Seanad Éireann - Volume 25 - 14 May, 1941

Second Amendment of the Constitution Bill, 1940—Second Stage.

Question proposed: “That the Bill be now read a Second Time.”

The Taoiseach: This Bill, as Senators will observe, consists of a number of amendments and it will lend itself to discussion more on the Committee Stage than on this stage. As Senators are aware, the Constitution, once a period of three years from the President's assumption of office has passed can only be amended by referendum. A period of three years was definitely allowed to enable amendments to be introduced in this manner by legislation, provided, of course, that the Uachtarán considered that the amendments were not of such a type that the judgment of the people should be obtained upon them. At the date on which the President took office and the various organs of State were completed, the Departments were instructed to watch carefully the working out of the Constitution and to note if there should be any particular points that would need amendment during the period of grace of three years which was given. We got from the Departments a number of suggestions in regard to amendments. We went carefully through them and we omitted all except those we considered of sufficient importance to warrant the introduction of them in the form of a Bill here.

The amendments that are proposed are perhaps, in the main, not of fundamental importance. A great number of them are intended merely to clarify or improve the text and in one or two cases to remedy oversights. For example when an amendment was introduced in the Dáil just before the Constitution was approved of by that body, portion of the Irish text which [1106] had reference to the position as it stood originally, remained owing to an oversight. One amendment deals with that. Again when we introduced the first amendment to the Constitution at the beginning of the war, it had to be introduced hurriedly and the Irish text was not presented at the same time as the English text. As far as the Constitution is concerned, the foundation principle was that we should have both texts presented to Parliament together and that the Constitution should be passed in both texts. The omission was not exactly an oversight in that case but the fault is now being remedied. There are really only two amendments that would be regarded as of fundamental importance and most of the discussion will probably centre round these amendments.

Firstly, there is reference No. 22 which deals with the position that will arise when the time of emergency has passed at the end of the war. Everybody will agree that when the emergency caused by a war is ended, a period should be allowed to enable a transition to be effected from the wartime to the peace-time situation. That is dealt with in No. 22. No. 27 deals with habeas corpus. The provisions in that respect are being slightly changed. When a conditional order shall have been secured and there is a hearing, the hearing may be before three judges, instead of one judge, if the President of the High Court so determines. These are really the two important provisions. Then, there is the final amendment, which is intended simply to prevent the possibility of misunderstanding in respect of an existing Article of the Constitution. At this stage, I do not think that there would be any point in my going further into these amendments. They will all have to be dealt with separately on the Committee Stage.

It was urged in the Dáil that we should have amended the Constitution more fundamentally. It was suggested, for instance, that the present constitution of this body—the Seanad—was not satisfactory, and that we ought to leave it in more open form. It was also suggested that the period of three years now coming to a close should be extended. [1107] I think that that would be against the Constitution itself. It was deliberately ruled out by the Constitution. The question as to whether the President should be elected, as provided in the Constitution, was also discussed in the Dáil. There, again, we must remember that these matters were fully debated when the Constitution was being originally considered in Dáil Eireann. There was a difference of opinion as to whether or not the method chosen for electing the President was the best. There was a difference of opinion as to whether or not the method of constituting this body— the Seanad—was the wisest. We shall always have differences of opinion on matters of that kind. These differences of opinion can be resolved in a democratic State only in one way. The foundation of our democratic ideas is that the people should ultimately decide. We decided these questions in the representative Assembly of that day, and they were before the people for a long period—a period of some months— both when they were being discussed in Dáil Eireann and when they were being discussed prior to the decision being taken. It is only natural that these differences of opinion should continue to exist. Where you have individuals who took different sides in these debates, and believed that the view they took was the right one, it is only natural that they should persist in the same view.

Everybody recognises that there were certain difficulties in arriving at a method of election of the President. Balancing the pros and cons, it was felt that the system proposed was the best one, particularly as one of the principal functions of the President was to act as guardian of the Constitution for the people. That being so, it was, from the point of view of theory at any rate, wise that he should get his powers directly from the people and be elected by them. Everybody recognised that certain difficulties would arise regarding that mode of election, but, balancing the pros and cons, it was felt at that time—I think it is equally true at present—that the method of election, as proposed in the Draft, was the best. [1108] Looking over the Constitution from the broader point of view—I have told you how it was examined from the detailed point of view by the Departments—the Government felt that there was nothing in it that it should change. As I have said, this is a Bill which will call for discussion more on Committee Stage than on Second Stage.

Mr. M. Hayes: It is rather difficult to make up one's mind as to how this Bill should be treated. One is tempted, in the circumstances of the moment, to regard this question of comparatively small amendments to the Constitution as of no importance, and simply to say to the Taoiseach: “Well, this Constitution is peculiarly a child of your own——”

The Taoiseach: It is a child of the people now.

Mr. M. Hayes: There is no use in our getting into a conflict about adjectives of that sort, because we do not know where we should arrive. It might be considered, as I have said, that, as the Constitution is peculiarly a child of the Taoiseach, he should be allowed to rear it and dress it up in any way he likes and that he should be given all the stages of this Bill to-day. However, that is a position which, on consideration, might be misunderstood. There are some points about this Constitution and about these amendments which it is worth while to make on the Second Stage because, from all the auguries, it would appear that no opportunity for real amendment of the Constitution will arise on the Committee Stage.

The Constitution ought to be a fundamental document and it should be the object of every good citizen to have the Constitution respected. Above all, the Government itself, in its framing and treatment of the Constitution, should foster that respect. The Constitution will only be respected if there is knowledge amongst the people of straight-dealing between the Government and them on Constitutional matters. My principal difficulty about this Constitution (Amendment) Bill is that the amendments are of a very minor character and that what appear to me to be the real problems of the [1109] Constitution and the real amendments required have not been introduced at all. In the times as we know them, written Constitutions are not as important as they were once deemed to be, and by no means as important as they were deemed to be in the period of the last war or in the years afterwards. I think they are less important to-day than ever before.

This Constitution contains a great deal of make-believe and a great many of things are set down in it which are fundamentally untrue. For example, the Preamble to the Constitution says: “We, the people of Éire ... adopt, enact, and give to ourselves this Constitution.” The name “Éire” is most unfortunate and the people who adopted it were not the people of Éire but the people of Saorstát Eireann. On that point the word “Éire” is inserted in the Preamble of the Constitution for the purpose of supporting the pretence or make-believe that when adopting the new Constitution the people were dealing with a new State which, of course, was not so. The new Constitution is but an amendment of the other Constitution but for the existence of which this Constitution would have no validity in law or in fact.

I wonder if the Taoiseach has given any consideration to the extraordinarily bad effect the insertion of the word “Éire” has had. It has created a new name, Éire, for the Twenty-Six Counties of Ireland, and it has fortified the claim of the people of the Six Counties to call themselves Ulster, to adopt for the Six Counties the ancient and historic name of Ulster and apply it to the Six Counties as if they were the whole of the province. The Taoiseach believed that he had a right to do something in the Constitution which would make a change and bring in the name “Ireland”. It is only the English people and the people of the Six Counties and some people here at home who know no Irish who can use the word “Éire”, but, of course, Ireland could not be commonly used without doing violence to common sense. Instead, we proceeded to use the word “Éire” and so the great majority of people who do not understand Irish [1110] think that the name can be properly used for the Twenty-Six Counties.

I had to preside at a debate recently in which the subject for discussion was: “Go gcuireann aithbheochaint na Gaedhilge cosc ar aondacht na h-Eireann” which, of course, means “That the Irish language revival interferes with the unity of Ireland”. They could not use the word Éire for Ireland because in the course of the debate they would have had to refer to the Twenty-Six Counties as Éire. They had, therefore, to leave out Éire and say “na tíre seo”. Those people who are unfortunate enough to have to pay income-tax will notice that the document says that the use of “Éire” should be considered in accordance with certain Articles of the Constitution.

There was an attempt made to use the word Ireland, curiously enough, in an Eggs Bill which came before the Oireachtas. The question arose about exporting eggs from Ireland to Northern Ireland. A Ministerial suggestion was made that we should put in a sub-section that Ireland did not mean Ireland but territory in the jurisdiction of the Oireachtas. These people, unfortunately, failed to consider the number of difficulties that the use of the word Éire would give rise to in connection with certain Articles of the Constitution, and so they are compelled in so many words to say in many places: “We are sorry but Éire is not Éire in reality but only the Twenty-Six Counties.” It is very unfortunate that a name should be chosen and should run current in English-speaking countries which lacks its proper meaning, and that has the effect of solidifying and fortifying the claim of people in the Six Counties to call their area Ulster. There is a great deal of make-believe in connection with the Constitution. We have had a number of amendments which instead of being translated from the fundamental document in English by the translation staff were entrusted to people in whom the Taoiseach had more confidence than he had in the staff which for over 16 years had been translating legal documents from English into Irish for the Oireachtas.

[1111] The attitude of the Government is that this Constitution was passed by the majority of the people. No concession was made to anybody or to any Party no matter what arguments were put forward. The new Constitution was framed, not by a committee of any kind, but by the Taoiseach, with an object of his own, presumably. When it was brought up for discussion in 1938, no important concession was made to the Opposition. Nothing could be more discouraging than the Committee discussion of this Bill a couple of weeks ago in the Dáil. Again no concessions were made. The Constitution has proved to be unworkable first and foremost because of the absurd name given to the State and, secondly, because of matters to which the Taoiseach himself has referred.

Take the case of the President. There again there is a certain amount of make believe, because the President is head of the State only for certain purposes and not for other purposes. It is provided that the President is to be elected by the whole people; but at the first moment that particular provision of the Constitution was to be worked steps were taken to avoid an election. Why? Because it was considered that an election was not desirable. We have a provision that an election should take place and then we come to the conclusion that an election was not desirable. An analogy might be drawn with the President of the United States, but the President here has very little power. I think the whole object was to give power to the Government not only against the citizens but also against the President. There is no analogy between the President here and the President of the United States. The President of the United States is head of the Government and is chief executive officer. Here the President is no such thing. It seems to me very undesirable that the President should be able to say to the Taoiseach: “I have been elected by the people and I derive my authority from the people as much as you do.”

The President could even say that he derives his authority from the people [1112] more than the Taoiseach does as he might, in fact, have received a bigger majority than the Taoiseach in an election. It is a very undesirable position. I do not know whether the Taoiseach still thinks an election desirable—though, of course, it may be undesirable at the present moment.

Another objection is that, if a man becomes a President after a bitterly-fought election, he surely would have the taint of politics. Surely the head of the State—even in the situation envisaged by this Constitution—is always looked upon after an election as a person belonging to a certain political Party and to whom other people have an objection. I do not know of any method which could be worse than this one of a general election by the people.

In a great many other ways this Constitution has been made less flexible, less workable and more irksome than its predecessor. Let us consider Parliament. According to this Constitution, the Dáil must be elected by proportional representation with the single transferable vote. I wonder why the Taoiseach put that in and ordained that method. This is not a matter of politics. All that the previous Constitution said was that the election would be according to the principle of proportional representation. You could have very many systems other than the system we have at present, and still be in accord with the principles of proportional representation. Yet, for some reason I do not know of, we are bound down to election according to proportional representation by the single transferable vote, and we cannot adopt any other system without a referendum—which I will deal with later. I do not know why that restrictive power should have been inserted.

The Taoiseach says that the question of the election of the Seanad was discussed in the Dáil before, and that the scheme embodied in the Constitution was approved by the people. Much has been said in praise of the Taoiseach and he has incurred a certain amount of censure now and again but nobody ever thought that he was a political simpletion. Surely the Taoiseach is [1113] not sufficiently simple to think that the people of this country actually, by their approval of the Constitution, have approved of the method of electing the Seanad which is provided in that Constitution. I do not think they have. I do not think that any appreciable percentage, any minority of any of those who voted for the Constitution—or indeed of any of those who voted against it, but particularly of those who voted for it—ever allowed the method of electing a Seanad to enter their thoughts. At any rate whatever was approved in 1938, they were not getting the exact type of Seanad required.

Through natural delicacy, I refrain from describing the dreadful example of what happened under the Constitution in the election of a Seanad. Take the position as we know it, without considering the kind of Seanad this is or how competent or otherwise it may be. In the Constitution there are proposals for a Seanad with certain liberty to decide certain details by a Seanad Electoral Act. Surely there are certain things in the Constitution which may need amendment at any time. It prescribes that the number of members shall be 60. If it is desired to reduce that to 50 or 40, a referendum will be necessary after the 26th June. Surely that is absurd.

The position should be that a very small number of provisions would be in the Constitution—stating that there must be a Seanad—and the whole question of its election and constitution should be left to the ordinary law. At the present moment, we have a Commission on Vocational Organisation presided over by a member of the Hierarchy. They may find a vocational system which would give an entirely different Seanad from that envisaged in this Constitution. The Taoiseach, who is so sure of his views being right, wished to put this Article 18 into the Constitution, providing panels of a particular kind and, in order to change these panels, a referendum would be necessary after June of this year. Surely that is contrary to all commonsense.

I do not wish to discuss at the moment the constitution of this House, [1114] but rather what actually happened. The Constitution contemplates that the Seanad and the Dáil must change at the same time and in the same way. In effect, that means that, if a Party with a majority in the Dáil goes to the country and loses that majority, the Seanad also will be dissolved and a new one will come in, identical with that of the Dáil. In other words, Dáil and Seanad will have the same political views at the same time. That is another part of the make-believe.

There is another point which would be a great joke were it not such a tragedy—that this is not a political body. Everybody here knows that this body did come into being on a political basis, and even the hardiest propagandists have abandoned the whole contention that this is not a political body.

Mr. McEllin: Is the Dublin Chamber of Commerce a political body?

Mr. Hayes: Even if this Seanad were a political body, I am not objecting to that. The objection is to fastening on the country a scheme whereby the Dáil and Seanad must be of identically the same political complexion, so that, if the Government has a bare majority in the Dáil they will also have a bare majority in the Seanad. Is it not quite conceivable that one would wish to change that? Is that something which should be in the Constitution, as distinct from something which should be in an Act of Parliament and capable of being changed by another Act of Parliament? I certainly think that change should be possible.

Again, the President may be indicted, but to indict him it is necessary to have a two-thirds majority of the Dáil. I am not alluding to any particular President or any particular Government, but am speaking in general. Judges can be dismissed by a simple majority of the Dáil and Seanad. This Constitution provides that any Government which can get a simple majority in the Dáil can always get it in the Seanad. Therefore, judges now depend on a simple majority of the Dáil. That seems to be a very extraordinary and undesirable situation, from the point of view of an ordinary citizen who desires [1115] to be protected from the encroachments of the Executive of the State and whose only protection lies in the courts. Our two Houses are identical in political complexion and are bound to keep on being so. With regard to the tenure of office of judges, those of the High Court, Supreme Court and Circuit Court provided for under the Act of 1924 depend upon a simple majority of the two Houses of the Oireachtas.

There is an extraordinary difference between the tenure of the High Court, Supreme Court and Circuit Court judges and that of the district justices. The district justice has better security of tenure than the others. A section of the 1924 Act—the Courts of Justice Act—provides that a district justice can only be dismissed after a certificate has been given by the Chief Justice and the Attorney-General that he is incompetent to carry on. In other words, the district justice must get a trial and two people in judicial office—for certain purposes the Attorney-General is a judicial officer—must sign the certificate. But the ordinary judge of the High Court or Supreme Court can be dismissed by a motion introduced by a Minister in the Dáil with a political majority. I should say that most of the higher judges at present would gladly exchange their present tenure for that actually enjoyed not under the Constitution but by law, by the district justices.

There is a lot of pious expression of opinion in this Constitution. I do not know of what use it is other than as a kind of political preaching, to impress the unthinking citizen, without much knowledge of the processes of the law, with his freedom. Our experience since it came into operation has been that it is possible, by ordinary law passed by a parliamentary majority, to take away any and every right of the citizen. We are in this particular position now—if I understand the court judgments aright—that a Minister can assume any powers at all over the liberty of the subject, can assume power to put a citizen into jail, by merely ordering that in writing under his hand and seal. There is no trial. [1116] If that power is given to the Minister by a properly passed Act of Parliament, the court will hold that a legal power has been conferred on the Minister.

Nothing in this Constitution apparently, none of the high-sounding phrases here about the fundamental rights of the citizen, can be quoted in court to prevent that kind of thing from happening. That seems to me to be an extraordinary situation. We now have, under the guise of a rigid Constitution, a Constitution which in fact is flexible where the rights of the ordinary citizen are concerned but which, apparently, is rigid where other and far less important things are concerned such as, for example, the number of members in the Seanad, whether it is going to be 60 or 50, and such as the question of titles of honour which cannot be altered by legislation but must go to a referendum.

