Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
First I would suggest that Articles 2 and 3 are not addressed primarily, or at all, to the people in the North. Instead, I suggest that they were principally directed towards a Southern audience, although undoubtedly heard and having some quite considerable effect in the North. Professor Tom Garvin's ;
Book - 1922 The Birth of Irish Democracy 5 studies different aspects of a momentous year when somewhat like today, there was a sense of fluidity, possibility and unpredictability. He suggest at one point 6 that the differences between the sides which ultimately became the civil war protagonists, can be described as a difference between 'republican moralism' on the one hand and 'nationalist pragmatism' on the other. In a very real sense, the different sides spoke mutually incomprehensible languages leading to a contemptuous dismissal of the views of the other side. Significantly, as Professor Garvin observes - 'de Valera could speak both of these political languages.' I would tentatively suggest that Mr de Valera was doing just this when he came to draft Articles 2 and 3. Articles 2 and 3 sound like pure republican moralism but when one looks at the business end of the articles, the aspect which is intended to have some legal effect, they are pure nationalist pragmatism: the laws enacted by the Dail are to have the same area and extent of application as the laws of Saorstat Eireann. To the mathematician's mind to say thirty two minus six is to say precisely the same as twenty six, but Mr de Valera may not have cared, or more possibly quite liked the fact that people when confronting that calculation, focused on and heard the reference to thirty two. I would also suggest that de Valera did not see the rhetorical aspects of Articles 2 and 3, the republican moralist parts, as intended to have future legal consequences. They were not the first word, but rather the final word. From his point of view, I think, they were happy and subtle reconciliation of his constituency of republican moralists with the demands he was facing of nationalist pragmatism.
In fact, Articles 2 and 3 were in one sense the last word for some considerable time and were not subjected to any significant legal analysis until the 1970s and 80s when three cases made their way to the Supreme Court arising out of the Sunningdale and Anglo Irish Agreements respectively. The first was Boland v An Taoiseach, 7. In those proceedings, the Plaintiff sought a Declaration that the signing of any formal or informal agreement in the terms of the Sunningdale communique would be repugnant to the Constitution of Ireland and sought an injunction restraining the Government from implementing any part of the communique or entering into any agreement which would limit the exercise of sovereignty over any portion of the national territory or which would prejudice the right of the Parliament and Government of Ireland to exercise jurisdiction over the whole of the national territory. This focused attention directly on the second clause of Article 3 'without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory'. The answer the Supreme Court gave to this challenge was not entirely satisfactory, ie that the Declaration was an exercise of executive power and could not be reviewed. The Chief Justice, Mr Justice Fitzgerald observed at page 362 -
'Consequently in my opinion, the Courts have no power, either express or implied, to supervise or interfere with the exercise of the Government of its executive functions unless the circumstances are such to amount to a clear disregard by the Government of the powers and duties conferred upon it by the Constitution.'
This of course, as the late Professor Kelly observed, really avoided the question, since the Plaintiff's claim was that the exercise by the Government of its powers was precisely a 'clear disregard by it of its powers and duties conferred upon it by the Constitution'. However, I sympathise with the instinct of the Court in that case to avoid, if at all possible, becoming involved in a political controversy and I think that instinct is itself noteworthy.
More significant, for our current purposes, is the judgement of the then President of the High Court, Mr Justice O'Keefe. Just as the Chief Justice has been critical of Counsel for the Plaintiff, Mr Justice O'Keefe's judgement expresses some impatience with Counsel for State, saying
'During the course of the argument, I sought to obtain from Counsel for
the Defendant, some expression of view as to what it (ie the communique)
meant, but Counsel gave the Court no assistance as to how the Court should
construe it.' |
