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Is Ireland really a republic?

Senator Ivana Bacik1 and

  1. Reid Professor of Criminal Law at Trinity College Dublin, a Senator for Dublin Univeristy, and a practicing barrister. This piece was delivered as part of the 11th Philip Monahan Lecture, UCC.

IntroductionToC

Is Ireland really a Republic? This might seem like a simple question – but one to which there is no simple answer. It is a question which has interested me for some years now, and it is as relevant during a recession as it was during our previous boom years.

There has been some debate recently about whether the Irish constitutional and political system can be held responsible for our economic crisis. Dan O’Brien of the Economist Intelligence Unit (now there’s an oxymoron!) argued earlier this month that the Constitution had contributed to political inertia and poor economic policymaking. However, in his response, Gerard Hogan countered that serious policy and regulatory errors made in recent years may have caused the recession; but that the Constitution itself has not inhibited economic growth, but has ‘provided a stable legal system and .. protected property rights, the two factors which, as economists from Adam Smith to Alan Greenspan agree, are necessary agents for economic growth.’

Which of these views is the more accurate? And is the debate about the true nature of our republic even relevant at a time of rising unemployment, bank failures and financial crisis? I think that questions about our republican status remain relevant now, even in the midst of a tough recession – just as they were relevant during the years of prosperity.

The Meaning of ‘Republic’ToC

What are the questions to be asked about the status of Ireland as a Republic? First, what is meant by a ‘republic’? The word derives from the Latin ‘res publica’ or ‘public affair’, suggesting that control of governance lies with the people – the citizens. A republic is a state based upon concepts of popular sovereignty, of democracy, and of the protection of basic liberties of the citizen.

The idea of popular sovereignty is closely associated with another distinguishing feature of republics - the need for checks and balances against the abuse of power. The people delegate the power to govern to their elected representatives, and are protected against abuse of power by these representatives through the doctrine of separation of powers.

This doctrine requires that legislative, executive and judicial powers are exercised by three separate arms of government. Thus the legislature or parliament has the exclusive power to make laws. The executive or government has power only to implement those laws; and the power of the judiciary is limited to adjudicating on the application and interpretation of those laws.

Harking back to the French Revolution, republicans are anti-monarchy and anti-clerical, believing in the need for a complete separation of church and of state, so that the will of the citizens as a whole may prevail, irrespective of their individual religious affiliations. For French republicans like Rousseau, the sovereign legislature thus consisted of the whole people, and the community incorporated every member as an indivisible part of the whole.

Contemporary theories of republicanism focus upon the idea of a system of governance that selects all that is best in divided or factional interests and distils them in the name of the public interest or ‘common good’. Of course the balance between individual liberties and the common good is a complex one, and different approaches are taken by those identifying themselves as liberals; as opposed to communitarians; or in John Rawls’ terms, as civic humanists. Liberal republicans tend to emphasise individual freedoms at the expense of the common good, and to believe in the need to separate public and private spheres. Republicans at the communitarian end of the political spectrum conversely emphasise the need to achieve a common good, sometimes at the expense of individual freedoms, and see the private and public spheres as intertwined.

Of course, in this very abstract debate, one woman’s republicanism may well be another’s liberalism, and terms are bandied about wildly with all sorts of different meanings ascribed to them.

Clearly, the word republicanism can have many diverse meanings. Here in Ireland, it has been especially problematic. Historically, we speak of the men and women of the 1916 Rising as being republicans, since they sought independence through the overthrow, rather than the gradual end, of British rule. Fianna Fáil, as we know, refers to itself – or at least used to refer to itself - as 'the Republican Party'. Nowadays, the term republican is more likely to refer to supporters of Sinn Fein or the IRA; that is, to those who support or supported violence as a means of establishing a republic encompassing the whole island of Ireland.

Thus the language of republicanism in Ireland is particularly complex, because it has come to be synonymous with support of one specific political party closely associated with a paramilitary organisation. So while we may proudly describe ourselves as living in a republic, many of us would hesitate to call ourselves ‘republicans’.

