The Irish Family and Bunreacht na hEireann 1937 (The Constitution of Ireland 1937)

 

THE FAMILY

 

ARTICLE 41

1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

 

Text here of 2012 version of Bunreacht na hEireann.

This has been the legislative and philosophical bedrock upon which this State was founded, but it is worth noting before we examine our modern development , and the evolution of the legal impact that cultural changes have had on fathers’ IN Ireland what was meant at the time our Constitution was written, and what were the historical and cultural influences that prevailed at that time – obviously the Catholic church was a significant one – but it existed in parallel with a much deeper and more ancient tradition.

First, it is necessary to say this – the official language of this State is Gaelige – English is our “second” language – and in Constitutional conflicts over the interpretation of Bunreacht na hEireann 1937 (The Constitution of Ireland 1937) – it is the Irish “version” that takes precedence. Therefore in the context of addressing the legal issues surrounding law and in particular Family Law in Ireland and “fathers’ rights” and how the current legal anomalies arose – one needs to understand the cultural and social influences that inform and informed the development of this particular area of law.

Further down the “legal” road – one then needs to incorporate the influence of the EU and how on several occasions there have been some questions raised about the extent of EU Law with regard to the relationship between the Constitutional Law of individual member states and EU law.

The situation now is this – after a long gestation period EU law now takes precedence over ALL national law including Constitutional Law, – in ALL member states of the EU.

With regard to conflicts between the Irish and English versions of the text of Bunreacht na hEireann 1937 and instances where the Irish version took precedence.

This has happened quite a number of times. See below.

“Article 25.5.4o of the Constitution provides that, in the event of conflict with the English version, the Irish version of the Constitution will prevail:

 In case of conflict between the texts of any copy of this Constitution enrolled under this section, the text in the national language shall prevail.

I gcás gan na téacsanna d’aon chóip áirithe den Bhunreacht seo a bheidh curtha isteach ina hiris faoin alt seo a bheith de réir a chéile, is ag an téacs Gaeilge a bheidh an forlámhas.”

Page 1

“In his commentary on Article 25.5, J.M. Kelly, The Irish Constitution (1994), refers to a total of twenty-two Articles the Irish text of which the courts have looked at in order to elucidate the meaning of the corresponding English expressions.

The Articles in question are Articles 11, 15.4.2o, 15.10, 15.12, 15.13, 16.2.3o, 28.4, 29.3, 29.5, 30.3,

34.3.1o, 36.iii, 38.5, 40.1, 40.3.1o, 42.4, 43, 44.2.3o, 45, 45.2.i, 46.1 and 50.135”

Page 8

One of the most significant cases was this one:

“In the case of Article 40.3.1o, in McGee v Attorney General ([1974] IR 284) Justice Griffin pointed out that the Irish version,

‘Ráthaíonn an Stát gan cur isteach lena dhlithibh ar cheartaibh pearsanta aon tsaoránaigh’,

was a guarantee not to interfere with citizens’ personal rights, thus adding depth to the

guarantee to ‘respect’ them in the English version.37 Article 40.3.1o reads:

The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and

vindicate the personal rights of the citizen.

Ráthaíonn an Stát gan cur isteach lena dhlíthe ar chearta pearsanta aon saoránaigh, agus ráthaíonn fós na cearta sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.

A literal translation of the Irish text reads as follows:

The State guarantees not to interfere by its laws with the personal rights of any citizen, and it further guarantees to defend and assert those rights with its laws in so far as it is possible.”

Page 15

The reason? Because up until this case there was a ban on the use of contraceptives, Mrs. McGee took a case all the way to the Supreme Court on the basis that the State was interfering in what she and her husband did in the privacy of their own home and was therefore a violation of their Constitutional Rights. They won. In essence the family is sacrosanct. The rights of The Family are “imprescriptible”

“In the High Court, in Ryan v. Attorney General ([1965] IR 294), Justice Kenny defined ‘imprescriptible’ as

‘that which cannot be lost by the passage of time or abandoned by non-exercise’74.

