Ireland: a Unitary State With Local Government Guaranteed

Powers and finance. Article 243G permits the legislature of a State to endow panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government, with respect to the matters listed in the Eleventh Schedule; article 243W does the same for municipalities with the Twelfth Schedule. Article 243H permits the imposition of taxes and article 243I requires a State Finance Commission every five years.

What is guaranteed and what is not. Existence, periodic elections, reservation and a finance commission are guaranteed. Powers are not: articles 243G and 243W both say that the legislature of a State may by law endow, so the substantive competence of the third tier remains a matter for the State.

So India's third tier is constitutionally entrenched in its existence and its composition and is statutory in its powers, which is a position between Article 28A and a genuine third level of a federation.

What Ireland is actually on the syllabus for

Article 45, the directive principles of social policy. Worked in [Directive Principles: Ireland and India]. This is the reason Ireland matters to an Indian student.

A rigid constitution controlled by the people. Every amendment requires a referendum under Articles 46 and 47, which is why Crotty v. An Taoiseach, [1987] IESC 4, decided on 9 April 1987, could hold that ratification of the Single European Act required an amendment and therefore a popular vote.

A control case for classification. Ireland has a written, rigid, supreme constitution with strong judicial review and no federalism, which shows that those features do not travel together.

A worked example

A national legislature wishes to abolish an entire tier of local government.

Ireland. It may, subject to Article 28A's requirement that local government exist and that elections be held at least every five years, so it may reorganise but not abolish. The Local Government Reform Act 2014 abolished town councils, and the constitutional guarantee was satisfied because local authorities continued to exist.

India. It cannot. Article 243B requires panchayats to be constituted in every State, subject to the exemption in article 243M, and article 243Q requires municipalities. A State cannot abolish the tier, and article 243E prevents indefinite suspension by requiring elections to be completed before the expiry of the five-year term.

A federation with a genuine third level. Switzerland's article 50 guarantees communal autonomy within the limits fixed by cantonal law and requires the Confederation to take account of the possible consequences of its activities for the communes.

The cases

Facts. Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad, decided in 2006, concerned the failure to hold municipal elections within the period required by article 243U and whether the State Election Commission's duty could be excused by administrative difficulty.

Held, by the Supreme Court. Elections to municipalities must be completed before the expiry of the five-year term and the State Election Commission is under a duty to ensure it; the provisions of articles 243U and 243ZA are mandatory, and delimitation or other administrative exercises cannot be a ground for postponement except in the most exceptional circumstances.

Why it matters here. It is the case that gives the Indian third tier its constitutional protection in practice, and it is the strongest contrast with the Irish position, where the guarantee is of existence and periodic elections only.

Facts. Crotty v. An Taoiseach, [1987] IESC 4, decided on 9 April 1987, concerned Ireland's proposed ratification of the Single European Act.

Held, by the Supreme Court of Ireland. Ratification of Title III would not be an act necessitated by the obligations of membership of the Communities within the Third Amendment, so it required an amendment of the Constitution, which under Article 46 means a referendum.

Why it matters here. It shows where power actually lies in the Irish system, which is with the people through the amending procedure and with a court willing to say so, and it is what Ireland genuinely contributes to a comparative answer.

Distinctions

What beginners get wrong

"Ireland is federal because MU lists it under federalism." The syllabus lists the country; the answer must state what the country's constitution provides, and Article 15.2.1 is decisive.

"Article 28A creates a third level of government." It recognises local government and requires elections; the powers are conferred by ordinary law.

"India's panchayats have constitutional powers." Their existence, composition, term and reservations are constitutional; their powers are conferred by State law under articles 243G and 243W.

Limits and criticism

A guarantee of existence without powers is thin. Both the Irish and Indian arrangements leave the substantive competence of local government to the ordinary legislature.

Naming Ireland under federalism invites a wrong answer. The correct course is to say so once, give Article 15.2.1, and then use Ireland for Article 45 and for the referendum requirement.

The Indian third tier is under-funded rather than under-protected, which is why article 243I's State Finance Commission matters more in practice than article 243G.

Quick revision

1. Article 15.2.1: sole and exclusive power of making laws vested in the Oireachtas; no other legislative authority.
2. Article 28A, inserted 1999: recognition of local government and elections at least every five years; powers conferred by law.
3. India: article 243B panchayats, article 243Q municipalities, article 243D and 243T reservations, articles 243E and 243U terms, article 243I State Finance Commission.
4. Articles 243G and 243W: powers endowed by State law, with the Eleventh and Twelfth Schedules.
5. Ireland is on the syllabus for Article 45 and for the referendum requirement in Articles 46 and 47.
6. Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad: elections must be held before the term expires.
7. Crotty v. An Taoiseach, 9 April 1987: ratification required a referendum.

Test yourself

1. Is Ireland a federal State? Answer with the provision. No. Article 15.2.1 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas and that no other legislative authority has power to make laws for the State, so there is no distribution of legislative power and the second of the four conditions of federalism is not satisfied. Article 28A recognises local government and requires periodic elections without conferring legislative power.

2. Compare Article 28A with Parts IX and IXA of the Indian Constitution. Article 28A recognises the role of local government, requires elections at least every five years, and leaves powers and functions to be conferred by law. Parts IX and IXA go further: articles 243B and 243Q require panchayats and municipalities to be constituted, articles 243D and 243T reserve seats for Scheduled Castes and Tribes and not less than one third for women, articles 243E and 243U fix a five-year term with elections completed before its expiry, and article 243I requires a State Finance Commission. Powers, however, are conferred by State law under articles 243G and 243W in India too.

3. What is Ireland actually on this syllabus for? For Article 45, the directive principles of social policy, which India adapted into Part IV; for its rigid amending procedure, under which every amendment requires a referendum by Articles 46 and 47, illustrated by Crotty v. An Taoiseach; and as a control case showing that a written, rigid, supreme constitution with strong judicial review can exist without any federalism at all.

4. How should an examination answer handle MU's listing of Ireland under federalism? Courteously and once. State that Ireland is unitary, give Article 15.2.1 and Article 28A, note that MU's topic lists it, and then use Ireland for the comparisons it genuinely supports: the directive principles, the referendum requirement, and the demonstration that federalism does not travel with the other features of a modern codified constitution.