Of course this is not a unique Irish difficulty. In the US, to describe oneself as ‘republican’ also carries very particular meaning, implying support for George W. Bush’s warmongering Republican Party - and opposition to Barack Obama the Democratic Party. It thus conveys a great deal of ideological baggage – from a hatred of Michael Moore, to a tendency to call provision of universal health insurance ‘communism in action’.

The Legal Status of the Irish RepublicToC

Linguistic difficulties do not stop at the word ‘republican’. Even the use of the word ‘republic’ in an Irish context requires clarification.

Contrary to popular view, the name of this State is not ‘the Republic of Ireland’, nor could it be. Nowhere in the text of our Constitution, Bunreacht na hÉireann, is the word ‘republic’ used – because in 1937, when the Constitution was adopted, Ireland was not a republic. The Irish Free State was still legally in existence, so reference to any legal basis for the State was studiously avoided in the text.

In July 1945, in what became known as the ‘Dictionary Republic’ speech, Taoiseach Éamon de Valera argued in the Dáil that the Free State was a republic in everything but name. Claiming that this was obvious on the facts, he observed trenchantly:

The State is what it is, not what I say or think it is. How a particular State is to be classified politically is a matter not to be settled by the ipse dixit of any person but by observation of the State's institutions and an examination of its fundamental laws.…look up any standard book of reference and get .. any definition of a republic or any description of what a republic is and judge whether our State does not possess every characteristic mark by which a republic can be distinguished or recognised. We are a democracy with the ultimate sovereign power resting with the people—a representative democracy with the various organs of State functioning under a written Constitution, with the executive authority controlled by Parliament, with an independent judiciary functioning under the Constitution and the law, and with a Head of State directly elected by the people for a definite term of office..

Thus the view was taken that the new Constitution created what was to all intents and purposes a republic. However, this view may be contested, given the obvious divergence of the Irish State from the secular principles upon which French republicanism is modelled, as evidenced by the theocratic influences obvious in the language of the Preamble and fundamental rights Articles.

De Valera’s flexible approach to definitional difficulties might well deserve the description ‘an Irish solution to an Irish problem.’ But his verbal acrobatics have had a longlasting legacy. Article 4 of the Irish Constitution still declares, simply: ‘The name of the State is Éire, or in the English language, Ireland.’

Even after the Constitution was adopted, for some years the Irish State continued its membership of the British Commonwealth. It was only in 1948 that the Republic of Ireland Act was passed, section 2 of which states: ‘It is hereby declared that the description of the State shall be the Republic of Ireland’. Ironically, it was not Fianna Fáil - the republican party - which introduced this Act, but a Government led by Taoiseach John A. Costello of Fine Gael.

The new Taoiseach announced his intention to declare the State a Republic at a press conference in Canada on 7th September 1948, after winning an election that after 16 years finally saw Fianna Fáil out of office. The Republic of Ireland Act was formally inaugurated on 18th April (Easter Monday) 1949 and was presented as an almost technical legislative measure. As the Taoiseach said during the second stage of the Bill:

[It]..will put beyond all doubt dispute and controversy our international status and our constitutional position. It will also, we hope and sincerely believe, end all that crescendo of bitterness which has been poisoning our country for the past 25 or 26 years, and it will also enable us to do that which, from the discussions which have already taken place in Dáil Éireann on the Bill, is the earnest hope of all Parties in this Parliament, improve our relations not merely with Canada, Australia, New Zealand and South Africa, but particularly with our nearest neighbour and best customer, Great Britain.

In other words, the basis for the status of the Irish Republic is statutory and not constitutional. Notably, this ‘description’ of the State as a Republic does not change the name of the State, which as we know from Article 4 of the Constitution is simply ‘Ireland.’ Thus, since 1937 and even since 1948, the official name for the State is just that - ‘Ireland’.

This difference between the name of the State, and its description, has led to various legal difficulties. In 1989, for example, in the Ellis case, Judge Walsh condemned the UK courts for referring in extradition warrants to ‘the Republic of Ireland’. He said that if foreign courts issue warrants in English, they must refer to the State according to its name in English – that is, ‘Ireland’ - in accordance with Article 4. Further, he ruled that warrants which did not comply with this requirement should be returned to Britain for rectification by the courts there.

