Executive Council, Judiciary, Transitory Provisions in Ireland’s Constitution

New Zealand Tablet, Volume L, Issue 6, 8 February 1923, Page 21

Executive Council, Judiciary, Transitory Provisions in Ireland’s Constitution

(By Rev. John A. Ryan, 8.8., in America.)

[ The last of a series of five articles reproduced in the Tablet.'} , - r -■

According to Article 50, the executive authority of the Irish Free State is “vested in the King.” This sounds fully as bad as the provision in Article 40 concerning the royal veto upon legislation. As in that case, so here, the power is granted in form, only to be withheld in fact; for the words just quoted are followed in the same Sentence by>these: “and shall be exercisable in accordance with the law, practice, and constitutional usage governing the exercise of the executive authority in the case of the Dominion of Canada, by the representative of the Crown.” The real, practical authority of the King over the executive is exactly the same as over the legislative power ; that is, none at all.

The true location of executive authority is shown by the second sentence of Article 50. The Executive Council is the name given to the Cabinet . Its head .is called president instead of premier, or prime minister. The Executive Council is responsible to. the Chamber of • Deputies. In other words, the Irish Free State is to have what is known as the “parliamentary” system of government, rather than one such as ours, in which the executive and legislative departments are mutually independent. The great majority of political scientists are agreed that the parliamentary system is superior as regards both efficiency and democracy. It is more efficient because it enables the executive to take the lead in legislation, and requires the two departments to work in harmony. It is more democratic because it compels the executive to resign whenever the Ministers have lost the support of the legislature.

-. The Executive Council is to comprise not more than twelve persons, of whom four must be members of the Chamber of Deputies, and the remainder members of neither House. The last provision may, however, be modified from time to time by the Chamber to such an extent that three of the eight may be members of Parliament. Hence it will be possible sometimes for a majority of the Council to be drawn from the Chamber of Deputies.

How are the members of the Council to be chosen? They are to be “appointed by the representatives of the Crown” (the Governor General). Again the Crown obtrudes itself. The thing is simply awful. However, Articles 51 and 52 declare that the members of the Executive Council shall be appointed “on the nomination” partly of the Chamber, partly of the President of the Council, and partly of a committee of the Chamber. In other words, the representative of the Crown “appoints” those whom he is told to “appoint.”

- Those Ministers (members of the Executive Council) who are not members of Parliament are to be heads of executive departments of the Government. If the functional or vocational councils mentioned in Article 44 are established, these Ministers may be drawn from such councils and nominated upon their advice, provided such is the will of Parliament. Hence the Minister of Agriculture

might be nominated by the Council of Agriculture, the Minister of Labor by the Council of Labor, etc. In this way the important interests would obtain specific representation in the executive department as well as in the

legislative department. This means a gain for governmental efficiency and genuine democracy,

Article 58 provides that the Governor General shall be

appointed “in like manner as the Governor General of Canada and in accordance with the practice observed in the making of such appointments.” One very important feature of that practice is that no one is appointed to the office who is not satisfactory to the Government of Canada.

v Article 59 requires the Executive Council to prepare a budget of receipts and expenditures for each financial year, and .to present it to the Chamber before the close of the

preceding financial year. . . The judiciary is to consist of three kinds of courts:

those having local and limited jurisdiction; the High Court, which is to have “full original jurisdiction in, and power

to determine, all’ matters and questions, whether of law or of fact, civil and criminal,” together with the power to decide upon “the validity of any law having regard to the provisions -of the Constitution” ; arid the Supreme Court, which has appellate jurisdiction from the decisions of the High Court. Apparently the High Court (and the Supreme Court in case of appeal) has as extensive power to declare laws unconstitutional as the Federal District Courts and the Supreme Court of the United States. The exercise of this power ought to be restricted, say, by the requirement of a unanimous decision in order to nullify any law on constitutional grounds. If a unanimous decision cannot be obtained, the unconstitutional character of the law is not beyond all reasonable doubt; and the doubt should be resolved in favor of the law.

