Essay: The Irish Constitution

“In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and states must be referred, We, the people of Éire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, who sustained our fathers through centuries of trial…Do hereby adopt, enact, and give to ourselves this Constitution .” These words are the opening lines of Bunreacht na hEireann, the Irish Constitution.
God is specifically mentioned a total of six times in the Irish Constitution. When our Constitution was first written in 1937, these references may have been fitting, as Desmond M. Clarke says, the Irish Constitution clearly ‘reflects the political context in which it was drafted and enacted, concerning the relations between the State and various churches’. But it also reflected Irish society at the time, where religion played a part in the overwhelming majority of the population’s lives . However now these references to God are largely outdated in a modern society. Ireland is becoming increasingly diverse, as seen in the most recent census, with more and more people not showing any affiliation to any religion , and a growing number of minority religions .
Not only are these references to God merely outdated, but three also are an infringement of basic human rights. These provisions are impossible to reconcile with the idea of a secular republic, which the State declares itself as. This essay seeks to provide numerous reasons why this area of our Constitution is one in great need of reform. It will also examine the approach to God in the Constitution in other jurisdictions and potential constitutional amendments and reform which would abolish any current infringements on citizen’s human rights and ensure another step be taken towards a truly secular state.
The Catholic Church the Constitution
In 1937 a new Constitution was adopted by the people replacing the 1922 Constitution. A significant philosophical influence of this Constitution was the teaching of the Catholic Church over areas such as education, the family, marriage, and private property . According to Hogan, it is clear from the preamble and onwards that the Constitution is influenced by Catholic teachings, but this is not surprising given the context of the time . The doctrine was described by Eamonn DeValera as “a Constitution which embodies the Catholic principles of the Irish nation” . This unsurprising not only due to the social context of when the constitution was being drafted, but also because of who was writing it. John Hearne, the legal advisor at the Department of External Affairs at the time submitted the first draft heads of a Constitution upon receiving verbal instructions from De Valera. It is perhaps worth noting that Hearne had studied for the priesthood before later taking the bar exam . Other drafts were later submitted by Fr. John Charles McQuaid, a Holy Ghost Brother from Blackrock College and later an Archbishop of Dublin as well as the Jesuits through Father Edward Cahill. There is no doubt that these Catholic influences ultimately had a huge impact on what was eventually published as the 1337 Constitution.
Until 1995, the Constitution prevented the enactment of any laws permitting divorce .
The Constitution provided for blasphemy to be made a criminal offence , and the text also prohibited laws allowing for same sex marriage . The most noticeable feature perhaps of the original text was the recognition of the ‘special position’ of the Roman Catholic Church in the State . The effect of the Catholic Church social teaching was certainly more prominent in the 1937 Constitution in comparison to the 1922 Constitution. As can be seen in the articles previously mentioned, the influence of the Church can even be seen in Articles not dealing directly with religion.
However, as society has developed and the demise of influence of the Church and religion has become more and more visible, many of the articles relating to God and influenced by the Church have been removed or amended. In 1972 the Article recognising the ‘special position of the Catholic Church’ was removed. A successful referendum to amend the Constitutional prohibition on divorce took place in 1995. More recently, same sex marriage was legalised through an amendment in 2015 , in 2018 the removal of the eighth amendment allowed laws to be put in place legalising abortion up to twelve weeks , and the criminalisation of blasphemy through Article 40.6.1 was abolished. Slowly but surely, it seems that God and the churches’ influence are being removed from Bunreacht na hEireann. These are all examples of how the Constitution has been secularised formally. However, there are still six remaining provisions referring to God- the Preamble, Article 6 dealing with the separation of powers, and Articles 12.8.1, 31.4, and 34.5.1 which require a religious oath be taken by the judiciary, all members of the Council of State, and the President before entering office.
The Preamble
An invocation Dei is a reference to God when a legal text itself is proclaimed in the name of God. The Preamble to Bunreacht na hEireann contains not merely a general invocation Dei, but it specifies its concept of God as a Trinity and explicitly mentions Jesus Christ. Therefore, there is no doubt that the God referred to is throughout is a Christian God and no other. This has impacted constitutional jurisprudence since the enactment in 1937. Christianity at times has represented the moral viewpoint through which some constitutional propositions have been derived by judges, from vague provisions . This point can be made particularly in relation to the Preamble- part of the Constitution which expresses the fundamental ideas and constitutional aims which the founding fathers wanted to engrave into the constitutional text . Although many will argue the preamble is a redundant element of Constitutions worldwide in relation to law-making, this is not the case in Ireland. This is true, for instance in Canada where the British Columbia Court of Appeal referred to it as a “dead letter” which the authorities “had no authority to breathe life into” . However, the religious and Christian aspect of the Preamble of Bunreacht na hEireann has been referred to in a number of cases over the years . This can be seen in numerous written judgements.