This persisting distinction between the name and description of our State is confusing and unwieldy, which may be one reason why the expert Constitution Review Group recommended in 1996 that, to simplify matters, the English language text of Article 4 should be amended to read ‘The name of the State is Ireland’ with the Irish language text to declare ‘Éire is ainm don Stát.’ This obvious step has not yet been taken, and in any case would still not confer constitutional status upon the description of Ireland as a republic. Thus, the legal status of Ireland as a republic is unrecognised constitutionally.

The question however may be asked, whether this anomaly matters in practice, since Ireland is de facto a republic, whatever the legal name or description of the State as it appears in the Constitution.

The answer is that the failure of the Constitution to identify the legal status of the State might be forgiven as a merely formal omission, but unfortunately it reflects a more basic truth; that our status as a republic is contestable, for a number of reasons.

Three Reasons to Challenge Republican StatusToC

There are three basic features of our system of constitutional governance that I suggest make our status as a republic questionable. First, I will argue that the Constitution has failed adequately to ensure implementation of the separation of powers doctrine, a key tenet of any functioning republican state.

Secondly, I will suggest that the Constitution still embodies what has been called ‘a pro-religion ethos’ apparent in Article 44.1 and the Preamble, committing the courts to a set of constitutional propositions that no liberal democracy should countenance. The theocratic ideology underlying the text is no longer appropriate or sustainable in modern Ireland – particularly not in a modern state that claims to be a republic.

Thirdly and finally, I propose that there is a misfit between the theocratic ideology already mentioned, and the somewhat conflicting liberal-democracy ideology that also underlies the fundamental rights provisions.

Taken together, these ideologies upon which the bill of rights provisions are based are, it is argued, insufficiently cognisant of communitarian principles to fit any contemporary republic.

Separation of Powers

It is argued that there has been a real breakdown of separation of powers in our system. One aspect of the principle is enshrined in Article 15 of our Constitution, which states that: ‘The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.’ But the problem is that Irish legislators have been most inactive in many areas, thereby thrusting a lawmaking role upon judges. The courts have had to step into the breach in the context of government and legislative failures to enact law on abortion; to provide an adequate immigration policy; to protect the rights of asylum-seekers or Irish-born children; or to meet the needs of children with special needs or children at risk.

It could even be argued that in some cases judges have asserted popular sovereignty where both the legislature and executive have notably failed. The decision in the Crotty case, for example, established the need to hold a referendum on entry into international obligations impacting on national sovereignty. But this is arguably not an appropriate role for judges to play, except as a last resort. Judges in a country with a written Constitution clearly must have a strong protective role against legislative abuse of power, and against breaches of citizens’ rights – but to require them to step in just because of legislative inertia is another matter.

Judicial lawmaking of this kind can lead to uneasy and unsatisfactory compromises on policy matters, with a strong element of uncertainty likely to arise, and a real tension likely to develop between the legislative and judicial functions. This sort of compromise does not ultimately make for good or effective policies in difficult areas, where democratic debate, conducted through the legislature, is really needed in order to achieve a more adequate resolution. Nor does it make for a properly functioning republic in the classic meaning of the term. The source of this problem may not however lie in the text of the Constitution, but rather in how its interpretation and application has developed over many decades.

The God Question

The second significant question mark over the status of Ireland as a republic is raised by the number of religious references in the text of our Constitution. The distinctly theocratic aspect of the Irish State in previous times is reflected in the text, and within the historical development of our legal system. Prior to the Anglo-Norman invasion of 1170, a sophisticated indigenous system of law known as Brehon law prevailed. This was associated with a system of tribal kings or provincial chiefs, and an important place was reserved for the early Christian Church. Triad 200 sums up Brehon governance as comprising: ‘the three rocks to which lawful behaviour is tied: monastery, lord, kin.’

The powerful place of the early Christian church in Brehon law is mirrored by the powerful place of the Catholic Church in the emergence of the modern Irish republic. The Church has wielded considerable power for a long time in Ireland. Particularly in the late eighteenth century, the drastic restrictions imposed upon the rights of Catholics merely strengthened the Church’s position in society, and the will of the people to practise their chosen faith. Catholicism thus became the religion of social and political defiance, of nationhood and patriotic identity – a heady cocktail indeed.