This term is expressed as ‘dochloíte’ in Article 41.1.1o, where the Family is referred to as ‘a moral institution possessing inalienable and imprescriptible rights’, ‘foras morálta … ag a bhfuil cearta doshannta dochloíte’. ‘Dochloíte’ expresses ‘indefeasible’ in Article 1 and ‘conclusive’ in Articles 25.4.5o, 25.5.3o, and 63.

According to John Kelly, ‘dochloíte’ does not have Justice Kenny’s meaning above of ‘imprescriptible’, conveying ‘only something like “irrepressible”, “indomitable”’. Following Statutory Instrument No. 51 of 1956, the last of the ten orders dealing with Irish Legal Terms, the Irish legal term for ‘imprescriptible’ is ‘dochealaithe’, ‘imprescriptible rights’ being translated in that Statutory Instrument, and subsequently in Téarmaí Dlí, as ‘cearta dochealaithe’.

Following the fourth such order (and Téarmaí Dlí), ‘fianaise dochloíte’ and ‘toimhde dochloíte’ are translated respectively as ‘conclusive evidence’ and ‘conclusive presumption’.”

Page 20

Again, in the context in which The Constitution was written and the underlying cultural and social “norms” that existed at the time – the Family, and roles within that family were perceived in a certain way – a “traditional way”

Articles 41.2.1o and 41.2.2o read as follows:

“In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

Go sonrach, admhaíonn an Stát go dtugann an bhean don Stát, trína saol sa teaghlach, cúnamh nach bhféadfaí leas an phobail a ghnóthú dá éagmais.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Uime sin, féachfaidh an Stát lena chur in áirithe nach mbeidh ar mháithreacha clainne, de dheasca uireasa, dul le saothar agus faillí a thabhairt dá chionn sin ina ndualgais sa teaghlach.

The All-Party Oireachtas Committee on the Constitution has recommended eradicating this ‘dated provision which is much criticised’ and substituting in its place the following provision, which acknowledges the caring function of families without re-defining the family:

The State recognises that family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.

Based particularly on the terms in the Irish text of the current Articles 41.2.1o and 41.2.2o, it is proposed that the Irish text read:

Admhaíonn an Stát go dtugann saol an teaghlaigh don chomhdhaonnacht cúnamh nach bhféadfaí leas an phobail a ghnóthú dá éagmais. Féachfaidh an Stát le cúnamh a thabhairt do dhaoine a thugann aire do dhaoine eile sa teaghlach.

The repetition of the word ‘cúnamh’ above, however, may create a potential problem in that ‘cúnamh’ expresses ‘aid’ in Article 44.2.4o where ‘Legislation providing State aid for schools’ is expressed in the Irish text as ‘Reachtaíocht lena gcuirtear cúnamh Stáit ar fáil do scoileanna’.

Technically, then, the second sentence of the Irish version of the amended Article 41.2 above could be read as ‘The State shall endeavour to give aid to people caring for others within the home’. ‘Tacaíocht’ rather than ‘cúnamh’ would be used in a direct translation of the above, independent of the context of the original wording of Article 41.2.1o

 

– ‘A Long-term Support Framework for Female Carers of Older People and People with Disabilities’, the title of a 1996 report, is styled in Irish ‘Gréasán Tacaíochta Fadtéarmaí do Bhanchúramóirí Daoine Scothaosta agus Daoine faoi Mhíchumas’, for example.

We also find ‘tacaíocht’ in phrases expressing ‘support’ in Articles 12.10.4o and 13.2.2o. In Article 45.4.1o, on the other hand, ‘to contribute to the support of the infirm’ is expressed as ‘cabhair maireachtála a thabhairt don easlán’. ‘Cabhair mhaireachtála’ literally means ‘living/subsistence help/aid’ and this again would involve the sense of ‘cúnamh’ which could result in the Irish text of the proposed new section being the subject of litigation.

By way of conclusion here, the above is a good illustration of the need to take both texts of the Constitution into account when drafting amendments of the Constitution.

It is worthy of note that while at this time – circa 1996 – there were rumblings about how women were perceived – as “mothers” first and foremost – that there was no groundswell of opinion to have “the family” abandoned as the “core unit of Irish society” but rather to extend beyond the home the “role of mothers” the fact that the 1996 report without any irony, presumes that it is women/females who care for older people or people with disabilities is illustrative – having said that – women themselves – Irish women, endorsed this paradigm – the issue was that they were not being sufficiently recognised or acknowledged – not that they rejected this “role”

In many ways it is this attitude that on the one hand has driven feminists round the bend when trying to impose their doctrine in Ireland and on the other hand,  it is why when it comes to using an attack on the family in Ireland feminists have to tread very very carefully here.

