Why the 1919 Declaration of Independence Matters

Dr Maria Cahill

DeclarationThe 1919 Declaration of Independence is almost always overshadowed, whether by the more poetic and celebrated 1916 Proclamation of Independence or by the mere fact that on the day the Declaration was made, there was a parliament in Ireland for the first time in 120 years.

It is not altogether surprising, then, that Monday’s centenary celebrations focussed more on the anniversary of the First Dáil and the beginning of the War of Independence. It is not altogether surprising that although a commemorative video was made in 2016 in which the descendants 1916 signatories re-read the Proclamation, the same tribute was not made in respect of the relatives of the 27 parliamentarians who were present in the Dáil to make the Declaration (let alone 39 others who were absent for reasons of imprisonment and forced exile and not to mention the remaining 39 who were absent for other reasons).

Still, the 1919 Declaration of Independence, supported by the Message to the Free Nations of the World and the Democratic Programme, is worthy of at least as much attention as the 1916 Proclamation, if only for the reason that it is the declaration of independence that, accompanied by a more successful guerrilla campaign, secured enough legal and political freedom for Ireland that She could procure the rest herself.

Four features of the Declaration stand out.

First, the 1919 Declaration does what every declaration of independence has to do: it paradoxically and unilaterally asserts political and legal freedom on the basis that that freedom already inheres in the people in whose name the declaration is made. The 1919 Declaration does this in a particularly pithy way, opening with the words “the Irish people is by right a free people” (a statement clearly contradicted by the blunt reality that Ireland was being governed from London) and going on to insist that the Irish people “never ceased to repudiate” their freedom (a debatable point: parliaments in Kilkenny in 1366 and Drogheda in 1494 acknowledged the primacy of English law in Ireland, although without a democratic mandate and to no great effect). Being already a free people, at least according to the Declaration, the Irish people affirms this freedom through the declaration, resolving “to secure and maintain its complete independence”. This is the necessary illegality and the logical paradox that takes place at the founding of every state: you assert the authority that you want to have on the basis of an assumption that you are already entitled to that authority.

VoteThe second feature is that the Declaration anchors itself in the political mandate provided to the Irish parliamentarians by means of the December 1918 General Election and uses that mandate as the moral authority which allows them, “in the name of the Irish nation, [to] ratify the establishment of the Irish Republic”. The strength of this political mandate is juxtaposed both with the moral and political illegitimacy of British rule which “is and always has been based on force and fraud and maintained by military occupation against the declared will of the people” and also with the more spontaneous actions of the leaders of the Easter Rising in 1916, who acted “on behalf of the Irish people” but without a direct mandate, or even widespread popular support. (Of course, a sceptical reading of the Declaration might question how an election that was called by the British government and run according to English laws could become the basis for a political mandate for Irish freedom.)

The third feature, which is characteristic of declarations of independence from around the world, is that the declaration promises a new dawn, in which the common good will be promoted, justice restored and defence secured. In order to achieve these ambitions, the Declaration requires the evacuation of English garrisons, the cessation of foreign government, but most importantly, the primacy of the Irish parliament. The declaration is unequivocal in its insistence that “the elected Representatives of the Irish people alone have power to make laws binding on the people of Ireland, and that the Irish Parliament is the only Parliament to which that people will give its allegiance”. This uncompromising position is later reiterated in Article 12 of the 1922 Constitution (“The sole and exclusive power of making laws for the peace, order and good government of the Irish Free State is vested in the Oireachtas.”) and Article 15 of the 1937 Constitution (“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State.”) These words cannot now be interpreted literally using the spirit of patriotic fervour which inspired them since that interpretation is belied by the political reality that parliament is institutionally weak and does not have exclusive legislative authority.

