Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
Not all of this is directly applicable in Ireland 17, but these are ideas that could, I think, profitably be reflected on in the light of the Irish cases on Articles 2 and 3. These Articles present to the lawyer, strange issues which are intractable to principled resolution. They are, nevertheless, momentous issues which can unbalance judicial judgement. The judicial judgement on such issues, is after all, the judgement of persons whose undoubted expertise lies in matters of law and not political philosophy, but nevertheless, produce judgements which are given much more importance in the general political world that they perhaps deserve on their own merits. One modest suggestion I would make, therefore, is that there may still be a place for a political question doctrine as a principled tool in constitutional analysis in this jurisdiction.
It is useful, given that background to look now to the proposed changes in Articles 2 and 3. Like the clauses they are intended to replace, it appears that they were not drafted principally by lawyers and are not thought of primarily as a legal text. Instead, they operate, successfully, in my view, at the level of political philosophy. However, the Constitution is law, will be sought to be invoked in court and therefore, these phrases, having performed their task at the level of political rhetoric, will remain to be scrutinised by the more pedestrian and pragmatic turn of mind that lawyers adopt when approaching any text which requires interpretation.
Approached in this way, then just like the original Articles 2 and 3, I suspect that they would be off putting to any lawyer seeking a clear answer to a client's problem. The solution the Articles propose to the political problem posed by the current Article 2 and 3 is, I think, both clearly discernible and clever. The definition of nation by reference to territory is abandoned and instead, the focus is on the people. It is then possible to express the aspiration of the people to unity by peaceful means and only with the consent of the majority in Northern Ireland democratically expressed.
If we apply a more mechanical legal analysis, some interesting aspects emerge. The new Articles 2 and 3 will slot into an existing document and use terminology which is used elsewhere in the text. The new Article 2 asserts in ringing terms -
'The entitlement and birthright of every person born in the Island of Ireland which includes its islands, seas, to be part of the Irish Nation'.
Article 3 goes on to speak for and express the firm will of the Irish Nation. The concept of 'Nation' and 'national' are concepts which appear elsewhere in the Constitution. For example, Article 6 identifies the right of the people to designate the rulers of the State and 'in final appeal, to decide all questions of National policy'. Article 7 and 8 refer to the national flag and language. Article 13.7.1 refers to the President's right to address the people on 'matters of national importance'. Articles 16-27 refer to and identify the powers of the 'National Parliament.' However, the most significant provision in relation to the Nation is Article 1 which reads -
'The Irish Nation hereby affirms its inalienable, indefeasible and sovereign right to choose its own form of Government to determine its relations with other nations and to develop its life, political, economic and cultural in accordance with its own genius and traditions'.
In Fionnuala O'Connor's book referred to above (In Search of a State: Catholics in Northern Ireland) two incidents are described which still have the capacity to raise the blood pressure. In 1925 as the Boundary Commission was being debated, a deputation of Northern Nationalists requested permission to address the assembled Dail. The matter was left to the Dail to decide. Both Messrs McGilligan and Cosgrave objected even to the question of procedure being debated. Mr Cosgrave said:
'An occasion may arise in future in which some of our own citizens for whom we have a direct responsibility may have a case if a precedent has been made in respect of those for whom we only act as trustees'.
The deputation was sent away unheard. |