This Constitution is aimed at giving more power to the Executive than its predecessor gave and the amendments brought in by the Taoiseach and passed in the Dáil and which will, no doubt, be passed here also increase the power of the Parliamentary majority, that is to say, the power of the Government. They give less scope to the individual but they do hamper progress in other directions. This Constitution was framed with plenty of time. It was not framed in an atmosphere of civil war as its predecessor was. It was framed by people who had the experience of the working of an Irish State, by contrast with 1922, when there was nobody in the country, no matter how learned, who had any practical experience of the working of either Parliament or Government from the top. One would imagine, therefore, that this Constitution would not have certain defects. It was not framed hurriedly. There was plenty of time for it but the very moment this present war broke out there was discovered in this Constitution a very grave flaw dealing with the definition of a “state of war.” The first thing that had to be done here, in September, 1939, was to bring in the first amendment to the Constitution defining what a state of war was. I wonder what the position would have [1117] been if, as might have happened, the European War, instead of breaking out in 1939 had broken out in 1941. Would we be in the position that we could not define a state of war satisfactorily without having a referendum? Surely the argument is all against this kind of rigidity.

The Taoiseach will recollect that in the Constitution of 1922 an eight-years' period was fixed during which amendment could take place by way of ordinary legislation. In his wisdom, or otherwise, he chose not to be part of the Parliament for a considerable portion of that eight years and when he came into the Parliament one of the things he asked was that that eight-years' period should be extended. At once, when he asked from his place in the Dáil, it was agreed and the period was extended to 16 years, giving him about ten years to consider what he would like to do with the Constitution. But, when he frames a Constitution, he only gives three years for the consideration of amendments by way of ordinary legislation. That shows a rather substantial difference in outlook.

One of the amazing things in this Bill is reference No. 22, which we can discuss in Committee. The Taoiseach's whole attitude to-day was that these are only small amendments, that we can pass the Bill now and talk about these small things in Committee, but I think reference No. 22 is rather an important thing. Everyone recognises that the moment the war is over you cannot proceed immediately to repeal the Emergency Powers Act but surely it might be set down that, within, say, six months, or even 12 months, after the state of war had concluded, the Emergency Powers Act and the extraordinary powers now enjoyed by Government should cease. Not at all. The Taoiseach is making it absolutely clear in this amendment that the Parliament and Government that are in office at the end of the war can not only extend their own tenure of office but can keep for themselves, if they can get a Parliamentary majority, all the extraordinary powers that have been voted to them in this great emergency. That is surely a very serious step.

[1118] In regard to reference No. 27, about habeas corpus, it is an extraordinary thing to find people, who shouted so loudly and resorted to every device, legal and illegal, to thwart Governments in their efforts to cope with disorder, taking from the ordinary prisoner rights which he enjoyed and exercised here in a state of civil war. I do not think it is a matter of great urgency but, at any rate, it is true that the rights of the courts to interfere with the Government are reduced by this amendment.

There are certain points about the Irish text which can be dealt with in Committee. I feel that, unfortunately, the Constitution excites very little interest and has not earned for itself the place which the Taoiseach hoped it would get, although it has not been subjected either in its conception, or since it became actual law, to the extraordinary barrage of propaganda to which the other Constitution was subjected, but it has not accomplished many of the things which he hoped it would accomplish? I think that is unfortunate because our position is one in which there ought to be respect for law, but there can only be respect for law when the law is clear, when the law is straightforward and when the law lacks the make-believe and pretence which is written large over this Constitution in its title, and in its vague declamatory Articles which have now been found to have no force and effect.

I take it the Bill will get a Second Reading and I do not think it would be of any advantage to vote against the Second Reading of it because the amendments that are needed are amendments which have no reference at all, presumably, to this Bill, but, in any event, it is very lamentable that this House gets this Bill on the 14th May. We have about five or six weeks in which to express our view about this, and in those five or six weeks we will probably get both the Appropriation Bill and the Budget to discuss. Although, as I say, we in this House are the Taoiseach's own child, his own view of what a Seanad ought to be, there is not very much respect shown for this House or very much opportunity [1119] given to this House to express its views upon the Constitution. That, again, I think, is very undesirable.

Mr. Fitzgerald: I do not think this Bill is very interesting. The worst thing about it is that when it comes to the end and you decide on it, it seems to me that you will be expressing approval of the Constitution as amended at the moment with these new amendments incorporated in it. I think the Constitution, as it is, is a pitiful document in many ways, as naturally it should be, brought in in 1937, following on the history that we have lived through. It was brought in for a number of purposes, some, I think, not entirely worthy. It was brought in to try to give the appearance of fulfilling certain declarations that were made in earlier days and it was brought in in an atmosphere of intense Party politics. If anybody takes the trouble to look up the discussion of the Irish text and the amendments dealing with the Irish text in the Dáil, in 1937, he will see the thing was simply pitiful. There was not even a pretence at discussion.

I remember raising one or two points, dealing with the Irish text, in regard to the Preamble. I am speaking now from memory. You talk about Muinntear na hEireann and about Pobal na hEireann. In law, when there is a variation of words, there is presumed to be a variation of meaning. I asked time and again for some explanation of that. I never got it. The State is referred to in the document. I asked what the State was. I was told on one reading that the State was defined in the first part of the Bill. I could not come back on it on that reading. On the next reading I asked for the reference to the first part of the Bill where the State was defined. I was told that must have been a mistake.

There was a Constitution enacted in 1922. In 1937 it was paraded as something of rags and tatters because it contained 20 odd amendments. Up to 1937 there had been only 20 odd amendments. Amending a Constitution does not make it a thing of rags and tatters [1120] any more than the body during a period of growth is necessarily a thing of rags and tatters. A Constitution goes through variations. Ordinarily, the constitution of any human society is the natural law. But we live in a time of changing circumstances and conditions, and therefore recognise that fundamental law must vary to meet practical circumstances and particular conditions. Historically, it always seemed to me that what is called a constitution was just a gathering together of the traditional ways of life and rules governing people. But in a newly-created State, because of the necessity to provide for continuity of government, a Constitution, a series of fundamental laws, has to be enacted immediately. In 1922 we passed a Constitution, and we most carefully decided that that Constitution could be easily amendable, not only for the time of the then Administration, but for a longer period, overflowing into the period of later Administrations. There should have been many more amendments. What is being now amended is, if you like, a drastic amendment of the Constitution. It became law because conditions demanded by the Constitution, as it existed in 1937, were fulfilled.

Senator Hayes has referred to certain points which he called “make-believe”. The Preamble, to which I always objected, struck me as blasphemous, inasmuch as it invokes the Blessed Trinity, and seems to me to imply a lie, doubly so. It says:

“We, the people of Éire—Muinntear na hÉireann ... do hereby adopt, enact, and give to ourselves this Constitution.”

There is disingenuousness in that. At the time there was an attempt to pretend that the word “Éire”, genitive “Éireann”, was somehow intended to be the Twenty-Six Counties. I came back on that time and again. The word “Éire” is a word used in this document meaning two different entities, at one time meaning 32 Counties and at another time Twenty-Six Countries. There was disingenuousness in saying “Muinntear na hÉireann” which seemed to me to be trying to imply something contrary to fact. There [1121] was set up a form of institutions of government in 1922. Anyone who takes the trouble to look up certain Papal pronouncements will find that, though election of a Government is a possible provision for the continuity of government, it cannot be agreed that when that election has effected its end, the authority resides in the multitude.

You had no Seanad then. You had a Governor-General, you had courts, and legislative administration of the law, but in the middle of that it is stated that

“We, the people of Ireland, do hereby adopt and enact...”

In the document itself and in the speeches relating to it it was stated that the ultimate law-making power was the people. We in this Legislature have here that authority. It does not exist in the multitude. But the implication was that somehow a properly organised State was being dissipated or disorganised and being recreated. These two disingenuousnesses seem to me to be implicit in the preamble.

I raised a number of points during the debate about the Irish text of Article 6. The draftsman in English was given the tip that there were certain pronouncements of scholastic writers and to have a certain form of words. It says:

“All powers of government, legislative, executive and judicial, derive, under God, from the people...”

Personally and philosophically I disagree with the statement. One can talk about a people and about some people. The people can be spoken of as a single unit—unified by a code of law. On the other hand, you have what I call the dispersed multitude, a mere aggregation of individuals. In the English text if one wanted so to argue one could say that it vests authority in a unit, because the subject of authority is the unit and it is a metaphysical absurdity to suggest that authority can have as subject a multiplicity. I say that is absurd and something that is untrue. Coming to [1122] the Irish, the translators were apparently not informed of the very careful form of the words to be used. The word “pobal” can be singular or plural as “people” can be in English. The translators, having rearranged the sentences, made a mistake. Physically it is a hopeless metaphysical absurdity.

“Is ón bpobal, fá Dhia, a thigeas gach cumhacht riaghla, idir reachtaidheacht is feadhmannas is breitheamhnas, agus is ag an bpobal atá sé de cheart riaghlóirí an Stáit do cheapadh, agus is fútha fá dheoidh atá gach ceist i dtaobh polas an Náisiúin do shocrughadh....”

“Fútha” is plural.

Micheál O hAodha: “Is fá'n bpobal——”

Mr. Fitzgerald: I am talking of the pronominal reference—“fútha”.

Liam O Buachalla: The word “fútha” does not appear in the Article.

Mr. Fitzgerald: Well, then I brought in the wrong copy. I am glad that point has been met. That is a point I made previously.

Mr. M. Hayes: We have not got the latest copy, because it has not got the Articles we are amending.

Mr. Fitzgerald: Let us come to another point in the part dealing with religion. Has anybody got the latest copy?

Mr. Hayes: This is the ante-penultimate copy.

Mr. Fitzgerald: As far as I remember the text was something like this: that the State acknowledges the particular or special position of the Catholic religion, and it recognises the Protestant Church, the Society of Friends, the Jewish Religious Body, the Methodists and so on. I say that where you have a distinction it means a difference legally. In the English text, it is stated that you “acknowledge” in the case of the Catholic Church and that you “recognise” in the case of the Protestant Church and other religious [1123] bodies. In the Irish translation, which was to be the official text, both these verbs “recognise” and “acknowledge” are translated by “admhuigheann”. That verb is also used, if I remember rightly, in the Creed where you would say in Latin: “Confessio in unam Ecclesiam”. I have also seen it used in the Irish translation of the Te Deum. I do not pretend to be an authority, but I think it can be described as the Irish equivalent of the Latin verb “confiteor”. Therefore, when you say “admhuigheann an Stát”, etc., just as I say “I confess one Baptism for the remission of sins” the Constitution seems to say that, as far as the State is concerned, it confesses the special position of the Holy Catholic Church and it confesses the Church of Ireland, the Presbyterian Church, the Methodist Church, the Religious Society of Friends as well as the Jewish Congregations and the other religious denominations.

That brings me to the absurdity of this business of making the Irish text the official version, because how is it that in English you “acknowledge” and you “recognise” which imply a difference of meaning?

Mr. MacDermot: What does “recognise” imply?

Mr. Fitzgerald: “Recognise” implies a form of knowing. It has really no meaning. There was a long wrangle in regard to that in former years when there was a certain oath dictated, and when you said that you recognised the King as the head of the Association of States, while other people said that it meant that you recognised the King as the head of a particular State. It really meant nothing. Here, in Irish, we affirm that mutually contradictory things are all equally true. That is how I read it. When this Constitution was brought in, it was provided that for a period of three years it could be altered by ordinary legislation. I would be happy if the period during which it could be altered by ordinary legislation—now it cannot be done—could be extended without definition. The very need of positive law [1124] arises from the fact that we are living in a constantly changing set of circumstances and laws must be changed, Here, in this document, a time limit was imposed upon the Dáil. There was to be a plebiscite on it, together with a general election. There was a time limit during which that Government could run.

There was to be, immediately after the Constitution went through the Dáil, a general election in which, as far as was humanly possible, the Constitution was to be made the vital point. There was a pretence made that the Irish people, the dispersed multitude of men and women going round the streets, were solemnly enacting this Bill. Of all the people who voted for the Constitution—most of them rather illegally; strictly according to the law they did not vote because I understood that there was a certain arrangement that they should indicate whether they approved or disapproved of the Constitution and most of the people misunderstood it—would anybody here be so shameless as to say that one person out of 10,000 ever read it? Is anyone going to suggest that 1,000 people out of the whole lot read that amendment to the Constitution and really understood what it meant? Nothing of the sort. They accepted it from a political Party. In these circumstances an attempt was made to foist a fundamental law on this country which contained a provision that no future Government should have power to change it. I had hoped that the conditions which prevailed at that time had died down now. We are not now so interested in the things that made us quite heated then.

I had hoped that, during those three years, the Government, divorcing and abstracting itself from the preoccupations of that time, would seriously examine the Constitution and that they would, if you call this document of 1937 a new Constitution, come along within three years with another new Constitution, changing the thing radically. Now, the time is almost up and it does seem to me that the best thing is not to be in a hurry. It is quite clear that, when the time is up, we shall be obliged to have a complete [1125] and radical change in this Constitution and that that change will have to be submitted to the people. Let us hope that regard will be had to that sort of blind, sheep-like confidence in the people to accept what is offered to them and let us hope that, when submitted to the people, one of the amendments will provide that the Constitution can still be amended without another referendum.

Senator Hayes has referred to the unnecessary Articles in the Constitution. I should like to refer the Taoiseach to an article written by one of the greatest authorities on Europe, expounding what has brought Europe to its present state. One of the three things he mentions is Proportional Representation. I do not want to verge on our position of neutrality but it is abundantly clear to anybody who knows the history of Germany during the past 20 years that the present régime in Germany has been brought about by the fact that that unfortunate country was afflicted with a form of Proportional Representation. That did not happen in this country, largely because political passions were so high that one was born either a little Fianna Fáilite or a little Fine Gaelite. But in Europe it happened that no Party in a country which had Proportional Representation could get a sufficient majority to be able to form a government by itself and run a coherent policy.

Perhaps, I may refer to an unnamed country in Europe with whose affairs I was very intimate when a certain election was held. A man had come along with a new party and a new policy, and most of the people referred to him as “this lunatic”. When the election result came out, they were astounded to learn of the number of votes this new party had got. Everybody I knew—Catholics and Protestants and people of all sorts of political affiliations—said that if they had known that the Party would have got so much support they would have voted for it. They did not mind much for whom they voted, but they wanted to vote for somebody who would get a solid majority and who would run the country by government instead of [1126] having a series of parties, no party being able to govern the country, with the result that it tended to drift into anarchy. I do not mind having proportional representation for the time being, but the method of election should be governed by electoral law. Under this Constitution, proportional representation can be changed only by a plebiscite. With the passage of time — and the life of a nation is different from the life of an ordinary human being—that provision regarding proportional representation may be completely disastrous to us. The idea of government is to bring uniformity out of diversity. There are no two persons in the country whose interests are absolutely identical. The idea of proportional representation is to get an indication of what is required. You have an election to get a parliament to form a government—to make a unity of authority which will be imposed upon the people, to secure a unity of action which will be for the common good. The whole theory of the form of proportional representation we have is to reproduce in the Legislature all the divergencies that exist amongst the people. We have got proportional representation imposed upon us by this document, and it would probably be one of the most difficult things to abolish by referendum, because everybody would feel, if belonging to some form of minority, that the abolition of proportional representation would deprive him of the last hope of representation in the Parliament.

After three years of meditation to see what constitutional flaws could be amended, I take up this document and I find—quite rightly, I think—that the word “teachtaireacht”, which brings to my mind the idea of sending an errand or a message, is being changed, so that the President will instead put certain matters before the House. There is no urgency about these little matters. The three years have been wasted. There is no harm in passing these little amendments because they do not matter twopence. The real fault lies in the substantive document we are purporting to amend. This document has in it the history of all the arguments that went on [1127] between 1922 and 1937. In essence, these arguments are contained in it. It is an attempt to impose on the people the passions of one side or, as one might say, to concretise and crystallise them for eternity, so far as this nation is concerned. These do not matter, but there are a number of things which, I think, should be changed, such as detailing the exact number of people in the Seanad. To set out a certain form of election identical with the form of proportional representation we now have is a possible road to future disaster. Everybody will agree that it would have been impossible for an angel, in the circumstances of 1937, to produce a document of fundamental law to be imposed upon the people of this country which would not require to be changed in the light of experience. It would be much better not to give final form to the Constitution until this State, existing under various conditions both within itself and in the world outside, had lived on over a period and had created a certain tradition. Then, looking back and knowing all the circumstances that had arisen, we should be able to draw up a document with the minimum amount of matter which would provide for the continuity of government, for the protection of the people from the Government, and the various other matters which should be contained in a Constitution.

I have sympathy with the Government in that, during the last one and a half years—and even before that— we have been in a time of crisis when piffling around with these constitutional matters would hardly appeal to anybody. But it does seem a pity that the Government should have allowed the three years to come practically to an end and should now come along with these unimportant amendments when it is clear to anybody who cares for this Irish nation, which has to continue through the ages and be the home and framework in which human lives must be lived, that it is impossible to serve the people by seeking to impose upon them a document drafted in the year 1937 in the circumstances which obtained then. In the Committee [1128] Stage, we can deal with the various minor points, and they are rightly minor points.