Fourthly, the 1919 Declaration of Independence, again in a manner that is typical for declarations of independence generally, appeals to higher authorities, viz., the international community and Almighty God. By securing recognition for the newly-emerging state from the international community, the hope is that the British will be intimidated by the understanding that denying Irish independence will cost them the goodwill of other nations. It was for this reason that the 1919 Declaration was issued in French, as well as Irish and English, and accompanied by the Message to the Free Nations (also issued in French, Irish and English) which ends with the stinging exhortation to the nations of the world “to uphold [Ireland’s] national claim to complete independence as an Irish Republic against the arrogant pretensions of England founded in fraud and sustained only by an overwhelming military occupation” so that “the civilised world having judged between English wrong and Irish right may guarantee to Ireland its permanent support for the maintenance of her national independence”.

It is in the way that they appeal to God that the essential difference between the 1916 and 1919 texts is illuminated. The 1916 Proclamation ends by placing the cause of freedom “under the protection of the Most High God” – a pretty standard invocation – but it goes on to pray not for success or victory or minimal loss of life, rather that “no one who serves that cause will dishonour it by cowardice”. It extols the need that Ireland’s children must be willing to “sacrifice themselves” so that the nation can live and “prove itself worthy of the august destiny to which it is called.” The final paragraph of the 1919 Declaration begins with a similar invocation, in the line “we humbly commit our destiny to Almighty God who gave our fathers the courage and determination to persevere through long centuries of ruthless tyranny”, but ends with the more confident assertion that the blessing sought is to guide “this the last stage of the struggle” for Ireland’s freedom. The expectation this time is that Ireland’s freedom will be safely secured.

Dr Maria Cahill is a lecturer in constitutional law at University College Cork.

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Referendums, referendums … but what are they all about?

Dr Conor O’Mahony

We love a good referendum here in Ireland. We have had two in 2018, and 12 in the last 10 years; and now it seems certain that we will have several more in 2019.

The Government has committed to holding two referendums in May (coinciding with the local and European elections): one to reduce the constitutionally-prescribed four year waiting period for divorce, and another on voting rights in presidential elections for Irish citizens living abroad. A further proposal on public control of water services is under active consideration, possibly for the same day.

The proposed referendums seem unlikely to be as momentous and divisive as recent polls on abortion and marriage equality; but under the surface, there are quite a few issues to be resolved before they can proceed.

For example, should the divorce amendment reduce the waiting period stipulated in Article 41 to (e.g.) two years, or should it give the Oireachtas full discretion to set the qualifying period of separation?

If past history has taught us anything, it is that entrenched constitutional provisions are not the place for detailed and prescriptive rules on matters of social policy. A Constitution should state broad principles, while leaving points of detail to the Oireachtas.

Including the four year waiting period in the divorce amendment in 1995 was a political manoeuvre designed to ensure the passage of an amendment that had been rejected nine years earlier. By imposing a high hurdle for prospective divorcees, fears of the floodgates were allayed. But divorce is now an accepted and uncontroversial part of Irish society, and divorce rates remain low by international standards.

There is broad support for reducing the period; but it makes no sense to replace it with one that might require further referendums in the future. If the people were willing to trust the Oireachtas to legislate on the far more sensitive issue of abortion, they are surely willing to extend this trust to the discrete issue of the waiting period for divorce.

On the issue of water services, the issue is more technical in nature. Advocates of the referendum propose a wording guaranteeing that the public water system “remains in public ownership and management”. The Attorney General is concerned that the reference to “ownership” might create difficulties for private water schemes or for future public-private partnership arrangements. Whether an alternative proposal that focuses on “control” rather than ownership will be sufficient to allay concerns about potential privatisation of water services remains to be seen. (I discussed this issue with Eoin Ó Broin TD on Morning Ireland on November 21.)

Other proposals are in the background. It has long been agreed that there should be a referendum on removing the reference in the Constitution to the life of the woman in the home; but the poll was deferred when politicians failed to reach agreement on whether to simply delete this provision or to replace it with a gender-neutral version.

This week, the Oireachtas Justice Committee put forward two alternative options: one was an alternative wording for the provision, and the other was to refer the issue to the Citizens’ Assembly for further debate on the form that any alternative wording should take.

