3 0 July 2016
1: Need for Change
There has been much public discussion as to whether
or not our Constitution is in need of replacement. Vari-
ous attempts at reform including those conducted by
the Constitutional Review Group and the Labour-Party-
promoted Constitutional Convention have led to little
change.
The recommendations merely unleashed a great deal
of well-intentioned hot air, all of which is largely ignored
by our political classes. When there is a referendum to
amend the constitution it is often dictated by Europe or
is a result of a political spat or a
flavour-of-the month response.
None of these cosmetic, some
-
times ill-considered referendum
proposals have constituted fun
-
damental solutions. It was a
diversion to institute referenda on
judges’ salaries and the age of the
president, for example, when
there were much more important
and pressing issues at hand. In
fact, our state-sponsored refer
-
enda to the existing text often skirt away from important
issues of structural reform and hijack a designer, popu-
list issue, like gay marraige. In the interests of clarity
such a remark is not intended to diminish the impor-
tance of substantive equality, but simply to question
what the motives behind the referendum were.
I am of two minds as to whether a new constitution
is needed to present us with a fresh vibrant document
for the 21st century or whether we can tinker with the
old one in such a fashion as to effect the requisite struc-
tural change. The South African Constitution is the
model here but it derived from a new societal dispen-
sation. I am, however, absolutely convinced that
structural change is needed.
Of course the document has been developed histori-
cally by the judiciary through creation of unspecified
rights from 1965 until about 2001. This process of mod-
ernisation to the construction of the document - a ‘living
instrument’ approach - led the judges to 'read in' rights
that were not there - dividing academic opinion. This
practice, mirrored in the general current interpretation
of the US Constitution, freshens up the document. Its
merits are that such fundamentally important rights as
privacy, the protection against inhumane and degrad-
ing treatment and the prohibition against torture, were
read into a dated document by an expansionist judici-
ary. The document was modernised by judicial
construction largely to mirror international-human-
rights instruments. The problem is that this process of
teleological (aims-based) construction has been
aborted and, since 2001, no new rights have been cre-
ated, with neo-conservatives having taken over the
judiciary. Little is left of judicial activism or
progressivism.
Ideologically-conservative judges are in general anx-
ious, above all else, to uphold the status quo, to mask
judicial inaction as deference to the separation of
powers. We are therefore unlikely to see a
We need to change specific provisions,
and the restraint of judicial interpretation
by David Langwallner
POLITICS
New Constituti
Modernisation is
required whether
by way of a new
constitution or by the
wholesale reform of
the existing one
July 2016 3 1
modernisation of the Constitution by the judici-
ary, unless some liberal judges are appointed
to balance what is an unrepresentative and
unbalanced, conservative judiciary.
For example, many important Constitutional
cases are heard by Judge Gerard Hogan, now of
the Court of Appeal, formerly of the High Court
and one-time Trinity academic - probably Ire-
land's leading Constitutional expert and in
some respects the most progressive of the
existing bench. He starts from the self-
restrained vantage point of literalism and a
textualistic approach to the document.
He is against adding new rights, confining
himself to the precise language of the text. In
effect he sees innovations as an overstepping
of the judicial function and an interference in
executive decision-making processes: a breach
of separation of powers with the courts acting
as quasi-legislators. Though in his case such
language can often be manipulated to achieve
socially just outcomes, the language restrains
and prevents the expansion of the document,
literally.
Judge Hogan and indeed former Chief Justice
Keane (in the TD case) have in effect brought
into question the whole power of the courts to
declare unspecified rights. Judge Hogan, with
other members of the Court of Appeal, sought
to revive an under-utilised section of the docu-
ment, in Article 40.3 the protection of the
person clause, most noticeably in their judg-
ment in Fleming (the right-to-die euthanasia
case), to suggest that such obviously important
rights as privacy and bodily integrity, rather
than being separately declared as unspecified
rights, could be adequately embraced within
the specified rubric of protection of the person.