Once Catholic emancipation was formally secured, the Church amassed significant power, gaining ownership and control of schools, hospitals and social services across Ireland. After independence, it moved into alignment with those in power in the new Free State, making its influence felt in every sphere of public life. As Maura Adshead has written, ‘The Irish State, from the beginning, was ostentatiously Catholic.’

Even now, the Catholic Church continues to act as a sort of ‘shadow welfare state’, supplanting the State’s role in many ways. It also continues to hold vast tracts of valuable land; and to wield great social and political power, despite the scandals over the sexual and physical abuse of children in the care and control of Catholic religious orders, and despite grave public concern over the way in which the Church attempted for so long to protect abusers within its ranks.

In primary education, the continued dominance of the Catholic Church is striking – it amounts to a near-monopoly. The Catholic Church controls 3,000 out of 3,200 state-funded national schools – 92 per cent. Most of the remainder are run by other churches; less than 60 are multi-denominational, although this group, run by the Educate Together organisation, represent the fastest-growing type of primary school in Ireland, as parents vote with their feet to give their children a broad-based education free of religious instruction. Equality legislation allows boards of management, chaired by the parish priest, to sack teachers who fail to conform to a required school ethos; schools are entitled to give preference to children of one religion over another. Secondary schools, too, are generally controlled by the churches. Our school system is fundamentally sectarian.

It is no coincidence that the President and members of the judiciary are required to take an oath beginning ‘In the presence of Almighty God...’ and that the national broadcaster still carries a denominational religious message, the Angelus, at 6pm every evening. No wonder that when we speak of ‘Church and State’, ‘Church’ always comes first.

This deference to religion elsewhere in Irish society is reflected in the bias of the Constitutional text, the Preamble of which begins ‘in the name of the Most Holy Trinity..’. Article 6 provides that ‘All powers of government, legislative, executive and judicial, derive, under God, from the people..’. Again, these references may be dismissed as mere rhetorical flourishes that lack any real effect. However, to take this view is to overlook the symbolic importance of the text itself – one need only think of the controversy over whether reference to ‘God’ should be included in the preamble to the proposed European Constitution (the forerunner to the Lisbon Treaty), to realise that these things do matter.

The religious influence on the wording of the fundamental rights Articles 40 to 44 is also especially notable. Article 41 represents perhaps the example of this, providing special protection for the ‘Family’ (interpreted to mean only the family based upon marriage), and in Article 41.2 providing that ‘by her life within the home, woman gives to the State a support without which the common good cannot be achieved’. The same Article commits the State to ‘endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.'

In a number of cases, beginning in 1963, with Ryan v. Attorney General, the courts invoked a ‘natural law’ doctrine of interpretation to imply rights into the Constitution. This had the positive effect of breathing life into the previously under-used fundamental rights articles, but at times it appeared as if judges were simply drawing rights out of the air, from their own subjective moral or religious beliefs. The source of natural rights for some judges was expressly theological, derived from Christian or more particularly Catholic teaching.

Thus a theocratic ideology influenced in some respects the emerging constitutional rights jurisprudence. It also allowed the personal prejudices of individual judges to be reflected in their legal decisions. In perhaps the most notorious example, Chief Justice O’Higgins in the 1984 Norris case described homosexuality as ‘unnatural sexual conduct which Christian teaching held to be gravely sinful’.

The practice of invoking natural rights was finally expressed as falling out of judicial favour in 1995. That year the Supreme Court upheld the constitutionality of legislation regulating the provision of information on abortion, saying that natural law cannot take priority over the text of the Constitution.

But while natural law is certainly less frequently invoked now, judges may still have reference to ‘higher law’ principles in order to assist with constitutional interpretation. For example, in 1995, the Supreme Court held that a gastronomy tube could be removed from a woman patient who had been in a near-persistent vegetative state for 22 years. In coming to this decision, the Court referred to religious principles, noting the concept of the ‘intrinsic sanctity of life’ in deciding that ‘a view that life must be preserved at all costs does not sanctify life’.

