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  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.
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.