Though these views were not in substance
endorsed by the Supreme Court, nor were they
specifically rejected. Thus, there is judicial iner-
tia about modernising the document to create
new rights prompting questions about whether
we need a new constitution. If our new breed of
judges won’t do it out of constitutional neces-
sity, it must be done through political
initiative.
2: The Reform of The Existing
Provisions
I propose to go through the document from
beginning to end, highlighting what I believe
needs to be revamped and also what needs to
be added, making some salient points about
the incompatibility of aspects of the document
with our present fragmented, divided, mildly
chaotic and multi-cultural society.
The preamble, which is non-binding, starts
off as a declaration of the aims of the document
and invokes “Our Divine Lord Jesus Christ” and
“The Most Holy Trinity”. The preamble cannot
be amended as it is not an official part of the
text, but a new constitution would, of necessity,
delete these unmandated phrases.
We are not all Christians. Some of us are
agnostic or atheist. Some of us deeply distrust
the effect organised religion has had on our
society. Some of us might regard religion, as
Christopher Hitchens did or Richard Dawkins
does, as evil. Some of us are Islamic, for exam-
ple, and might be somewhat perturbed at the
words of the preamble being as confined as it
is to the Christian religion. The Trinity is a par-
ticular focus of the Roman Catholic, not other
Christian churches.
I propose as part of an overall metric of con-
siderations, that we adopt a strict severance of
Church and State and that such phrases in the
preamble be deleted. This disentanglement or
disestablishment is what the architects of con-
stitutionalism, the Americans and the French,
settled on.
In the preamble there is also a further anti-
quated provision that is the territorial claim to
the north of Ireland in itself, in effect negated
by the new, referendum-implanted Articles 2
and 3 of the document. That also must go. No
other major issues arise from the rest of the pre-
amble other than the appropriate and express
invocation of dignity.
Article 5 expresses the view that we are a
New Constituti
None of these proposals
have constituted
fundamental solutions.
It was a diversion to
institute referenda on
judges’ salaries and the
age of the president
3 2 July 2016
sovereign and independent state. It is obviously
an important anchoring even if it is ultimately
meaningless. In practical terms, both to the EU
and the encroachments of multinational capi-
talism, we have in effect lost economic
sovereignty but, no matter, the clause in itself
might encourage a brave judge to put a halt to
some of the more nefarious initiatives of global
capitalism and the manner in which it is denud-
ing our sovereignty. We also declared ourselves
a 'Republic' in 1948.
The powers of the President are scattered
throughout the document (Article 13 in particu-
lar) and amount in substance to very little. The
office is a ceremonial role, though President
Robinson defined it a self-regulating one, and
both she and President Higgins in particular
have used the office to form and influence
public opinion in an often courageous way.
Nonetheless, certain structural reforms
could usefully be made. First, I do think it would
be an important innovation if the President
were allowed to initiate legislation. The objec-
tion is that the office should be above politics,
but it never has been and never will be. The
Presidency is a political office, albeit an inde-
pendent one, and in the national interest should
be able to use the weight of the office to initiate
legislation for the consideration of the Oireach-
tas. A further potential change would be for the
Presidency to be given the power to order
reconsideration, as is in effect in France. Of
course after a second vote the Presidency
would be bound by that vote and I am not in any
meaningful way suggesting that the President
should be given the
power to veto
legislation.
The President should
be allowed if enough sig-
natures garnered to
initiate a direct demo
-
cratic referendum
procedure. The country is
crying out for Haberma-
sean or Swiss-style Direct
Democracy and a populist
referendum. In effect the
government are stymie-
ing the will of the people
by failing to initiate ade-
quate referendum
procedures in the national
interest. Such a direct-
democracy initiative
modelled on the 1922 constitution provision,
and currently being promoted by the ‘Reinstate
48’ campaign is an attempt to give democracy
back to the people. If, say, 250,000 signatures
were collected then either through the office of
the Presidency or through the Oireachtas,
which could draft a bill for submission to the
people, reforms, which touch on important
national issues could be facilitated. This Direct
Democracy initiative could radically aid in the
modernisation and democratisation of the
document.