Most of the amendments before us relate to the Irish text. I remember referring to the word “futha” in the other House. The President, as he then was, said he was not sufficient of an Irish scholar to pronounce on the point. I also raised a question as regards “adhmhuigheann” but nobody in the Dáil was prepared to discuss it. Everybody regarded me as dragging red herrings across the track as if it did not matter what the Constitution meant in Irish. Now, we are told that this is the document on which the courts are to decide. The Irish text of the Constitution—I do not pretend to be a great Irish scholar, but I know enough to say this—means what it means for the reason that it is, and purports to be, a translation of the English on the other side of the page. As I said before, an Irish scholar can say: “Yes, it could mean that,” and another Irish scholar could say: “Yes, it could mean something different.” The only reason we can say it means this, rather than that, is that we have the English on the other side of the page. The explanation of that is that words, especially in such documents as this, get an exact meaning, so that they mean one thing and nothing else, through a long period of usage and that that meaning has been accepted by a variety of minds as pointing to that one thing. Irish has not been used in that way.

Secondly, the attempt as I see it has been made to make the whole island Éire in some instances and in others to refer to the particular State only as Éire. The Irish language purports to mean what it is when it is translated into English. If you take five or six Irish scholars and give them a document and ask them to translate that into some other language, French or Latin, you will possibly find quite different versions because the Irish can mean different things.

With regard to making of authoritative Irish textbooks, that should be postponed for at least 20 years during which time we could hope that the use [1129] of Irish would be more exact in its terms during its course of development. At present if one took an Irish text and gave it to the lawyers in Ireland for interpretation it would prove to be a full-time job for the rest of their lives before they could work out what the real meaning of it was. One of the things we should recognise is that as far as Irish textbooks are concerned there could not be stabilisation until Irish was developed by men learned in the Irish language and in the literature. Anyone reading this Bill would see that it requires drastic amendments. The meaning of the amendments here do not so much matter. The meaning of the amendments that are not here but that will be subject to plebiscite matters. If that is taken I hope it will contain an amendment that future amendments will not require a plebiscite.

Mr. MacDermot: I want to make a practical suggestion with regard to amendment No. 22, which is generally recognised to be the most important. Before doing so I would like to refer to a few points arising out of speeches delivered in the debate. I gave a general support to the Constitution when it was passing through the Dáil. Of course that does not mean that there are not a good many things in the Constitution that I dislike. No doubt that could be said about any Constitution presented for consideration. You cannot get people to agree to every item in a Constitution. At any rate, I think it was a mistake to fix so short a period as three years as the time in which the Constitution might be revised without going through the cumbrous formalities of an appeal to the people. In the events that have happened I think it is particularly unfortunate that the amendment I proposed substituting eight years for three years or some similar amendment was not accepted. Because, in fact, the Constitution has only had a trial for a period of slightly over one year. When the war broke out the Constitution had only been in operation for one year, and since the war it has been, to a considerable extent, set aside because of the war emergency, and we have not [1130] had a fair opportunity of considering its merits or demerits. Now an amendment to extend the period is ruled out by the Constitution itself. I wish that some interpretative clause could have been introduced that would define the three years as three years of full experience, and would exclude that period during which the Constitution was more or less in suspense.

I agree that it is unfortunate we should need a referendum to change relatively unimportant details which do not touch the rights of the people, but which may cause great inconvenience. Proportional representation has been mentioned: that is one subject upon which I find it extremely difficult to make up my mind. I have a feeling that it cannot work well in any State run on Party lines. It requires instead of Party Government, proportional government. On the other hand, I remember a few years ago when the Taoiseach made one or two speeches which seemed to indicate that he thought of getting rid of it, there was an outcry from the official Opposition. The views expressed by Senator Fitzgerald are not apparently the views of his Party.

Mr. Fitzgerald: I have expressed these views publicly for at least 14 years.

Mr. MacDermot: I am not questioning the Senator's sincerity, but there appears to be a difference between his Party and himself on this question of proportional representation. I am sorry, however, that it is embedded in the Constitution in a way which makes it so difficult to change it and, as Senator Hayes pointed out, in more restrictive terms than in the previous Constitution.

It has been suggested that this Constitution represents the crystallisation of Party passion. I wonder what that means. Certainly, if I thought that the Constitution was inspired by Party passion or, through its provisions gave vent to Party spite, I would not have supported it at all. I would like anybody to point me out a single Article in the whole Constitution which deserves to be described in that way.

[1131] Professor Tierney: Would not the Senator think that the changing of the title of the State is an example, to begin with?

Mr. Fitzgerald: The Senator thinks that passion and spite are the same thing.

Mr. M. Hayes: Metaphysical again.

Mr. MacDermot: I am sorry that my mind is not quite so subtle as that of Senator Fitzgerald. I will discard “spite” and keep to “passion”, if it pleases him better. I do not, personally, think that changing the name of the State was wise, but I could not say, either, that it occurred to me that it was an example of Party passion.

Professor Tierney: What motive had it?

Mr. Fitzgerald: Just a love of ambiguity.

Mr. MacDermot: I think the Taoiseach and his colleagues were genuinely anxious—perhaps wrongly anxious—to adopt a name to include the whole of Ireland and to assert a claim to the whole of the national territory and they took the opportunity of the Constitution to do it.

Mr. Fitzgerald: If the Senator read the debate in the Dáil he would see that the Taoiseach, time and again, said that the name applied only to the area of the State.

Mr. M. Hayes: Saorstát Eireann was as good for the whole of Ireland, linguistically.

Mr. MacDermot: Even if I took the view that the Government had been influenced too much by Party tradition in that particular Article, I do not think it is fair to say that it indicates a crystallisation of Party passion. That was not my impression then, and it is not my impression now. Nor, indeed, do I agree that the Taoiseach was so unyielding or unconciliatory in his handling of the Constitution in the Dáil as has been stated. He accepted some amendments from the Opposition and a number proposed by myself.

[1132] Mr. M. Hayes: And not one of them an important amendment.

Mr. MacDermot: We may differ in our views as to what is or is not important, but, at any rate, he accepted a number of amendments. There is this to be said in defence of the Government at that time, that the spirit in which this Constitution was considered by the Opposition was not very encouraging to conciliation. This is not for the purpose of raking up old sores, but I do feel a certain sense of surprise and refreshment at hearing Senator Hayes refer to the paltriness of the powers conferred on the President when I remember the outcry there was about this super-Governor-General and dictator who was going to be set up and the vigour with which I, myself, was attacked for making the pretty obvious statement that under the new Constitution the President and the Taoiseach put together would not have as much power as the Taoiseach, then called the President of the Executive Council, had under the old Constitution. I do feel it consoling to have one's point of view subsequently justified as it has been by an Opposition leader to-day. I hold that the President was given too little power by this Constitution and I think that that is one of its faults. I am not quite clear what Senator Hayes's views are about it, whether he thinks the President ought to have more power or not. He has said that the President has very little power, so little power that there is no justification for having him elected by the direct vote of the people.

Mr. M. Hayes: I do not think that that was my line of argument at all.

Mr. MacDermot: I refer Senator Hayes to the official report of his speech. I think it will be found that he said that election by the mass of the people was an inappropriate mode of getting a President who had so little power as this one has. Is that not so?

Mr. M. Hayes: I said that election by the people was an inappropriate mode of election of a President who is not the head of the Executive, as the [1133] President of the United States is, and who might come into conflict with the Government.

Mr. MacDermot: But Senator Hayes also said that it was inappropriate for an officer who had so little powers as the President has to-day. He will find that in the official report of the shorthand record of his speech. As for myself, I like the mode of election by the direct vote of the people and I should be sorry to see it go. That does not mean that I want to see a contested election every time, but I would like to see it open to the people to elect their President if they feel so disposed. If I had the power to do it, I would have fewer restrictions on his method of nomination. Instead of compelling him to be nominated by so many Deputies or county councils, I would give a larger freedom of nomination. In fact, I do not know if I would have any restrictions at all on nomination for the office. Having got my President, I would give him more powers than he has at present.

Before this Constitution came into effect we had in the Dáil, without any doubt, the most absolute legislative body in the world—I am speaking of the period between the abolition of the old Seanad and the coming into operation of this Constitution with a new Seanad. There were other countries with single-chamber Governments, but those countries had a head of the State, whether called a President, or something else, with a power of veto. We had a Governor-General but he was reduced to a shadow, a rubber stamp; the Seanad was gone, and we had a Dáil that could do anything it pleased. The Constitutional guarantees had gone because of Article 2A, and there was no guarantee of the individual liberty of the citizen except in the good sense, good feeling, and patriotism of the Dáil. Now, it was undesirable that that state of things should continue permanently, because, however meritorious the existing members of the Dáil might be, you could not tell that they would always be meritorious.

Mr. M. Hayes: Like the Seanad.

Mr. MacDermot: Yes, like the [1134] Seanad. This Constitution effected a great improvement because it gave us three organs of government instead of one. In addition to the Dáil, it gave us the Seanad and the President. A good deal has been said to-day about the failure of the Seanad, the unsatisfactory character of this body, and it may be admitted that the present Seanad is not what the Executive intended it to be——

Mr. M. Hayes: Not at all, Sir. It is exactly what the Government wanted.

The Taoiseach: And the Senator knows, of course.

Mr. MacDermot: This is a matter on which I speak with some inside knowledge, as I was a member of the Second Chamber Commission which submitted the report that the Government accepted as the foundation of the Seanad. I listened to the Taoiseach on various occasions when, with perfect sincerity, he was maintaining that he saw no sufficient justification for the existence of a Seanad which would be merely a replica of the Party system in the Dáil. He saw in the principle of vocationalism something that was interesting and intelligible, and which seemed to provide a good foundation for a Seanad of a different kind. The attempt made to get a vocational Seanad has broken down—but not, I maintain, through anything in the Constitution. One could still get a Seanad of the kind intended, even retaining in the Constitution the Articles which deal with the Seanad. What messed up the Seanad was not the Constitution, but the Seanad Electoral Act, and I hope the day will come when that Act will be repealed and another substituted. I suppose that nothing can be done on that point until the Vocational Organisation Commission has completed its labours and made some suggestions. I do not think we should adopt an attitude of despair and complete resignation to the present state of affairs and suppose that the Government have given up once and for all the idea of getting the kind of Seanad that was originally intended. If we say that often enough, they may behave [1135] like that and thus fail to carry out their original intention, and I believe that would be a disaster.

As to the President, I believe that an official in that position is capable of giving still more useful service to the State than is possible for him with his powers as limited as they are at present. The reason he was given so little power seems to be that, the moment it became known that that office was to be created, it was assumed by every political opponent of the Taoiseach that he intended to put himself in that position at once. Consequently, a body of political prejudice developed which I imagine must have influenced the original drafter of this Constitution—that is to say, the Taoiseach himself—and caused him to bow to the storm to the extent of keeping the President's powers very limited indeed.

That brings me to reference No. 22 in the Schedule to this Bill, in which it is proposed that, when this war is over, the present emergency shall be regarded as continuing until such time as each House of the Oireachtas has passed a resolution declaring that it is over. That means, in other words, that the Constitution shall continue in suspense and the guarantees of individual liberty shall remain in suspense until the Oireachtas otherwise decides. I must say that that is a proposal which fills me with misgiving. I see the difficulty very plainly, that there will be disturbed conditions immediately after the war and that something of the kind may be necessary. My suggestion is that the President be brought into the picture as “the guardian of the Constitution”—as, I think, the Taoiseach called him to-day—and as the guardian of the liberties of the people. Is there any reason why this continuance of a state of emergency should not be made dependent upon his consent as well as upon the consent of the Oireachtas? He could use his personal discretion, after consultation with the Council of State. That is a way in which the President could be of practical value in the near future. Apart from my feeling that I would like him to have more powers in [1136] general than he is given by the present Constitution, I would like to ask the Taoiseach to consider the possibility of doing something on those lines.

Senator Fitzgerald has criticised the Irish text of the provision with regard to the recognition of religions. I am not competent to say whether his criticism is justified or not, but I have always criticised the English text of the same provision, as I have never been able to make out what it meant. I do not know what is implied at all in saying that you recognise such and such a list of religions. Does it mean that, if there were a fissure amongst the Presbyterians, or in the Church of Ireland, we would treat the dissenting body as criminal? Perhaps the Government are not very clear either as to what is meant, but think that it looks well. Whatever objections there may be to the Irish text, there are certainly objections to the English text of that particular provision.

One or two speakers have said that, in the general election during which this Constitution was put before the people, hardly any of those who voted for it had read it. I dare say that is so, but I think it hardly can be denied that only a very small proportion of those who voted against it had read it. Constitutional questions do not interest the mass of the people. That is one reason why the method of referendum regarding constitutional details is one that does not specially appeal to me. It may be said about the approval given to the Constitution in that general election that a very considerable proportion of those who voted against it did so under a complete misapprehension, thinking that it was imposing new restrictions on the liberty of the Press, that it would drive women out of various methods of earning their own livelihood, that the President would be a sort of dictator, and for a variety of other reasons which have proved since then to be unfounded.

I do not think the Constitution should be looked upon with contempt. None of us can be sure in these days that any Constitution will count for anything much longer. Unfortunately, [1137] it may be that this period of emergency will last for the rest of the lifetime of many of us: it may be that freedom will vanish from the earth; but we must take as cheerful a view as we can of the possibilities, and recognise that even the Articles which have been so much derided for setting forth general principles that are cut down by a lot of exceptions and are, in some cases, not cognisable by any court, and, therefore, seem to be purely academic, have perhaps in times like these a value which they would not have in other times. When darkness spreads over the earth, and the things which we believe to be the essentials of liberty cease to operate, it is just as well to have a set of principles there to remind us of what we profess to be aiming at, and which I hope we may continue to aim at in the future. It is well for us to keep a firm hold in our minds on the real essentials of liberty. It does not matter whether a country is called a democracy, an aristocracy, a monarchy, or a republic, as long as we have the essentials of liberty, as long as man is captain of his own soul, as long as he is allowed to speak his own mind, to try to persuade his fellow-citizens of the truth of the things which he considers important, as long as he is not liable to be suddenly seized and carried off to prison or to a concentration camp, to be tortured or executed for having done something which was not an infringement of any existing law. When we are considering a Bill like the present one, it is worth while to recall such fundamentals as these.

Professor Johnston: I had not intended to take part in this debate, partly because I think that the changes which it is intended to bring about by this Constitution are comparatively trivial, although I deem the Constitution itself a matter of profound importance. I take strong exception to some remarks by a Senator on my right regarding proportional representation. In the first place, he said that the revolutionary changes which took place in certain European countries in the last couple of decades were largely the result of the operation of a system of proportional representation. That [1138] may or may not be the case. Opinions will differ.

One might suggest that lack of political maturity, lack of political capacity or lack of honest, competent and courageous democratic leadership in certain European countries may have had as much to do with their disastrous departure from democracy as the existence of proportional representation. Anyhow, be that as it may, I do not share the opinion that the existence of proportional representation constitutes a danger to the well-being of our own nation. In fact, I consider that the existence of proportional representation is one of the most valuable features of the Constitution and one which in particular appeals to the minority of whom I may regard myself as in some sense a representative. It is true in theory that proportional representation could give rise to what is called the group system in politics, with no one Party commanding sufficient majority to form a one-Party Government but in practice we have profited by the Treaty split and the personal animosities which resulted from that split in the sense that we have, as a result of that dichotomy of our public life, laid strong foundations of a two-Party system, very much as the British on their part profited by the exile of the Stuart monarchs and the consequent division of the country into two Parties, the Whigs and Tories, to lay the foundation of a strong two-Party system which has dominated their public life more or less ever since.

I think proportional representation in our circumstances, modified by the existence of a two-Party tradition, works reasonably well. It certainly has not produced a hotch potch of small Parties and has not prevented the production of a single majority able to constitute a single-Party Government. But, even if it does not guarantee to the members of minorities that they can command representatives of their own in the Dáil—and certainly a minority would need to be a fairly large proportion of the total number of voters in a constituency before it could be certain of returning a member of its own—the fact that the vote is transferable [1139] gives to members of minorities an influence in determining who shall be the representatives returned by the leading Parties, which they would not have under a system of single Party-government. In fact, I could mention one or two cases where a Party put up a second or a third candidate in a constituency where there were, perhaps, four seats, hoping and expecting that No. 1 would be returned anyway and No. 2 would be returned next in order and No. 3 next but would have a very poor chance. By the transfer of votes from opposition candidates in that constituency, No. 3 was preferred to No. 2 and the candidate whom the Party caucus would most like to have seen discarded was one of the candidates returned by the people in that constituency.

That, I think, is one of the most salutary effects of the working of proportional representation in our system of election. It does modify in a salutary direction the choice of the candidates who are to be returned which the Party system would like to impose on the people. In the rest of our country, in Northern Ireland, proportional representation was part of the original Constitution and I think it was generally regarded as a retrograde step when it was abolished in the Six-County area. In fact, I think at the time it was denounced as a flagrant violation of the rights of the minority. If proportional representation is some safeguard for the rights of a minority in Northern Ireland, it is equally an important safeguard of minority rights down here and I for one am glad that proportional representation is enshrined in the Constitution even though it is enshrined in a form which certain Senators regard as too rigid.

Another point which is not without historical interest in that connection is this. Under the English system of election it is quite possible for the Party which commands the majority of votes at an election to return only a minority of candidates, and on one occasion of great interest to our people that altered the destinies of nations and altered them in a way which, I [1140] think, was injurious both to Britain and to us. According to my information, in 1886 when the first Home Rule Bill was rejected by the House of Commons, in the election which followed more voters voted for Home Rule candidates than against but, owing to the peculiarity of the English electoral system, the Unionist majority returned amounted to 100, in spite of the fact that they represented only a minority of the electorate. Under proportional representation that could not have happened, and if the proportional representation system had been in operation in England in 1886 the Home Rule Bill of that year would probably have become an Act, and the whole history of Anglo-Irish relations would probably have been altered and altered for the better.

