Where’s The Irish At The Irish Constitutional Convention?

As I have noted many times before there is a certain desire in the body politic (and its media acolytes) to reduce even further the legal status of the Irish-speaking citizens and communities of Ireland and that of the Irish language in general. We have seen it demonstrated recently in the drive by the Fine Gael-Labour coalition to rip apart the Official Languages Act of 2003, shredding it of any meaning or purpose, along with the abolition of a separate Language Commissioner to uphold and protect the rights of Irish-speakers under the law when dealing with the institutions of the state. This was followed by the introduction of the controversial Gaeltacht Bill of 2012 which was so objectionable to most observers that it led to an Opposition walkout from Dáil Éireann in protest at its passing by the parliamentary-dictatorship of Fine Gael and Labour TDs.

Now we have the Constitutional Convention, an all-party body made up of various political representatives and members of the general public, which is studying a number of proposed changes to Bunreacht na hÉireann or the Constitution of Ireland. The convention has been mired in controversy since its inception with concerns expressed about the power of the main political parties to dominate the proceedings, the identities of the “randomly selected” citizens and the possibility of pressure from lobbyists.

Amongst the arguments for change put forward for possible consideration by the Convention is this one from Seán Ó Conaill, Law and Irish Lecturer at UCC, posted on the webpage of the academic group-blog Human Rights In Ireland.

“The Irish language enjoys a central role in, what is essentially, a bilingual constitutional order in Ireland. Irish has been afforded a special status in Article 8 as the “national language” and the “first official language” but there exists a huge disconnect between the status enjoyed by the language and the linguistic reality. In this submission to the Shadow Constitutional Convention I argue the provisions which concern the Irish language ought to be understood in their wider context, examined and reformed.

Current Constitutional Status

In terms of its place in the history of the Irish legal system the Irish language has been very much marginalised since the arrival of the Common Law in Ireland and indeed its very use among the Anglo-Irish was prohibited by the Statute of Kilkenny. The use of any language aside from English in the legal system itself was prohibited by statute in the form of Administration of Justice (Language) Act, 1737. Very little consideration was given to the language in legal discourse prior to independence with perhaps the most interesting example of a case with language rights implications being Padraig Pearse’s only case as a Barrister, McBride .v. McGovern [1906] 2IR 181. Pearse unsuccessfully attempted to overturn a number of convictions under the Summary Jurisdiction (Ireland) Act, 1851 for Irish speakers who had their names and addresses written on their carts in Irish and in the Gaelic font, however the appeal was rejected on the grounds that “An Englishman… if knocked down by an Irish cart in any part of the country, whether Connemara or elsewhere, is entitled to have the name and address of the offender in characters that he can read, if Irish letters are used he may be powerless to identify”.

History, however, would not forget these convictions and when De Valera set about dismantling the Office of Governor General of the Free State Constitution he appointed Dónal Ua Buachalla, one of the Irish speakers convicted under Summary Jurisdiction (Ireland) Act, 1851, to be the Governor General of the Irish Free State. Ua Buachalla thus became a successor to Mr Tim Healy SC, the original Prosecutor in the cart registration cases and the first Governor General of the Free State.

The real story of the Irish language and the legal system, however, only commenced in 1922 with the bilingual Constitution of the Irish Free State and Article 4 in particular which served as the inspiration for our present Article 8. Article 4 granted equal recognition to the Irish and English languages and provided Irish with a platform to engage with the legal system and officialdom. The value of this status was borne out shortly thereafter in the seminal case of People (Attorney General) v. Joyce and Walsh [1929] IR 526 which established the key “double right” principle. The principle holds that any party to a legal action may use the Irish language on two grounds; firstly, on a basis of natural law for fear that they do not fully understand English or secondly, and more crucially, by virtue of the constitutional status awarded to the language by the Constitution which means that once a citizen asserts his or her desire to use the Irish language in proceedings his or her competence in the English language is of no relevance. 

When, in 1937, our current bilingual Constitution was enacted the Irish language was given increased prominence as “the national language” and “the first official language” while English was “recognised” as a second official language. Whilst the English text of Article 8.2 uses the word “recognised” the Irish text uses the expression “glactar leis” which would be more accurately translated as “accepted as” which would suggest more grudging recognition. The second element of Article 8.2 worthy of inspection is the use of the term “Sacs-Bhéarla” to represent the word “English”. In any normal use in modern times the term “Béarla” is used in Irish when referring to the English language. In using such terminology a cultural and political point is being made that the English language is to be perceived in second place, to be seen as the language of the Saxon rather than the language of the Gael.