The separation of powers clauses are fine as
they stand (Articles 6, 15, 34, 37), but the real
question is how they have been interpreted and
the undue deference that the courts are show-
ing to the executive, leading to the concomitant
non-enforcement of rights.
As far as international issues are concerned
(Article 28) I recommend the immediate inser-
tion of a clause, which demands compliance
with our international obligations. We sign
international treaties but do not always incor-
porate them into our domestic law unlike, say,
Germany. We should move from being a dualist
state to being a monist state where interna-
tional rights are complied with in national
practice and are incorporated into domestic
law.
We have of course incorporated, albeit in a
sub-standard way, the European Convention on
Human Rights. The problem is that the courts
have developed an option
or discretion on whether
or not to follow decisions
of the European Court of
Human Rights and any
declaration of incompati-
bility between Irish law
and the convention does
not result in the repeal of
the provision of Irish law
in question.
The emergency power
clause (Article 29) is both
over-broad and over-nar-
row. It is over-broad in
that it allows for the dec-
laration of a national
emergency in a time of
war and armed rebellion
in which the state is not a
participant.
Thus, if the US invaded yet another part of the
planet our glorious legislatures could declare a
national emergency and leave it forever. We did
so when Hitler invaded Poland in 1939 and and
did not undeclare the emergency until 1975
(when World War II ended?) and when a new
state, less draconian admittedly, of national
emergency was declared. As is the case with
the Spanish parliament (Cortes) there is a need
to periodically review the existence and opera-
tion of a national emergency.
Counterintuitively, the clause is also too
narrow. The Hungarian Constitution accommo-
dates workaday examples of what can
constitute a national emergency; economic
meltdown which I think we are in the process of
facing or for example a very contagious flu with
no defined vaccine.
Of course, I also believe that if a national
emergency were declared then although certain
civil and political rights could be suspended
crucial ones would have to be maintained. We
could not countenance indefinite internment or
indeed the over-broad diminution of the protec-
tion of freedom of speech.
As far as institutional powers and structures
are concerned the first thing to me that is clear
is we need a reformed upper house, possibly
modelled on Tony Blair’s reformed House of
Lords where opinion-makers, captains of indus-
try, cultural and artistic figures, representatives
of the professions (including the legal profes-
sion) etc may add weight and independence to
counteract the short-sightedness of elected
populists.
Much ink has been spilt about the need for a
Special Criminal Court. I have, through personal
experience in my Innocence Project, a profound
distrust for the jury system and its effective-
ness in certain types of cases. My over-arching
recommendation is that a clause be inserted
that, in the particular circumstances of a case,
that a non-jury court can be applied for, by
either the state or the defence. This would obvi-
ate the permanent embedding of the Special
Criminal Court but also recognise that on occa-
sion there are deficiencies in the jury system
where jurors risk being intimated or bought, or
where a particular matter is beyond their com-
petence so that a non-jury court is acceptable.
The most significant innovation of De Valera's
document is that at a time of great European
crisis with the advent of Fascism he created a
document which outlined the fundamental
rights of the citizen. However, rights should
now be afforded to non-nationals as well as
citizens.
The rights begin in Article 40.1 with the
equality clause and the truly bizarre
The ‘living instrument’ approach, to the construction
of the document led the judges to read in rights that
were not there - dividing academic opinion
Judge Hogan and
former Chief Justice
Keane (in the TD
case) have in effect
brought into question
the whole power of
the courts to declare
unspecified rights
POLITICS
July 2016 3 3
human-persons doctrine, which has led to the
exclusion of judicial consideration for questions
of economic or educational discrimination. This
needs to be immediately amended. A clause
should also be inserted stating that there
should be no unreasonable discrimination
based on mental disability, sex, nationality or
religious and/or political affiliation. Many of our
equality decisions have been disgraceful - not
least Nicolaou and the constitutional discrimi-
nation sanctioned by the courts against the
unmarried father.