Thus, although natural law theories no longer have the influence over judicial interpretation of the Constitution as they once did, it would be inaccurate to suggest that contemporary constitutional interpretation comprises an exclusively secular approach. Rather, it appears that religious thinking or natural law doctrine may continue to have some bearing on future decisions.

The effect of the development of natural law doctrine by the judiciary has also been to give judges a great deal more power than the framers of the Constitution might have intended – undermining the separation of powers doctrine, with judges essentially taking on a law-making role.

Liberal-Democracy

Finally, it is argued that a radical revision of Articles 40-44 would be necessary if the Constitution were to become a truly republican document; because of the restrictive nature of the ideology underlying those Articles. Apart from religious influences, liberal-democratic values are also strongly influential in the text of the fundamental rights provisions. The rights Articles emphasise the autonomy of the individual and ensure the protection of classic civil and political freedoms like the freedom of expression and the freedom of conscience or religion.

Gerard Quinn has written in this context that ‘Our Constitution pays homage to the ideology of theocracy as well as to the ideology of liberal-democracy.’ He asserts that while the ideological tensions between these competing belief-systems were only implicit in the past, they are coming increasingly to light as ‘the economic conditions come into existence that make liberal-democracy a credible ideology in this country ... as a market society comes to maturity’. In his view, theocratic principles have become marginalised in more recent constitutional jurisprudence, due to increased economic prosperity and greater acceptance of a market-generated philosophy of individualism, namely capitalism.

I have argued similarly elsewhere that ‘the fundamental rights Articles of the Constitution have their genesis in an uneasy blend of Catholic social teaching and a late nineteenth-century liberal philosophy. The conflict between these ideologies has never been fully resolved.’ The problem is that neither ideology gives sufficient weight to the sort of rights that might make a real difference to the lives of those who are most disadvantaged - those in any society in greatest need of rights protection. Where in the Constitution is recognition of the right to shelter; to healthcare; to social security provision?

The established body of socio-economic rights that has developed and is now protected in international rights instruments is simply not acknowledged in the enforceable provisions of the 1937 text, but rather is relegated to Article 45, tagged on as a concession to a socialist or social democratic view of society. Entitled ‘Directive Principles of Social Policy,’ the provisions of Article 45 are supposed to act as guidance to the legislature but do not allow citizens to enforce them through the courts. The Article expresses a commitment to ensuring that

the ownership and control of the material resources of the community may be so distributed amongst private individuals and the various classes as best to subserve the common good,

but this noble phrase has been largely ignored, both by the legislature and indeed by the courts. No definition has ever been developed as to the meaning of the ‘common good’, nor has any court sought directly to hold the State to its pledge to ‘safeguard with especial care the economic interests of the weaker sections of the community’ nor to ‘protect the public against unjust exploitation.’

Indeed, a very limited understanding of the concept of ‘equality’ is evident in a whole series of judgments in which the courts have been asked to interpret the equality guarantee in Article 40.1 of the Constitution; consistently, the concept has been interpreted through a variety of legal strategies to confine it to its narrowest sense. For example, in ruling on the constitutionality of a first version of the employment equality legislation, the Supreme Court held that imposing duties on employers to ‘reasonably accommodate’ persons with disabilities amounted to an interference with the employers’ private-property based right to make profit. Thus, as Power has written, the equality guarantee was trumped by the right to private property.

A narrow conception of equality was also evident in the recent Supreme Court decision in the Portmarnock Golf Club case. In this case, the Equality Authority had asserted that the men-only admission rules of the golf club breached the non-discrimination principles in the Equal Status legislation. The club argued that it was protected by the exemption allowed in section 9 of the Equal Status Act, where a club would not be discriminating if its ‘principal purpose’ was ‘to cater only for the needs of persons of a particular gender’ etc. The Court held by a majority of three to two that the club was protected by this exemption.

