there may be limits on the state’s power to limit or withdraw rights.

And this is reinforced by some wording in Art. 41, which refers to the family as having “inalienable and imprescriptible rights, antecedent and superior to all positive law”. If rights are “imprescriptible” then they can’t be taken away by laws (including constitional amendments) and if they are “superior to all positive law” then they are superior to the Constitution and (it follows) to any amendment to the Constitution.

So, between these two provisions, there may be scope for at least an academic argument that there is some limit to the capacity of the state to limit, withdraw, etc legal recognition of fundamental rights.

Procrastastudy

@Peregrinus - great post. I don't know what I'm impressed more by; it's content or the fact you wrote it at half two in the morning!

edgal

Peregrinus wrote: »

Could an amendment, passed by referendum, allow future amendments to the Constitution to be passed without a referendum?

Interesting question.

Bit of background: The terms of the Free State Constitution, adopted in 1922, said that it could be amended by a measure approved by both houses of the Oireachtas, ....

Many thanks for your extensive and noteworthy answer, however repugnant to the constitution such amendments may be, they do indeed appear to be a possibility.

Indricotherium

edgal wrote: »

Many thanks for your extensive and noteworthy answer, however repugnant to the constitution such amendments may be, they do indeed appear to be a possibility.

Surely any potential amendment is repugnant to the constitution as it stands.

Procrastastudy

Indricotherium wrote: »

Surely any potential amendment is repugnant to the constitution as it stands.

Not necessarily I would think. If you were just inserting something new that wouldn't need to be repugnant it could just be something that was never thought of at the time.

Peregrinus

Besides, the Constitution provides for its own amendment in Article 46. It's hard to argue that doing what Article 46 provides for is "repugnant" to the Constitution.

Amending the Constitution to change the amendment procedure so that referenda would no longer be required wouldn't be repugant to the Constitution. It might arguably be repugnant to someone's conception of democratic legitimacy, though.

Likewise, amending the Constitution to strip out some or all references to personal rights likewise would not be repugnant to the Constitution, though it would be repugnant to a great many people's political and philosophical beliefs. More to the point, there's at least an academic argument that even if you could get such an amendment passed it wouldn't entirely work to stop the courts from discerning, recognising and defending personal rights (which presumably would be the object of the amendment).

FEfuns

I was studying this yesterday (Constitutional Law). I don't have the book with me now so I've just copy/pasted from wikipedia:
National emergency

Under Article 28.3.3° the Constitution grants the state sweeping powers "in time of war or armed rebellion", which may (if so resolved by both Houses of the Oireachtas) include an armed conflict in which the state is not a direct participant. During a national emergency the Oireachtas may pass laws that would otherwise be unconstitutional, and the actions of the executive cannot be found to be ultra vires or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty (Article 15.5.2°), introduced by an amendment made in 2001, is an absolute exception to these powers.


So essentially, if the Oireachtas deems a "national emergency" to exist, the rule of law is suspended in favour of the rule of the Executive. All constitutional rights are suspended with the State give wide-ranging powers (except the ability to re-introduce the death penalty).

"3° Nothing in this Constitution other than Article 15.5.2° (ban on the death penalty) shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law."


So basically, the courts can be stopped from reviewing emergency powers and individuals can probably be stopped from going to the ECtHR or the ECJ. The Oireachtas, in theory, could pass a resolution stating that we are in a state of war or armed rebellion, and the Executive could then use Art. 28 to suspend constitutional rights or alter the constitution itself, with the support of the Oireachtas. A doomsday provision, really.

Peregrinus

It’s bad, but not quite as bad as might at first appear. Art. 15.2.2 doesn’t say that constitutional provisions are of no force or effect in relation to emergency legislation; just that they can’t be relied upon to invalidate that legislation. But they can still be invoked for all the other purposes for which constitutional provisions are invoked; the emergency legislation will still be interpreted in favour of the Constitution; there;’s still a presumption that delegated legislation and executive acts authorised must be constitutional; etc. And while the Constitution can’t be invoked to “nullify” an act done in pursuance of emergency legislation, if the act is clearly repugnant the Constitution could possibly be invoked to prevent it’s being done in the first place.

None of this will stand against an exact, explicit and unambiguous statement in emergency legislation, but I think the position is that the drafters of emergency legislation have to think very carefully, and draft very clearly, to ensure that the legislation identifies and sets aside all the provisions of the constitution which might stand in the way of whatever it is they want to achieve. That discourages very broad emergency legislation. And of course there is a considerable political cost to getting such plainly draconian legislation through the Oireachtas. In reality, then, the power of a government backed by a compliant Oireachtas to drive a coach and horses through the Constitution with emergency legislation while wide, is not quite as wide as might be thought.

Avatargh

edgal wrote: »

I realise that in Article 46.2 amendments can only be passed by a referendum, but what if the proposed amendment were so that the government could amend the constitution with acts of parliament (i.e., Acts, government orders) rather than full referendums, would this be legal?
(assuming the majority have voted in favor of the above amendment - via a proper referendum - effectively seeding power/sovereignty to the Oireachtas)

Also, is it legal to abolish / amend fundamental rights in the constitution?

Perfectly fine and yes. A proposal to amend can't be unconstitutional and once its passed, it is "the" Constitution.

Avatargh

Indricotherium wrote: »

Surely any potential amendment is repugnant to the constitution as it stands.

Yes. This has been litigated already.

Procrastastudy

Avatargh wrote: »

Yes. This has been litigated already.

Admission of sleeping in on Constitutional Law lecture days notwithstanding could you possibly cite the case for my education please?