Article 40.3 outlines four specific rights: the
right to life, the right to protection of the person,
the right to property and the right to a good
name. In my view the right-to-life clause should
be broadened to encompass quality of life.
Such a broadening would make express that the
crucial social and economic rights (absent spe-
cific text incorporating them) such as the rights
to food, shelter, health care, water and a mini-
mum standard of living are justiciable.
Within the structure of the right to life there
is of course the protection of the right to life of
the unborn child though, of course, such pro-
tection is not untrammelled but subject to
limitation in that the state need only protect as
best it may. This clause was of course inter-
preted in the historic X case as justifying the
prioritisation of the right to life of the mother,
over the right to life of the unborn child. In my
view it is entirely possible as a method of
judicial construction that such a balancing exer-
cise could also be embarked upon with respect
to a rape victim who had become pregnant or to
a case of fatal foetal abnormality. If our unduly
conservative judiciary would not embark on
such an enterprise then my suggestion is that
the issues of abortion and fatal foetal abnor-
mality be put to the people by way of
referendum.
The phrase that the State “in particular pro-
tects” the four above-mentioned rights has
inspired the doctrine of unspecified or unenu-
merated rights of which there are - so far - about
20. In particular Judge Kenny in Ryan said that
as a matter of construction the words "in par-
ticular" suggested that there were rights other
than those specifically enumerated.
To tidy the text it is perhaps desirable that the
existing recognised unspecified rights, includ-
ing, the recently established right to dignity be
textually incorporated. Certain of those rights,
privacy perhaps above all else, are significantly
more important than many existing textual
rights. Perhaps though it is better in the inter-
est of constitutional clarity that such rights are
appended to Article 40.3 and put to the people
by way of referendum.
The right to liberty and the right to the pro-
tection of the inviolability of the dwelling (under
40.4 and 40.5) do not in substance need to be
changed though it should be made clear that
liberty also applies to non-nationals. A
particular clause should be inserted making it
clear that the right to liberty specifically prohib-
its, save in the most exceptional circumstances,
preventive detention.
Article 40.6 recognises three rights: expres-
sion, association and assembly. In my view the
restraints (public order, morality, the authority
of the state) are excessive. Freedom of expres-
sion should be protected in a bright line way in
almost all circumstances outside of such mat-
ters as racist speech or holocaust denial, as the
European Court of Human Rights has decided.
In particular I am deeply sceptical, in a society
of many different and competing moralities, of
a moral restriction on freedom of speech and I
am certainly in favour of the immediate repeal
of our blasphemy laws.
On the other hand, press freedoms, which
have been bitterly fought for, have been mis-
used by the gutter media.
I recommend the specific inclusion of privacy
as a balance and counterweight to freedom of
expression in press matters. I also recommend
in this context, and perhaps in this clause, the
right to have inaccurate and false information
removed from the Internet or, as the German
Constitutional Court has recognised, the right
of information-retrieval from the Internet.
Insofar as the other two rights are concerned,
we need specific recognition under the head of
“association” of the rights of political parties
to associate and also under “assembly” of the
The way it was for DeV
The disentanglement
or disestablishment
of the Church is what
the architects of
constitutionalism, the
Americans and the
French, settled on
3 4 July 2016
right to protest and demonstrate, subject to
normal limitations.
Article 41 deals with the family. In this con-
text there is no doubt in my mind that the family
clause should be extended to deal with the
rights of the unmarried family, and of unmar-
ried fathers in particular. These constitutional
prohibitions are obsolete and ideologically
skewed. As far as the decision-making author-
ity of the family is concerned, my view is to
leave well alone, not perhaps to recognise the
family as the fundamental unit of society but to
defer to parental wishes. We have far too much
governance and semi-literate interference by
social workers in family affairs. They should be
kept at arms length. The role of the non-national
family, particularly of EU spouses, needs to be
harmonised to deal with current EU law. Effec-
tively it needs to be recognised that an EU or
EEA national married to a non-EEA national has
defined rights of residence as a family, as does
an EEA child citizen.