Professor Tierney: There are two very unusual circumstances attached to this debate on the Second Amendment of the Constitution Bill. The first circumstance is that this is the only occasion on which any Seanad has had any opportunity to discuss the present Constitution. The other circumstance is that, in fact, the present Constitution is not now in operation and, as Senator MacDermot has pointed out, has only been in operation for the space of, at most, a single year. These two facts, together, it seems to me, are sufficient justification in themselves for the plea that more time should be given for the discussion of this whole question of the Constitution. The Constitution was only discussed in its original form by a single House of the Oireachtas, elected in very peculiar circumstances and, as Senator Fitzgerald pointed out, elected at a time when Party feeling was particularly high. It was carried by a Party majority in Dáil Eireann and it was then ratified by a comparatively small majority of the electorate and, a very short time afterwards, owing to circumstances over which nobody in this State had any control, practically all its provisions had to be set aside in view of the emergency created by the war. These two circumstances, it seems to me, imply first of all that more time ought to be given for the discussion and amendment of this [1141] Constitution by some means and, secondly, that there is plenty of time for discussing it apart from the trouble about the date, which could be set aside easily enough, I think.

Mr. Fitzgerald: I do not think so.

Professor Tierney: Could it not be set aside by a simple Bill?

Mr. Fitzgerald: I think that is one of the things you cannot change, if I remember aright. I would have moved an amendment right away.

Professor Tierney: We cannot do it?

The Taoiseach: No.

Mr. Fitzgerald: I do not think the Government can.

Professor Tierney: A Bill would have to be brought in to do it. We cannot do it on this Bill, but if we can amend the Constitution at all, surely we can amend that provision in it.

Mr. Fitzgerald: That is one thing you cannot change by ordinary legislation.

Professor Tierney: If it cannot be done in that way, some other means ought to be found to change it, because there is nothing surer than that the necessity for changing this Constitution will arise, not only in one case but in several cases, during the next ten years. We are in the peculiar position in this country that we have a Constitution which is not, in actual fact, in force, and that we are now proceeding to rivet down that Constitution on our necks, so to speak, although, owing to circumstances, it is not in operation. We hear a lot about the emergency and what will happen at the end of the emergency. There is no guarantee at all that the emergency will end in any brief period of time. The present emergency may go on quite easily for the next ten years and we may still be living in this peculiar condition, with a suspended Constitution which has never been fully discussed by a complete Oireachtas of this country during the whole of that time. The position into which we have been allowed to get in regard to this Constitution certainly speaks very badly for the political wisdom [1142] of those who are guiding us. I do not believe in spending a great deal of time in constitution-mongering. I think too much importance is often attached to this whole question of constitutions. In history, one of the greatest signs of political immaturity, I think, has always been the tendency to go into raptures over constitutions and to spend a long time working out elaborate schemes which, in practice, either do not operate at all or turn out merely to be means of transferring property from one part of the community to another.

I recommend everyone who is enthusiastic about this Constitutional question to read the life of the Duke of Wellington, for instance, and consider his remarks on the constitution-mongering of the Spanish people about the year 1812 when they succeeded in driving out the French. He said that apparently the Spaniards regarded a constitution in much the same manner as a painter regards a picture which he has painted and has hung on the wall—as something to be looked at but something with which they could do nothing. There is a good deal of that about this Constitution and in the whole position into which we have got ourselves. All this business of constitutions and of laying down the laws that are to govern the people for all time, is a very modern phenomenon in the world. I do not think there is any real instance of it earlier than the Constitution of the U.S.A., which goes back to the revolutionary period at the end of the 18th century. If it goes any further back, then its roots are to be traced to the revolution in England at the end of the 17th century; or if they are to be sought further back than that, they can be traced back to Cromwell and the revolution in the middle of the 17th century.

When I hear all this talk about the meaning of the Irish translation, or the Irish original, of the Constitution, what always strikes me is that the Irish language is about as inappropriate an instrument for expressing this kind of Constitution as could be found. All these ideas about written Constitutions spring from a type of mind [1143] which, in fact, destroyed the Irish language, and destroyed Gaelic civilisation in this country. Our ancestors whether they got on well or ill, got on for several thousand years before they ever heard of the word Constitution or knew anything about Constitutions. This whole idea that the Constitution is like the Decalogue, like something brought down by a prophet from a holy mountain, that is to be put in operation for the people for all time to come, is a pure illusion of modern times, an illusion that in its essence should be totally foreign to the realist, sensible people of this country. I would suggest that a Constitution is a practical code of laws which are intended to be put into practice for the good of the community. I am afraid there are a good many things in this present Constitution that do not quite live up to that specification.

Take for example the change in the title of the State. I pointed out to Senator MacDermot that this was one instance where no impartial observer could decide otherwise than that it was introduced because the people who got into power in 1932 disliked the title that the previous people had adopted and wanted to change it for anything else. The title “Saorstát Eireann” applies quite as much to the whole of Ireland as the later title, and it happens to be a far more practicable title for the Twenty-six Counties. It was not the creation of the people who made the disgraceful Treaty with England in 1921; it was the creation of the people who fought against England from 1916 to 1921. It was made a sort of political shibboleth, deliberately and without any reason at all, except that political passion was involved. We were told that the Constitution had been submitted to the people and that the people had solemnly ratified this completely meaningless and completely absurd change in the title of the State. There are many things like that all over the new Constitution— changes simply made for the sake of making a change, in the same spirit that a small boy likes to discard the things that remind him of his old school—in a completely childish spirit.

[1144] Mr. M. Hayes: Or the sins of his past life.

Professor Tierney: Then there is this rigidity that has been carefully imposed upon the Constitution. We have been given only three years in which to amend it. All the circumstances, of course, are not to be blamed on the Government, but, in view of the circumstances, something should have been done, before it was presented to us, to see that reasonable time was given to competent people to discuss all the difficult matters that arise out of the Constitution. There is no doubt whatever that sooner or later circumstances will arise in which that rigidity will be found to be a terrible handicap on the progress of the people. Take, for example, the unity of Ireland. It is easy to say that this Constitution makes provision for that eventuality, but, if unity is brought about, it will be brought about as a result of some type of negotiation, and the result of that negotiation will have to be enshrined in some future Constitution. The Constitution, presumably, will have to go before the people for their ratification by way of referendum. What will happen in that situation or how that ratification will be carried out without another civil war it is very difficult to see. All kinds of problems may well arise as a result of this rigidity of the Constitution. I think it was Senator Fitzgerald who referred to proportional representation. Senator Johnston's remarks on that point were quite interesting, but they have nothing to do with the point at issue. It is not a question of whether you think proportional representation is good or bad. It is a question whether proportional representation should be imposed on the people for ever in this document.

The Taoiseach: What does the Senator mean by “for ever”?

Professor Tierney: Unless you have a referendum.

The Taoiseach: That is for ever!

Professor Tierney: Can we calmly visualise the circumstances in which the ordinary elector will be expected to pronounce solemnly on proportional representation, amongst other things? [1145] Do we really seriously mean that a decision of that kind from the electorate means anything? Does anyone maintain that the electorate really considered the Constitution, or that it did anything except vote in a small majority for the dominant Party of the time? Does anybody believe that anything else will happen in the future? In the future, sometime or other, there will be a change of Government, and the Party in power will go to the country with an omnibus Bill to change the Constitution, to change the whole of it. If anybody thinks that he is going to set bounds to the liberty of the people, or to the march of the nation, by legislation of this kind, he is making a great mistake. Means will be found, if necessary, to change this Constitution, but these means will probably not be the most rational means. There is quite a chance, if you do restrict the people, as an attempt is now being made in this Constitution, that they may resort to forcible means.

The question of proportional representation is one which it is not necessary to go into in any great detail here. I have always been opposed to all forms of proportional representation. I have always regarded proportional representation as a chimera of mathematical politicians or mathematical philosophers. I was delighted to hear Senator Fitzgerald express the opinion that proportional representation was one of the causes of the disasters that have overtaken Europe. I have no doubt that that is so. All that sort of elaboration and the reduction of human nature to mathematics is bound to have a bad effect and is bound to result in one kind of disaster of another sooner or later.

There are three or four questions in respect of which it is particularly desirable there should be some change in the Constitution. One is in respect of the election of the President by the people. There, again, the idea that you are going to get anything reasonable in the way of election by the people of a man to fill such an office as that of President, under our present system, seems to be a wild delusion. Senator MacDermot spoke about removing [1146] some of the restrictions that existed on the nomination of candidates. Senator MacDermot may look with confidence to what would occur if these restrictions were removed, but I, for one, do not. I can well see the people of this country electing to that office of President somebody who is not fit for the office. I am not at all ashamed to admit that the people of this country, taking them in the mass, when voting at elections, are perfectly capable of making mistakes. They made mistakes before and they will go on making mistakes. When you call on them to choose a person for a particularly high office, in which there is not a great deal of work to be done, and to which a big salary is attached, the chances that they will make a mistake are very considerable indeed. We have seen what has happened up to the present.

This system of appointing a President has only been made tolerable by a sort of legal fiction. The two Parties agree to a candidate for the Presidency and, when this is done, no other candidate has any chance. If you have a free-for-all election, the odds are that you will get some candidate whom no responsible person would desire to have elected. You may have him elected for the prescribed period and, I suppose, the impeachment provision is put into the Constitution to deal with a situation like that. As one responsible citizen, the prospect of having a person get into the office of President by some twist at an election—a person unworthy to fill the office—and having him impeached afterwards, is not one which I can regard with equanimity. Like Senator MacDermot, I should like to see more power, rather than less, in the hands of the President. There, again, as the Constitution stands, it would be practically impossible to debate that question with any hope of doing good.

Another question on which there has been some discussion and to which I think more time should be given is that of the method of election of the Seanad. I have no doubt that the present system of electing the Seanad is specifically designed to create a [1147] Fianna Fáil majority here, and I am not unique in that opinion. Forty-five per cent. of the people believe that and I challenge anybody to deny that they believe it. The Taoiseach accepted, in words, the minority recommendations of a commission set up to advise about the constitution of the Second House of the Oireachtas. He accepted these recommendations formally and then he proceeded to produce a system of election to the Seanad which had practically no resemblance to the minority report of that commission. We are told, in these circumstances, that he is carrying out the report of the commission. We have that system of electing a political Seanad, under the guise of vocational representation. The country is quite aware of two facts—that the Seanad is a political Seanad and that it has been put in on the pretence that it is a vocational Seanad. Does anybody expect that the legislative bodies or any provisions relating to them in the Constitution will receive any respect for any period of time or will be tolerated longer than the people have to tolerate them when this is public knowledge? An attempt will certainly be made to alter the constitution of the Seanad at some not distant date and surely an opportunity should have been given in the Constitution to alter it in a reasonable and fairly easy fashion without having to go to the trouble of an elaborate referendum and an appeal to a court nine-tenths of whose members will not understand what the whole thing is about.

Another aspect of that question is worthy of consideration. We have at present sitting a commission on vocational organisation, and it is quite possible that that commission will make recommendations on which a vocational Seanad may be created. There is a provision in the Constitution according to which the Seanad may be given a more vocational character, but it is quite possible that this commission will produce some recommendations which cannot be fitted into that provision of the Constitution. These recommendations may be very far reaching, for all anybody can tell [1148] at the present time. Why should we tie the hands of the Legislature and of the people, even to the extent which we are tying them in this document, in a matter like that which can perfectly well be left out and settled by ordinary legislation? The present time is a very exceptional time. We are living in the midst of a crisis in which constitutions and constitutional arrangements are assuming smaller and smaller importance from day to day. Indeed, it partakes of make-believe, to some extent, to be debating constitutional questions at all at the present time. For that reason, I do think it would have been much better if the Government had taken more far-reaching steps to secure, at least, consultation and reasonable discussion on this matter before presenting us with a limited Bill which we are not allowed to amend save in trifling details.

There are various ways in which the thing could have been done. There was plenty of time to have appointed a joint committee of the two Houses to discuss the whole matter. Experts could have been called before that committee and the whole matter could have been gone into with care and in detail. Nothing of that kind was done. We are presented, a little more than a month before the last opportunity for amending the Constitution, with a Bill, and we are told that we must take it or leave it. I say that a Constitution brought to its final phase by methods of that kind and in circumstances like the present circumstances is not a Constitution that—with the best will in the world—is going to secure the allegiance of the people or their respect for any long period.

One other little point about allowing time for changing the Constitution: it was admitted some years ago, in respect of the first Constitution of the Free State, that there was a great deal to be said for allowing, at least, time for one change of Government before the Constitution was made rigid— before the final date after which no amendments would be possible without referendum. I suggest that it would have been far fairer, far more rational and far more fruitful if that procedure [1149] had been adopted in this case as well. I am sorry to have to speak in such a way of the Constitution. I should like to say that my criticisms do not spring in the least from any Party prejudices. I have differed from the Opposition Party in this House and in the other House on many questions many times and I am not amenable to them in the least. The view I take of the Constitution is that of an individual. I look at it from my own point of view, and I am sure this point of view is shared by a great number of educated people up and down the country.

Peadar Mac Fhionnlaoich: Shaoil mé o na paipéirí seo narbh é an Bunreacht ina iomlán a bhí os ar gcóir ach na leasuithe a thairg an Riaghaltas dhúinn. Do réir na cainte do chuala mé—agus do chuala mé a lán cainte iniu—sé an Bunreacht féin atá os ar gcóir agus atá á scannadh agus á lochtú againn. Is furus greadadh de chainteoirí fháil san Tigh seo; ar rud ar bith a thairgeas an Riaghaltas bíonn a lán le rá aca. Cuid mhaith den chaint ní bhaineann sí leis an scéal ar chor ar bith agus san chuid eile ní bhíonn ach díchéille. Dá gcuirfeadh an Riaghaltas an Soisgeal Naomtha os cóir an tSeanaid bheadh daoine ann a gheobhfadh locht air. Bheadh seans ag na daoine seo labhairt agus labharfadh siad.

Do réir na cainte do chualamar, níl locht ar bith san domhan nach bhfuil le feicsint san Bhunreacht seo. Ach ní hé sin tuairim na ndaoine laistigh den Tigh seo. Isé mo bharúil go bhfuil furmhór na ndaoine san tír sásta, no go measardha sásta, leis an Bhunreacht, gidh go mbéidir go mbéidir go mbeidh leasú ag teastail anois agus arís. Chuaidh an Seanadóir O Tighearnaigh níos fuide ná cainteoirí eile. Ní bheadh aon Bhunreacht aige-san ar chor ar bith. Níl a fhios agam cad a chuirfeadh sé ina ionad. Dubhairt sé go dtiocfadh linn dul ar aghaidh ag déanamh athruighthe ar an dlí o lá go lá. Níl mórán céille ag baint le scéal mar sin. Níl eolas agam ar aon tír atá gan bunreacht ach amháin na tíortha ina bhfuil na deachtóirí i réim.

Micheál O hAodha: Sasana.

[1150] Peadar Mac Fhionnlaoich: Is dó liom gur fearr bunreacht a bheith againn i dtreo go dtuigfidh na daoine cad atá le déanamh aca agus an rial dlithe atá i bhfeidhm. Bhí cuid de na cainteoirí ag gearán maidir leis an Ghaedhilg. Is annamh a bhíos ceist os ar gcóir nach gcloisimíd daoine ag lochtú na Gaedhilge agus usáid na Gaedhilge. Cuid aca tá siad in aghaidh na Gaedhilge, amach is amach, cosúil leis an Seanadóir Mac Diarmada—agus tá sórt measa agam air-sean. Ach, tá daoine eile ann agus deir siad go bhfuil siad i bhfabhar na Gaedhilge gidh go gcuireann siad isteach ar an teanga chó minic agus a thig leo—An Seanadóir Mac Gearailt, cur i gcás. Isé an locht atá aige ar an Ghaedhilg nach raibh sí in usáid i gcúrsaí dlí ná in Achtaí pairliminte le fada. Agus cad é an leigheas atá aige ar sin? Usáid na Gaedhilge sna cúrsaí seo do cur ar gcúl go ceann fiche bliadhain?

Micheál O hAodha: Ní dubhairt an Seanadóir Mac Gearailt sin.

Peadar Mac Fhionnlaoich: Is dó liom go ndubhairt.

Micheál O hAodha: Ní dubhairt.