The latter is a rather feeble recommendation. The issue was previously debated in full by the predecessor to the Citizens’ Assembly (the Constitutional Convention), and this was followed by a detailed report by a Task Force on implementing the Convention’s recommendations. It is difficult to see what further discussion at the Assembly would add. The Oireachtas Committee is the body charged with progressing the issue; we saw how a similar Committee managed to formulate a reform proposal on the Eighth Amendment in spite of deep division.

Article 41.2 is offensive to many due to its references to the woman’s “life within the home” and to mothers’ “duties in the home”. But in truth, sexist as it may be in its rhetoric, the provision is a dead letter. It has no tangible impact on law or policy, and it is likely that replacing it with a gender-neutral dead letter would be similarly devoid of concrete impact.

Of course, the exercise would be of symbolic value as a gesture to carers. But there is a danger that a purely symbolic provision might do more harm than good. Constitutional scholar Dylan Lino cogently argues that enacting symbolic provisions with no concrete effect repudiates their constitutional significance and ignores real grievances of excluded groups. Carers may find that a constitutional amendment is a sop to their legitimate demands that changes nothing while offering politicians an “achievement” to hide behind.

At the same time, the possibility of a stronger provision that would allow for an enforceable right to support and resources is unlikely to secure the support of the Oireachtas; and any efforts to include enforceable socio-economic rights in the Constitution should really be considered in the round and not on an ad hoc basis focused on individual rights.

If sexism is the problem with Article 41.2, and the Committee cannot agree on a replacement, there is a quicker and cleaner solution: simply delete it.

Dr Conor O’Mahony is a senior lecturer in the School of Law at University College Cork.

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Irish text of the Proposed Referendum on the 8th Amendment

Dr Seán Ó Conaill

The publication of the wording for the 36th Amendment Bill has started the referendum campaign in earnest.

The English language wording of the bill had been well flagged and, as a result of the outcome of the M -v- Minister for Justice and Equality [2018] IESC 14 judgment, remained largely unchanged from the original announcement made by the Taoiseach in the wake of the decision to hold the referendum. The Irish text was not however available until the Bill was published.

The Irish language and the Constitution

The Irish language text of the Constitution is the authoritative text in the event that there is a conflict found between the English and Irish versions. Although the claim that the Irish text of the Constitution is a mere translation of English text is often made (including in some judgments of the Supreme Court) this claim is without foundation in the face of the evidence. Extensive works of scholarship such as Prof Mícheál Ó Cearúil’s study highlight how the Irish and English texts are not translations of each other and on many occasions the Irish text differs significantly from the English text.

Amendments

The process of drafting amendments to the Constitution is troublesome when it comes to the Irish text. Constitutional amendments by their nature are politically instigated and have their wording signed off by the cabinet and their advisers in the English language only. The Irish wording is usually then subsequently produced as a translation. Although there is some element of consultation with the translators in reality the process is very much English language driven. Translators are presented with an English text which is set in stone and must produce an Irish text which reflects the same legal meaning. English and Irish, like any two languages, cannot ever be translated exactly word for word. There are words in both languages which do not have an exact corresponding word in the other language. English does not have masculine and feminine words as languages such as Irish or French have nor does English have the sort of mutations that are common in Celtic languages. Thus when translating a constitutional amendment translators are faced with a very challenging task.

This task is made all the more difficult by the style of language used in the original Irish text of the Constitution which is often different from both vernacular Irish and the standard legal Irish used in legislation.

I have argued in the past that in the case of amendments it is an absolute absurdity to have the translated text of a wording drafted entirely in English as the authoritative text of the Constitution. That is not to say that we should remove the status of the Irish text as the authoritative text but rather that we should take a different approach to the drafting of amendments. Co-drafting, where both amendment texts are drafted simultaneously by lawyers who speak both languages, is well proven to produce better quality texts in both languages as well as being cheaper than subsequent translation.

