I HAVE a feeling that in years to come the single most important element of the constitutional amendment we are being asked to vote for in November will be the first bit.
I honestly believe that it is the thing that might do most to change the way we see children and childhood for ever.
It’s the bit that says: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”
There are those I know, people I respect highly, who believe that the insertion of the phrase “as far as practicable” is a fundamental watering down of that section. I hate phrases like that myself, but I think they’re inevitable in the context of constitutional law.
In fact, the word practicable (which isn’t one you use in everyday conversation!) appears five times in the constitution.
For example, where the Constitution sets out the fundamental rights of every citizen — the right of free speech and the right to assemble, for instance — it actually says ‘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’.
And many of the individual rights set out in the Constitution are individually qualified by other considerations. The right to free speech, as set out in the Constitution, mustn’t undermine public order or morality. The right to assemble can’t involve a breach of the peace. Even the right to own property, which has its own article, is supposed to be capable of being reconciled “with the exigencies of the common good”.
So, almost without exception, every right set out in the Constitution is qualified in one way or another. But as long as they are there, they are, nevertheless, rights. Within limits that most of us regard as reasonable, we have the right to own property, to free speech, to our liberty, and to assemble together and join organisations.
The only way these rights can be taken away is by a further change to the Constitution. And that can happen, of course. We used to have the right to be Irish, to be full citizens of Ireland, because we were born here. That right was taken away from my grandchildren, and yours, by a referendum in 2004. It’s not enough for them now that they were born in Ireland, they have to prove some other things as well.
And rights can be limited by how the courts interpret them. That doesn’t happen very often, but it did, for instance, in the Synnott judgement, when the Supreme Court decided to limit the right to education (that we all thought was the only right children had) by reference to age. But actually, when you look again at the Constitution, the State has never accepted there is a right to an education. It says instead that in the interests of the common good, everyone should have a certain minimum education. What all that means is that there is something fundamental about having rights set out in the Constitution.
If those rights are described as natural, that means you have them because you’re you. So natural rights for children are rights that apply to every child, and to childhood as a whole. And imprescriptible means, quite simply, that they cannot be taken away.
But what are the rights of childhood? The courts in the past have tended to identify them as the right to be reared in a family, to be educated, to be protected from exploitation. The courts tend not to bother themselves with flowery or emotive issues, like the right to be loved, for instance, or even the right to grow to your full potential.
But if you recognise that children and childhood have rights, those are the things that will, sooner or later, come into play. And that’s especially the case when you add the natural and imprescriptible rights to the other things that are contained in the 31st Amendment — the right to have your best interests regarded as a paramount consideration, and the right to be heard.
In a sense, these provisions have meant that the amendment is seen as an amendment for children who haven’t been heard in the past, and for children who aren’t used to seeing their best interests regarded at all, never mind as a paramount consideration. It’s been seen, in short, as an amendment for vulnerable children.
Natural and imprescriptible rights elevates it into an amendment for all children.
When I was a child, I didn’t have much of a relationship with my father. It grew and developed as I grew into adulthood, but that generation of fathers weren’t good with expressing emotions. He was an honourable and decent man and a good father. I loved him and he loved me, but neither of us ever told the other that. It wasn’t the thing in those days. Now and again my Dad might put a hand on my shoulder, and I can still remember, nearly 30 years after he died, how that felt.
In my generation, when I was a father, more was expected. I tried hard to be the best father I could be, despite being a frequent absentee because of my work. But my daughters still tease me with things I said to them when they were kids.
I was better at criticising than praising, better at judging than accepting. Somehow, as proud as I was of them, as much as I loved them, it took me nearly as long to communicate that as it took my own father.
BUT when I see children now — my son-in-law and his two kids, for instance. He’s the father of the next generation, and he knows instinctively (and because his wife insists on it!) that their children deserve to grow with admiration and encouragement. My grandchildren are just kids like any other (ok, they’re extremely handsome, talented and articulate …!) and they’re growing up in a generation that will be like no previous generation.
They’ll be challenged by all sorts of things. They’ll be supported in all sorts of ways. They’ll have opportunities that their forebears could only dream about. They’ll have to change the world away from risks we could never imagine.
They’re our kids, and they’re the future. Of course they should have rights — the right to be loved, the right to grow, the right to be educated, the right never to be exploited, abused, or neglected. Above all maybe they should have the right to an identity — to be whatever they can be, and to be proud of it.
They should have those rights because they’re our next generation and our greatest hope. That’s what it means when it says natural. And they should have absolute confidence that those rights will never fade. That’s what it means when it says imprescriptible.
And you know the best thing? It can be our gift to them. By voting yes on Nov10 we can put a hand on the shoulder of every child we know. And they’ll know what it means.
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