Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
The Chief Justice's reasoning, I think, reflects the difficulty lawyers
have with Articles 2 and 3 and particularly when the matter is treated as
one of pure legal interpretation. The Chief Justice went on to say that
the phrase in Article 3 'without prejudice to the right of the Parliament,
etc.......' was 'an express denial and disclaimer made to the community
of nations of acquiescence to any claim that, pending the reintegration
of the national territory, the frontier at present existing between the
State of Northern Ireland, is or can be accepted as conclusive of the matter
or that there can be any prescriptive title thereby created and an assertion
that there be no estoppel created by the restriction in Article 3 on the
application of the laws of the State in Northern Ireland.'
This reasoning and language is familiar to a lawyer, but it is the very struggle to make sense of the text which is significant. There is something unconvincing about an analysis which treats Articles 2 and 3 as a pleading in some sort of large scale constitutional boundary and right of way dispute. In what circumstances and in what tribunal could it be that the claim to national reunification could be defeated by a counterclaim relying on acquiescence, prescription and estoppel?
I suggest that a close reading of the clause as a 'claim of legal right' means nothing more substantial than a claim of 'political right' although of course it sounds and was understood to be much more significant. The whole progression is, I think, a demonstration of the difficulty lawyers have with these aspects of the constitutional text, particularly when they are viewed solely as matters of law to be compared with other provisions and analysed by reference to the concepts such as estoppel or prescription.
The assertion that the Articles amount to a claim of legal right has a certain attractive robust simplicity to it. The argument is, I think, that there is a claim of a 'right' which must be a legal right, since the Constitution is a law. By the same token, the contrary argument, that the claim is one which lies essentially in the political realm, is easily dismissed as an attempt to depart from the plain words of the text. But as I have attempted to show, in my view, the true legal interpretation of the Constitution is that it is not just a legal, but also a political document in the sense that it expresses not just a matter of legal right, but also political philosophy.
That view, which holds that most of Article 2 and 3 is in essence, a matter of political philosophy, would I think, gain important support from the law in the United States, which of course, was significantly influential in the development of constitutional law here. The United States Supreme Court has developed a political question doctrine which holds that there are certain limited provisions of the Constitution which are simply not susceptible to judicial decision making. The doctrine is associated in part, with Judge Felix Frankfurter and to some extent suffered when his reputation temporarily declined. However, it remains part of the constitutional jurisprudence of the United States. A classic example of this doctrine is the guarantee clause in Article IV paragraph 4 which provides that
'The United States shall guarantee to every State in this Union a Republican Form of Government and shall protect each of them against Invasion......'
This has been held not to be a
'Respository of judicially manageable standards which a court could utilise independently in order to identify a States lawful Government.' 16
This language could, I think, be applied with benefit to some of the more unmanageable provisions of Articles 2 and 3. Professor Alexander Bickel in his famous book 'The Least Dangerous Branch' 1962, advanced a rationale for the political question doctrine. He argued:
'Such is the foundation in both intellect and instinct, of the political question doctrine; the Court's sense of lack of capacity compounded in unequal parts of -
(a) The strangeness of the issue and its intractability to principled resolution;
(b) The sheer momentousness of it, which tends to unbalance judicial judgement;
(c) The anxiety not so much that the judicial judgement will be ignored, as that perhaps it should but will not be;
(d) Finally, the inner vulnerability, the self doubt of an institution which
is electorally irresponsible and has no earth to draw strength from'. |