Justice Walsh once said in a judgement that our Constitutions “reflects with strong conviction that we are a religious people” and the Preamble “acknowledges that we are a Christian people” . The idea or possibility that a Supreme Court would or could potentially rule a particular way because according to a Constitution written 82 years ago, we are ‘a Christian people’ is simply amiss. According to the most recent census, in just five years there has been a dramatic increase in the number of citizens practicing no, or other non-Christian religions . These figures demonstrate that we are no long ‘a Christian people’ and a Preamble based on religion should not have the power to influence the decisions of the judiciary. In Ryan v Attorney General , Justice Kenny even cited the papal encyclical when identifying an unenumerated right to bodily integrity.
Religion, and particularly Christianity have historically been the underlying view in interpreting the Constitution. In the case of Norris v Attorney General, the applicant argued that the prohibition of sexual intercourse between two consenting adult men violated the unenumerated right to privacy. The Religious aspect of our Preamble was again used in this judgement. O’Higgins CJ said “it cannot be doubted that the people, so asserting and acknowledging in the Preamble their obligations to Our Divine Lord Jesus Christ, were proclaiming a deeply religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs” . These cases I have referenced are not exactly recent, and many would argue that a reference by a judge to the religious aspect of our Preamble has not been a recent occurrence- making the Christian aspect relatively innocuous. However as late as the 1990s has a High Court judge expressed that legislation must conform to Catholic teaching; Although it has been emphasised that this was an exception to the growing trend of secularisation in the courts. Daly states that constitutional jurisprudence also has been influenced by the social trend of secularisation in Ireland and the significance of Catholic teachings and God has significantly diminished. However, with the continued presence of these references to God, there is always a potential for them to be used by the Courts. This possibility undoubtedly endangers the secular and non-discriminatory nature of our State which Ireland prides itself in.
However, the question of whether the Preamble can be amended is an issue . It arises because the amending power of article 46 relates to a ‘provision’ of the Constitution. It states that that any provision of the Constitution may be amended, whether by way of variation, addition or repeal. However, is the Preamble a ‘provision’? The Constitution Review Group published a report in 1995 which clarified that the Preamble could in fact, be subject to an amendment. This was decided on the basis that the Preamble uses the words ‘this Constitution’ which suggests it is part of the Constitution, and because the people adopted the Preamble as part of the Constitution, it would seem amiss that the people did not have the power to amend it.
The same Constitution Review Group recommended an alteration to the Preamble of Bunreacht na hEireann, specifically referring to the reference to God. It stated that ‘the diversity of belief in present-day Ireland raises the question whether any wording corresponding to the first and third paragraphs is now appropriate” and that a religious strand “was not necessary or desirable in the Preamble .
Article 6
Article 6 of the Constitution states that “All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good” . The theory of popular sovereignty which derives from this article is a prominent one in Irish case law. This is the idea that the State is a creation of the People, and therefore it is subject to external control- the will of the People as it is expressed in the Constitution. The Constitutional doctrine considers the people to be the ultimate body that internal sovereignty is invested in. When drawing up the Constitution, Eamonn De Valera said that a key element of the Constitution is that “the people are the masters . According to Justice Walsh “the State is not subject to any power of government save those designated by the people in the Constitution itself” .The case State (Ryan) v Lennon suggested that anything in the Constitution could be amended. This judgment held that constitutional amendments could not be challenged on the basis that they violated ‘natural law’. The people were sovereign, and therefore had final control of the Constitution’s content.
However, other case law seems to contradict this theory of popular sovereignty. According to Justice Walsh “both in its Preamble and Article 6, the Constitution acknowledges God as the ultimate source of all authority”. Justice Walsh went on to emphasise that the Constitution intended natural law due to the acknowledgement of God in Article 6. In Dail debates on the proposed 1937 Constitution de Valera made clear that Article 6 was a “clear unequivocal statement that authority comes from God”, contradicting his previous statement that “the people are the masters”. How can this be true if God is the highest source of authority? Article 6 containing a reference to God is contradicting the widely acknowledged concept of popular sovereignty, it seems even the judiciary are somewhat confused as to who is the highest authority. Is it God or is it the people? The reference to God in Article 6 is simply unnecessary and undermines the people’s sovereignty.
