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Tara and the Constitution
 

Andrew McGrath


On May 2nd 1937, the text of the new Irish Constitution was published. We wish it a happy birthday and good health in the face of the numerous plots and assassination attempts directed against it by a State which invokes it when convenient, and likewise ignores it.

According to a story in the Meath Chronicle April 22nd 2006, Vincent Salafia gave Notice of Appeal of the High Court’s rejection of his case against the M3 Motorway. The Supreme Court will hear this appeal and ultimately decide on the constitutionality of the National Monuments Act 2004. According to Mr. Justice Thomas Smyth, “the legislature was entitled to choose to give qualified protection to national monuments and the court could not strike down section 14 of the Act, as sought by Mr. Salafia, simply because a different or better balance could have been struck, he said. Mr. Salafia had asked the court to make a declaration that the greater Tara landscape - the Hill of Tara/Skryne Valley - is a national monument or complex or series of national monuments within the meaning of the National Monuments Act, but the judge refused to do so.”

The judge was quite correct to make this stipulation. Mr. Salafia’s approach was to, on the one hand, ask the High Court to find that the Act is unconstitutional, which is properly the role of the Supreme Court, and on the other hand to stipulate that the Tara/Skryne Valley is a national monument within the meaning of the Act whose legality he was questioning. Normal procedure in such a case would see the plaintiff being one of those whose land has been acquired by the constitutionally dubious Compulsory Purchase Order, yet not one has come forward with a challenge to the State’s right to confiscate property. So Mr. Salafia took on the dubious role of plaintiff in this case, even though he cannot demonstrate any cause for complaint or damages against himself on the part of the State.


So, the article goes on to say, “there were differences between Mr. Salafia [and] Mr. Salafia’s experts as to what constituted the core Tara area. In those circumstances and in the absence of any representation in the proceedings for people in the Tara area who would be directly affected by such a declaration, it was not permissible for the court to make any such declaration.” According to Mr. Justice Smyth therefore, Mr. Salafia held a different interpretation of what constituted the “core Tara area” which he sought to have stipulated as a national monument, from those of his expert witnesses.

It is noteworthy that Mr. Salafia did not invoke Cearbhall Ó Dálaigh’s 1972 Supreme Court decision in this case, including his statement that “the Hill of Tara is properly to be regarded as a single unified site and not a series of separate archaeological monuments”. He also stated that “The expression ‘national monument’ means a monument or the remains of a monument the preservation of which is a matter of national importance by reason of the historical, architectural, traditional, artistic, or archaeological interest... A monument, among other things, is anything that by its survival commemorates a person, action or event... The word ‘monument’ is not defined in the strict sense: it is stated that it ‘includes’ certain things. It does not have to be of archaeological interest; historical or traditional interest will suffice.” During these proceedings, the State itself, as represented by the Commissioners of Public Works (now the Office of Public Works), itself stated in its submission (under oath in Ireland’s highest court) that Tara was an integral part of a wider heritage landscape. A constitutional challenge to any and all aspects of the M3 plan could be made on a basis that extends beyond heritage concerns: an area can be defined, in constitutional terms, as a monument on historical or traditional grounds alone, and preserved as such. We will revisit this issue in more detail at a later date.


Other comments by the judge are worthy of note: “Among other key findings of Mr. Justice Smyth was that even if the Supreme Court upheld arguments in its forthcoming judgment on the Carrickmines Castle case that Section 8 of the National Monuments Amendment Act was unconstitutional, he was satisfied that protections for national monuments, which he held were built in to Section 14 of the same Act, were ‘constitutionally sound’”. So according to this judge, even if the National Monuments Act is found to be unconstitutional in respect of the Carrickmines Case, the “protections” that allegedly exist in the Act are “constitutionally sound”. As we have already pointed out on previous occasions, according to the National Monuments Act 2004, the sole arbiter of the fate of any monument in the country relies on the decision of the Minister for the Environment, in the absence of any statutory guidelines whatever. This was the purpose of the Act, and all talk of heritage protection in connection with it is essentially guff. It is emergency legislation, like so many other initiatives by the State in recent years, designed to avert a “crisis”, i.e. the fact that the Constitution presents an obstacle to “progress”, meaning that it stands in the way of the implementation of the State’s big project, and must be flouted by any means possible.

This new direction on the part of the State might be traced to about 1960, when the process of parcelling out Ireland’s natural resources to multinational corporations began, and its has been proceeding with a singular consistency ever since. All law making and State policy since that date has been aimed, directly or indirectly, at accomplishing the sale of Ireland’s resources and the destruction of its history and heritage. The Constitution, in so far as it upholds the rights of citizens, is the big stumbling-block to be done away with.
 
 

© The Tara Foundation, May 2006