Kitabı oku: «The Irish Constitution», sayfa 2

II.
THE PLAN OF THE CONSTITUTION

To draw up a plan is almost inevitably to express a philosophy. In shaping the sequence and proportion of the parts which are to comprise the whole, the trick of the mind will out; and it is in that trick of the mind that, ultimately, all philosophies are contained. Perhaps there are few who, after consideration, would deny this in all the ordinary (greater or lesser) concerns of life; but many will think it strange in a matter so dry as the drafting of a Constitution. Yet even in the drafting of a Constitution it will be found equally true.

A Constitution may be likened to a pyramid, the apex of which is the Executive Authority, and the base the People. The first question that therefore at once arises is, where shall one begin first with this pyramid? But before this question can be answered, another must first be met; and it is, whether the base is hung from the apex, or whether the apex rests on the base? What relation has the Executive Authority (whether kingly, presidential or consular) to the People, and the People to the Executive Authority; and which, names and titles apart, is ultimately the Sovereign? These are ripe questions; and only in the making of the plan can they be answered.

I have already shewn that the writing of a Constitution is itself evidence that the people are sovereign, even though no statement to that effect is included in the writing. But when one comes to look in the Constitutions of the world it is curious to note the persistence with which that truth is overlooked. The Canadian Constitution, for example, having provided for the Union of Provinces by which the Federation was created, begins at once with the statement that “the Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.” Nothing has been said about a Legislature – nothing about the people of Canada. The Constitution begins at once with an Executive Authority which nothing has brought into being, and which therefore exists of its own right, original and indefeasible, all things else in the Constitution depending from it. The pyramid is hung from heaven, for the philosophy of the plan is to be found in the mediaeval myth of the Divine Right of Kings.

The Constitution of Canada consequently proceeds downwards from that apex to the Legislature; and in that Legislature, according to the philosophy, the Senate comes before the Commons. “There shall,” it says, “be one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House of Commons.” As for the base, it is found nowhere at all. The interest is exhausted before it is reached; and the People are not mentioned.

I have taken the Canadian Constitution because it is specially mentioned in the present draft of the Constitution of Saorstat Eireann; but the same supposition is found in many other constitutions, such as those of Denmark, Sweden, South Africa. In them are to be found the relics of the mediaeval theory of government, of a divine authority conferred on a family, which therefore ruled of its own right; and of its own grace summoned the subjects of that authority for counsel and advice. Therefore in these constitutions it is assumed that the sovereignty is above and the subjection below – even though no one to-day supposes that the practical facts are what they assume them to be.

In the Irish Constitution, as in most modern constitutions, this order is inverted. The sovereignty is below, and the subjection is above. Never once throughout the Irish Constitution (either in its original or its present form) are the people once considered as subjects, but always as sovereign citizens. The pyramid is based on the broad earth, in the divine right of the people; and a beginning is therefore made with the base, proceeding upward to the apex. The plan in fact is reversed because the philosophy is different.

The Constitution of Saorstat Eireann begins with the people, and with a statement of the sovereignty of the people. “All powers of Government,” it says in Article 2, “and all authority, legislative, executive and judicial, are derived from the people and the same shall be exercised in Saorstat Eireann through the organisations established by or under, and in accord with, this Constitution.” In this Constitution, therefore, the people of Ireland establish their own right, original and indefeasible, and all things and persons and institutions named or created by or under it depend from them. That is in the present, as it was in the original, draft. Whatever institution or organisation is established to act on their behalf, acts under an authority conferred by them; and in accord with the specific bestowal of that authority; and not otherwise. Whatever person or power is named, is named to act on their behalf; acts under the same authority; in accord with the specific bestowal of that authority; and not otherwise. The people confer of their own right; and what they may confer they may withdraw. If the authority they confer be abused or transgressed, it ceases thereupon to have any sanction or reverence, and possesses no binding effect. That is to say, in the terms of my figure, the apex of the pyramid rests on the base, is hung from no mythical divine right of kings, and has no support outside the people of Ireland.

The people, consequently, are citizens of a free state, not the subjects of authority. It is necessary, therefore, at once to state who are the citizens of this state, and what constitutes their citizenship. This the next article proceeds to define. In this article the whole question of future citizenship is referred to legislation. It properly belongs to legislation, since it includes a number of complex matters and details quite unsuited to a Constitution. Yet there must be an original citizenship, otherwise the service of the state could not begin. Article 3, therefore, states what constitutes the original citizenship of Saorstat Eireann; and leaves all matters “governing the future acquisition and termination of citizenship” to be “determined by law,” making it a constitutional provision, however, that “men and women have equal rights as citizens.” And Article 4 provides that the official language of that citizenship shall be the Irish language.