The Courts in Ireland have struggled to precisely define what exact legal affect this perceived higher status afforded to Irish or indeed what is to be understood by English’s demotion to a second official language and as a result the dicta from Joyce and Walsh remains important. Although the 1937 Constitution, like the 1922 version, is a bilingual text, a key provision, Article 25.5.4, serves to make the Irish text particularly important. Article 25.5.4 holds that in the event of conflict the Irish text shall take precedence. However, no less a scholar than the great JM Kelly dismissed this as an “irrational irritant” and a situation “pregnant with time wasting for the Courts” in the Irish Student Law Review in Hillary Term in 1966. Prof Kelly was speaking at a time when a long held myth regarding the Irish text was widely accepted.

The myth held that the Irish text of the Constitution was a “mere translation” of the English text prepared only once the English text was completed (so widespread was this myth that it was repeated by McCarthy J in his Supreme Court verdict in the X-Case). Such a myth has since been dismissed as wholly inaccurate by some excellent academic research such as Michéal Ó Cearúil’s comprehensive work on the Irish text and even those with a moderate grasp of the Irish language can spot some key differences between the two language versions such as the example above (see also example at the end of this submission).

The Irish text of the Constitution very often has been used by the Courts in order to enunciate and interpret the English language provisions in many of the leading constitutional cases including Sinnott, Roche v Roche and Doherty v. Ireland (a comprehensive historical analysis of such instances is to be found, somewhat ironically, in the latest edition of JM Kelly’s text on the Irish Constitution).

I have written previously about the benefits of bilingual drafting and I would argue that the Irish text of the Constitution is often more satisfactory and it would not be my submission necessarily that the supremacy of the Irish text removed in the case of conflict although it is certain that in the context of amendments a problem exists.

The Problems

While it is fully accepted that it is vital that the Irish language gets recognition within the Constitution some of the current provisions and policies arising as a result can cause more problem than they solve for those seeking to use the Irish language in their dealings with the State and in their everyday lives.

The latest census puts the number of people who claim they can speak Irish at 1.77 million people although in reality the actual number of functional speakers of the language would be more accurately estimated at about 10% of that figure which represents approximately the number of people who report using the Irish language on a daily or weekly basis outside the education system. If the figure for functional speakers is accepted it shows a massive disconnect between the theoretical legal status of the language and the real life linguistic situation faced by the Irish language.

With such a disconnect between constitutional theory and linguistic reality Irish language rights, those seeking to assert them are easily dismissed. Geoghegan J for example in the Ó Beoláin decision [2001] 2 IR 279, interprets Article 8 “as meaning that for all legal and official purposes the Irish language and the English language are in an equal position” however he dismisses the argument that the Constitution gives the Irish language any special position citing the absence of any legal implications for the special position previously enjoyed by the Roman Catholic Church (previously Article 44.1.2) prior to the 5^th Amendment. Geoghegan J alludes to the Constitution as embodying the aspirations and emotional feelings of the people who have enacted it, where not everything is intended to have legal implication.

The problems do not end with perception unfortunately. Clear constitutional obligations such as the requirement under 25.4.5 to make all legislation passed available in each language were ignored for years due to a lack of resources and it was only resumed after the Supreme Court judgment in the Ó Beoláin case [2001] 2IR 279.

The fact that the Irish text remains the authoritative text in the case of conflict between the two language versions remains a positive influence however a particular problem arises in the case of amendments to the Constitution. Bills to amend the Constitution are typically drafted in the English language, with a wording agreed before they are subsequently translated into Irish. Irish and English, like any two languages, cannot always directly translate easily and certain terminology used often causes particular difficulties in translation. As a result of the system in operation what is often a difficult translation from the rigid English text into Irish becomes the authoritative text of the Constitution. The benefits of co-drafting in both official languages of a State have long been recognised in Wales and Canada for example where the experience has shown that not only does co-drafting result in much better versions in the minority language but that there is a noticeable improvement in the quality of the English language draft too while also achieving cost saving overall.

The Irish language is without doubt a minority language in Ireland but our Constitution carries on the pretence that somehow the Irish language is the dominant language in Ireland. In putting the language on an illusory pedestal we instantly devalue the language. Furthermore, the very fact that we proceed with the charade of claiming Irish as the first official language of the State has prevented Ireland from ratifying the European Charter on Regional and Minority Languages and fully engaging in the development of minority language policy.