The 8th Amendment

The 8th Amendment itself, as an amendment with a complex drafting history, has many interesting aspects to its Irish language text. The most interesting of which is perhaps the use of the term “sa mhéid gur féidir é” which would translate to “as far as possible” whereas the English text uses the expression “as far as practicable”. Such a conflict in wording suggests that the State could be held to a higher standard under the Irish text when it comes to protecting the right to life of the unborn, with “possible” certainly seeming to go much further than “practicable”. Indeed Mr Justice McCarthy noted such divergences in the X Case, before dismissing the divergences on the basis that “[h]istorically the Irish text is a translation of that in English” . In the particular case of the 8th Amendment such an assertion is quite accurate, but Mr Justice McCarthy appears to have missed the point. The Constitution does not make an exception on the grounds that one text is a mere translation of the other; it merely asserts that the text in the Irish language shall prevail in the case of a conflict, be it as a result of a translation or not. For more background on this listen to the excellent Motherfoclóir podcast which features UCC Law and Irish graduate and DCU PhD candidate Gearóidín McEvoy.

The Wording Itself

The wording of both language versions is as follows;

“Provision may be made by law for the regulation of termination of pregnancy”

“Féadfar socrú a dhéanamh le dlí chun foirceannadh toirchis a rialáil”

The first part of the sentence in the Irish text “Féadfar socrú a dhéanamh le dlí” follows established precedent and the same formula of words is to be found in other articles of Constitution to represent “provision maybe be made by law” in the English text. The Irish text of Article 8.3 and 10.3 for example both use the same expression. This element is consistent with the rest of the Constitution and unremarkable.

The real area of interest however is the second part of the proposed amendment “regulation of termination of pregnancy” is presented in the Irish text as “foirceannadh toirchis a rialáil”

The word termination appears once already in the English language version of the Constitution albeit in a totally different context in Article 28.3.3 which concerns the constitutional position when a state of war exists. In the case of Article 28.3.3 the corresponding Irish text is presented as “chuirfear deireadh le” which would translate literally as “put to an end”. The word termination also appears 5 times in the index to Constitution in English but on each occasion the Irish version of the Index text avoids using the word “foirceannadh”. The word foirceannadh does not appear in the Constitution at present. The Irish language legal terms order Téarmaí Dlí offers “foirceannadh” as the Irish version of termination and the word “foirceannadh” has been used extensively in legislation since 1936 but somewhat unhelpfully the word foirceannadh is also presented as the Irish language equivalent of “determination” in the context of a lease.

As is noted above the word “foirceannadh” does not as of yet appear in the Constitution however it did appear in the proposed 12th Amendment in the context of the termination of pregnancy and would have been inserted into the Constitution had the people accepted that proposal.

Pregnancy is presented as “toirchis” eg toircheas in its genitive form and is consistent with its use elsewhere although the word toircheas does not appear in the Constitution at present.

The final phrase of “a rialáil” is again absent from the Irish text of the Constitution with phrases such as “rialú a dhéanamh” usually used in the place of regulation however the difficult construction of the English text and its implications for the genitive form when translated into Irish may have led translators to use this form. The expression “a rialáil” is again commonplace in legislation such as Part 3 of the Charities Act/ An tAcht Carthanas 2009.

Overall the wording of the proposed amendment contained in the Thirty-sixth Amendment of the Constitution Bill 2018 follows the established constitutional and legislative precedent and while no two language texts can be exactly the same it equates well to English text with a few interesting features.

Dr Seán Ó Conaill teaches Dlí Bunreachtúil (Constitutional Law through Irish) at the School of Law at University College Cork.

Posted in Constitutional History, Eighth Amendment, Irish language, Referendum | Leave a comment

Citizens’ Assembly Recommendations on Referendums: An Opportunity to Enhance our Democracy

Dr Conor O’Mahony

Last weekend’s meeting of the Citizens’ Assembly generated a wide range of recommendations on how we might improve the way we operate our referendum process. Some of these will garner more publicity than others, but all of them are worthy of serious consideration by the Oireachtas and by the public. If a reasonable number of them are implemented, they present a real opportunity to greatly enhance our democracy.

Referendums are, by international standards, a very frequent occurrence in Ireland. We are among the biggest enthusiasts in Europe, and this seems unlikely to change in the near future. Irish people have become accustomed to having their say on matters of constitutional importance.