From these original citizens, and from whomever shall be admitted to citizenship in the future, all the authority of the State derives under the Constitution. They are the base of the pyramid, and it is they who in the Constitution (according to the plan on which it is framed) confer on certain persons and organisations definite powers of Government in Ireland. But the authority which can confer, can also withhold; and from the powers which they grant, certain matters are withheld. For there are matters which comprise the fundamental rights of their sovereignty, with which no Government created by them can interfere. If the Government had existed, or had claimed to have existed, of its own original right, it could, being itself sovereign, have acted as it pleased; and in past times it did so. But since Government under the Constitution exists only by reason of an authority conferred by a sovereign people, these Fundamental Rights of their sovereignty are kept apart; and no authority – legislative, executive or judicial – and no power of Government is conceded the right to touch them.

Therefore in the first section of the Constitution, where the original authority of the people is stated, certain matters are withheld. They are described as Fundamental Rights. The liberty of the Person, the Inviolability of the Dwelling, Freedom of Conscience and the Free Practice and Profession of Religion, the Free Expression of Opinion, Free Assembly, Free Association, Free Elementary Education, and the Inalienability of Natural Resources, are each dealt with in successive articles as forming the essentials of these rights. Before any powers are conferred, before any organisations or institutions of Government are created, these matters are put to one side and reserved. They belong to the people. None shall interfere with them. The people are sovereign, and they so decide.

Such is the plan, for such is the philosophy. The first section of the Constitution, therefore, includes what may be described as the base of the pyramid, resting on the soil of Ireland and established in the right of the People of Ireland. From that base the pyramid is built up toward the Executive Authority, in section by section, giving the logical order in which power is derived. Each section is based on that which precedes it; for the order is the same as in the original draft, and therefore the plan is preserved.

III.
THE MAKING OF LAWS

All powers of Government may derive from the people, but the people cannot of themselves govern themselves. In simple small communities the people may gather together and frame the manner of their government from meeting to meeting (and only then when ancient custom has given them the practice and expectation of such assemblies); but among nations for a people to discipline and rule themselves it is necessary that they bestow recognised and definite powers of government on representatives of their choice. Such representatives, to be sure, have a habit of conceiving that they are rulers of their own right. Cases have even been known where they have endeavoured to obstruct the right of the people to depose them. But the truth is that such representatives are merely a convenience. They are a people’s instruments, and no more. Without them the achievement of a common agreement, and the formulation of laws based on that common agreement, would prove so cumbersome as to be impossible. A people must therefore tolerate them with good humour; and keep them under proper control. And when such representatives have been chosen, they together form an organised body for the making of laws, and for the supervision and control of the execution of such laws.

Obviously, then, once a Constitution has stated the sovereign source of all authority, and defined the fundamental rights of that sovereignty, it is essential that it should prescribe the manner in which laws shall be made for the peace, order and good government of the whole people. The second section of the Constitution, therefore, deals with the Legislative Provisions of the State. The most important of these, manifestly, is the creation of an organisation of representatives; but, owing to the tendency of representatives to arrogate powers to themselves, of late years the peoples of many States have insisted on a direct voice in the checking, and even in the making, of laws. This direct voice has been exerted by means of two instruments known generally as the Referendum and the Initiative. Wherever these prevail, the Assembly of Representatives is given only a limited power in the making of laws, the sovereign authority reserving to itself a constant and continuous control over its action. And in our Constitution both these instruments are given a place. For it is a sound rule that the people are generally better than their representatives – wiser of counsel, more disinterested of judgment – and it is therefore provided in the Constitution that there shall be an Assembly of Representatives, but that the people may require of that Assembly that laws be referred to them for final decision, or that laws be made to suit their desire.

The most important part of these legislative provisions, however, is the setting up of a National Assembly, or Synod, to be known as the Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad Eireann. There are many powerful arguments against the two-chamber system. In the end they all resolve themselves into a question of ultimate responsibility. In a simple illustration, if there be one thimble and one pea, it is easy enough to know where the pea is. But directly a second thimble is brought up beside the first, the difficulty of placing the pea becomes at once a problem. On the other hand, the arguments in favour of a second-chamber system also resolve themselves into a question of responsibility. For if there is only one chamber, without a second to check it and act together with it, there is, it is argued, a greater likelihood of its acting in an irresponsible manner, and of its running into hasty, ill-advised legislation. Its members, having acquired the habit of concerted action, may moreover strike a bargain behind the people’s back, even while preserving all the forms of opposition and discussion. With the two instruments of the Referendum and the Initiative in operation this danger is less likely, provided that the people be sufficiently alert. Yet it exists. In most countries, therefore, two chambers are the rule; and in our Constitution it is provided that there shall be two chambers, care being taken to fix responsibility ultimately in the first in case of doubt or delay.

