Opinions & Ideas

Category: Irish Constitution



What human rights should be protected in our constitution?

Is a right to life not the primary human right, in the sense that without it other human rights could not be exercised?

Who is human? If a baby before it is born is human, ought it have human rights?

These are the issues at the heart of the Referendum on the 8th Amendment.

In 1982, Garret FitzGerald, Leader of Fine Gael, told the party’s Ard Fheis;

“All life, whether of citizens or of people of other nationalities, whether born or unborn, should be protected by our constitution”.

This carefully worded statement was one of fundamental values, going to the heart of Garret FitzGerald’s, and Fine Gael’s, political tradition.

As one of his successors, I was often asked what Fine Gael stood for, and my answer was that the party stood for three things, for a society in which “every person counts”, for exclusively constitutional politics, and for European unity. I added that “every person” included babies before birth.

These three principles were consistent with, and flowed from one another. Protection of human life necessitated the avoidance of violent conflict in Europe, and also lay behind the party’s commitment to constitutionalism in Irish politics. Respect for human life, born and unborn, foreign or native, was at the heart of our entire approach to politics.

The idea that a constitution should protect human rights is, in fact, fundamental to our western civilization. Without a right to life, one cannot exercise any other constitutional rights. The right to life is thus the primary human right.

For example, the Irish constitution also explicitly recognises a right to freedom of expression, to one’s good name, to property and to elementary education.  But none of those constitutional rights can be exercised, if one had not first had the right to be born.

The Irish courts have gone further and have decided that the constitution creates other rights, not explicitly mentioned in the constitution, so called “unenumerated rights”.  These unenumerated constitutional rights include a right to marry, a right to procreate and a right to bodily integrity. Again, it would be impossible to exercise any of those rights, if one had not first had a right to be born.

It was also in that pro life spirit, that the Irish people also decided that the Irish constitution should ban the death penalty, even for heinous crimes. Our strong public, and private, support for life saving aid to Third World countries is also derived from the same pro life convictions among the Irish people. An avoidable death of a baby in Africa is a pro life challenge too.

Indeed, at the time the 8th Amendment was introduced, there were many who argued that it was not needed, because a child before birth would be deemed by the Irish courts to enjoy a right to life anyway, an unenumerated right so to speak, because without it, it would not be able to have to exercise the other rights to which it would be constitutionally entitled.

Unfortunately, that is not the way things have turned out. The Supreme Court has decided recently that a child in the womb has no rights at all, except the basic right to life contained explicitly in the 8th Amendment. Now even that may be taken away if a majority vote Yes on 25 May.

Abortion ends a life. Once it has happened there is no going back, no recovery. It is final.

Yes, there are tragic pregnancies, and difficult consequences flow from them. But at least there is some possibility to remedy, or alleviate, some of those consequences. But no remedy is open to the unborn child whose life is ended. It is over before it has properly begun.

The taking of the life of another, without its consent, can never be a private matter, for a woman or for a man. It is inherently a matter of public policy. Indeed, if human rights are to mean anything, any denial of the human rights of another person is necessarily and always a matter of public policy.

I have to say I have a real difficulty understanding the concept of human rights espoused by the proponents of abortion legislation.

It seems that some of them believe a baby, before birth, is not really human at all. Thus it would not have human rights, including a right to life. The idea here seems to be that, because an unborn baby is totally dependent on its mother, it is therefore not yet human, and has no human rights.

But dependency is part of life, and not a sound ground for denying the humanity of anyone. Babies after birth, and older people at the end of their lives, are deeply dependent too. They could not survive on their own.

But, to date, no one is suggesting they should not have human rights. If a two day old baby is human, and has a right to life, why not little girls and boys three months before they are born? What is the ethical and scientific basis for saying one has human rights, and the other does not?

I was very disappointed that the Oireachtas Committee was not asked to explore these fundamental questions of what it is to be human, who is human, and who should have human rights, before making its radical recommendations.

Without such a discussion, the referendum is premature. As a society, we must agree amongst ourselves on the basis and scope of human rights in Ireland, before making a decision to withdraw the most fundamental of all human rights from a section of our people.  We have not done that. That is why I urge people to vote “No” on 25 May.


A study of all constitutions promulgated since 1789, by the Chicago Law School, found that the average constitution lasted a mere 17 years before it was replaced. By that measure, the Irish Constitution, which will be 80 years old next month, has been a remarkably durable document. Indeed it is now one of the world’s oldest written constitutions.

