Second Amendment of the Constitution of Ireland
Encyclopedia
The Second Amendment of the Constitution of Ireland
was an omnibus amendment to a variety of articles aimed at implementing a list of many different changes. It was effected by the Second Amendment of the Constitution Act, 1941 which was signed into law on 30 May 1941.
, an extension of the right of the government to declare a state of emergency
, changes to provisions dealing with the reference of bills to the Supreme Court by the president
and various changes needed to bring the official Irish
text of the constitution into line with the English text. One unusual aspect of the Second Amendment was that it introduced a change to Article 56 of the Transitory Provisions, even though that article was no longer a part of the official text of the constitution.
The Second Amendment was not submitted to a referendum
. Under Article 51 of the Transitory Provisions the constitution could be amended during the initial period of 1937 to 1941 without the need for a popular vote. The Second Amendment could therefore be adopted in the same manner as any other law. The amendment was, in part, adopted as the last chance to implement a list of desired changes before the provisions of Article 51 lapsed. The amendment was enacted during the Fianna Fáil
government of Éamon de Valera
.
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
was an omnibus amendment to a variety of articles aimed at implementing a list of many different changes. It was effected by the Second Amendment of the Constitution Act, 1941 which was signed into law on 30 May 1941.
Background
More important changes introduced by the amendment included restrictions on the right to habeas corpusHabeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
, an extension of the right of the government to declare a state of emergency
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
, changes to provisions dealing with the reference of bills to the Supreme Court by the president
President of Ireland
The President of Ireland is the head of state of Ireland. The President is usually directly elected by the people for seven years, and can be elected for a maximum of two terms. The presidency is largely a ceremonial office, but the President does exercise certain limited powers with absolute...
and various changes needed to bring the official Irish
Irish language
Irish , also known as Irish Gaelic, is a Goidelic language of the Indo-European language family, originating in Ireland and historically spoken by the Irish people. Irish is now spoken as a first language by a minority of Irish people, as well as being a second language of a larger proportion of...
text of the constitution into line with the English text. One unusual aspect of the Second Amendment was that it introduced a change to Article 56 of the Transitory Provisions, even though that article was no longer a part of the official text of the constitution.
The Second Amendment was not submitted to a referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
. Under Article 51 of the Transitory Provisions the constitution could be amended during the initial period of 1937 to 1941 without the need for a popular vote. The Second Amendment could therefore be adopted in the same manner as any other law. The amendment was, in part, adopted as the last chance to implement a list of desired changes before the provisions of Article 51 lapsed. The amendment was enacted during the Fianna Fáil
Fianna Fáil
Fianna Fáil – The Republican Party , more commonly known as Fianna Fáil is a centrist political party in the Republic of Ireland, founded on 23 March 1926. Fianna Fáil's name is traditionally translated into English as Soldiers of Destiny, although a more accurate rendition would be Warriors of Fál...
government of Éamon de Valera
Éamon de Valera
Éamon de Valera was one of the dominant political figures in twentieth century Ireland, serving as head of government of the Irish Free State and head of government and head of state of Ireland...
.
Overview of changes
The Second Amendment introduced the following changes to the constitution- Reference of bills to the Supreme Court: Altered Article 26 which deals with reference, by the president, of a bill to the Supreme Court to test its constitutionality. Most importantly the amendment introduced a requirement that, when ruling on a bill referred to it by the president under her reserve powers, the Supreme Court can issue only one opinion, and no dissenting opinions are permitted. This was in keeping with the practice in many civil lawCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
supreme courts and was intended to promote legal certaintyLegal certaintyLegal certainty is a principle in national and international law which holds that the law must provide those subject to it with the ability to regulate their conduct. Legal certainty is internationally recognised as a central requirement for the rule of law....
. However, the provision added by Article 26 applies in only the case of the presidential reference of bills and the Supreme Court may still issue dissenting opinions in all other circumstances. A further alteration to Article 34 provided that a law that has survived a reference to the Supreme Court can never again have its constitutionality challenged. - Habeas corpus: Altered Article 40 dealing with habeas corpus. Before the Second Amendment an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment a prisoner has a right to apply to only one judge, and, once a writ had been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that when the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Supreme Court and may release the individual only on bailBailTraditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
in the interim. Another new provision gave the High Court authority to defer a death sentence while considering a habeas corpus writ. This particular provision became defunct with the abolition of the capital punishmentCapital punishmentCapital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
and has since be removed by the Twenty-first AmendmentTwenty-first Amendment of the Constitution of IrelandThe Twenty-first Amendment of the Constitution of Ireland introduced a constitutional ban on the death penalty and removed all references to capital punishment from the text...
in 2002. - National emergency: Altered Article 28 so as to provide that an officially declared "time of war or armed rebellion" could be brought to an end only by a resolution of both houses of the OireachtasOireachtasThe Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
(parliament). - Irish text: Made various changes to the official Irish text to bring it into line with the English text. This was necessary because at the time the constitution was being drafted the DáilDáil ÉireannDáil Éireann is the lower house, but principal chamber, of the Oireachtas , which also includes the President of Ireland and Seanad Éireann . It is directly elected at least once in every five years under the system of proportional representation by means of the single transferable vote...
