Constitutional background to and aspects of the Good Friday Agreement
A Republic of Ireland perspective
In 1951, four Northern anti-partition league MPs and two national senators at Stormont sought admission to the Dail as elected representatives of part of the national territory. In the terms of the new Articles 2 and 3, here were members and representatives of the nation seeking the entitlement to participate in the national parliament. Again, they were sent away.
In recent days, this issue has arisen again in the political sphere, but I do not think that the claim has been advanced as a constitutional entitlement I do not know how any such claim, if made, would have been resolved under the Constitution before the recent amendment. The strong terms of the new Article 2 may make some difference. It becomes, at a minimum, difficult I think, to explain in a satisfactory and constitutional way why someone in Northern Ireland who has accepted their birthright as part of the Irish nation can or should be excluded from, for example, referenda where the Irish nation chooses its form of government, develops its political life and resolves in final appeal, questions of national importance. It is not inconceivable, that the Supreme Court may yet have reason to revisit the political question doctrine and find new merit in the idea that these guarantees operate at a political rather than legal level. Because after all, one thing the Good Friday Agreement triumphantly demonstrates, is that these matters are most satisfactorily dealt with by the People.
4. Blackstaff Press 1993 Riordan v An Taoiseach Bertie Ahern - unreported 18.11.1998
5. Gill & McMillan 1996
6. p 145
7. (1974) IR 338
8. In Article 26 and the Criminal Law (Jurisdiction) Bill, 1975 - (1977) IR 129
9. O'Higgins CJ Finlay, P. Griffin, Kenny and Parke JJ
10. 1979 NILQ, 189
11 Barrington, The North and the Constitution in de Valera's Constitution and Ours. Ed Brian Farrell - Gill and MacMillan
12. Relying on Crotty v An Taoiseach (1987) IR713
13 (1990) IR 220
14. Finlay, CJ Walsh, Griffin, Hederman and McCarthy JJ
15. (1988) IR505
16 Baker v Carr (1962) 369 US186223
17. The fact that judicial review is not explicitly provided for by the
US Constitution and the fact that the bulk of Supreme Court cases are by
way of petition for certiorari where the Court has a discretion to hear
or refuse to hear the case, have contributed to an approach emphasising
judicial restraint see eg. Hand, 'The \Bill of Rights'. 'Since this power
is not a logical deduction from the structure of the Constitution but only
a practical condition upon its successful operation, it need not be exercised
whenever a court sees, or thinks that it sees, an invasion of the Constitution.
It is always a preliminary question how importunely the occasion demands
an answer'. See however the opposite view put by Herbert Wechsler: 'Towards
Neutral Principles of Constitutional Law, 73.Harv.Lrev.1. |
