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Constitutional Developments in Saorstát Eireann and the Constitution of Éire: II, Internal Affairs*

Published online by Cambridge University Press:  02 September 2013

Arthur W. Bromage
Arthur W. Bromage
Affiliation:
University of Michigan
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Extract

The system of government set up under the Irish constitution of 1922 was of the parliamentary type. Provision was made for an Executive Council, some members of which were responsible to Dáil Eireann. The actual working executive was the president of the Executive Council. The old constitution also contemplated a group of expert ministers who should be heads of departments, but who should not share in the collective responsibility of the Executive Council to the Dáil. The appointment of such a group of “extern” ministers was not made mandatory. In the first Dáil, three extern ministers were appointed, and in the second Dáil a fourth was added. This constitutional arrangement, the inspiration for which was derived from the Swiss executive, did not last long. The extern ministers were, as a matter of fact, active politicians; they were not appointed on the basis of merit in heading the specific departments; in 1927, an amendment was adopted which practically abolished extern ministries; and the Free State has since proceeded on the general plan of a cabinet collectively responsible to the Dáil.

Type
Research Article
Information
American Political Science Review , Volume 31 , Issue 6 , December 1937 , pp. 1050 - 1070
Copyright
Copyright © American Political Science Association 1937

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References

35 Constitution of the Irish Free State (Saorstát Eireann) Act 1922, Article LV.

36 Mansergh, Nicholas, The Irish Free State; Its Government and Politics (1934), p. 169Google Scholar.

37 Constitution (Amendment No. 5) Act, 1927.

38 Constitution (Amendment No. 21) Act, 1933.

39 Irish Review and Annual, 1936 (supplement to The Irish Times), p. 5Google Scholar.

40 Constitution (Amendment No. 27) Act, 1936.

41 In the first Seanad, half the members were nominated by the president of the Executive Council, and the other half elected by the lower house. The second plan used was that of the election of the senators by ballot throughout the Saorstát under a system of proportional representation with a single transferable vote. (Article LXXXII provided for the composition of the first senate; Articles XXXII and XXXIII provided for the second method.) Then, in 1928, a scheme of election by the two houses was introduced by constitutional amendment. [Constitution (Amendment No. 6) Act, 1928.]

42 Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, Article XXXVIII.

43 Ibid., Articles XXXVIII and XLVII.

44 Constitution (Amendment No. 10) Act, 1928.

45 Constitution (Amendment No. 13) Act, 1929.

46 Constitution (Amendment No. 24) Act, 1936.

47 See supra, in the October issue of this Review, pp. 851–852.

48 Constitution (Amendment No. 16) Act, 1929.

49 Constitution (Amendment No. 23) Act, 1936. At the time of the general election of 1937, the size of the house had been reduced from 153 to 138 members.

50 The Irish Press, July 7, 1937.

51 The totals were: Fianna Fáil, 599,638; Fine Gael, 461,176; Labour, 132,686; Independents 131,494; total for all parties, 1,324,994. Ibid.

52 New York Times, July 22, 1937. The vote was 82 for and 52 against de Valera.

53 Articles XLVII and XLVIII.

54 Constitution (Amendment No. 10) Act, 1928. Majorities in both the house and the senate voted that this constitutional amendment bill was necessary for the immediate preservation of the public peace and safety. In this way any referendum on the constitutional amendment bill was forestalled and the initiative and referendum articles were stricken from the constitution (see Mansergh, Nicholas, The Irish Free State, 1934, pp. 143–144)Google Scholar.

55 Questions in each house, except as otherwise provided, are determined by a majority of the votes of the members present and voting, other than the chairman or presiding officer. The chairman or presiding officer has and shall exercise a casting vote in cases of ties. A quorum is determined by the standing orders of each house. No person may be at the same time a member of both houses. (Bunreacht na hEireann, 1937, Article XV.)

56 Article XVI.

57 Article XVIII. After the abolition of the Seanad in 1936, de Valera appointed a commission to consider the proper composition and functions of an upper house. The work of the commission resulted in divers opinions. De Valera was most impressed with a minority report which espoused the principle of functional representation. The late Chief Justice Kennedy was chairman of the commission. In general, the members of the commission were in agreement that the upper house should have only the power to delay bills and to suggest their reference to a referendum. In the draft constitution, de Valera provided for the election of the senators from the panels by a special electorate composed of every person who was a candidate for the Dáil at the last preceding election and who received more than five hundred first preference votes. As the debates on the constitution revealed disagreement over the method of electing senators, de Valera moved a government amendment to leave the question of the nature of the electorate to the ordinary law. However, proportional representation and a secret postal ballot were required. The Irish Press, June 10, 1937.

58 Article XXIX.

59 Article XXVIII.

60 Article XXVIII, sec. 4, par. 2.

61 Article XXVIII. The opposition suggested to de Valera that “Prime Minister” rather than “Taoiseach” be used in the English version of the constitution, but he refused.

62 Every candidate for election who is not a former or retiring president must be nominated by either (1) not less than twenty persons who are members of one of the houses of the Oireachtas or (2) not less than four administrative county councils, including county borough councils as defined by law. Former or retiring presidents may be candidates on their own nomination. (Article XII, sec. 4.)

