Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
by DONAL O'DONNELL S.C
From: Legislative Change and the Belfast Agreement SLS Legal Publications (NI) 1999
Substantive amendments of Articles 2 and 3
As I have already observed, we are now in a unique constitutional position, where Articles 2 and 3 remain in the Constitution, but their successors are also in the Constitution, as Mr Justice Barrington put it, 'in the form of an escrow'. 4 As the title of this talk suggests, to understand the constitutional changes, it is necessary, I think, also to understand the constitutional background.
Articles 2 and 3 are, I suspect, reasonably unique in that they were probably more discussed outside the jurisdiction than within it. When I came to read Articles 2 and 3 and then subsequently to study them, they were something of a disappointment to me. They could never live up to the advance billing provided for them by their Unionist critics. If they are looked at solely as law calling for legal interpretation, then I think they make dispiriting reading for lawyers, because of the difficulty of coming to grips with them. In this respect, I don't think that I am alone. In fact, I would suggest that of all the articles of the Constitution which have been subjected to sustained judicial analysis, the cases on Articles 2 and 3, have the dubious distinction of being the least satisfactory.
It is well known that unlike the 1922 Constitution, the 1937 Constitution was not drafted by lawyers. Its principal architect was Eamon de Valera himself, and it is a work of impressive subtlety. De Valera was, I think, fully aware that this was a document which would have legal consequences and would be subjected to subsequent legal analysis and application, something he regarded as an undesirable though unavoidable consequence of the enactment of the Constitution.
Its origins show that the Constitution is a document which is political
in the sense that it expresses political philosophy but is also intended
to have legal effect. In my view, however, that does not mean that it is
a legal document like any other and that we should apply the same principles
to it as we do to the interpretations of say, contracts or leases. To properly
and sensitively interpret the Constitution, I think that we must be alive
to its political origins, by that I mean origins in political philosophy
- and that is something quite different from an ordinary legal document.
Despite the common criticism of lawyers and legalese, I think that in most
cases, lawyers want to draft documents to achieve supremely practical results:
to seek to lay out as clearly as possible the intention of the parties and
the practical consequences which are designed to follow a series of foreseeable
events and to do so by reference to a prediction of how a court will apply
the provisions in fact. The Constitution is, I think, significantly different.
It certainly seeks to express common intention which must be discerned by
the technique of the constitutional interpretation, but it is not particularly
or primarily intended to predict or determine in advance, how certain events
will be dealt with. In some sense, a Constitution is therefore less and
at the same time, much more than another legal document. It is an unremarkable
insight to suggest that Constitutions are different, but I would suggest
that sometimes lawyers and judges do not always approach the Irish Constitution
with a consciousness of this difference. In many cases, we readily see the
law and don't always see or appreciate the political philosophy or the social
science. There are, I think, a number of reasons for this. Apart from the
predisposition of lawyers to apply familiar techniques to the task of interpretation,
there are also historical considerations. For the early years of its life,
the Constitution was virtually ignored as an instrument capable of having
legal effect. It was regarded as all political philosophy and no law. That
misapprehension has been comprehensively dispelled, but there is, I think
a danger discernible in the cases of Articles 2 and 3 of overcorrection,
and a implicit assumption that the Constitution is only law. |