Religious Oaths
“In the presence of Almighty God, I do solemnly and sincerely promise and declare that I will maintain the Constitution of Ireland and uphold its laws, that I will fulfil my duties faithfully and conscientiously in accordance with the Constitution and the law, and that I will dedicate my abilities to the service and welfare of the people of Ireland. May God direct and sustain me”. This is the oath contained in Article 34 that Presidents are constitutionally obliged to take. A similar oath is obligatory for members of council and the judiciary.
It is clear from the Preamble that this ‘Almighty God’ refers to a Christian God through naming ‘the Most Holy Trinity’ and ‘our Divine Lord, Jesus Christ’. This declaration cannot be simply dismissed as ‘empty’ words or a redundant oath. It implies that in order to carry out successfully the duties of president, a judge or a member of the council of state, divine guidance is a necessity or requirement. This idea clearly contradicts the beliefs of a person who does not associate themselves with any religion, or have any kind of a belief in a higher being.
Despite the two other provisions of our Constitution still mentioning God, it is this requirement to take a religious oath upon entering office that is perhaps the most concerning religious element of our Constitution. Since 1938, there have been 14 presidential elections, and every single one has excluded atheists, agnostics, humanists, or others from minority religions through this oath, not to mention the number of potential members of council and members of the judiciary unwilling to disregard their beliefs and fetter their basic human right to freedom of conscience and belief. There is no opt-out clause making these religious declarations an obligation. For example, at the first meeting of the Council of State under President Higgins, Tanaiste Eamon Gilmore had to swear the religious oath. Mr Gilmore had spoken publicly about his beliefs, or non-beliefs, saying that he does not believe in God. He had taken legal advice and he had been told that he had a constitutional obligation to swear the oath .
The judiciary’s role in society is as guardians of Constitutional rights. As Justice Walsh stated “the vindication and protection of constitutional rights is a fundamental matter for all Courts established under the  Constitution” . Therefore, it seems somewhat ironic if not simply outrageous that in a ‘secular’ and ‘liberal’ society the judiciary, who dedicate themselves to upholding Constitutional rights may have to fetter their own rights or have their own human rights of freedom of religion, freedom from religion and freedom of belief violated when entering office. Not only is it wrong, but it also contradicts other areas of the Constitution which guarantee rights to freedom of conscience and freedom of religion.
The Constitution Review Group in 1995 recommended that ‘no one should be required, as a condition of citizenship, to endorse a basic belief or tradition which he does not share’ . This is exactly what the presence of these religious oaths in our Constitution is doing and there has been no progress in the twenty years which has passed since the review group published their report. This is despite the promises of a Fine Gael and Labour Coalition Government that it would be examined when a Constitutional Review Group was set up in 2012. The issue has been ignored, despite 27 percent of the members of the review group voting for “separation of Church and State- secularisation of the Constitution” as a topic to be reviewed by future conventions . The religious declaration was not considered as an issue important enough to be discussed or addressed by the Citizens’ Assembly of 2016 which was primarily convened to examine the Eighth Amendment on abortion, as well as other issues.
International Law
On an international law level, the constitutional requirements of a religious declaration upon taking up office also raises issues. Article 18 of the International Covenant on Civil and Political Rights guarantees the right of “freedom of thought, conscience and religion” . The UN Human Rights Committee have stated that Article 18 protects “theistic, non-theistic and atheist beliefs as well as the right to not profess any religion or beliefs” . The declarations prescribed by the Constitution for Presidents, the judiciary, and members of council of state are undoubtedly a clear breach of this right. They compel an individual to express an adherence to a religious belief without any other alternative. As a result of this breach, Ireland has been criticised on numerous occasions by the Human Rights Committee for the failure to remove these provisions. Most recently, in 2014 the Committee stated that they were “concerned with the slow pace of progress in amending the Constitutional provisions that oblige individuals wishing to take up senior public office positions to take religious oaths” . Since this statement from the Committee, there has been no development.