Given two chambers, the difficulty is the creation of the Second Chamber. The First Chamber causes little difficulty, and is mainly a matter, not for the Constitution, but for an Electoral Law. The Second Chamber is a matter for the Constitution. Indeed, the question and creation of a Second Chamber, and the formation of the Executive Power, are the two foremost problems for the making of every Constitution. The first difficulty is to find for the Second Chamber a sufficient constituency, and the second difficulty is to find for it a proper function; and both these problems are essentially matters for the Constitution of a State. To answer both of them satisfactorily is the difficulty; and an examination of the constitutions of other countries reveals that in few cases have they been answered even to general satisfaction.

As for the constituency, it is clear that this cannot be the same as for the first chamber, otherwise the two Houses are simply repetitions. That is one consideration to be remembered. There is another. For from earliest times mankind has desired to call into its special councils those who have distinguished themselves in the conduct of its affairs. Folk may disagree with such persons, but they defer to them and hear them. What may be called the Senatorial Person is a recognised factor in the history of all nations. In the push and jostle of entry to the First House – where special and local interests are represented – such a Senatorial Person is most likely to be thrust aside, even if he or she be inclined to mingle in the fray. He is consequently lost to the councils of the nation. How shall a place be found for him or for her; and when the place is found, what shall be the measure of his or her counsel?

Other nations have answered these problems in divers ways. None has answered them as they are answered in the Constitution of Saorstat Eireann. For it is clear that if there is to be a Second Chamber, the right place for such a Senatorial Person is in that Second Chamber, since only thus is it possible to avoid making one chamber a mere copy of the other. In some countries, therefore, the Second Chamber is composed of persons on whom a title has been conferred – and on their children who succeed to that title. In other countries the Second Chamber is created by nomination – with at least the ostensible wish that only Senatorial Persons will be appointed. Both these methods have led to corruption. Both, moreover, have led to one fatal fault. For Second Chambers are mainly of value at times when the First Chamber is likely to rush to a mistake; and at such times no people are inclined to give careful heed to the counsel of persons whom they have not themselves chosen to give that counsel. They may be exactly such persons as they themselves would have chosen; but the fact that they did not choose them, the fact that they came there by the accident of birth, or the power of money, robs them of authority just when their authority is most required.

For this reason, the people’s own choice of Senators is necessary to their efficiency and authority. In countries formed out of a Confederation this difficulty is evaded by the creation of the Senate from the Federated States, while creating the First Chamber directly from the whole people. But where there are no Federated States the people’s direct bestowal of authority cannot be evaded if friction and loss of strength are to be avoided. Thus one returns to the original problem, which is, how the people shall choose a Senate which will not be a copy of the Chamber of Deputies, and how the Senatorial Person will find his way to the councils of the nation, bringing with him an unanswerable authority.

Our Constitution meets this by making the whole country one constituency for the election of the Senate. The Deputies are elected from localities where they are known, and the special interests of which they are qualified to represent. Over those interests the major interest of the whole nation stands guard. It would be possible for persons to enter the Chamber of Deputies who are not known outside their own localities, but who are qualified to represent those localities. But by making the entire country one constituency for the election of the Senate, no merely local interest will have power to secure election. And thus it will be possible to find a place for the Senatorial Person from, as the Constitution reads, “citizens who have done honour to the nation by reason of useful public service, or who, because of special qualifications or attainments, represent important aspects of the nation’s life.” These persons are to be elected by Proportional Representation; and in order that the business of election shall not prove too cumbersome it is appointed that one-fourth of the Senate shall retire every three years, and that before each election a list shall be prepared by both Houses consisting of at least three times as many persons as there are vacancies to be filled.

Such form the two Houses of the Oireachtas. Their relation to one another is carefully defined. The Seanad is created as an advisory and delaying body, and the ultimate responsibility is given to the Dail. But endowed, as it is, with so strong an authority, vested in it by the entire nation voting as a whole, it is unlikely that its criticisms and advice can be neglected. For such criticisms will be furnished in the course of debates that will be read by the whole people; and behind them there will always be the possibility of appeal to the whole nation by Referendum, which the Senate can compel by a three-fifths vote. The Senate and the people, therefore, are placed in a watchful alliance over the acts and proceedings of the Dail. Indeed, it is not unlikely that in the future the Senate and the people (by Referendum) will often be found in practical alliance against any attempt of the Dail to arrogate power to itself. The Senate has the power to make it so – a power of greater worth to it, and to the nation, than any constitutional right arbitrarily to obstruct legislation or to make legislation abortive.