The coyness of David Andrews last Sunday over Articles 2 and 3 fairly represents the negotiating position of the Irish State (Government and opposition). It is a ridiculous position and should be abandoned. We have already sold the pass comprehensively on Articles 2 and 3 (or at least Article 3) in the Anglo-Irish Agreement of 1985 and in the Downing Street Declaration. There is now no way any of the parties represented in the Dail (bar Sinn Fein's one TD) would demur. In both the Anglo-Irish Agreement and the Downing Street Declaration we (the southern State) categorically acknowledged that the constitutional position of Northern Ireland, as part of the United Kingdom, can be changed only with the consent of a majority of the people of Northern Ireland.
Indeed in the Sunningdale Agreement as far back as 24 years ago (1973), the pass was sold when it was agreed by the Irish government that the constitutional position of Northern Ireland would be changed only with the consent of the majority. The Irish government declined in the Sunningdale Agreement to acknowledge what the constitutional position was but, subsequently, the then Taoiseach, Liam Cosgrave, spelt it out clearly in the Dail. And, incidentally, this was assented to by the late George Colley, on behalf of Fianna Fail.
So what, conceivably, can be the basis for procrastinating over altering Articles 2 and 3 of the Constitution to acknowledge that acceptance?
The Supreme Court has interpreted Articles 2 and 3 in a way that we can hardly have anticipated and, politically, can hardly accept.
In the light of the controversy over these Articles, it may be worthwhile simply reciting them.
Article 2 states: "The national territory consists of the whole of the island of Ireland and the territorial seas."
Article 3 states: "Pending the reintegration of the national territory and without prejudice to the right for the Parliament and government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by the Parliament shall have the like area and extent of application as the laws of Saorstat Eireann and the like extra-territorial effect."
ON the face of these two Articles, the claim of sovereignty over Northern Ireland is hardly clear-cut. Article 2 simply defines the area of the national territory. What relevance does this have to the extent of the jurisdiction of the State? Article 3 makes a "without prejudice" claim to jurisdiction by the Southern State over Northern Ireland, but what does this amount to? In legal terms "without prejudice" claims are simply claims held in reserve, not now abandoned but could be. Certainly, they hardly amount to a confident assertion of a claim as of right.
Surely, if the intention had been to claim jurisdiction on the part of the Southern State over Northern Ireland this would have been asserted directly in the Constitution rather than obliquely? It is extraordinary therefore that the Supreme Court in the case of McGimpsey v Ireland (1990) should have elevated this oblique claim to the status of a "constitutional imperative". The then chief justice, Mr Justice Finlay said:
"With Articles 2 and 3 of the Constitution should be read the Preamble [of the Constitution] and I am satisfied that the true interpretation of these constitutional provisions is as follows:
"1. The reintegration of the national territory is a constitutional imperative.
"2. Article 2 of the Constitution consists of a declaration of the extent of the national territory as a claim of legal right.
"3. Article 3 of the Constitution prohibits, pending the reintegration of the national territory, the enactment of laws with any greater area of extent of application or extra-territorial effect than the laws of Saorstat Eireann and this prohibits then enactment of laws applicable in the counties of Northern Ireland.
"4. The restriction imposed by Article 3 pending the reintegration of the national territory in no way derogates from the claim as a legal right to the entire national territory".
On the issue of the "without prejudice" claim to jurisdiction, the chief justice said it was "an express denial and disclaimer . . . of acquiescence to any claim that . . . the frontier at present existing between the State is or can be accepted as conclusive of the matter".
This ran entirely counter to an earlier Supreme Court decision which stated that the claim "exists not in the legal but in the political order" (In re Criminal Law (Jurisdiction) Bill, 1977).
So what can the objection be to changing Articles 2 and 3 of the Constitution to accord with both the common-sense understanding of what they mean and, more particularly, the undertakings we have given in one international treaty (the Anglo-Irish Agreement 1985), and another solemn undertaking (the Downing Street Declaration 1993)?
Some Northern nationalists are alarmed that any change in Articles 2 and 3 would disentitle them to Irish citizenship and would sanction the creation of an arbitrary state that has discriminated against and disenfranchised them for much of its existence.
These objections could easily be accommodated in any changes that would occur. For instance, Article 2 might remain as it is and Article 3 might be changed to read: "This State claims no jurisdiction over the territory of the six counties of Northern Ireland but aspires to the reunification of the national territory within the State on the basis of the consent of a majority of the people of Northern Ireland, and, pending such reunification, the same rights of citizenship and other rights shall apply to the people of Northern Ireland as has hitherto applied".
An objection to changing Articles 2 and 3 now is that these are cards to "play" in the course of negotiations with the British government and with unionists, especially in relation to changes in the Government of Ireland Act, 1921. But since we have already clearly signalled our willingness to change these Articles they are not cards much worth having.
There is now a chance of reaching an agreed settlement of the Northern Ireland problem. Negotiations towards that settlement are complicated by the existence of Article 3 of the Constitution. Unionists, not unreasonably, are suspicious of the repeated nationalist protestations of acceptance of the principle of "consent", given the refusal or at least failure to amend Article 3 of the Constitution.
As "a confidence-building measure" the amendment of Article 3 would have an important psychological and political effect. At the very least it would clear the way politically for "confidence-building measures" to reassure nationalists, including demilitarisation and the conditional release of prisoners.
And there would be the added bonus of getting rid of a piece of embarrassing codology from the nationalist repertoire. It might encourage the unionists to dispense with some of theirs.