If we are going to continue to hold referendums with such frequency, it makes sense that we should pay attention to aspects of the process that we know to be problematic, and to see how they might be improved. The Assembly heard detailed evidence on a wide range matters and has presented some worthwhile recommendations.

The establishment of a permanent Electoral Commission is not a new suggestion; it was recommended previously by the Constitutional Convention and the Referendum Commission, as well as multiple commentators. It is well established that in its current form, whereby it is set up from scratch a few weeks before every referendum campaign and disbanded again as soon as the voting ends, the Referendum Commission struggles to fulfil its remit of informing voters and encouraging them to vote. A permanent Commission with a wider remit, more resources and greater expertise could make a positive contribution to the regulation not just of referendums but of all elections.

A more novel recommendation is that the new Electoral Commission be given an active role in fact-checking claims made by campaign groups. The current Referendum Commission has done this on some occasions (such as claims made about the effect of the Marriage Referendum on laws governing surrogacy) but has refrained from doing so in other campaigns (such as the Lisbon Treaty or the Children referendum). The Assembly’s recommendation would, if implemented, oblige the Commission to take a more active role in assessing the validity of claims about the effect of a Yes or No vote, which has potential to mitigate the harm caused by misinformation being circulated during referendum campaigns.

Much of the media coverage of the Assembly session to date has focused on the recommendation to lower the voting age to 16. However, this recommendation, which echoes one previously made by the Constitutional Convention, was just one of a suite of options aimed at increasing voter participation in referendums. Average turnout is just over 50%, but has varied from a high of 76% to a low of 29%. And while lowering the voting age will not necessarily increase the percentage figure, it would at least increase the number of voters who actually participate in decisions on constitutional amendments (which has been as low as just 623,000 on one occasion).

Anything that can ensure a greater level of engagement by voters must surely be welcomed. In this regard, the Assembly made suggestions such as greater use of the postal vote; allowing voters to vote at any polling station; online voting; automatic voter registration; early voting before the poll, and weekend voting.

Some of these suggestions will raise eyebrows. A Saturday poll in the Children referendum in 2012 generated one of the lowest turnouts in history, while our brief flirtation with electronic voting machines did not end well and is likely to make politicians reluctant to embrace new technologies for voting. But all of these options are worth exploring, and at least some will be worth implementing.

Another interesting outcome from the Assembly was the recommendation that we introduce the option of multi-option voting for referendums rather than relying solely on the current binary Yes/No model. This will not always be necessary, but there are occasions when it could have much to offer.

For example, voters were asked in 2013 whether they wanted to abolish the Seanad. 52% voted No, but the scales were tipped not by a desire to retain the Seanad as it is, but to reform it in the future. However, this option was not on the table, and the Seanad remains unreformed. If the Assembly’s recommendation is accepted, a future referendum of this sort could offers voters a choice of abolish, retain or reform, with the possibility of giving preferences (as in presidential elections) and the outcome being decided by transferable vote.

Finally, one matter that was discussed in detail at the Assembly, but which did not generate a recommendation (or indeed even a ballot at the Sunday session), was the regulation of broadcast, print and digital media during referendum campaigns. This has long been a source of consternation in Ireland due to the challenges involved in affording fair treatment to campaign groups without stifling discussion and a blunt reliance on a “stopwatch” approach to debates.

Recent experience from other jurisdictions shows that the digital revolution and the rise of social media will make it harder rather than easier to achieve fair coverage of referendum campaigns. Yet while the broadcast media are subject to strict rules, print and digital media are almost wholly unregulated for campaign purposes. While the Assembly may not have made any particular proposals in this regard, we cannot afford to become complacent about the effectiveness of our current framework.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork and was one of the expert witnesses who addressed the Citizens’ Assembly last weekend. His presentation can be viewed in full here.