For the majority, Judge Hardiman robustly asserted that the club was catering for the needs of men in preventing women from being full members; but in their powerful dissenting judgments, Judges Fennelly and Denham pointed out that the ‘principal purpose’ of the club was to play golf; not to cater for the needs of men. In any case, since the club allowed women to play golf (although not as full members), it was hardly catering ‘only for the needs of men’ and so should not be entitled to claim the exemption.

The majority judgments, sadly, can be interpreted as showing how the clear purpose of equality legislation may be thwarted by those who are opposed to any broad conception of ‘equality’.

If Ireland were truly a republic, the fundamental rights provisions of the Constitution would have to be re-written in order to reflect more developed conceptions of rights, to include a ‘core norm’ of equality, by which rights protections could be measured, as in the South African Constitution; and to include also socio-economic rights such as those enshrined in Article 45.

Conclusion ToC

So it can be argued that there are three major obstacles in our path towards true republican status – lack of separation of powers; lack of separation of church and state, and the uneasy fusion of between a theocratic ideology and a liberal-democracy ideology within our bill of rights.

But how then can we move towards a more pluralist republican philosophy? Today’s Ireland is a multi-cultural society, with an increasingly secular population growing ever more disillusioned with revelations about abuses of power perpetrated by the institutional Catholic Church over the years. As the Democracy Commission recently found, people are increasingly ‘disillusioned and disenchanted’ – but not yet fully disengaged.

To avoid a complete disengagement by citizens, our laws should reflect this changing, more progressive society. Unfortunately the so-called citizenship referendum, passed in 2004, represented a move backwards in my view - towards a narrower definition of ‘citizenship’ than previously existed, towards a less generous vision of our republic, in which all the children of the nation are not, it seems, to be cherished equally after all.

But I think that, just as our Constitution has been amended recently to provide for a narrower view of citizenship, so too could it be radically revised in order to become a truly republican document, based on a much more inclusive conception of the citizen.

The fundamental rights Articles could be re-written in order to make equality the core norm (as in the South African Constitution); to provide for a broader definition of ‘family’ than the narrow model adopted in Article 41; and to delete Article 40.3.3 in its entirety. In addition, a less elevated notion of private property protection could be protected, with greater emphasis upon protection for freedom of association and for socio-economic rights like the right to housing or shelter, and the right to healthcare and social assistance.

Critics may argue that to implement this fundamental re-writing process would be to enshrine a very particular left-wing, rather than republican, ideology within the document. In truth, however, a Constitution cannot be a value or politics- neutral document. By definition, conceptions of rights are both political and politicised. Our Constitution clearly is not ideologically neutral at present.

Indeed, it can be argued that the relevance of this whole debate at a time of economic crisis is particularly strong because the ideological view enshrined in the Constitution offers us some insight into how we got into this mess. In short, our Constitution reflects a belief in the supremacy of the individual over the collective, a prioritising of private property rights over equality rights; an ideology that has arguably brought us into this crisis. We need to change our own outlook – to embrace a more communitarian outlook – to achieve a sustainable recovery. We need to move away from ‘light touch’ regulation and laissez faire economic policy that allowed banks to lend billions that they did not have and imposed no sanctions on reckless trading; and to move towards stronger intervention by the State in the market and in financial trading, in keeping with a social democratic and left-wing ethos.

It has been attempted here to show that the Constitution is not currently a neutral document – it already enshrines a very particular set of ideological beliefs that are no longer appropriate in today’s Ireland, nor are they appropriate to a state that claims republican status. Ireland is now a multi-cultural society, with an increasingly secular and diverse population. The fundamental law of the land should reflect this changing, more progressive society.

In years to come, our Constitution should embrace and enshrine the conception of Ireland as a community united behind the need to ensure basic individual freedoms for all, regardless of religion, class, gender, sexuality, race or nationality. Its invocation of the ‘common good’ should be premised on the ‘core norm’ of equality, rather than being based upon an outdated religious ethos, uneasily coupled with classic liberal-democratic principles.

We might look to the model of the South African Constitution, a dynamic text with a fundamental commitment to ensuring equality and the protection of socio-economic rights. And we might look back to the core principles of republicanism, in order to reclaim and reinvigorate the status of a ‘republic’ - in law and in reality.