An example – around 4 years ago I sat in on a lecture being given by a Canadian feminist about this very subject – how women were not being valued for the “care work” they did – how there should be a monetary value placed on this – in her stupidity and ignorance she prattled on and on about “the patriarchy” and “women’s oppression” to absolute silence.

One of the first “comments” when she shut up long enough to allow “comments” – “are you trying to say that after years of bringing us up, taking care of us, and doing their best for us – that we should be PAID for looking after our own parents?”

One of the “issues” that raises its head from time to time in Ireland, and under the influence of ignorant feminists is that our Constitution is “sexist” in fact one the prevailing whines from feminists in the wider world is that “laws are written by men for men”

Actually – not in Ireland – and not as a matter of historical fact, except in cases where the Constitution specifically refers to “mothers” illustrated above.

“The English text on the other hand is gender-proofed to read ‘without fear or favour, affection or ill-will towards any man or woman’.

On approximately forty occasions in the Constitution ‘duine’ expresses ‘person’; therefore, translated literally, ‘chun duine ar bith’ would be ‘towards any person’. In view of this, ‘without fear or favour, affection or ill-will towards any man’ might be gender-proofed to read ‘without fear or favour, affection or ill-will towards any man person’.

Other possible cases where the English text could be differently genderproofed, based on the Irish text, are outlined in Appendix 3, which Appendix looks at cases where there would appear to be an option in how the text is gender-proofed and at some wider textual consequences of gender-proofing.

We shall see in the study which follows that in a few cases gender-proofing the Irish text may

necessitate amending clauses more severely than simply altering ‘sé’ to ‘sé nó sí’ or ‘é’ to ‘é nó í’’.

As can be seen from the gender-proofed English version of Article 12.6.2o, it has occasionally been necessary to emend whole clauses, the gender-proofed version of that subsection reading as follows

If A member of either House of the Oireachtas be who is elected President, he shall be deemed to have vacated his or her seat in that House.

The Irish version, however, only needs the following straightforward additions:

Má thoghtar comhalta de cheachtar de Thithe an Oireachtais chun bheith ina Uachtarán nó ina hUachtarán, ní foláir a mheas go bhfuil scartha aige nó aici le comhaltas an Tí sin 

The opposite situation arises in the following three instances, which would need more emendation than most of the Articles. While the English version of Article 31.2.ii 

Every person able and willing to act as a member of the Council of State who shall have held the office of President or the office of Taoiseach, or the office of Chief Justice, or the office of President of the Executive Council of Saorstát Éireann’, needs no gender-proofing, the words in bold below indicate the insertions which would have to be made to the Irish text in particular to include women who held the various offices listed above 

Gach duine ar cumas dó nó di agus ar fonn leis nó léi gníomhú ina chomhalta nó ina comhalta den Chomhairle Stáit, agus a bhí tráth ina Uachtarán nó ina hUachtarán nó ina Thaoiseach nó ina Taoiseach nó ina Phríomh-Bhreitheamh nó ina Príomh-Bhreitheamh, nó ina Uachtarán nó ina hUachtarán ar Ard-Chomhairle Shaorstát Éireann.

The repetition in the above text could be avoided by emending the text as follows, this being a more literal translation of the English. 

Gach duine ar cumas dó nó di agus ar fonn leis nó léi gníomhú ina mar chomhalta den Chomhairle Stáit, agus a bhí tráth ina i seilbh oifige mar Uachtarán nó ina mar Thaoiseach nó ina mar Phríomh-Bhreitheamh, nó ina mar Uachtarán ar Ard-Chomhairle Shaorstát Éireann.

 

Put simply – our Primary Legislative Instrument is already, with few exceptions “genderproofed” because of the references to “person” in effect our Constitution is “gender blind” but this isn’t actually good enough for feminists – is it?