63 The President cannot hold any other office or position of emolument. He may not leave Ireland during his term of office except with the consent of the Government.

64 Article XII, sec. 10. On the other hand, no action at law or in equity or other legal proceeding, civil or criminal, may be brought against a president during his term.

65 See post, p. 1060.

66 Article XIII. For a discussion of the President's rôle in signing bills, see post, p. 1063.

67 The Irish Press, May 26, 1937.

68 While the Constitution authorizes the conferring of additional powers and functions upon the President by law, no such power or function is exercisable or performable by him save only on the advice of the Government, or after consultation with the Council of State as determined by law (Article XIII, sec. 10).

69 New York Times, June 17, 1937.

70 Article XXXI.

71 Article XIV.

72 Article XIV. For example, if the President refused to terminate the appointment of a cabinet minister on the advice of the Taoiseach, the commission would have constitutional authority to act.

73 For purposes of clarity, these are hereinafter described respectively as ordinary bills, money bills, and urgent bills.

74 Article XXIII, sec. 1, par. 1.

75 An ordinary bill also may be initiated in the senate. If, however, the house introduces amendments, it is then treated as a bill originated by the house. The senate may then delay for the “stated” period, and the house may or may not take conclusive action within a subsequent period of 180 days.

76 Article XXI, sec. 2, par. 2. The constitution gives a detailed definition of a money bill and empowers the chairman of the Dáil to certify that a bill is a money bill. The Seanad may protest his rulings by asking the President to refer the question to a committee of privileges. If, after consulting the Council of State, the President decides to accede to the request, he appoints a committee composed of an equal number of members of the house and the senate and a chairman who must be a Supreme Court judge. The decision of the committee is final. If the President decides not to appoint a committee, or if the committee fails to report within a specified period, the certificate of the chairman of the Dáil is thereby confirmed (Article XXII).

77 Article XXIV. A bill to amend the constitution may not be passed as an urgent bill.

78 Article XLVI.

79 Article XLVII, sec. 1.

80 Article XXVI. In referring a bill to the Court, the President must take action not later than four days after presentation of the bill in question. The Court must pronounce its decision in sixty days. A decision of a majority of the judges constitutes the opinion of the Supreme Court.

81 Article XXVII. When a bill goes to a referendum, it is deemed to have been vetoed if a majority of the votes cast thereon are against it and such negative majority amounts to not less than thirty-three and one-third per cent of the voters on the register. Unless vetoed in this manner, a bill is deemed to have been passed. This makes non-voters count for a bill. Article XLVII, sec. 2, par. 1.

82 It also has appellate jurisdiction from such decisions of other courts as may be prescribed by law.

83 Article XXXIV.

84 According to Article XIII, sec. 9, this is only a formal power to be exercised on the advice of the Government. The Attorney-General is to be appointed, and may be removed, by the President on the advice of the Taoiseach. Although not designated as a member of the Government, the Attorney-General retires upon the resignation of a Taoiseach but may continue to carry on his official duties until the succeeding Taoiseach is appointed (Article XXX).

85 Article XXXV. Subject to provisions of Article XXXIV and XXXV, the following matters under Article XXXVI may be regulated by law: “i. the number of judges of the Supreme Court, and of the High Court, the remuneration, age of retirement and pensions of such judges, ii. the number of the judges of all other Courts, and their terms of appointment, and iii. the constitution and organization of the said Courts, the distribution of jurisdiction and business among the said Courts and judges, and all matters of procedure.”

86 Article XXXVII.

87 Article XXXVIII, sec. 3.

88 Article XL, sec. 6, par. 1. Similarly, the right of citizens to assemble peaceably and without arms is declared, then qualified by the authority of the state to provide by law for the prevention or control of meetings determined in accordance with law to be calculated to cause a breach of the peace, or to be a danger or nuisance to the general public. Likewise, the right of citizens to form associations and unions is qualified by the authority of the state to enact laws for the regulation and control in the public interest of the exercise of this right. (Article XL.)

90 Article XVI, sec. 1.

92 Article XLI, sec. 2.

94 Article XLV, sec. 4, par. 2.

95 During the campaign, a meeting of women graduates of the National University was held in the Mansion House in Dublin to protest the constitution as detrimental to women's rights in the state. To the contrary, the Cumann na mBan, an association of women who have played an active rôle in Irish political life, went on record in favor of the instrument. In a letter to de Valera, the association said it had taken “no part whatsoever in the seemingly organised drive against Bunreacht na hEireann by the Women Graduates' Association and other women's societies.”

96 In the fall and early winter of 1936, everyone talked about the new constitution, but no one seemed to know much about it other than what de Valera had said in public addresses. In an interview with de Valera in December, 1936, mention, of the new constitution brought from the President the remark that he was working on it. However, he was quick to point out numerous “hurdles” which the constitution must clear: the consent of the Executive Council, of Fianna Fáil, of the Dáil, and of the people.

97 The Irish Press, June 15, 1937.

98 In the absence of action by the Dáil, the constitution comes into operation on December 29, 1937.

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