Peadar Mac Fhionnlaoich: Bé sin an rud do thuig mé uaidh, ar chuma ar bith. Níl mé ag smaoineamh ach amháin ar na leasuithe atá an Riaghaltas ag cur os ar gcóir agus táim sásta leo. Níl dó liom go ndéanfadh siad aon dochar. Ba maith liom beagán eolais fháil fá rud nach bhfuil baint díreach aige leis an Bhille—ceist litriú na Gaedhilge san Bhunreacht. Nuair a bhí an Bunreacht os cóir na Dála agus an tSeanaid cuireadh coiste ar bun chun féachaint isteach san cheist seo. Bhí a lán daoine nach raibh ar aon intinn maidir le litriú na Gaedhilge agus saoileadh go mba mhaith an rud caighdeán éigin do shocrú. Na scoláirí a b'fhearr a bhí againn an t-am sin, as gach pairtí agus as gach cúige, cuireadh iad ar an choiste sin agus bhí Eoin Mac Neill mar chathaoirleach acu. Thainig siad le chéile agus thug siad a lán aire don cheist. Thug siad breithniú ar na focla nach raibh daoine ar aon intinn mar gheall orra agus b'shin an dóigh a b'fhearr caighdean [1151] do shocrú. Leanadh an caighdeán sin sna scribhinní a cuireadh amach faoi'n Riaghaltas agus sna leabhair do chuir an Gúm amach. Ba mhaith liom fios a fháil ón Taoiseach an bhfuil molta an choiste sin dhá leanúint fá láthair.

Mr. McEllin: I listened with a good deal of pleasure to the speech of Senator MacDermot. I can only say if he always showed the trait expressed in his speech he would not only be a very useful member of society but would justify himself definitely in the eyes of the people as a member of this House. I hope his speech to-night was a forerunner of what we may expect from him in future.

I listened very attentively to Senator Hayes and speakers on the other side of the House. I can only say I was not exactly disappointed with the arguments they adopted. Senator Hayes has been putting forward these arguments for the last 20 years. It was a pity, in a way, that he should have magnified the whole question of our Constitutional position and ignored the fact at the same time, that the fate of the country depends upon the Constitution we have to-day. That might be an exorbitant claim from Senator Hayes's point of view. But in view of the history in the last ten or 12 years it is a concrete fact. Under the old Constitution based upon the Treaty it would not have been possible for An Taoiseach and the Government to declare neutrality.

Mr. M. Hayes: That is completely untrue. The Senator is trespassing on grounds upon which he is completely ignorant.

Mr. McEllin: I have here a document and I refer Senator Hayes to it, namely, Article 7 of the Treaty. I do not think we ought to go into these things at all, and I would not do so but that the Senator assumed that there was no difference between the two Constitutions. It is necessary that someone at some time should answer that matter. Article 7 of the Treaty says: “The Government of the Irish [1152] Free State shall afford to His Majesty's Imperial Forces”——

Cathaoirleach: We are not discussing the Treaty.

Mr. Hayes: Let the Senator read the old Constitution.

Mr. McEllin: Senator Hayes compares the two Constitutions and he says there was no difference between them.

Mr. Hayes: I did not say that at all, I would not dream of saying that. I think this Constitution is the worst Constitution ever.

Mr. McEllin: The Government “shall afford to His Majesty's Imperial Forces”—what these facilities are is set out in paragraph (b) as follows:

“In time of war or of strained relations with a foreign Power such harbours and other facilities as the British Government may require for the purpose of such defence as aforesaid.”

I submit it would not be possible under the old Constitution for the Government to declare its neutrality in time of war.

Mr. Hayes: In 1925, in Washington, General Mulcahy and Mr. Thomas Johnson argued before an International Parliamentary Union assembled in Washington, that this country could be neutral if Great Britain was at war. And Sir Robert Horne who has been Chancellor of the Exchequer in England was forced to admit that that was so. That was published in all the newspapers all over the country. So the matter is not so simple as Senator McEllin thinks. It is important to know that the claim of the right to declare neutrality was made as early as 1925 in Washington and was accepted by the British delegation who happened to be there as well.

Mr. McEllin: I do not know what happened out there. I am now talking of an agreement under the signature of the Senator's Party. I say that they were bound by that Article 7 unless it was rescinded, and that Article was rescinded in 1938.

[1153] Mr. Hayes: America has taken English ports. The whole matter is not so simple as the Senator thinks. This country declared its neutrality, as I said, in 1925, and I think the Senator is making a very bad case for the Government before the country.

Mr. McEllin: That may be Senator Hayes's point of view. I express my view that Article 7 of the Treaty was binding until such time as it was rescinded, and it was not rescinded until 1938 when the Taoiseach was in London.

Mr. Hayes: Has the Senator never heard of the Statute of Westminster?

Mr. McEllin: In the annex to the Article I have quoted the following are the special facilities required: “Dockyards at Berehaven; Queenstown; Lough Swilly; Harbour defences to remain in charge of British care and maintenance.” These things are all pertinent to the questions raised by Senator Hayes, and it is about time the people should be fully acquainted with the facts of the position in this country to-day. It is about time the people should be aware of the true facts of the case. Senators opposite ought not to be so self-centred. They seem to think there is nothing in any argument but from their own point of view. It is not at a time of crisis like this that they should be contending against a principle which is really fundamental to the welfare of the people. The present Constitution stands for the safety of the people.

I think we have advanced sufficiently in self-government in this country to recognise that there are certain fundamentals in life that ought not to be the subject of petty controversy. This Constitution has given us all the liberty and independence that any State on earth could have, and, even now, we should make a fresh resolution, in the light of what is happening other nations, to preserve our country from the misfortunes that have befallen other countries in Europe. Our best way to do that is to forget foolish petty controversy and to mind our own business.

[1154] Senator Tierney became very excited over the manner in which this House was constituted and the type of people elected to it. He inferred that the Government acted quite deliberately in making it a political Seanad. I think that such charges are outrageous. The basic principle of vocational organisation for a vocational Seanad was generally accepted, but it is one thing to have a principle or sentiment to work by, and quite another to give it practical effect. If the vocations were properly organised in this country and completely watertight, I am not too sure that the average intelligence of the representatives who would be sent here as members of the House would be anything higher than it is now. Looking back over the debates in the Dáil on the question of how best to constitute a Second Chamber, it can be seen that there were so many differences of opinion that no two sections of the community would be likely to agree on the best method of carrying out the principle. In view of that situation, it would surely be very hard to blame the Government if they said: “We have a one-House Parliament. Let us be satisfied with it.”

So far as we are concerned in this House, I am not a member of any Party, although members of the Opposition may be members of their official Party. I do not say that I do not own allegiance to any Party, but the fact is that I would not be accepted as a member of that Party, and no member of this House would be accepted.

Mr. Baxter: You are worse than we thought you were.

Mr. McEllin: I may be, but I am certain that I am not half as bad as your side of the House at any rate.

Mr. M. Hayes: He is embarrassing Senator Quirke, Sir.

Mr. McEllin: The question of the establishment of a second House on a popular basis is naturally one that the Government are very anxious to solve, but while the House is there, let us make the most of it until such time as there are further developments. Another question was raised here with [1155] regard to proportional representation and a lot of people may be thinking along the same lines, although it is possible to take a different point of view. I think we have been very fortunate over the last 20 years that proportional representation did not make a very bad mess of the country. I do not know that I would be terribly anxious to make it a fundamental method of election, but there is no question that as far as we have had experience of it, it has worked very well and has, at least, given reasonable satisfaction. There is no reason why we should start to mess about with another system now, but I believe it will come to the time when stable government will be made unworkable. In this present crisis I feel that abuse of our Constitution, misrepresentation of the basis of life here and the spreading of false rumours are completely out of place. We should not endanger the fundamental basis of democracy on which the Constitution is built for the sake of petty Party politics. This is not a time for such propaganda. We should make up our minds that the coming months are going to be very serious. Let us leave Party politics aside, preserve the Constitution and try to lift the morale of the people and to give them more hope and confidence, while putting our feet down on the scandal mongers and the rumour mongers.

Mr. Douglas: It is almost 20 years since I sat on a committee, which met daily for a period of over a month. endeavouring to prepare a draft Constitution for this country. By the time that these drafts came to be considered, the country was, unfortunately, in civil war. Although they have never been published, I still believe that they were an absolute and a bona fide attempt to reach unity with regard to the independence of this country and, certainly, they were considered in no party spirit. As I have said, when they came under consideration in the Dáil there was civil war, and only part of the representatives of the people were present. There is no use in going back over what has happened since. Listening to speeches such as those we [1156] have had here, particularly that of Senator McEllin, makes one almost despair of our ever reaching a real Constitution. I do not believe it is possible to get a Constitution which will have the value it should have in the life of a nation, unless it can be, to a considerable extent, the result of united effort. I do feel that if we cannot discuss our present problems without everyone imagining that any slight reference is a reflection on what somebody else did in the last 20 years, we will make no progress at all.

We are considering a Bill to amend our present Constitution. I am sorry that the Government did not think it wise to endeavour to get together a number of people in a spirit of goodwill, to propose amendments for this Constitution which might meet with general consent. That would have been perfectly possible, particularly in the present political atmosphere. It could have been understood that, the Constitution being already law, only amendments meeting with general assent could be proposed. In spite of the fact that there is sometimes a certain amount of heat — which I think quite unnecessary — there is a very considerable measure of agreement when there are problems to be solved. If I understood the Taoiseach aright in the Dáil, he was not perfectly satisfied with the method of finding a President, but had no better suggestion. He is here now, and if that is not so he can correct me. If that is the case, there is an agreement that this problem remains to be solved, and I believe it might be solved by means of a committee meeting in the spirit in which the first Constitution Committee met.

For various reasons, the present Constitution is not as good as one which would have been drafted by a non-Party committee. It is my conviction that it should not be impossible to find a body of people who would take the Constitution as a basis and reach a measure of agreement from time to time as to the changes which should take place. If that were done, I do not think it would matter very much whether we have a referendum or not. The only way in which changes should [1157] be brought about even with a referendum is by having proposals made by persons in whom there is general respect and confidence as leaders, not merely of one Party but of the people as a whole. The inevitable result of a Constitution introduced by one Party is that it does not get the support it would otherwise deserve, and cannot be regarded as a national Constitution.

I agree with a good deal of what was said by Senator Hayes, but take exception to one point. I am not convinced that written Constitutions are as unimportant as he thinks at the present time. In recent history, we have seen the extraordinary desire of aggressor States, where they have conquered small countries by force, to achieve control and change to a dictatorial system, by means of the existing Constitution. That has been remarkable in the case of Norway. The people there realise the value of their old Constitution and ultimately, after a certain amount of misgiving, they decided, even under invasion, that they would cling to it. It is one of the oldest Constitutions. The Norwegians would be the first to admit that it had certain drawbacks, but it is something that stands for their nationality, their independence and their political existence. If an Irish Constitution is to be achieved which will obtain the affection of the people, it must represent something that we agree on as a fundamental method by which we will be governed, and as a symbol of political independence and nationhood. That is something that would be worth a sacrifice on our part. I almost despair of that happening at present, and listening to the debate makes me despair more than ever.

For that reason, although it would be in order on the Second Stage, it seems rather futile for me to indicate now a number of amendments I should like to have seen introduced. It seems futile, partly for the reasons I have given, and partly because the amendments I speak of are those I would like to have discussed by a number of people with knowledge and experience, in a non-Party spirit and with a concern to get the best possible Constitution [1158] for the country. I do not suggest they are anything more than matters which should be carefully considered.

I certainly would not like to see proportional representation removed from the Constitution. Perhaps it is a little rigid, but it would be better to err on that side than to remove it altogether. One matter has arisen which has caused some concern. It might possibly be raised now. It is the question of the possible removal of a judge. I am not discussing any particular case. It is very clear that the responsibility for the removal of a judge is intended to be a Parliamentary responsibility, as distinct from an Executive one—that it would not be a matter on which a Government could come to Parliament and say that they had seen fit to remove an employee of theirs from office and now require parliamentary sanction. It is a case where Parliament must be satisfied, in agreeing to the removal of a judge, that it in no way interferes with the fundamental independence of the judiciary and the courts. Machinery to deal with that is not in the Constitution, and I do not think it is anywhere.

It seems that, if in the future it should be necessary for the Minister to move for the removal of a judge from office, there should be some specific machinery by which a representative committee of both Houses would immediately be called and the facts, or alleged facts, put before them. It would obviously not be a Party matter. Responsible members of the House would be able to give a considered judgment; and Parliament would exercise its functions as between the Executive and the judiciary. There was a case recently, but fortunately we were not faced with a motion, as it would be a matter of having to discuss information which it was highly undesirable to debate in public, or of having no information at all.

I take this opportunity of referring to the case, as I think there should be some Parliamentary procedure to provide for it. A bare majority of each House should not be sufficient for the removal of a judge but, apart altogether from that, there should be some [1159] machinery by which a matter of that kind could properly be considered by members of the House. It is fully recognised that, in many matters which are Executive matters, we must—and do, more or less readily—accept the judgment of the responsible Minister. In this case, however, it would not be the judgment of the responsible Minister, as the responsibility would be that of Parliament. Some machinery should, therefore, be devised to deal with such cases.

I am sorry that the Taoiseach did not deal here with some of the provisions in the Bill concerning habeas corpus. He is taking away a certain amount of right, that is, the right to appeal to any one judge and to go on to all the other judges. I think that is being taken away in the amendment of the Constitution, as I read it. At the present time a person who fails to obtain a writ from one judge can go to another and on until he has exhausted the judges. As far as I know, there were cases, not since this Parliament was created, but before it, where appeals were made to four or five judges here and it was the last one who granted the writ.

The Taoiseach: That is not an accurate statement of the case at all.

Mr. Douglas: Do you mean that last statement?

The Taoiseach: It is not accurate at all.

Mr. Douglas: That was the information given to me. But is it not accurate to state that now it will not be possible?

The Taoiseach: I will deal with that but I want to say that is a common impression, but it is not accurate. So I am informed.

Mr. Douglas: That, I think, bears out my main point that it is necessary for the Taoiseach to deal more fully with this matter here than he did in the Dáil because habeas corpus is one of the valuable things we took over from England. For my part, if I am satisfied that the change that takes place in this Bill is not removing [1160] any right from the individual I would be perfectly satisfied and would not wish to criticise it. If, on the other hand, it is, as it seems on the surface, reducing, to some extent at any rate, the rights of the individual, one wants to be quite sure there is very good reason for it and that the change is not being made simply because of one difficulty that occurred comparatively recently.

In dealing with the Constitution we are always up against this fundamental difficulty: what is the Constitution meant to be? Is it, as Senator MacDermot thinks, a sort of pious guide as to the way we would like the Legislature to act, or is it meant to be a safeguard to the people against the Executive or against the Parliament? Under British Constitutional law, Parliament is supreme, and under the original idea here the people were supremen and Parliament was subject to the people. If you carry that to its extreme logical position you will have the Executive and Parliament possibly so restricted that they are utterly unable to deal with an emergency that might arise, such as the present emergency, and particularly in the case of civil war.

I do not at all agree with Senator Tierney, who sees an enormous number of restrictions in the Constitution. It seems to me that our Constitution contains provisos and loopholes everywhere rather than being far too rigid. I take quite a different view from Senator Tierney as far as that is concerned. But we are always faced with the difficulty that if you are too rigid on the one side you may make government almost impossible, and if you are too wide you fail entirely to provide a protection for the people as against Parliament. I would like to see a method introduced by which proposed revisions would be made through a non-Party committee; say, every ten years. A non-party committee would be set up, and any proposed changes would be put before the people, which they could accept or reject. That seems to me a far more practical method of making amendments. It would mean that your Constitution, while fundamentally the same, would [1161] undergo any necessary changes every ten years. The changes would be put before the people with the backing of a non-party committee. They would probably be accepted, but the right of the people to reject them would still be there.

Sitting suspended at 6.5 p.m. and resumed at 7 p.m.

Liam O Buachalla: Tá an díosbóireacht seo ar bun anois le trí huaire a chluig. Is dóigh liom féin go mba leor uair a chluig no níos lugha dá gclaoidheadh na cainteoirí le ábhar an Bhille mar tá sé ós ar gcomhair. Is Bille an—tsimplidhe an ceann seo atá ós ar gcomhair, na leasuithe atá i gceist tá siad díreach simplidhe. Ach gach duine a labhair go dtí seo shíl sé go mba chóir dó saoirse an tsaoil bheith aige agus dul a' pléidhe gach gné den Bhunreacht fhéin. Pléidheadh seanchas an Bhunreachta, an ceann atá anois ann, an ceann a bhí ann roimhe agus bunreachta tíortha eile. Is beag call a bhí leis an gcur síos sin ar fad.

Maidir leis na leasuithe atá molta anois, beidhmuid ar fad, creidim, sásta iad a rith. Isé an locht atá agam ar an sgéal nach bhfuil leasuithe áithride molta a mheasaimse a bheith riachtanach. Mar shompla tá sé ráite sa mBunreacht gurb í an teanga Ghaedhrlge teanga oifigiúil an Stáit. D'ainneoin sin is cosmhail go bhfuil cead ag daoine, go leor aca allmhuirigh, eirghe suas agus an teanga sin a mhaslú agus gach dá gcialluigheann sí a mhaslú cho maith. Ba mhaith liom go mór go mbéadh comhacht againn an Bunreacht a leasú ar shlí a chuirfeadh deireadh le himtheachta den tsórt seo.