Possible Amendment

The Constitution Review Group suggested in 1996 that the Irish language’s constitutional status be amended in a manner which would more closely reflect the real linguistic situation in Ireland without threatening any of the rights current enjoyed by Irish speakers. Their recommendations, if anything, have become more valid by developments such as the enacting of the Official Languages Act, 2003 and the Irish language’s status, since 2007, as a full official EU language. The CRG recommend that Irish and English be equally recognised with an additional provision which they suggested would read “Because the Irish language is a unique expression of Irish tradition and culture, the State shall take special care to nurture the language and to increase its use.”

While the exact wording could perhaps be revisited, and might even benefit from denominating the Irish language as an official minority language, the core message remains valid as a method of recognising the special position of the Irish language in a modern Ireland as a living language worthy of status and protection. If such an amendment were to proceed it would present an ideal opportunity to refocus and re-evaluate what exactly the Irish language means to Ireland legally, linguistically and culturally. It cannot be creditably claimed that the current constitutional status does anything to advance the cause of the Irish language or increase the number of speakers of the language.

At the very least a review of the Irish language provisions in the Constitution presents an opportunity to re-examine some English language provisions which do not reflect the Irish text and vice versa. Although almost every article of the Constitution has some divergence greater clarity could be achieved in examining certain provisions which seem to diverge significantly. Prominent examples include: Article 12.4.1 and the age a citizen must reach in order to run for President where the English text, presumably mistakenly, suggests the correct age is 34 (eg thirty fifth year) rather than 35 (those who have passed their thirty fifth year) in the Irish text which was most likely the intent of the original drafters.

Article 29.3 which has the additional Irish phrase “ina dtreoir” which would translate to “as a guide” when referring to how Ireland accepts generally the principles of international law.

The much criticised Article 41.2 in which the English text speaks of a woman’s role within the home where as the Irish text speaks, perhaps somewhat more satisfactorily, of recognition of a woman’s role within the family rather than the home.”

It is my belief that the proposed alterations of Article 8, however well-intentioned, are fundamentally flawed and would to lead to an even further erosion of the rights of Irish-speaking citizens. As I wrote in February of 2012 in a look at our supposedly “officially bilingual” state, the changes suggested by the 1996 Constitution Review Group would simply reduce the constitutional status of the Irish language not enhance it. How? The Constitution of Ireland currently reads:

“Article 8:

8.1 The Irish language as the national language is the first official language.

8.2 The English language is recognised as a second official language.

8.3 Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.”

The Review Group proposed this wording:

“Article 8:

8.1 The Irish language and the English language are the two official languages.

8.2 Because the Irish language is a unique expression of Irish tradition and culture, the State shall take special care to nurture the language and to increase its use.

8.3 Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.”

The argument for the suggested change by the all-party gathering was the supposed recognition that:

“…there is an implicit right to conduct official business in either official language and that the implementation of this right is a matter for legislation and/or administrative measures rather than constitutional provision.”

In other words there would be no constitutional right to speak in the Irish language in Ireland or expect services from the state in that language. Any such right would only be derived through specific legislation passed by Dáil Éireann (as stated in 8.3). Furthermore any government in power would be free to pass laws and regulations specifying the use of the English language only in any given circumstances (again the implication of 8.3).

And who believes they would do otherwise?

My own solution is the following constitutional amendment for Article 8.3:

“Article 8:

8.1 The Irish language as the national language is the first official language.

8.2 The English language is recognised as a second official language.

8.3 Exclusive use shall be made of the national language for all official purposes by the State. However, excluding designated Irish-speaking regions, the State may legislate for the simultaneous and limited use of both official languages, though the primacy of the national language must be recognised and demonstrated at all times. No citizen may be prevented or otherwise inhibited in learning, speaking or conducting their private or public business through the national language.”

Article 8.3 in its present form ensures that the rights of Irish-speakers will always come second place to those of their English-speaking peers. It allows English to be the “default language setting” of the state, confusing the primary status of the Irish language granted in Article 8.1 and creating a constitutional contradiction. However the amendment as proposed above reverses that confused situation and makes Irish the default setting of the state’s official language. It evens the playing field by purposely requiring the state to legislate bilingually in all matters. It protects the rights of Irish-speakers and English-speakers under the law and ensures equal treatment for both while giving substance to the state’s national identity through the use of its national language.

Anything that lessens the status or rights of Irish-speaking citizens simply reinforces institutional discrimination within the Irish state. It makes Irish-speakers truly second-class citizens with second-class rights.

And no one could tolerate such a situation.