Because rather than professing an ideology that is built on a foundation of true “equality” or my own personal preference “equity” feminists want a SPECIAL exception to be made FOR women – a SPECIAL case – hence the rather obvious inequitable insistence on phraseology that reads – men AND WOMEN – and yes – not only just did I capitalise those words deliberately, but also because this is what permeates feminist thinking – men in small letters and “AND WOMEN”

A perfect example of this in The Gender and WOMEN’S Studies Centre based in Trinity College Dublin – now forgive me – but are there three “genders”? Gender (s) and WOMEN?

So, WOMEN get a distinct, biologically based “category” but men are consigned to a “gender” and here I was thinking that “gender is a social construct” or so I’ve been reliably informed by innumerable feminists over the last 20 years or so – ladies make up your bloody minds!

“The Centre for Women’s Studies was established in Trinity College in July, 1988. In 1999, in order to reflect the increasing diversity of its interests in areas such as sexualities and masculinities, the Centre expanded its title and remit to become the Centre for Gender and Women’s Studies. In 2005, the Centre became a full member of the School of Histories and Humanities. According to a 2006 evaluation, ‘Trinity is now the academically strongest Gender and Women’s Studies Centre in Ireland’

Since its inception, the Centre has developed and sustained an M.Phil programme and a doctoral programme of the highest quality, has undertaken significant research activities and engaged in both innovative and traditional community outreach. Members of the Centre are recognised both nationally and throughout the EU for their expertise on gender issues.

Dr. Catherine Lawless

Director/Academic Co-ordinator

 

To put it bluntly, this is where most of the feminist inspired garbage emanates from, and gets disseminated to government departments, that then informs public policy and has been instrumental in beavering away, since 1988, and with a more intense effort in complicity with the EU since 1999, to try and reframe Irish cultural and social attitudes – none more so than in how Family is viewed IN Ireland.

1999 being when the money really started rolling in, about 15 years ago.

“Trinity is now the academically strongest Gender and Women’s Studies Centre in Ireland”

Professor Diana Leonard, Institute of Education, Unversity of London. 2006 External Evaluation.”

And who is or rather was Professor Diana Leonard?

“Few people had considered marriage a tool of patriarchal oppression until Diana Leonard told them it was. From her post at the University of London’s Institute of Education, the radical feminist remained at the forefront of the women’s liberation movement throughout the 1970s.”

(If you click on any link, click on this one, Diana Leonard is almost a cariacature of a radical feminist)

 

Though to be fair – it DID take Trinity College’s Gender and WOMEN’S Studies Centre till 2006 to meet with the “approval” of this doyenne of feminism – what with there being an almost unconscious resistance within the not just the wider Irish public, but at government level to the blandishments of definitely radical feminism but even of so called “equity feminism”

The reason – FAMILY – the Irish allegiance to the concept of FAMILY – and of marriage being the bedrock upon which to build and consolidate one’s wider FAMILY.

All the shit that feminism peddles in order to embed its toxic doctrine into not just the consciousness of people, but into the political consciousness of government and public policy makers needs MONEY, lots of MONEY in order to implement its “programmes’” and as you can see – while 2006 must have been a red letter year, for The Gender and WOMEN’S Study Centre in Trinity College – three years later – the shit hit the fan – big time – up until then – all the “programmes” devised by this place  and a couple of others – then peddled to government were to all intents and purposes funded by the EU – imposed on us by the EU – unfortunately we now owe in the region of 130 BILLION Euros – it may be more – TO the EU.

There are three strands by which feminism has attempted to, for want of a better phrase, infiltrate the zeitgeist IN Ireland – through political pressure – which until we joined the EEC was getting them absolutely nowhere –  even afterwards it got absolutely nowhere – until the mid 1990’s – through media – TV and newspapers mostly – again – “women’s libbers” were are, and to some extent still perceived as idiots, or as screechy, ranty whiney harridans – and through academia – by influencing public policy – they had better luck that way – slowly – but overall – none of those methods has truly managed to have feminism accepted as the one, the only default paradigm through which Irish people will view cultural and social issues.

It is in the only the last few years – that feminists have started to pop up peddling their wares on newspapers and via the internet – with the internet having a slow start “catching on here” – what you are seeing with the likes of Una Mullally and Laura McInerney with their peddling of “rape culture” and other unutterable crap, etc are Irish feminist idiots joining the fevered panic of other western feminists as they try to raise the hysteria level – these idiots are jumping in at the last ditch attempt of western feminists to stop themselves being cast aside, exposed for the rancid toxic wretches they are.