Eugene Broderick, the author of this book on the subject, attributes the durability of the Irish constitutions to the fact that it can be amended by referendum and reinterpreted through court judgements. In that sense, the present constitution lives up to the standard set for a constitution by Eamon de Valera, in 1933 before he started preparing it, that it should be “not a cast iron constitution, but a flexible constitution”.

According to Broderick, most of the actual drafting of the articles of the constitution was done by the then legal advisor to the Department of External Affairs, John Hearne.


Hearne is an unusual character. A native of Waterford City, he was a strong supporter of John Redmond, and helped his son, William Archer Redmond to defeat the Sinn Fein candidate in the Bye and General Elections of 1918. Hearne was a prominent public speaker in the campaigns, and earned a name as “the boy orator” of the Irish Party. He was one of a generation of young men, who would have risen to prominence in a Home Rule Ireland, but who had to find another way forward when Home Rule was buried by the violence initiated in Easter Week of 1916.

Hearne’s way forward was initially as a barrister, and then as a legal officer in the Free State army. In 1924, he joined the civil service and remained a civil servant until he retired in 1960. His first post was as Assistant Parliamentary Draftsman in the Office of the Attorney General. He became an expert in international constitutional law, and helped Free State Ministers, like Paddy McGilligan, and Kevin O Higgins, to loosen the bonds set in the Treaty and thereby move Ireland towards full independence, by exclusively constitutional methods. Many of the issues Hearne dealt with in the 1920’s, like the court that should decide final appeals, are coming up again, as the UK tries to unravel its 40 years of legal commitments with its EU partners.

When de Valera won power in the 1932 Election, he admitted that he was surprised by the amount of progress he found had already been made by his predecessors in enhancing the sovereignty of the Irish state.


But he still adhered to his Civil War opinion, that the Free State Constitution, under which he had come to office, was something imposed on Ireland by the threat of force.

Therefore he saw a new constitution, freely adopted by the Irish people in a referendum, as the ultimate expression of sovereignty.

When de Valera sat down to prepare a draft constitution, he did so within a very narrow circle of advisors, and the principal one was John Hearne.

This is surprising given Hearne’s political antecedents. But Hearne had unequalled expertise in the constitutions of other countries, and fully accepted de Valera’s goal of shaking off the remnants of British influence. De Valera and Hearne worked into the late hours, often in Hearne’s home, drafting and redrafting the articles of the proposed constitution.

Broderick deals with the external influences brought to bear on the draft. Ministers, other than de Valera himself, seem to have played little part. De Valera preferred to work with civil servants over whom he had more control, rather than Ministers.


Religious thinking about social matters influenced the constitution for the simple reason that it influenced the Irish people in their daily lives. In the 1930’s, Ireland was a very religious country. In the destructive and nihilistic aftermath of War of Independence, the Catholic faith was seen by many as a better expression of the people’s distinctive identity. That is why it influenced the constitution. Fianna Fail, and all the other parties in the 1930’s, were profoundly influenced by Catholic Social teaching ,so it is not surprising at all that this teaching would have been taken into account.

As a practical politician, de Valera did not want the Catholic Church to oppose the proposed constitution.

This explains the Constitution’s acknowledgment of the Catholic Church’s special position. Some  Catholic church leaders wanted the constitution to say that the Catholic Church was the one true church, but de Valera resisted this.

Broderick says the ban on divorce was not controversial with other Christian churches at the time.

John Charles McQuaid, not yet a bishop but the Headmaster at the time of De Valera’s old school in Blackrock, played little part in drafting the constitution.


This was a constitution written for the 26 counties which de Valera actually governed. It was not designed for a 32 county Ireland. If it was it would have been drafted differently.

As Broderick puts it “Sovereignty took precedence over reunification”. This was realistic, and therefore right, in the circumstances.

Unrealistic aspirations, like reunification and the restoration of the Irish language, were included in the constitution in order to garner support for it in the referendum. The difficulties with these aspirations were ignored and this inevitably led to disappointment and cynicism.

One fault I would find with this book is that it tells us little or nothing about John Hearne’s subsequent career, as Irish Ambassador to Canada, and to the US, and his time as legal advisor to the new Nigerian government in the 1960’s. Apart from the fact that his wife provided sandwiches for Dev for the late night drafting sessions, Hearne’s marriage is hardly mentioned. It is almost as if his life stopped, once the constitution was adopted.

That criticism aside, anyone who wants to understand the genesis of our constitution, should read this important and well-written book.

It is entitled  “John Hearne, Architect of the 1937 Constitution of Ireland” , the author is  Eugene Broderick and the book was published by the Irish Academic Press.