Cuimhnigh ar an sgéal! Cúig bliadhna fichead ó shoin chuaidh fir agus mná amach le n-a n-anam a thabhairt ar son an náisiúin seo. B'ionann an teanga agus an náisiúntacht dóibh. Níor chialluigh an náisiún tada dhóibh sin gan an Ghaedhilge. Ach mar sin fhéin, an lá atá indiu ann—cúig bliadhna fichead thar éis Seachtmhaine na Cásga—tá cead ag bodaigh iasachta agus daoine eile an teanga náisiúnta agus náisiúntacht na hÉireann a mhaslú.

[1162] Bhí baramhail agam go bhféadfainn leasú a chur isteach mé fhéin a bhainfeadh leis an gceist seo ach tuigim nach bhféadfainn sin a dhéanamh ar an mBille seo. Tá súil agam, ámhthach, go bhfuigheamaid deis ar Bhille eile, nó ar shlí eile, teacht suas leis an gceist agus í a leigheas.

Támaid sásta an dúthaigh náisiúnta a chosaint, agus na milliúnta punt a chaitheamh ar an gcosaint sin. Is mar sin is cóir an sgéal a bheith. Ach cuimhnighimís ar seo—agus ní mise atá á rá ach gach duine údarásach dar sgrúduigh an cheist ariamh—má chailltear an Ghaedhilge, caillfear gach rud. Ní foláir an teanga náisiúnta a chosaint ar ionsuidhthe agus náimhdí díreach cho maith leis an dúthaigh náisiúnta.

Dubhradh a lán indiu i dtaobh ainme an Stáit. Ba mhaith liom fhéin tamall a chaitheamh a' cur síos ar an bpoinnte sin, ach ina dhinidh sin b'fhéidir nach í seo an uair is feiliúnaighe le mo thuairimí a nochtadh ina thaoibh. Ach tá mé sásta leis an ainm, agus má chuireann sé daoine trí na chéile ó am go ham níl aon locht agam air. Ar a laighead, meabhrócha sé dúinn ar fad an éagcóir a rinneadh ar an tír agus coinneócha sé i gcuimhne dhúinn go bhfuil an éagcóir sin le leigheas.

Dála an Bhunreachta, tá na daoine sásta leis. Cuireadh a lán aca amú an chéad uair nuair bhí sé ós comhair an Oireachtais agus nuair bhí sé á chur ós comhair na ndaoine le haghaidh pobail-bhreithe. Dubhradh leis na daoine go gcuirfeadh an Bunreacht deireadh le n-ar saoirse; nach mbéadh ceart ag na mná leanúint d'obair taobh amuigh dá dtithe; gur deachtóireacht a bhéadh againn dá bharr in áit an daonfhlathais agus mar sin de. Rinneadh dubh-tharragaireacht faoi, ach bhréagnuigh an Bunreacht agus an aimisir lucht an duaircis. Péirbí údar a bhí ag daoine bheith a' caint mar sin an uair sin, níl údar aca bheith a' caint ar an nós céanna indiu. Is díchéillidhe an rud é a rá go mbaineann an Bunreacht de shaoirse an phobail agus an té adéarfadh e tá sé an-leanbhaidhe nó níl sé cneasta ina thuairim.

Shílfeá nár léigh na daoine seo an Bunreacht. Shílfeá nár léigh siad [1163] Airteagal 47 ar chaoi ar bith! Uaireanta cheap mé ar chuid de na cainteoirí nach bhfuil siad sásta le prionsabla an Reifrinn. D'fhéadfaí cuid mhaith a rá ar an gceist sin freisin ach níl aon bhaol ann do chearta, nó comhacht nó saoirse na ndaoine. Ba mhór an rud é an nós toghacháin atá againn a athrú. Taithnigheadh an córas “P.R.” linn nó ná taithnigheadh, ba athrú an-mhór é, é a chaitheamh go leath-taobh. Níor cheart athrú dá leitheid sin a dhéanamh gan baramhail dhíreach an phobail d'fháil air—tré reifreann nó ar shlí eicínt eile. Níl an Bunreacht do-athruithe mar adubhradh go minic annseo indiu. Is féidir a athrú agus ní le mórán duadha é. Maidir liomsa tá mé lán-tsásta gur ag an bpobal go díreach ba chóir an chomhacht sin a bheith a mBunreacht fhéin d'athrú— má chítear dóibh gur gá é athrú. Ceapfaí ar chuid de na cainteoirí go bhfuil an Bunreacht daingean, docht, do-athruithe; agus nach bhféadfaí athrú a dhéanamh gan réabhlóid nó “revolution”. Má chreideann siad sin, tá siad an-tsimplidhe.

An ceart Bunreacht sgríobhtha a bheith ann chor ar bith? Sin ceist achrannach eile. Maidir liom fhéin is maith liom í a bheith sgríobhtha. Is maith liom a fhios a bheith agam céard iad mo chearta 'mo shaoránach. Is maith liom a fhios a bheith agam go bhfuil na cearta sin sgríobhtha agus in áithrid agus nach féidir iad a shárú nó a mhúcadh i ngan fhios dom. I gcúrsaí gnotha is ceart gach connradh tábhachtach a bheith sgríobhtha; i bpáirtíocht nó i gcumann nó cólucht is maith an rud an connradh a bheith sgríobhtha. Ar an gcaoi chéanna creidim go bhfuil muintir na hÉireann sásta go bhfuil a gcearta le léigheamh aca i mBunreacht náisiúnta.

Tá rudaí sa mBunreacht nach bhfuil mé sásta amach agus amach leo. Mar shompla, níl mé ró-shásta leis an modh atá leagtha amach againn leis an Uachtarán a thoghadh. Tá faitchíos orm nach dtiocfadh an oiread amach a bhótáil agus ba chóir. Ach ní thagann an oiread amach a bhótáil sna toghacháin mhóra nó sna fo-thoghacháin [1164] agus ba chóir. Ach ní abruighthear gur ceart gan toghacháin a bheith ar bun. Níl mé sásta le modh toghacháin an Uachtaráin ach ag an am céanna níl mé i ndon modh níos fearr a mholadh, agus ar an ábhar sin glacaim le modh an Bhunreachta. Tá rudaí sa mBunreacht nár cuireadh i bhfeidhm go fóill ar chaoi ar bith—rudaí faoi shóiséaltacht mar shompla. Ach is ceart iad a bheith ann—tá fhios againn céard é ár gcuspóir agus tá fhios againn cá bhfuil ar dtriall mar náisiún.

Tá mór-chuid de chuspóirí an Bhunreachta bainte amach againn. Má bhíonn muid foighideach agus ciallmhar bainfeamaid ceann sgríbe amach go cinnte ar ball.

Rinneadh a lán tagairt indiu freisin do laige na Gaedhilge ó thaoibh téarmaíochta. Tá mé sásta go bhfuil laige san nGaedhilge mar sin, ach tá fhíos agam go bhfuil laige ar gach teangaidh ar an tslí chéanna. Nach bhfuil fhios againn cho minic agus chaitheas na cúirteanna a gcuid ama ag iarraidh brí focal agus abairtí a léiriú go cruinn. Nach ndéaneann ceisteanna mar sin buaidhirt do na dligheadóirí gach lá—agus é sin sa mBéarla cho maith le teangacha eile. Ní ceart dúinn bheith ag iarraidh focal Béarla a leagan ar gach focal Gaedhilge. Ní féidir sin a dhéanamh. Is teanga ar leith í an Ghaedhilge agus caithfear cuimhniú go bhfuil “idiom” ar leith a' baint leis an teangaidh. Bímís réasúnach i dtaobh an sgéil. Cuimhnighimís go raibh an-chóras dlighidh sa tír seo, go ráibh an-téarmaíocht dlighidh ann freisin na céadta bliain sul má chualthas trácht ar an mBéarla sa tír. Cuimhnithear go gcuireann cruinneas agus slacht na ndlithe sin iongnadh fós ar sgoláirí agus údair dlighidh. Ní a' fáil locht ar na daoine a thrácht indiu ar an ghné sin den cheist atá mé, ach ba mhaith liom iarraidh ortha bheith reasúnach agus cothrom na féinne a thabhairt don teangaidh. Is féidir dochar mór a dhéanamh don teangaidh má bhíonn muid á luchtú cho minic agus a bhíomaid agus go mór-mhór de bharr bheith á luchtú gan údar. Sin a bhfuil le rá agam agus, mar dubhairt mé cheana, marach an chaoi a chuadhthas a' díosbóireacht ar neithe nár bhain [1165] ach ar éigin leis an mBille seo, bhéadh an díosbóireacht thart i bhfad ó shoin.

Mr. Counihan: I am more interested in the administration of the laws passed under the Constitution than the Constitution itself. There might be a perfect Constitution and the laws under it might be most impressive. Article 43 says:

“The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general rights to transfer, bequeath and inherit property.”

That provision in the Constitution is violated by a Department of State, the Land Commission, every day, and I want to ask the Taoiseach if he will accept an amendment to deal with that position.

The Taoiseach: Would the Senator be good enough to read the whole Article?

Mr. Fitzgerald: Read on.

The Taoiseach: It answers for itself.

Mr. Counihan: I agree that there is some provision after that.

Mr. Quirke: Of course, it does not matter in a discussion!

Mr. Counihan: It does not justify the confiscation of property. It is the administration of the law I am dealing with. I want a provision so that there will be an appeal to the courts to rectify any injustice that may occur. That is why I should like the Taoiseach to accept an amendment to this Bill, giving owners of property who believe that it is being unjustly taken a right of appeal to the courts of justice. When the Land Commission acquires land compulsorily the owner has no right of appeal to a court of justice on any question except on the question of law. He has no right of appeal on the question of price. Everyone is aware that for a number of years much of the work of the Land Commission has practically resulted in the confiscation of property. That did not happen under the present Constitution. It was there under the last Constitution, which gave power to the Land Commission [1166] to acquire land anywhere, at a price fair to the Land Commission, and there was no appeal except on a question of law. I consider it a most unjust provision to have in the Constitution to prevent any citizen having the right of appeal to a court of justice. Nobody can say that the courts of the Land Commission are courts of justice.

That is the principal reason why I am asking the Taoiseach to accept an amendment, so that when an owner of property feels that he is being unjustly treated, he can have, what should be the right of every citizen, an appeal to a court of justice. If the Taoiseach cannot accept such an amendment in this Bill, I ask him to consider amending the Land Acts, particularly the provision which gives the Land Commission power to acquire land anywhere, and to give to owners the right to appeal to the law. That would give great satisfaction, and would create a feeling of security amongst tenant farmers and property owners. It is not there with the present administration of the Land Acts. I hope the Taoiseach will consider the matter.

Professor Magennis: The debate was ostensibly on the Second Reading of the Second Amendment of the Constitution Bill. It has, in reality, proved to be a review of Irish history, with special reference to Constitution-making and Constitution-changing, and it is very difficult for a back-bencher like me to join in the debate and resist the temptation of rebutting some of the many mistaken utterances of the speakers who preceded me. I have enough strength of mind to resist the temptation to deal with Senator Counihan's doctrine of private property to let it pass. The attack upon the present Constitution, which we purport to amend, is so false that, while in one mood I derived great pleasure from the speech of Senator Douglas, deprecating partisan heat and passion in the discussion, at the same time I believe that in the interests of varacious history, one is justified in going back on the past to set right accounts that we have been asked to accept as accurate. One ex-Minister of the last Administration stated: “We made a Constitution”, [1167] and he built his argument upon that.

Did we make a Constitution? Of course, his reference was to the first Constitution. There was a committee set up to formulate it to conform with Irish ideas, and it was to be submitted in due course to the Irish electorate for adoption. But before that was done, the British Government demanded not merely the right to see it, but to revise it. When it came back to Ireland there were asterisks opposite certain clauses. Then the Provisional Parliament, sitting as a Constituent Assembly, were summoned to discuss these propositions and see if we could give our support to the Government of the day. I remember distinctly that I asked at that consultation: “Does this get the last ounce out of the Treaty?” and, not being satisfied that it did, I refused with one or two others to submit to the line the Government took in the formation of the Constitution. Mr. O'Higgins told me at various meetings that Mr. Winston Churchill informed him that anything outside the asterisked articles could be amended if there was a strong and decided opinion indicated of a desire for such amendment. And there were one or two items on which we took that view.

It was not an Irish-made Constitution that was passed; it was a Constitution under British dictation and many of the essential elements in it were formulated not by Irish opinion but by British dictation. That Treaty which we are accustomed to refer to as the midnight Treaty governed the entire scope of the new Constitution, and anything in that Constitution was null and void in so far as it was out of harmony with the Treaty. I am going over this without any Party purpose. I am going over it simply in the interests of accurate history.

Mr. Fitzgerald: I deny that what the Senator is stating is accurate history.

Professor Magennis: I challenge contradiction on what I have said. Every item is on record.

Mr. Fitzgerald: The Senator will agree—he was present in the Dáil— [1168] that every member was free to make any alteration and the only thing we said was that there were certain alterations we would not accept.

Mr. MacDermot: Is this relevant to the question under discussion?

Professor Magennis: The point I am raising is relevant.

Mr. MacDermot: Is it relevant to the Bill before us?

Leas-Chathaoirleach: The debate has ranged over a wide field already.

Professor Magennis: It is contended that there is no difference between this Constitution and the one it replaces. That has been contended by Senator Hayes and he went on to say that the electorate were deceived at the general election by what was fundamentally untrue. These are the words of Senator Hayes and that the new Constitution was a pretence. These are the calumnies that I now refute. That first Constitution was in a large measure a dictated Constitution. None of us liked it and Senator Fitzgerald said he did not like it.

Mr. Fitzgerald: I said nothing of the sort. If the Senator did not like it he could have voted against it.

Professor Magennis: The Senator challenges my accuracy as to what took place at the consultation at which he was not present. I made the challenge as to whether we were getting every ounce out of the Treaty. We were invited, as I understood, to come and support the members of the Government of that day in doing that at the proceedings of the Constituent Assembly. We could vote against it; we were perfectly free, and we did speak against items in the Constitution, but it was futile, because no alteration would be permitted in the asterisked Articles.

Mr. Fitzgerald: Permitted by whom?

Professor Magennis: That Constitution was revised in circumstances which we can all recollect, and it was revised by a Government of which Senator Fitzgerald was a member, to [1169] the detriment of this country, in 1925, when it became necessary to have a new Constitution. I do not know if Senator Fitzgerald remembers the first Article of the Treaty?

Mr. Fitzgerald: I do, perfectly.

Professor Magennis: The first Article of the Treaty says: “Ireland shall have the same Constitutional status in the Community of Nations known as the British Empire, as the Dominion of Canada, etc.... with a Parliament having powers to make laws for the peace, order and good government of Ireland and an Executive responsible to that Parliament, and shall be styled and known as the Irish Free State”. So that the first Article of the Treaty gave Ireland a place in the British Commonwealth of Nations, and the second stated that Ireland in relation to the Imperial Parliament and Government shall have the same constitutional position as Canada. I am not introducing any heat into this position, I am speaking apparently vehemently, but I am simply recording facts which are on record. In December, 1925, in what was styled at that time the London Pact, an agreement was made, under pressure, no doubt, to the effect that Saorstát Éireann was no longer referred to as in Article 1 of the Treaty as Ireland, but became the Twenty-Six Counties. These matters should be present to the mind of those who heard the statements to-day that it was only a false pretence that the people were led to believe that they are living now under a new Constitution.

The Constitution we are amending to-day is a Constitution made absolutely and exclusively by Irishmen, for Irishmen, and no foreigner, alien or stranger was allowed to introduce a sentence into it or to alter a word or a line of it.

It was an Irish presentation to the Irish people of their rights and duties as citizens of a State; it declared the fundamental law. Now, how was that dealt with? Under a mistaken idea that the introduction of a new Constitution was a reflection upon those who were largely identified with the making [1170] of the imperfect—under the circumstances inevitably imperfect—Constitution they proceeded to create a Party heat and to make partisan attacks on it. We have had an echo of it here to-day. In common with Senator Douglas, I deprecate that.

Senator Hayes said what was perfectly right almost in the same paragraph as he made that utterance about the claim being fundamentally untrue. He said that fundamental law must be safeguarded—fundamental law made by the people for the people themselves ought to be respected. This was the first Constitution that filled that bill or answered that definition. I think it is important on my part to recall these facts because I am aware of them at first-hand. The only further thing that I will delay the House with is to deal with the reference to the idea that the Constitution should be amended with respect to judges. Here is the Article of the Constitution that deals with judges of the High Court and the Supreme Court, Article 35 (4):

“A judge of the Supreme Court or of the High Court shall not be removed from office except for stated misbehaviour or incapacity and then only upon resolution passed by Dáil Eireann calling for his removal.”

Surely, the meaning of that should be obvious to anyone reading that Article who is not out to find flaws in it, or to invent them where they cannot be found? Is it not clear that it is contemplated, anterior to a resolution being brought before and possibly passed by the two Houses of the Oireachtas, that there is inquiry implied in the words “except for stated misbehaviour or incapacity”. That is, the indictment has to be made, the accusation drawn up, and the charges formulated.

Now, if anyone wants that implemented, as the Scottish people would say, it is quite easy, not by way of amending the Constitution, but by having the Courts of Justice Act amended. It is not a case, I submit, for the alteration of the Constitution in the broad outline. The Constitution as it stands is perfect in regard to judges of the High Court and the Supreme [1171] Court. We have been a long time at this Bill and, consequently, I will be merciful in not detaining the House any longer.