(house of parliament) made a number of changes to the English text while accidentally neglecting to make equivalent changes to the Irish document. Rectifying this problem was especially important because under the constitution, it is the Irish text that takes precedence. - Presidential vacancies: Altered Article 12.3.3° which provides that in the event of the death, resignation or permanent incapacity of the president a presidential election must occur within sixty days. The phrase "(whether occurring before or after he enters upon his office)" was added to clarify that this requirement would apply even if the president-elect had not yet assumed office. The Second Amendment furthermore introduced to Article 14, which deals with the temporary exercise of the powers of the president by the Presidential CommissionPresidential Commission (Ireland)The Presidential Commission is the collective vice-presidency of Ireland.-Membership:Three members serve on the Presidential Commission.* Chief Justice – President of the Supreme Court* Ceann Comhairle – Presiding officer of Dáil Éireann...
or the Council of State, a slight change to the wording to clarify that these organs might exercise not just the president's constitutional duties but also any additional duties conferred upon the president by law. - Senate: Altered Article 18 to clarify that senators nominated by the TaoiseachTaoiseachThe Taoiseach is the head of government or prime minister of Ireland. The Taoiseach is appointed by the President upon the nomination of Dáil Éireann, the lower house of the Oireachtas , and must, in order to remain in office, retain the support of a majority in the Dáil.The current Taoiseach is...
(prime minister) must be nominated by the Taoiseach appointed after the general election held immediately before the election of the SenateSeanad ÉireannSeanad Éireann is the upper house of the Oireachtas , which also comprises the President of Ireland and Dáil Éireann . It is commonly called the Seanad or Senate and its members Senators or Seanadóirí . Unlike Dáil Éireann, it is not directly elected but consists of a mixture of members chosen by...
. An alteration was also made to the text of Article 24.2 which deals with procedure in the event that the time for the consideration of a bill in the Senate has been abridged. - Promulgation of laws: Introduced minor changes to Article 25, altering the precise procedure to be used in the signing, promulgation and enrolment of laws. Also added a new provision allowing the Taoiseach to enrol an official copy of the constitution with the registrar of the Supreme Court.
- Reference of bills to the people: Introduced minor changes to the procedure for the reference of a bills to the people under the reserve powers of the president. For example provided that the signatures on a petition to the president for a referendum must be verified in accordance with the law.
- In camera court hearings: Altered Article 34 to provide that in "special and limited cases" a court may administer justice in cameraIn cameraIn camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
. - Transitory Provisions: Altered Article 56 to clarify the protections given to employees who had begun working for the government before the constitution was enacted. This change was unusual because by 1941 most of the Transitory Provisions, including Article 56, had been removed from all official texts of the constitution. The provisions required their own omission on the grounds that they would no longer be relevant. However most of the Transitory Provisions continued to have the force of law and so these 'invisible' provisions could still be changed by a constitutional amendment.
See also
- Politics of the Republic of IrelandPolitics of the Republic of IrelandIreland is a parliamentary, representative democratic republic and a member state of the European Union. While the head of state is the popularly elected President of Ireland, this is a largely ceremonial position with real political power being vested in the indirectly elected Taoiseach who is...
- History of the Republic of IrelandHistory of the Republic of IrelandThe Irish state originally came into being in 1922 as the Irish Free State, a dominion of the British Commonwealth, having seceded from the United Kingdom under the Anglo-Irish Treaty. It comprises of 26 of Ireland's 32 counties...
- Constitutional amendmentConstitutional amendmentA constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
External links
- Second Amendment of the Constitution Act, 1941 (Full text at IrishStatuteBook.ie)
- Full text of the Constitution of Ireland (Accurate up to and including the Twenty-seventh Amendment from Department of the Taoiseach)
- The Unabridged Constitution of Ireland (Unofficial variorum edition – accurate only up to Twentieth Amendment)
- Transitory Provisions of the Constitution of Ireland (Full text from Wikisource)