OPINION:THIS YEAR marks the 75th anniversary of our Constitution and events are being held to commemorate the occasion. However, many people do not realise that this year is also the 90th anniversary of our first constitution – the constitution of the Irish Free State.
With the signing of the Anglo-Irish Treaty in 1921, it was agreed that the Irish would draft their own constitution to provide for the establishment of the new Irish state.
On January 24th, 1922, the first meeting of the constitution committee was held in the Shelbourne Hotel in Dublin. Arthur Griffith and Michael Collins invited seven men to the meeting: Darrell Figgis, Hugh Kennedy, James Douglas, Clement J France, James McNeill, John O’Byrne and James Murnaghan. Alfred O’Rahilly and Kevin O’Shiel were later additions to the committee.
Three civil servants were also appointed as secretaries: EM Stephens, RJP Mortished and PA O’Toole. In total there were five lawyers and four laypeople, including a writer, a businessman, a former British civil servant and a professor, on the committee which drafted the Irish Free State constitution, laying the foundations for the structure of the modern Irish state.
At its first meeting, Collins outlined that he wanted “a true democratic constitution” and told the members not to concentrate on the legalities of the past but to look to the practicalities of the future. He specified that he wanted a short, simple constitution which would be easy to alter as the final stages of freedom were achieved.
Apart from these aspirations, they were given relatively wide parameters within which to draft the document.
Kennedy later wrote that they were happily free from any obligation to accept existing British or dominion models and could, on the one hand, respond to the guidance of Irish history and existing Irish conditions and, on the other hand, borrow from the experience of the constituted democracies of the world.
Essentially, this is what they did – they drew on ideas from Irish history, such as the philosophy of the ancient Gaelic state which existed before the arrival of the British, and they also looked at democracies around the world for inspiration.
Inevitably, the constitutional experience of the members was limited.
The system with which they were most familiar was that of the British, but they were all in agreement that much of this would be unsuitable as a model for Ireland. Instead, they were drawn to the postwar European and some older constitutions such as that of Switzerland.
The committee worked hard under extremely tight time conditions and by March 7th, after 27 meetings, three alternative drafts were submitted to the provisional government. Overall, they were an accurate representation of Collins’s original aspirations – all were short, uncomplicated, general rather than too detailed and avoided references to British authority.
All of the drafts were insistent on sovereignty of the people, important as most Irish people were opposed to the English idea of sovereignty of parliament or crown.
To try and bring some stability to the new state, it was imperative that the people felt that they were not only included but had a powerful voice.
The drafts also shared a commitment to provide a more democratic form of government and a break with the British system.
“Draft B”, the work of Kennedy, Douglas and France, was eventually chosen and brought to London to be presented to the British authorities. This resulted in the addition of certain British symbolism and the repetition of certain provisions in the constitution which had already been included in the treaty.
These included such things as the oath of faithfulness to the king, the vesting of executive authority in the king, the inclusion of certain duties for the governor general (the king’s representative), as well as the appeal to the judicial committee of the privy council.
While Collins and Griffith argued strenuously against these additions, it was made clear that war was the alternative to agreement. So, while it was now obvious that the document would not be accepted by the anti-treaty side due to the British additions, the provisional government was left with no choice but to put this document before the Irish constituent assembly.
Because of the Civil War and the deaths of both Griffith and Collins, the constituent assembly did not begin its consideration of the draft constitution until September 18th. However, the assembly completed its work after only 19 days and the constitution was approved on October 25th.
While it may not be known for it, one of the principal aims of the 1922 constitution was to ensure that it was the people, rather than any organ of government, who held the ultimate power in the state. For this and many other reasons, the 1922 document was an attempt to create a sovereign, democratic constitution for the people.
Unfortunately, the Civil War legacy meant that many of its novel features did not succeed, so the document has come to be the subject of much misinformation and many myths and half-truths. This period in history has sometimes been over-rigidly interpreted and the Irish Free State constitution has not been recognised for what it has contributed to our legal and political systems.
Moreover, the fact that most of this constitution lives on in our current Constitution has not generally been acknowledged. In this 90th anniversary of the drafting of the first constitution of independent Ireland, perhaps now is the time to appreciate the immensity and foresight of the 1922 project.
Dr Laura Cahillane is a post-doctoral fellow in the department of law at University College Cork.