The Taoiseach: I am very glad that Senator Magennis has saved me dealing with some of the points which he dealt with and I will leave them at that. If I dealt with them, I would probably be regarded as speaking, not from the point of view of giving history impartially, but as one particularly interested in making a special case. I did resent, of course, this suggestion of deception. Now, what are the facts with regard to the way in which that Constitution was discussed by representatives of the people and finally put to the people? The draft Constitution of 1937 was published and circulated on the 1st May, 1937. For over six weeks it was exhaustively debated in the Dáil, and a number of important amendments was made.

The Dáil, I would remind some of the Senators who have spoken, was not a single one-Party Dáil sitting as a Constituent Assembly, but a Dáil of all Parties, and when it was introduced, I might add, I asked various members to approach it, not from a Party point of view, but from the point of view of representatives of the Irish people drawing up for themselves, freely as they were in a position to do, the best Constitution for the nation. I regretted at the time, perhaps it was inevitable, that that attitude was not taken by the Opposition of the day. It was clear that it was not taken, because when you see misrepresentations, which could not have been based on misunderstanding, being brought before the people—suggestions, for instance, that the President was going to be a dictator—you immediately see there is no real co-operation on the part of those who make statements of that kind and we were, not with our desire, forced by the attitude of others who would not co-operate with us, to deal with it on that basis in the Dáil. I am prepared to agree that there were certain members who, although they had been opposed to the Government of the day, took an independent attitude [1172] and did try to deal with it as a non-Party measure. On the whole, however, in these discussions we had to face the fact that we were going to be opposed by the ordinary Opposition members in the Constitution, too. After this discussion in the Dáil, it was approved on the 14th June, and then 18 further days elapsed during which it was the subject of newspaper articles and of speeches made at election meetings all over the country, until on the 1st July, the people were called upon to record their decision by a plebiscite. Now, what is the meaning of suggesting that there was deception? How is it going to be possible to say that you would deceive the people in matters of that sort, when you had a Press which in the main was not friendly, and you had a strong political Party going around the country able and free to explain any deception whatever?

The question of the title of the State was referred to. Saorstát Eireann was a name that had been adopted as the equivalent to the republican State in 1919. It represented a certain idea, and after the Treaty and the new Constitution, it was used in another sense. There had been a great deal of controversy about it, and if we were going to begin on the new it was better, I suggest to everybody, to take a name that had none of the controversies ranging about it. There is a difference, of course, between the nation and the State and the territory that might be regarded as occupied by the nation and the territory occupied by the State. You can distinguish the idea, anyhow, between these four different things.

In our case, the nation and the State did not fully correspond, because there was a portion of the nation outside the State. The question is whether the portion of the nation was entitled to speak for the nation as a whole, even though it was quite clear that it was the greater part of the nation. I think that if the nation was regarded as existing at all, and if there was to be any body that could speak for it, the majority of the people down here were entitled to do that. The next [1173] thing is the national territory. The national territory, no doubt about it, is Ireland, which most of us regard as such, and it is indicated quite clearly. That, in the opinion of the majority of the representatives of the Dáil was this island and the adjacent islands to it. That was regarded as the national territory. Now, we are in this position, that we had effective jurisdiction only over a portion of the national territory, and within that portion there was only a portion of the nation as a whole. We claim, at any rate, that this body does give voice to the national ideals. We claim that the people here can speak for the nation even though, for the time being, a portion of the nation is cut off and a portion of its territory is cut off. Saying that the name Éire represents that portion of the territory—although there are certain inevitable difficulties about it—was no more strange than if you took Alsace-Lorraine and—leaving out the controversies with regard to it —said that it belonged to France and that France, when that portion was cut off, should still call itself France. I will not follow on the line of Senator Fitzgerald and talk as if my word would be the last word on philosophical distinctions, or the last word on the Irish language. I can only give opinions, and I do not think that Senator Fitzgerald can give very much more than that.

Mr. Fitzgerald: I did not purport to give more than an opinion.

The Taoiseach: We can take it at that and, in my estimate, it is a very poor opinion—whether you take it from the philosophical standpoint or the standpoint of the Irish language. I do not want to go into these fine distinctions, but I do say there was no attempt to deceive anybody. Nobody in this country had any doubt that by “Éire” we meant the historic name of the Irish nation and the Irish people. It was natural that the name of the nation and that of the people should correspond to the name given to the national territory. It is quite clear to the people that in adopting the name “Éire” we were laying claim to two or three things, that, first of all, we [1174] did represent that nation and that, when the Irish nation spoke, this portion of it was entitled to speak for them.

Mr. M. Hayes: That is, that we are the only organ for that.

The Taoiseach: Yes. It represented also the hopes that one day we would again have the name “Éire” corresponding to the whole Irish nation and corresponding to the whole of the Irish territory. That was the purpose of it. It did lead to present difficulties, namely, that the name “Ireland” had a territorial significance——

Mr. M. Hayes: And a national significance.

The Taoiseach: As far as the national position is concerned, I have made it clear. It had a territorial significance and the “island”—the island of Ireland, Oileán na hÉireann— would in future be distinct so as not to lead a person to believe that, when talking about Ireland, we were talking about the island and not the State. A curious thing was that, when this matter was brought into the Dáil at first, I had certain difficulties about it and originally, in the draft, proposed to use the name “Éire” both in Irish and in English. Those who lived and thought in the Irish language—for the majority of whom English is not the vernacular—naturally would have the same difficulty about “Éire” as the people generally would have about “Ireland”. There are hardly any of the practical difficulties which would not have been avoided if I had kept that name. However, as the Opposition put it forward as an amendment, and as it was true that “Éire” in the Irish language had the same objections to it that “Ireland” would have in the English language, I felt that it was nearer to the fundamental purposes we had in using “Éire” to use “Ireland” in English than to reject the amendment.

Accordingly, I accepted the amendment, so the word “Ireland” appears in English as a result of an amendment put forward at the time by the Opposition; and it is that word “Ireland” [1175] which has been the cause of any difficulties that have arisen in practice. It is true that, in the same way as we were using “Ireland” and “Éire” for the State—even though it did not represent territorially the whole of the island, that is, the area under our jurisdition was not the whole of the area connoted by the word “Ireland” and the word “Éire”—so the people of the North in the Six Counties used the word “Ulster” to denote what is only a portion of the historic Province of Ulster. They did not do that really in answer to this, as, despite protests of various kinds, they had been doing it before. There were practical difficulties in this whole question, but it is not true to suggest that it was intended to deceive.

There has been a suggestion that the Constitution was a Party document. Well, even here there are different individuals and different Parties, and people who belong to no Party; and they have expressed different views regarding what should be in the Constitution and what should not. These are matters on which human beings differ. Very often, the more individuals study it, and the more they know about politics the more certain are they to differ, as they are trying to forecast the future and do it very often by going back on the past and seeing what happened in other cases in the past. Now, very often the past does not enable one to predict or foretell the future. There are differences of opinion, and there are bound to be. That showed itself in the Dáil and went on two main lines. How would one settle that? Suppose there was a committee, as was suggested at that time. There could be experts on Constitutional matters, but the Dáil itself was a fair cross-section of the Irish people and a fair Constituent Assembly. All those matters had to be discussed and, finally, a decision had to be taken.

As far as I am concerned, there were certain things on which I would not give way, as I was perfectly satisfied about them and the whole of our life work had depended upon them. If somebody wished to make the Constitution [1176] the same as the old Constitution, or to put resolutions which would make it so, I would have opposed them and would do my best to get others to oppose them; and I have done my best to get everybody to oppose them. But there was a number of other matters on which I had a very open mind, the constitution of the Seanad for instance. I think it is well-known that I said many times that I doubted if a Second Chamber was at all necessary. As I did not wish that there should be a political campaign on the basis of whether there should be two Chambers in the Legislature or not—I felt it probably could be used for certain purposes—and particularly as there was a suggestion that there should be a different type of Seanad from the Seanad we had known, a Seanad that would be based on vocational representation, I accepted the idea of a Second Chamber. I would have been quite prepared, and I think the majority of our Party would have been prepared, and probably a majority of the people of Ireland would have been prepared to carry on as we had been carrying on with a single House, but it seemed to me that it was not worth while having a big political campaign on that basis. I felt that there was certain work that could be done by a Second Chamber. I have mentioned it before and I do not want to go into that again. The main thing was, that there had been a proposition put forward of a Second Chamber based on vocational principles.

It is suggested in remarks that were made to-day that we should not have that in the Constitution as it is, that the question of the Seanad should be left quite open. One of the values of the Constitution is to have certain fundamental organisations of the State formed so that there should not be much tricking with them, because in a democratic State in the nature of things you are going to have Party Government. One of the things that would bring the institutions of the State into disrespect would be if political Parties were juggling about with the Constitution for the [1177] purpose of getting in some particular case particular advantage for themselves. It was very much better, in my opinion, not that we should make the Constitution rigid, because it is not, but to put a certain amount of difficulty in the way of changing it at the whim of a majority for the purpose of giving them a particular Party advantage. One of the things in regard to which it was desirable that there should not be a lot of playing about from time to time was the question of a Second Chamber.

If there are any recommendations from the commission that is at present sitting with regard to vocational organisation, it is quite possible within the terms of the Constitution to have a Seanad based on direct vocational representation. A commission sat upon this and made recommendations. My recollection is that these categories which are here mentioned in the Constitution were taken directly from the recommendations of the commission and all that is in the Constitution with regard to the Seanad is the numbers, that there should be university representation of a certain number and that there should be vocational representation of five main classes. These classes, I think, were worked out as a result of a good deal of thought of how our ordinary economic and social life is divided. You have what is called the cultural panel, you have agriculture, as the main industry and likely to remain such for a long time; you have labour; you have industry and commerce, banking and all the rest, and you have public administration. I have not checked it again. At the time I probably tried to check it and see whether that was a fair representation of the vocational division of our life. My recollection is that I was fairly satisfied at the time that it was a fair representation. Therefore, if at any time it is desirable to change the present mode of election of the Seanad you can do so and in fact it is provided that, without any change at all in the Constitution, any council can by law put an equal number of candidates instead of these panels or choose an equal number of Senators from these particular panels.

[1178] Mr. M. Hayes: But they are bound to the panels.

The Taoiseach: Yes.

Mr. M. Hayes: There is a commission at present sitting which may alter that.

The Taoiseach: They will not alter the fundamental division of our life.

Mr. Fitzgerald: The Vocational Organisation Commission surely could not find that you have agriculture as one section and labour as another? Surely, the whole idea of corporations will be based on the articles produced so that the corporations would include both the labourer and the employer? The provision for a labour panel there must surely be altered.

The Taoiseach: I am not so sure of that either. I am not going to argue on that basis at present.

Mr. Fitzgerald: It seems to me contrary to the corporation idea.

The Taoiseach: I am quite willing to admit that it is not on the same basis exactly as industry and commerce, agriculture, the cultural side and public administration, in other words, that labour is a function which could be used in agriculture. It could come into agriculture and some of the others.

Mr. Fitzgerald: It is contrary to the idea of corporations.

The Taoiseach: It is not opposed to the idea.

Mr. Fitzgerald: I think so.

The Taoiseach: No. It might result in giving a bigger representation but it is not inconsistent with the vocational idea.

Mr. Fitzgerald: I cannot see it that way.

The Taoiseach: It may impose difficulty on those who would be framing an Act of Parliament. Suppose we had a recommendation and that we had [1179] these functional organisations, it imposes perhaps a certain amount of difficulty in working out the Acts so as to fit in with these and fit in with the recommendations. In the same way, in the Seanad we are giving the university special representation although the university would naturally come under the cultural panel, so that we seem to have a certain amount of duplication there which is in a sense, if we examine it, on the same lines as the other. There was this to be said about it, that there was an organisation already in existence which was nearer to a vocational organisation than you would have perhaps in the case of agriculture or than you might have, for instance, in industry and commerce in general. But my recollection is that these were the recommendations of a commission that recommended vocational organisation, and my view is that there is nothing incompatible with implementing a recommendation—if such should come —of the commission which is now sitting.

Mr. M. Hayes: The recommendation must be in the terms of these panels. That is the point.

The Taoiseach: It need not.

Mr. M. Hayes: It is arguable, anyway.

The Taoiseach: The commission is not bothering about the Seanad primarily. It is bothering about the vocational organisation of industry and commerce and economic life. When that is done then it becomes a question for those who are interested in implementing that and getting a Second House on that basis.

Mr. Fitzgerald: Has the Taoiseach an objection to amending the Constitution to eliminate that possible limitation?

The Taoiseach: I have for several reasons. We went to the trouble of debating this Constitution in what I [1180] might call a Constituent Assembly, for the time being. Fundamentally it was not elected as such, but in fact we made it such over a long period. We then went to the people and got the people formally to enact—some people will say approve—the instrument. I do not want to go into that; the point is we regarded it as a fundamental document which the people should enact. We got their approval. To go behind their backs now and to change anything that is fundamental would be wrong. I can only say that I would not go to the President at the present time with changes of a character so fundamental as, say, the constitution of the Seanad. Neither would I go to him with a change of such a fundamental character as one modifying the manner in which the President is to be elected. I think if we went behind the backs of the people after getting them formally to accept the Constitution, and asked them now to deprive themselves of the right of electing the President, we would be doing something which was not, so to speak, in our contract with them. Therefore, it was clearly put into the Constitution—I think in Article 51, which is referred to in the Preamble of the Bill—that this power was given to the President, that if he thought something was being changed which he felt ought to go to the people for their approval, he could refuse to accept the Bill. If there was something which he regarded as of fundamental importance, in other words, completely different from that which the people themselves had enacted, he could refuse to sign the Bill. Therefore, we are bound by this period of three years.

There are certain things we cannot change, namely these Articles which say that we cannot extend the time. We deliberately and for what appeared to me then, and still appears to me, good reason, wanted to limit the time in which it would be possible to change the Constitution without a referendum. We gave a fair period of time for its working. Remember that we had experience of the same type of organs. We were, it is true, introducing one new organ of State, but the main idea of representative [1181] Government—Government in which the Executive was going to be responsible to Parliament—remained. We had a long experience of it. We had experience of its strength and its weakness, and it was with a knowledge of what had happened over a number of years that we chose this form. As far as the organs of State were concerned, leaving the President aside, we continued with the same type of representative Government. We were not starting with something quite new. We had experience of how the system was working, and the feeling I had at the time was that three years would be quite sufficient. I know it is true that an emergency has since arisen which we were not able to foresee, but we believed the three years was quite sufficient to allow for any small changes that could be made.

It was not contemplated for a moment that there would be any big fundamental changes because the people had accepted the Constitution. Probably we really could do without this Bill. Apart from reference No. 22 —that in regard to the emergency situation which is fundamentally important, as serious difficulties could arise for the State if we did not make that amendment—we could do without any of these amendments. What has existed for the last four or five years could continue.

There is one amendment which was introduced as a result of a communication from the Rule-making authority of the superior courts, which also probably would not be necessary because, notwithstanding certain words in the Constitution, a practice had developed in regard to the hearing of certain cases in camera. Cases have been heard in camera, but as we were making these changes, it was felt that the occasion should be utilised to remove the apparent conflict between the absolute sense in which courts should sit in public and the practice, which had been that certain courts had been held in private.

Mr. M. Hayes: Is the Taoiseach satisfied with the wording of the amendment?

[1182] The Taoiseach: If I may say so, we did not ourselves draft it.

Mr. Hayes: I know that, but is it being accepted?

The Taoiseach: This refers to the words “in public”. I must say that nothing in any draft that has come to me has caused me more difficulty than this phrase and the qualifying clause at the end, the question being whether this modifying clause applies to the last preceding clause or to the principal sentence. I have never been able to get a satisfactory explanation from the draftsman as to any canon by which it is to be interpreted. The only sure way to deal with it is to apply one's common sense to it.

Mr. M. Hayes: And the Irish translators have in fact been as ambiguous as the official draftsman.

The Taoiseach: The point about it is that they are not supposed to make it any less ambiguous. In fact, it is their duty not to. When they are approached with a Bill of this kind, they are told: “Look here, you are not judges; you are not deciding this question by your interpretation here. If there happens to be in the English form some ambiguous word, do your utmost to keep it in the Irish form.”

Mr. M. Hayes: They have succeeded admirably in this.

The Taoiseach: I think the translators succeeded admirably in everything they have done.

Mr. M. Hayes: Who should praise them more than myself?

