Second Amendment of the Constitution of Ireland
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.
More important changes introduced by the amendment included restrictions on the right to habeas corpus, 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 1938 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.
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 his 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 law supreme courts and was intended to promote legal certainty. 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 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 punishment and has since be removed by the Twenty-first Amendment 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 Oireachtas (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 Dáil (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 Commission 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 Taoiseach (prime minister) must be nominated by the Taoiseach appointed after the general election held immediately before the election of the Senate. 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 camera.
- 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.
- "Second Amendment of the Constitution Act, 1941". Irish Statute Book. Attorney General of Ireland. 30 May 1941. Retrieved 28 November 2016.
- Oireachtas debates on the stages of the bill:
- Ó Cearúil, Micheál (2003). Bunreacht na hÉireann: Divergences and inconsistencies?. An Aimsir Óg: Páipéar Ócáideach (in English and Irish). 3. Coiscéim. ISSN 1649-3087.
- "Chapter XIV: Constitutional Challenges and the Second Amendment, 1939–41". The Origins of the Irish Constitution. Royal Irish Academy.
- Second Amendment of the Constitution Act, 1941
- Full text of the Constitution of Ireland
- Chapter XIV: Constitutional Challenges and the Second Amendment, 1939–41 from The Origins of the Irish Constitution, RIA