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Of Constitutions and Cookery Shows

Dr Conor O’Mahony

Anyone who follows political debate in Ireland, and referendum campaigns in particular, will be familiar with the idea of ͞balance͟. It is a deceptively simple concept: each side of a particular
debate should get a fair crack of the whip, lest the unsuspected voter be manipulated by unseen interests. The quest for ͞balance͟ manifests itself in a number of ways, several of which have been given legal form.

Foreign donors to campaign groups have been presented as a particular bogeyman recently; but this past weekend it emerged that they may have some unexpected competition from cookery shows. The Sunday Independent reported that Minister Katherine Zappone has had a scheduled appearance on TV3’s ͞The Restaurant͟ cancelled for fear that the show might be aired during the proposed referendum on the repeal of the Eighth Amendment (which Minister Zappone supports).

The Broadcasting Act 2009 requires that every broadcaster shall ensure that ͞the broadcast treatment of current affairs, including matters which are either of public controversy or the subject of current public debate, is fair to all interests concerned and that the broadcast matter is presented in an objective and impartial manner͟.

This requirement applies at all times, but the general public tend to become most aware of it when a referendum is called. This is due to the Coughlan judgment of 2000, in which it was held that RTE’s
treatment of the Yes and No campaigns in the 1996 Divorce referendum failed to achieve balance and gave rise to unconstitutional unfairness.

The matter complained of in the Coughlan decision was the allocation of airtime for uncontested partisan broadcasts. Every major political party was given a slot, in addition to which the Yes and No campaigns were given 10 minutes each. However, since all political parties were advocating a Yes vote, the Yes side got 40 minutes of uncontested airtime, whereas the No campaign only got 10 minutes.

Few people could argue that this was fair or proper, given the scale of the imbalance and the nature of uncontested partisan broadcasts. However, the impact of the decision has filtered into every single news item or discussion that touches in any way on a referendum campaign. Frequently, it is implemented as a blunt instrument, where stopwatches are used to ensure that each side gets an equal amount of time to present their case.

This can create a highly artificial atmosphere. Readers might remember the debate on the Late Late Show during the Marriage referendum in 2015. In a mostly well-executed format, two campaigners on either side did short individual interviews before engaging in a set-piece debate. By the time Ryan Tubridy was bringing proceedings to a close, no one on the Yes side could have claimed that they had not been given a fair hearing.

Nevertheless, Tubridy’s producer interrupted him in the middle of his summation, instructing him to inform viewers that the Yes campaign had been given slightly less time overall and had a few more seconds to make their case. This was both unnecessary and of little use to anyone at that late point.

It is a stilted way to conduct any debate. Broadcasters are so busy trying to regulate time that it can be difficult to interrogate or challenge arguments; moreover, they may be reluctant to do so lest they be seen to be advocating on either side. It is largely left to opposing campaigners to challenge each other, giving rise to ͞Punch and Judy͟ style debates that many viewers find off-putting and unhelpful.

The obsession with the stopwatch approach has reduced the Coughlan decision to what RTE did wrong in the specific case, rather than focusing on the underlying principles that are set out in the Broadcasting Act (which requires that broadcasters are ͞fair to all interests concerned͟ and says nothing about equal time). An extreme imbalance of uncontested time in that particular case was translated in its implementation into a rigid and almost unworkable requirement of identical time allocation even in a contested setting.

But while an exclusive focus on the stopwatch is not desirable, the idea that the Coughlan decision even remotely precludes the appearance of prominent individuals who have declared support for one side or another on broadcasts that are entirely disconnected from the referendum is just plain daft. What next? If an intercounty GAA player becomes active in a campaign (as several did during the marriage referendum), can broadcasters not screen matches they are playing in?

It seems likely that TV3’s decision in this instance was an aberration. But even so, it is indicative of the state of fear that surrounds the coverage of referendum campaigns, particularly on divisive
moral issues like abortion. The legal straitjacket imposed on the broadcast media seems increasingly anomalous given the absence of corresponding regulation of print and digital media.

The Citizen’s Assembly will debate in January whether there is a better way to do business in the regulation of referendum campaigns. We should listen very carefully to what they have to say.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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