The Taoiseach: To whomsoever praise is due, let him take it. The fact is they have done wonderful work over that period, a piece of work the value of which will only be recognised in another 20 years. They have done magnificent work. In regard to that amendment, between now and the Committee Stage, I may communicate with the Rule-making authority again and inform them this matter has been raised. Perhaps we shall be able to [1183] find a form in which there will be no ambiguity. I think our legal Department, though it probably would not have drafted it in that particular way, would not have any difficulty as to what the precise meaning is. The point in these cases is to use common sense. This clause may refer to the whole Article or to the last preceding clause. I admit that in this particular case that method of handling the question has not worked out quite well. However, between now and the Committee Stage, I shall get in touch with the Rule-making committee who are responsible for this draft, and have a discussion with them. The Rule-making committee are a very formidable body, and I did not like to go back to them, particularly as I brought it into the Dáil and I wished the Dáil to understand that it was not my draft. It was not a case where we had to get the permission of the Dáil to make an amendment at all. I felt that I could come in and ask general co-operation on it, inasmuch as it was not a Government amendment but something that was brought in from outside. However, I think I can ask for consultation between now and the Committee Stage to see whether this draft might not be amended. There was a type of amendment to which nobody would object. It was simply a question of a practice which everybody admits was a good practice. Certain cases should, on the admission of everybody, be heard in camera and not in public. Nobody would want the position otherwise. The only question was to secure that the practice would not be abused. When you come to deal with questions of that kind, as you do in the case of bigger issues, such as the period of emergency after the immediate war situation has ended, you are up against a difficulty as to the extent to which you will lean towards giving the Legislature and the Executive the power deemed necessary to preserve the State and the extent to which you will lean towards ensuring the rights of the individual as against the Executive. It is a very difficult question to know exactly where to stop. It is impossible to say some of these things absolutely.

[1184] We had an example of that in the first phrase regarding rights of property which Senator Counihan quoted. If he had read further, he would have found that that had, of necessity, to be modified, because, if it were not, the duty of the State in respect of social justice could not be properly fulfilled. In the same way, if you ensure the liberty of the individual absolutely, so that he can say what he likes and do what he likes, you are, by that, limiting the rights of the rest of the community. It is extremely difficult to know, in the case of a Constitution, what distance you can go towards ensuring individual rights without endangering the safety of the State as a whole. That is the reason why rigid Constitutions have generally had to be scrapped. Rigid Constitutions have not been able to stand the test of changing life, and there is a strong body of opinion in favour of having no Constitution, but making the Legislature supreme at every moment, so that it can do what it likes. Even in States such as the British State, where, theoretically, Parliament is supreme, certain customs have grown up which, while not generally reduced to a written form, have got, by general acceptance, almost the force of a written Constitution. We did not have that here. We did not have a long tradition of a certain kind, and we had to try to find a middle way, which is difficult to find. Like all middle ways, it is attacked by those who hold the extreme view on either side. The regulation and delimitation of the exercise of the rights of private property is attacked by those who want the rights of property to be absolute. The same applies to the right of individual liberty. Some people want to have a degree of individual liberty which would really make society impossible. If you lean too far in that direction, you make the Executive and the organised body of the State powerless to function at all, in certain circumstances, with the result that you are tending towards the destruction of the State.

This document is, I think, a fair mean in that respect. When differences of opinion arose about some of these points, we found that those [1185] objecting could not put up a solution which was not open to some of the objections I have mentioned. If a greater amount of freedom to the individual is urged by them, then it can be pointed out that they are endangering the power of the State to save itself. If they urge a still greater power than is given here to the State, the other objection applies, but, as a rule, the Opposition generally leans against the giving of power to the State. They generally favour the giving of power to the individual and the Government of the day, being more alive to the dangers and having, perhaps, greater responsibilities, might lean a little to the opposite side. We have got no suggestions from any of those who have opposed these amendments which were really better than our proposals.

Leaving the smaller matters aside, there are two main amendments. Some Senators asked me to say a little more about these. As regards the habeas corpus amendment, under its provisions a person who is detained can go from judge to judge to get a conditional order.

Mr. M. Hayes: Under the amendment?

The Taoiseach: Yes. When the conditional order has been given and the legality of the person's detention is being examined, that can be done by a court of one judge or three judges at the discretion of the President of the High Court. If the President of the High Court thinks that the question at issue is of such importance that it should be adjudicated upon by three judges, he can direct that a panel of three judges decide it. If the case be of lesser importance, he may say that one judge will be sufficient to try it. We tried to secure in this amendment that, where there is an important issue involved, a single judge will not decide it. The President of the High Court is away from the Executive and he should be able to decide whether or not it is a case on which the opinion of three judges should be obtained. How does that run counter to what has been the practice?

[1186] The practice was that, in important cases, there were three judges. Going from judge to judge was not formerly admitted at all; it was a case of going from court to court. Before the Judicature Act of 1877, there were a number of courts. By that Act, these were amalgamated. Before that, the right was to go from court to court. The form in the Constitution of 1922 was interpreted to mean that a person could go from judge to judge, even in the case of the final determination. I think it was never intended it should go in that particular way.

Mr. M. Hayes: Did it not work in the well-known Macready case?

The Taoiseach: My information on that was that it was decided by the Master of the Rolls. It was one of those cases that did not go to other judges. They knew the mentality, so to speak, of a judge. You could do that under the present position.

Mr. M. Hayes: That was a decision given by one judge against Macready. It did not come before three judges.

The Taoiseach: They did not go to different judges. The suggestion is that they were allowed to go from judge to judge and we are preventing that. We are not preventing that with regard to a conditional order. But let us forget the question of practice and let us take commonsense and fair play. If there is an important matter to be determined, is it not right that there should be a substantial court to determine it? Let us approach this matter de novo. Has a person a right to go to anyone before whom he thinks he has a chance? If by chance there may be some judge who takes a particular view, are you to go to him? There you have the basis of chance. If it is a question of determining whether a person has the right or not there can be no objection to having a court of three provided that the Executive is not packing the court.

The President of the High Court is brought in because ostensibly he [1187] assigns particular cases and particular work to the judges. I think that gives fair play to any person wrongly imprisoned. He can go to any judge. He can go from judge to judge to get a conditional order, but when the trial comes, as to whether he has been wrongly imprisoned or detained, that is to be determined by a bench of one or three, at the discretion of a person who is a judge himself. Consequently I do not think we have done anything contrary to the traditional meaning of habeas corpus or anything which is not eminently just and fair. That is all I have to say on the habeas corpus provision.

Now with regard to the question of extending the time during which the Constitution cannot be invoked against emergency measures, which have to be taken for the safety of the State during a time of conflict in which the State is not engaged. We have covered that for a time of rebellion or war. We were told that we had not done so during the short debate in the Dáil. However, there were two amendments and very important amendments. Deputy McGilligan is responsible for both. We were told we did not cover in our amendment a time of rebellion or a war in which the State was actually engaged. But clearly in the case of a rebellion or a war in which the State was engaged, a period would have to elapse before things settled down. That would be as important as what followed from a conflict in which the State was not engaged, but would be vital to the interests of the State, such as the present conflict. The difficult question to determine is how long after. Everyone would like to say two, three or nine months and put that in, but nobody can say when the conflict is ended, particularly if you are dealing with conflicts in which your interests are vitally affected as between different States as in the present conflict. We have no idea how it is going to end. It may end in a variety of imaginable ways. No one can say at what time States would make peace. Still the vital interests of this country might be affected by the [1188] remaining part of the conflict. There may be an armistice; there may be a peace signed. Between the armistice and the signing of peace may be a very long period. Even if there is an armistice or negotiations they may fail and the conflict may be resumed. During all that time there is a period of real danger to the State; you cannot indicate the moment at which the conflict stopped.

Apart altogether from the danger, you cannot state in advance what time would be necessary to get back to normal conditions. We have a real difficulty there. If we leave it open as we have done, it will be in the power of the Legislature to continue working under abnormal conditions in which the Constitution is not binding on the acts of the Legislature. It is said let us have a remedy. But no remedy suggested to me will satisfactorily deal with it. Those who favour having no Constitution at all and leaving the Legislature supreme for the moment, have no cause of complaint on this. We approximate to that situation in this particular Article. Any amendment could well lead us into all sorts of difficulties, and might very well be a serious matter for the State. If you cannot determine when the conflict would end, why attempt to envisage a time when that would occur?

Senator MacDermot suggested bringing in the President. That occurred to myself when considering the first amendment in the Dáil. I considered it and came to the conclusion that no good purpose would be served by doing that. You would have to give the President his full discretion after consultation with the Council of State. But, remember you will have the Government all the time on whom the responsibility for the safety of the State will be particularly heavy. No matter how well acquainted with the position the President of the day may be he may not, on account of not having immediate responsibility, have the knowledge at the moment, but the Government has responsibility, and is responsible to Parliament. If you had a clash at a time like that between the [1189] views the President held, and those of the Executive, you might have a very nasty situation. I thought the better way was to leave it without putting in the restrictions suggested because they might go too far. This mention of the President would bring up the question as to what the powers of the President are.

Mr. Fitzgerald: I entirely agree with the Taoiseach that the Government should have these powers. The Taoiseach gave an instance of an armistice, but an armistice does not mean a termination of a war. Surely the termination of a war means the formal making of peace. There was a former war between England and Turkey which lasted up to 1924, after which peace was declared and resulted in a treaty.

The Taoiseach: That is the trouble. You see, you cannot know. After all, a war may end without any formal peace. It is impossible to say when the conflict will end, and you must have somebody to decide.

Mr. Fitzgerald: I quite agree.

The Taoiseach: We considered this from the point of view of trying to limit the power of the Legislature to continue on with the relatively absolute powers that it has, but I would like everyone to realise that it is not a problem easy to solve. Even if we made the Legislature supreme at every moment, it seems to me impossible to define when the war would end, so that the only way you can do it is to let the Legislature, the representative body, decide. We see no other way out of it.

Now, pointing out the clash there might be between the President and the Government naturally brings me to the question of what powers the President should have. You could go back on my speeches in the Dáil and find that, from the first moment, I pointed out that it was essential for the State that there should be only one sovereign authority to decide and that if you had others to decide on [1190] vital matters where there was a possibility, as a result, of a clash, it might be fatal to the State. You had to put responsibility or authority in some one organ. It could not be put in two. The question was would the President have the powers or would the Executive have them? If you gave these powers to the President, you were going to have a different type of State organ altogether. You could have it.

It would be quite easy to frame a Constitution in which the powers residing in the Government responsible to Parliament could be put outside the control of Parliament. In the United States, for instance, you have Executive, Legislative, and Judicial functions. There are checks between them. Certain things can be done by the President without consulting anyone, and, for other things, he must get the approval of the Senate. In our case it was largely a matter of what we are accustomed to, and it was thought better to continue that method, but you could easily frame a form of Constitution in which the President would have very great powers. You could give him these powers and, if you wanted to, you could remove him from the control of Parliament, but that is not our system. It is not the system we had been accustomed to work. We had been accustomed to work with an Executive responsible from day to day to Parliament for all its acts, and which could be changed from day to day. Consequently, you had the choice of giving to the Government the things which are most essential, and from the moment the Constitution was introduced, I pointed out that the Government was really supreme, so long as it kept within the Constitution, and the functions of the President were exercisable only when there was a question of the Government or the Legislature exceeding its constitutional rights.

From the first moment it was untrue to say that the President was getting very large powers. The whole basis of it was that the Government of the day, so far as it had the support of Parliament, would be the determining authority in most matters. The powers [1191] that were given to the President were clearly defined. They are not great powers, but they are important, and, in all other cases, he had to act on the advice—really a nice word, not an ugly one, because we know it means “instructions”—issued by the Government. That is what it is. There is no conflict there—the whole aim is to avoid conflict. It would be a terrible mistake in any amendment that we should depart from essential principles, and not give power to the Government and the Parliament of the day to do their work.

The question of the Irish language was raised by Senator Cú Uladh. He mentioned the matter of spelling. the position is that, for the original Draft, we did get together a number of scholars, and those representing different points of view. I do not think they were satisfied themselves, and I do not think that the group that met would say that there would be anything like unanimity or common agreement as to spelling. We did it because I did not want to have controversy on what appeared to me to be a minor point. We did not have any of the controversies which might have arisen had we gone on a line which, in the long run, might have been a wiser line, that is, to follow the spelling of the translation department.

I am interested in it only from the Irish point of view—I am not interested in any small matters—in increasing the use of Irish in our lives, and I must say that the belief I have come to, with no other aim in mind than the development of the language and its increasing use in our lives, is that one of the things that would help us most would be to get a standardised spelling. There is a good deal of discussion about pronunciation of different dialects in different parts of the country. Well, there is hardly one of us who pronounces an English word the same in any part of the country.

You can listen to somebody speaking from Oxford on the radio and compare it with my accent and you will find most words pronounced very differently, [1192] yet we all manage to carry on and nobody is being misunderstood in that respect. But, however our pronunciation of the same words may differ as we hear them on the radio, we all spell alike. The point is that standard spellings are symbols to the eye, and I, for one, would like to be a dictator in that. I would like to be able to say, “Let us get a group of people who know the language. Let them give us definitely what they think would be the best spelling and let us standardise it everywhere as far as we could, even if we could not insist on private individuals using it.”

Peadar Mac Fhionnlaoich: Níl mise i gcoinnibh sin.

An Taoiseach: Níl.

Mr. M. Hayes: Was not the official Dáil system a good beginning?

The Taoiseach: It is a very good basis and, as I said, if I were allowed to be a dictator and having no kinks whatever, I would take the spelling which has been adopted by the Dáil translation staff. I would take it, say, to those who are in the present Institute and ask them for their opinion upon it, because they know the history of the language and its foundations. I would ask for their suggestions and then make sure the standard spelling was used in all Government publications of every kind—in every text book issued by a Government Department. I would then try to get it circulated as widely as possible and put into books, so that we could get at least that difficulty out of the way, and I have never been able to understand why that has not been done in respect of the different dialects.

Mr. M. Hayes: There are two or three members of the Institute who, undoubtedly, would be on the side of the translation staff.

The Taoiseach: That would be a packed jury.

Mr. M. Hayes: There is no greater defence for the accent or dialect in Irish than there is in English.

[1193] The Taoiseach: Some people want to use a phonetic spelling. There is no reason that it should be absolutely phonetic. There are some languages which are fortunate in being very phonetic in their spelling. Irish, it is quite true, is phonetic, even in the longer spellings, but it is longer, and sometimes the experts say that the introduction of some consonants is relatively modern. But, there is no use in getting anything at all done if there is going to be foolish controversy and suggestions that it is going to damage the language. I am perfectly convinced that it would be a great step forward for the language.

Mr. M. Hayes: I will vote for dictatorial powers for the Taoiseach on that.

The Taoiseach: You will be prepared to give them to me on that?

Mr. M. Hayes: Certainly, but not further or otherwise, as the lawyers say.

The Taoiseach: The point is that it is a pity that what is fundamentally trivial in this matter of great importance should be allowed to stand in the way. When you know the children from the start, you know that they learn to spell in a certain way, and every time a certain word occurs they see it spelled in the same way, so that the symbol is definitely associated with the meaning of the word.

In answer to a point raised by Senator MacFhionnlaich, I had hopes that we might get something from this committee, but it was a half-way measure—it was very much a compromise. None of the members of it were themselves satisfied.

Peadar MacFhionnlaoich: N a c h rabhamar ar aon intinn sa deire?

An Taoiseach: Ni dóigh liom é. The position is that the spelling in the Constitution is a certain compromise. It is not the spelling that was used in the Acts. I was asked that, when a new edition of the Constitution was [1194] being prepared for the Dáil, it should be in the Roman lettering. I was asked if it was imperative that they should follow the previous form, and I said they should keep to what was consistent with the work they had done. Whatever views we may hold, or may have held at the start, a certain mass of work has been done. A standard has been reached.

I would like to send that standard to the Institute and ask them if they have any suggestions to make and to consider it in conjunction with the translation staff doing this work. Then we could say that this would be the standard and that every book for whose publication the State would be responsible would in future be published in that spelling. That is a case which can be argued and on which there are different points of view; and there has been argument on that point with, in my opinion, a certain amount of damage to the language. I repeat that the dialectal differences really are not material in this particular case because, if I see a word “donn,” I can pronounce it “dhun” if I come from Connaught and “dhoun” if I come from Munster.

You have been very generous to us, a Chathaoirligh, in this discussion. We have ranged over the Constitution, over past history, and over a number of other things which, if you wished to take a rigid view, you could have told us were not subject to discussion at the moment. The important things are the amendments. There is no question of trying to rush either the Dáil or the Seanad but, naturally, we have a time limit—up to the 24the June. Apart from the two main amendments, there is nothing important. If there were any new amendments, I think, if the Cathaoirleach takes the same view as the Ceann Comhairle, they would be ruled out of order unless they relate to the amendments here.

Mr. Fitzgerald: I believe the Bill can be passed quickly, and do not see that any objection can be raised to the main amendments. Can we bring in other amendments?

[1195] The Taoiseach: That is a matter for the Chair and for the House.

Mr. MacDermot: I have been informed by the Cathaoirleach that we could not bring in new amendments.

The Taoiseach: I suppose it is desirable that the two Houses should have a common rule in that regard. The rule in the Dáil was that the amendments should relate to the amendments here. If there were amendments that the Seanad should be constituted differently, or to delete some parts in the Constitution regarding the Seanad, I feel that they would be ruled out of order.

[1196] Mr. Fitzgerald: It is only the question of time. If the same rule is made here as was made in the Dáil, the Taoiseach will have no cause for worry.

The Taoiseach: It is true that I am very interested in this, but there is a lot of other work at the present time, and I would like to have this Bill completed as quickly as possible.

Question put and agreed to.

Committee Stage ordered for Wednesday, 21st May.

The Seanad adjourned at 9 p.m. to Wednesday, 21st May, at 3 p.m.