The Free State Constitution Fundamental Principles

New Zealand Tablet, Volume L, Issue 1, 4 January 1923, Page 26

The Free State Constitution Fundamental Principles

(By, John A. Ryan, D.D., in America,.)

. An incidental evil of the insurgency in Ireland J was the ' prolonged neglect of the draft Constitution. This document was draw-n up by ■ a committee, appointed for the purpose by the Provisional Government, and it received, at least, the tentative approval of the Irish and British Cabinets. It was published only" a - few days before the fighting began in the Four Courts. Had the rebellion not occurred the. proposal form of constitution, could have been brought before the Dail months , ago, and undoubtedly it would have evoked abundant .discussion both within and without that body. Between the date when the Dail meets, September,.!), and December 6, when the Constitution must go into operation, unless the latter event be deferred with the consent of the British Government, the members of the Dail are . not likely to give the draft adequate consideration. They will be overwhelmed by matters of more immediate importance,- and the majority will. probably strive to prevent : a repetition of the long debates which preceded the approval of the Treaty. As it, stands, the draft has many very good features, and a few that, are not so good. Unfortunately,. the drafting committee was not conspicuously competent. Not more than two or throe of its members were equipped with the necessary special knowledge and training. A much more expert and representative body could, easily have been found in Ireland, In the course of the deliberations, three different drafts were made, one by the majority of the committee and one each by two separate minorities. Only a few of the distinctive elements of the minority versions were admitted into the final draft. y * The document contains five sections and seventy-nine articles. The. sections are headed: “Fundamental Rights,” “Legislation,”. “The Executive,” “The Judiciary,” and “Transitory Provisions.” The first section is preceded by a.paragraph.entitled, “Preliminary,” To most Irishmen who have read it, the Preliminary is distasteful, if not gravely unsatisfactory. Probably it would not have been inserted but. for the Collins-de Valera pact. Inasmuch as this agreement neglected to provide for a popular vote on the Treaty, and made other concessions to the so-called Republicans which, in the view- of many members of. the British Parliament, endangered the Treaty, the British Cabinet apparently felt compelled, whether by the opposition of the “die-hards” or by their own fears, to prefix this paragraph. It declares that any part of the Constitution, or any subsequent statute, which is inconsistent with the Provisions of the Treaty, shall be “absolutely void and inoperative.” At first sight this reservation appears entirely reasonable; for no honest upholder of the Treaty desires to evade any of its requirements, whether Inputting repugnant provisions into the Constituton or by any other method of indirection. The Constitution and laws of the Free State must necessarily keep within the lines marked out. by the Treaty. So far as I can learn, the objections to the Preliminary are two: first, the proper place for such a, reservation would be in a concurrent statute, rather than in the Constitution; second, too great opportunity is afforded for unnecessary and obstructive judicial proceedings. When the good-faith of the present Free State Government has been made manifest, even to the die-hards, possibly the British Government will consent to have the reservations of the Preliminary taken care of in a special statutory provision, ' -- ’ -The most fundamental articles of the Constitution are the first two. In the language of the first,'“the Irish Free State (Saorstat Eireanti ) is a coequal member of the Community of Nations forming the British Commonwealth of Nations.” This should be a sufficient refutation of the assertion, made for the most part in crass ignorance, that the Treaty makes Ireland subordinate or j subservient to England, or to the British Empire. The Irish Free State is not a political province, nor any, other kind of political subdivision. Ireland is a coequal nation, not only with Canada, Australia, New Zealand, and South Africa, but' with Great Britain. Surely this is not an unworthy political status. - ' • - * It is urged by the extremists that England could, in her own good time, violate this article of the Constitution.

Assuredly she could disregard this or any other constitutional guarantee or provision.. The weakness of this objection is . that it can quite as validly be applied to “the Republic.” Were England forced to grant Ireland complete independence to-morrow she could as easily and as effectively destroy that status later on as she could violate her guarantees and obligations toward the Free State. Even Mr. de Valera perceived this difficulty and this possibility. To obviate it, he devised the fantastic proposal that the independence of Ireland should be guaranteed by international agreement ; ?V'; V • Obviously the real and solid protection for the Free State against British perfidy is to be found in the association and the community of interest with the other Dominion members of the British Commonwealth of Nations. They will have common ground for defending their several and common rights and for developing their political" status against possible or threatened encroachment by Great Britain, There is every reason to believe that the officials of the Provisional Government recognise this situation and will shape their course accordingly. In other words, they ‘ire political realists, not muddle-headed doctrinaires. The second article is of even more fundamental importance than the first. It declares that “All powers of government and all authority, legislative, executive, and judicial, are derived from the people.” They are not derived from England, nor from the British Crown. There is no contradiction between this proposition and those subsequent provisions of the Constitution which “vest” some of the legislative authority and all the executive authority in the British King. The people can delegate their governmental authority to, or vest it in, any person or agency they like. If they were unable to do this they would not be sovereign, nor the real source of authority. Just what this “vesting” in the King really means, will be fully discussed when we come to consider the sections on the Legislative and the Executive. Taken as it stands, the second article is a clear and thorough-going recognition of political autonomy and essential sovereignty. Perhaps no term in political science is more unsatisfactory or has been the occasion-of. more misconception than this same “sovereignty.” According to the definition adopted by most, political scientists, the Brtish Dominions, Canada and the others, are not sovereign States. They cannot make international treaties on their own responsibility. Cuba is not a sovereign State, since she caftnot enter upon certain international agreements without the consent of the United States. As a matter of fact, Canada and Cuba have more real and more secure independence than some . countries, which are sovereign States in the technical sense. Even such sovereign States as Great Britain, France, and the United States, are not absolutely independent. In their relations with other States they are subject to the moral law and to international law. Nations, like individuals, are limited in their just freedom by the rights of others. There is no such thing as complete political freedom or unlimited sovereignty... “Idealists and doctrinaires, of course, contend that the limitations upon sovereignty imposed by the British connection auj unworthy of a self-respecting nation. It has been said that no term has been; more misused and no concept more confused than “self-respect.” It is in about the same case as “honor,” In defence of a perverted sense of honor,' men have fought deadly duels and States have waged unjust wars. Rather than suffer • injury to what they have called their “self-respect,” employers have wronged their employees,, and vice versa. In a word, Jboth concepts have frequently been used: as a cloak to cover fundamental selfishness, immoral pride, and tyrannous autocracy. - Quite as unreal and as unworthy is most fof the twaddle of the idealists about “selling the nation’s soul,” “riveting the chains of slavery to England,” and so on. The vital question concerning all -imitations upon national sovereignty, and the .only vital question; is whether they really, diminish the opportunities of the people to pursue and promote their own welfare. Now. “welfare” includes everything , that contributes to the people’s life, development, and culture. It comprises physical, economic, intellectual, moral, and spiritual goods. ; Judged by this standard, the limitations upon the sovereignty of the Irish Free State are not evils, and they may turnt out to be

advantages. The restrictions upon national freedom under British rule were bad precisely because they hindered the pursuit and attainment of popular welfare. • Article 11. is, however, | vitiated by one serious defect. Some members of the Drafting Committee, particularly Professor Alfred .O’Rahilly,. tried- hard to have the . name of, God put into the Constitution. It could have beep easily and appropriately inserted in Article 11., by the addition of one short phrase. , “Are derived [under God] from the people,” would have sufficed. “Are derived from [God through] the people,” would have been better. Just why the majority deliberately omitted the name of God is a mystery. However, it can be inserted by the Dail. That the British Government would object -to such an amendment is quite unlikely. That Catholic Ireland should adopt a constitution with the name of God left out, would be an irreparable scandal.