On all questions brought before it the decision of the Supreme Court is to be final, except that any person may appeal to the British Privy Council. This extraordinary right of appeal ought to be more clearly defined. It ought to be so limited that constitutional questions could bo brought before the Privy Council only in cases involving the rights of private persons or corporations. Questions affecting the governmental powers of the Free State relatively to Great Britain should be resolved otherwise than, by a judicial decision of the Privy Council. All judges are to be “appointed by the representative of the Crown on the advice of the Executive Council.” In plain language and reality, they will be selected by the executive branch of the Free State Government. Whether

this is a better method than that of popular election, is a question that does not call for discussion here.. The important fact is that the Irish judiciary is to be chosen by the representatives of the Irish people, not by the British Government or its representative.

The judges of the High and Superior Courts hold office for life, unless they are removed for “misbehaviour,” by a joint resolution of the Chamber and the Senate. The terms of office in the lower courts are to be fixed by statute. Articles 69-71. No extraordinary courts may be established; no one shall be tried save in due course of law; no civilian shall be tried by a court-martial except in time of war and for acts committed in time of war, but not even in that case if the civil courts are open and capable of being held. Save in case of summary jurisdiction prescribed by law for minor offences, no person shall be tried without a jury on any criminal charge. These provisions seem calculated to safeguard adequately the right of men to “due process of law.”

Section V. (Articles 72-79) is headed “Transitory Provisions.” % These are to apply for a short time immediately after the ratification of the Constitution. All existing laws not inconsistent with the Constitution are to remain in force until repealed by the Parliament. Existing courts will continue to function until they are replaced by those contemplated in the Constitution. The Dail elected last June may for not more than one year after it has ratified the Constitution, exercise all the constitutional power of the Chamber of Deputies. The first Senate is to be created by the present Dail immediately after the Consti-

tution comqs into effect. Eight members shall be elected by the four universities; twenty-eight shall be named by the President of the Bail, and twenty-eight shall be chosen by the Bail. The Constitution must be adopted and put into operation not later than Becember 6, 1922. Hence the present Bail cannot continue later than Becember 6, 1923. Apparently the Constitution will go into operation without any popular vote, although it could readily become an issue in the campaign for the election of the first Chamber of Beputies. . , ' - The Braft Constitution is not perfect. Unfortunately, it scarcely received adequate discussion in the short time given to its consideration. However,- it makes adequate provision for its own amendment. It can be modified very much more easily than the Constitution of the United States; for amendments may be submitted to the people by the Parliament on its own motion, and they; must bo submitted upon, the petition of 50,000 voters ; and the proposals become a. part of the Constitution when: they are ratified either by a majority of all the registered voters or

by two-thirds of those actually voting on the proposals. In general, the Constitution authorises the Government

of the Free State to do anything that can be done by any

Government on earth, except for the few reservations contained in the Treaty with regard to harbors, defences, etc. Surely the time has now arrived, when all rational friends of Ireland should concentrate attention upon the positive powers enjoyed by the Free State rather than upon its relatively insignificant limitations. The time for rhetorical protestation is past; the opportunity for constructive action is at hand. s - , •

Since these articles were written, .the Draft Constitution has been considered and, with a few amendments, adopted by the Dail Eireann, or Provisional Parliament. In the first article of the series, I deplored the omission of the name of God from the Draft. That matter was rectified in the Dail, October 11, by prefixing to the document the following preamble: “Dail Eireann, sitting as a constituent assembly in this Provisional Parliament, acknowledging that all lawful authority comes from Gcd to the people, and in the confidence that we shall thus restore our national life and unity, hereby proclaims the establishment of Saorstat Eireann, etc.” The preamble was adopted unanimously. ;

At the request of the university members of the Dail,” the provisions relating to representation in the Parliament were changed so that the university representatives will have seats in the Chamber of Deputies, instead of in the Senate.

In the fifth article of the series appearing in this issue of America, the right of appeal to his Majesty in Council is criticised as dangerously indefinite. While this provision was adopted by the Dail just as it exists in the Draft, the discussion shows that it is not as indefinite and comprehensive as might be inferred from its language. The tribunal to which appeals would be taken consists of lawyers from England, Ireland, and the Dominions. The subjects that may be appealed lie exclusively in field of international relations; no appeal can be taken in the case of “ordinary, routine, domestic legislation.” This is the arrangement that exists in South Africa, and it is better than that prevailing in Canada, for in the latter country appeals may be taken to the Privy Council in domestic, as well as in international, cases. —J.A.R.