Article 9 of the European Convention of Human Rights (ECHR) states that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance”. The European Court of Human Rights in Strasbourg concluded unanimously in 1999 that a requirement to swear a religious oath on Christian Gospels as a condition of taking a seat in the General Grand Council (the parliament) in the Republic of San Marino was a breach of Article 9 of the European Convention on Human Rights. The two applicants had requested to take the oath without any reference to any religious text and they were refused to be permitted to do so. The courts ruled on the basis that the applicants were being forced to express loyalty to a certain belief, and therefore their freedom to religion was being violated. This case almost mimics the current situation in Ireland where when entering office, individuals are constitutionally obliged to swear an oath in “the presence of God” and must vow that God will “direct and sustain them”. There is no doubt that the existence of Articles 12, 31 and 34 are incompatible with international law governing the State’s human rights laws, particularly in light of this 1999 ruling by the ECHR. Considering the emphasis the Irish State generally likes to put on human rights, for example their involvment in so many UN peacekeeping missions, and the fact that it holds itself in high esteem in this area, it seems strange and simply unacceptable that there seems to be no action in this area of reforming the Constitution. If Ireland is to comply with its commitments made under international human rights law it is obligatory that this area of the Constitution must be amended.
International Positions
Only five of the 27 member states of the European Union include a reference to God in their Constitutional doctrines. These countries are Germany, Denmark, Greece, Poland, and of course Ireland. Most of the States in Central and Eastern Europe that obtained new Constitutions in the 1990s have avoided any reference to God. This figure alone perhaps demonstrates the needless presence of God in our Constitution.
France is an example of a truly secular state. There is no mention of God in their Constitutional doctrine of 1958. God not only remains unmentioned in just the Preamble, but also throughout the complete statute. The ideals of French people as summarised in their Constitutional doctrine are based on freedom, equality and fraternity without any reference to a Deity. Their Constitution declares that “France is an indivisible, secular, democratic and social Republic, guaranteeing that all citizens regardless of their origin, race or religion are treated as equals before the law and respecting all religious beliefs” . The Declaration of the Rights of Man and of the Citizen of 1789 proclaims that “everyone has the right to hold opinions without interference, even those of a religious nature, provided their demonstration does not disturb the public order established by law” . This is referred to in the preamble of the 1958 constitution. The “freedom to practice religion” and “freedom of conscience” have been protected since 1905 by the ‘Loi sur la Séparation de l’Église et de l’État’ (Law on the Separation of the Church and State) . This text completely privatised religion and established State secularism. The French State guarantees the peaceful co-existence of all religions- minority and majority, as long as they respect the laws and founding principles of the Republic.
Secularism is the freedom to have an opinion. It is a principle which authorises all beliefs, as long as all principles of conscience and equal rights are respected. The idea behind a secular Republic developed from the ideals of equality and freedom of religion or freedom from religion. According to Secular Monitoring Centre in France “There is greater cultural diversity in France today than in the past, which is why the country needs secularism now more than ever, for it enables all citizens, whatever their philosophical or religious beliefs, to live together, enjoying freedom of conscience, freedom to practise a religion or to choose not to, equal rights and obligations, and republican fraternity” . This statement is equally applicable to Ireland, as is demonstrated by the figures in the most recent census.
In relation to Presidential oaths or declarations when taking up office, France is unique in that it doesn’t have an oath. Unlike Bunreacht na hEireann the French Constitution doesn’t mention any requirements for the Presidential inauguration process. The proceedings have simply emerged and developed through tradition. No official oath is taken. Therefore, it is difficult to compare this aspect of French law to Irish Law.
Potential Reforms
Conclusion
To conclude I will say that rapid action needs to be taken by the government in this area of the Constitution. Reform is desperately needed of the six articles of Bunreacht na hEireann which make reference to God. A referendum must be held to amend the Constitution to enable the removal of these references to God in the Preamble and Article 6, 12.8.1, 31.4 and 34.5.1. I put particular emphasis on the requirements in Articles 12.8.1, 31.4, and 34.5.1 that oblige members of the judiciary, council of state, and the President take religious declarations in order to enter office. These provisions are not only outdated, but are an infringement on citizen’s human rights- preventing individuals to enter office without having their basic human rights violated. A referendum must be held to introduce a secular oath to replace the current declarations in our Constitution. This is urgent and completely necessary as currently Ireland are in breach of their human rights obligations under international law.
The Irish Constitution was written when Ireland was a very different place, and society was far less diverse. Whilst the Catholic Church’s influence and the numerous references to God may have been fitting at the time of the doctrine’s enactment, they are now outdated and in need of reform. Ireland is a constantly changing society, becoming more diverse, and we need to respect those with differing views. De Valera’s famous idea of a constitution for the people should still be respected. The removal of these references would also be symbolic- saying Ireland is modernising and sending a clear message to people of other or no religions that we are an inclusive society. In the 1990s, the Irish Supreme Court declared the Irish Constitution as a “totally secular” document. This statement is rash and simply false. However, one day, with the removal of the six references to God this declaration would be one of truth.