The education clause should include an obli-
gation on the government to progressively
realise the right to education. There should be
a strict disestablishment of the church in edu-
cational matters and the recognition of the
rights to education of persons who have autism,
through life. The Sinnott case, which inter-
preted the right to education as ending at the
age of 18, was immobilising.
Article 43 is the second (Art 40.3 also) invo-
cation of the property clause. We do not need
two property clauses and the language of both
should be blended in one clause so that it is
clear that the courts’ obligation is to balance
the right to private property against unjust
attack, with considerations of the common
good and social justice. In the interests of clar-
ity it should also be inserted that property can
be confiscated in the public good and for public
works, subject to the payment of reasonable
compensation. This is topical in circumstances
of a housing crisis.
I am in favour of the wholesale revision of the
religion clause. First, we need to become
strictly disestablished as a state and the
church’s power over schools (and indeed hos-
pitals) should be removed, constitutionally and
practically. It is, despite what the courts have
declared, in fact ‘endowment’ to give money to
the church to runs our schools and hospitals.
Further, we need to recognise, in an increas-
ingly militant age of extremes, that the state
has some right to ban or regulate religious
extremism and that includes the banning, or
regulation in workplaces or in public places, of
the wearing of garments such as the Burkha or
Hijab. This tallies with the jurisprudence of the
European Court of Human Rights and is simply
a by-product of tolerance, pluralism and broad-
mindedness, the hallmarks of a secular state.
We should also insert a specific clause that the
protection of religion does not extend to the
protection of extremist religious sects such as
Opus Dei or the Westborough Baptist Church.
Religious fanaticism should also be curtailed
and there should be specific recognition of the
right of non-belief.
3: New Innovations and
Additions
It is necessary to insert new rights flowing from
the need at adapt the document to changing
social and economic circumstances.
First, it is absolutely clear that the Internet is
both a force of liberation and enlightenment
and a source of danger not least in uninhibited
casual defamation and the presentation of fac-
tually inaccurate information. This all led for
example the German Constitutional Court to
establish the right of information retrieval from
the Internet.
In our surveillance age, many people are
uncomfortable with fame or temporary celeb-
rity which has generated the need for the right
to be forgotten and to simply live a private life
unwarranted by intrusions. The right to be for-
gotten is distinct from the right to privacy which
embraces information that is not publicly
known,
There are other privacy and personal issues
flowing from our new consumerist age, such as
the right of control over image, name and like-
ness, and celebrity privacy rights, recognisable
in such cases as Van Hannover.
The biggest goal is social and economic
rights. In a world divided by disparities of
wealth, fairer allocation of the following is
urgently needed, subject to realisation progres-
sively the availability of resources and some
deference to state choices being exercised rea-
sonably. These include: the right to water, the
right to food, the right to healthcare including
the specific obligations to have a healthcare
plan and to provide for emergency healthcare,
the right to housing or shelter (which includes
the immediately enforceable minimum require-
ments of a housing plan and a prohibition
against forced or arbitrary evictions). There is
also a need for the fountainhead of all social
and economic rights: the right to dignity, the
right to a minimum standard of living and the
concomitant rights to social security and social
assistance. In our world of pension cuts, wel-
fare cuts and the ascendancy of neo-liberalism,
such matters are pressing. The right to a healthy
environment is also of pressing consideration.
There are more. The battle is for democracy and
justice, a battle for a socially just Rawlsean,
social, democratic society. The courts should
be pathfinders for that.
4: Conclusions
Bunreacht na hÉireann needs spring-cleaning
and freshening up, though perhaps not yet
dumping. Modernisation is required whether by
way of a new constitution or by the wholesale
reform of the existing one.
Above all we need a constitution for the
people and not for the state, a rights-driven
charter which mandates judges to grapple with
questions of social and economic justice.
It might, dare I say, also need some new
judges intellectually and temperamentally
equipped to deal with those challenges.
POLITICS
The way it is now

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