This review appeared in last week’s  “Irish Catholic “ newspaper.


Introducing a law, that would say that a threat of suicide a ground for abortion, is not something that should be done under the pressure of artificial deadlines.

I know of no other area of law, where a threat of suicide is sufficient to make legal, what would otherwise be illegal. 
The notion that a simple threat of suicide would make right, something that would otherwise be wrong, is a really dangerous principle.

We must think long and hard about where it might lead.
We should also think carefully about the legitimating effect, that giving a threat of suicide  this sort of  high level statutory recognition, might have on attempts to reduce the incidence of suicide, or of threats of suicide. 

The abortion question boils down to whether one believes an unborn child is a separate human, with human rights of his/her own, or not. 
Some believe the unborn child is not a human with human rights, but just a part of the mother. If it is a part of the mother and not another life, then of course logically, the mother could make her own decisions. But the Irish constitution says something different.

The Irish people formally rejected that view when they decided in 1983 on an amendment to the constitution, now Article 40,(3)(3), which says that the unborn child has an “equal right to life” with its mother. This is being forgotten in some recent discussions.
The word “equal” is crucial here. A possibility is never equal to a certainty. The particular sentence in the constitution  would have made sense if the word “equal “ had not been put before “right to life”, but it WAS put in. That must be respected in any law the Dail may pass. 

In Article 40, the Irish constitution, in recognising his or her right to life, recognises the basic humanity of the unborn child, and grants the unborn child human and constitutional rights. 
Thus I believe that an unborn little girls life cannot, constitutionally, be taken away by a decision of 2,4,6 8, or any number of doctors, along with her mother, because the Irish people have said that she has rights of its own, separate from all of them.

At the very least, the unborn child, whose life may be about to be ended, must have separate representation in any process that might suppress her life. That should be a fundamental and uncontroversial legal principle.

Allowing medical certificates of suicidal intent to suffice to authorise the taking away the otherwise healthy life of an unborn child, would also be put great stress on the system of medical ethics. Medical certification is sometimes fallible, as we know in regard to the certification of illness for absence from work. 
The fact that leading psychiatrists are reluctant to be involved in certifying suicidal intent, in the context of ending the life of an unborn child, and the fact that many of them assert that abortion is never a cure for suicidal feelings, shows how impractical and mistaken was the original Supreme Court majority decision in the X case, in so far as it allowed suicide ideation on the part of a mother to override the equal right to life of an unborn child.

The only way out of the present dilemma is either

1.Address the medical decision making process relating to physical threats to the life of the mother, but  leave suicidal intent out as a ground for abortion, and let anyone, who wants to test the present constitutionality of this aspect of the X case ,  apply directly to the courts, or 

2. an option I do not favour, have a constitutional amendment to remove the equal right to life of the unborn from the constitution.

Some may argue against these options on the ground that the X case is settled law, and is thus is a reliable basis for proceeding with legislation to allow abortion where suicide is threatened. I believe this is wrong.

Irish constitutional law has changed considerably since 1992, when X was decided. There are two particularly relevant examples.
The first is the development by the Irish Courts of what is called the “proportionality test”. This test, first adopted by the High Court in 1994 (2 years after the X case), but now well entrenched, is used by the Courts when deciding cases, where there is a clash of rights. 
This test involves the Court in a much more searching examination of the evidence than happened  in the X case – when a majority of the Court agreed to the deliberate ending of an unborn life on the basis of a report by a single psychologist. Critically, the proportionality test requires someone, who is seeking to interfere with another individual’s rights, to prove that there is no other way of resolving the matter. 
If a new X case were to come up, the Court would be required by the proportionality test, to take account of the sort of evidence, heard by the Oireachtas Committee recently, to the effect  that there are plenty of other things that could be done to prevent a suicide in such a case. As a result of the improvements in legal procedure and in psychiatric medicine, I believe Courts would decide an X case differently today.
The second way in which things have changed since the X case, is the amendment made by the people in 2001,which is now Article 15 (4) of the constitution, which bans the state imposing a  penalty of death, in any circumstances.

This ban cannot even be suspended in an emergency like a war. This added constitutional commitment to the inviolability of every human life, because it was passed after the X case was decided, could not have taken into account then.  In a future case, all the different articles in the constitution would be interpreted together, and the argument would surely be advanced that it would be incongruous, constitutionally, to allow an unborn and innocent child, with explicit rights to life under Article 40, to be deprived of her life, while protecting, in every situation, the life of an adult who had committed a very serious crime . 

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