Twats like Mullally and McEnerney have deluded themselves into believing that “women’s rights” is still a valid issue IN Ireland – and that the crap they’ve read and heard there (in uni) and that is still being peddled there, by the out of touch, hard core feminist lecturers is “the truth” – academic feminists in Ireland are about 10 – 15 years behind the times of other western feminists – they just don’t know it yet.

But – that is changing and will change.

Are Irish people a mass of conflicts and contradictions – is our culture a mass of conflicts and contradictions? Absolutely – we have a historical and deeply embedded allegiance to the concept of Family – but at the same time our society and culture changed so rapidly and with such force that Family along with it became something that rather being the bedrock, the stabilising core unit of our society – all of a sudden changed – and we were swept along with those changes – are there issues – deep concerns about the nature of some families? Yes there are. Have we had to open our eyes to some disturbing truths? Yes we have.

But – having said all that – Family – and the concept of Family still lies at not just the core of our society and culture – but at the core of ourselves – as a people.

We need to embrace that – anchor ourselves in that – focus our attention on protecting that.

 

All extracts from:

Bunreacht na hEireann: A Study of the Irish Text; Micheal O Cearuil – with original contributions by Professor Mairtin O Murchu. Download here.

Ó Government of Ireland 1999

 

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1 Comment (+add yours?)

  1. anjaeriud
    May 06, 2014 @ 19:08:48

    As a bit of an aside the website where I sourced the article about Diana Leonard is called TES – Connect – it is a digital resource for teachers and students – globally. This is what they say about themselves.

    “The TES story is an extraordinary one: its digital community is one of the fastest growing of any profession globally, and it boasts a 100-year heritage at the centre of teaching and the education community.”

    http://www.tes.co.uk/TaxonomySearchResults.aspx?parametrics=49440,51846,51877,51882&event=23&mode=browse

    About Us.

    Today, with more than 3.4 million registered online users in over 276 countries and territories , TES is the world’s largest online network of teachers. More than 4.7 million resources are downloaded from the TES websites a week, with ten TES resources downloaded a second. Home to more than 780,000 individually crafted teaching resources developed by teachers for teachers, this unparalleled collection helps to guide, inform and inspire educators around the world.

    The wealth of free resources on TES allows education professionals to share and benefit from each other’s resources and lesson plans in order to drive excellence in the education sector. As a result it is only natural that teachers and other education professionals come to TES first when looking for a new job and therefore we are best placed to provide you with the strongest field of candidates to fill your vacancies.

    Here is some of what they do.

    More services from TSL

    • TES Scotland (TESS) – a trusted voice in education for over 40 years and is the market leading education publication in Scotland.
    • TES Prime – the market-leading executive search and selection division of the TES.
    • TES New Teacher – our dedicated site for trainee and newly qualified teachers.
    • HireWire – our free online service helping schools to manage their recruitment processes.
    • TES Events – running tailored events to meet the needs of educators from early years, primary and secondary education
    • THE – Times Higher Education magazine – designed specifically for professionals working in higher education and research.
    • THE World University Rankings – THE publishes the annual World University Rankings, which are based on the largest global survey of academic opinion ever taken.
    • TES Buywire – TES Buywire is now part of TES Foundation, TSL
    Education’s unique suite of online modules that includes the hugely popular schools premises and contracts management system, PropertyPrefect. The suite is specifically designed for schools and saves time, money and hassle in a myriad of operational areas. http://www.tesfoundation.com.”

    And this is some of the crap they peddle, under “teacher resources” And the heading;

    Secondary / Sociology / Post 16 Families & households / Power relationships within the family.

    The first one is listed as “most popular”

    The Dark side of family life: Domestic violence
    SY1-Family-patriarchal-6148988/
    SY1-Inequality-in-conjugal-relationships-6150085/
    Feminist-Theory-and-The-Family-6068196/

    Feminists have always infiltrated education – nowhere more so than in the US and the UK – and they are well-funded and deeply embedded in this area.

    Reply

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