The Gazette 1972

the fear of Communism particularly after the Russian invasion of Czechoslovakia in 1948. In 1948 the United Nations Universal Declaration of Human Rights was issued and 1949 saw the foundation of the Council of Europe which was to lead to the European Convention on Human Rights signed in Rome in 1950. The ques- tion of Fundamental Rights is to the fore in the Six Counties at the present time. Many people have advo- cated the drawing up of a Bill of Rights as a major contribution towards a solution. The Irish Government has brought the British Government before the Com- mission of Human Rights in Strasbourg in regard to specified violations of human rights by British forces in the Six Counties. The importance of this topic cannot be over-emphasised. State of emergency suspends Constitution Articles 40 to 44 of our Constitution set out the Fundamental Rights. While these Articles were com- mendable at the time when the Constitution was adopted some flaws have since appeared and it would seem that in the modern world they are far from adequate. Let us first protest at such an abhorrent Article as Article 28.3.3 by which we are, even at this very moment, living in the Republic of Ireland in a "State of Emergency". When it is invoked it prevents anything in the Consti- tution from being used to invalidate any law enacted by the Oireachtas—or in simple terms the Constitution can be suspended. Such an Article makes nonsense of the Constitution and must find no permanent place in a revised document. Importance of Natural Law Assuming that item 28.3.3 disappears it would be necessary that the Fundamental Rights articles be exten- ded to cover "all persons" and not just "citizens". It was stated in the High Court in The State (Nicolaou) v The Adoption Board (1966) I.R., that any rights guaranteed to "citizens" as opposed to "persons" could only be availed of by Irish citizens. It seems hard to see why the liberties of our citizens alone should be protected but not those of others, as surely these rights ae basic to the human person. There is little doubt but that a revised Constitution should contain an express recognition of the natural law—a vague reference to it in the Preamble seems insufficient. We note with satis- faction that our courts are returning to this concept in recent years. It seemed at first that Chief Justice Kennedy's dissenting judgment in The State (Ryan) v Lennon (1935) I.R., had fallen on stony ground but there has been a reappraisal and such cases as MacDon- ald v Bord na gCon (1965) I.R., and Macauley v Minister for Posts and Telegraphs (1966) I.R. 345, demonstrate that the Bench is again actively engaged in a more dvnamic way in guarding the natural rights of the people. Such a recognition in our fundamental law could be used by the Courts to enable them to give more equitable decisions. There are obvious cases of iniustice and the system of Equity as we know it today is in its own way as rigid as the Common Law. These two systems should be fully integrated and a new Equity allowed to flourish using as its basis the Constitution and all that is guaranteed therein. Is not "justice" to be administered in the courts? Perhaps the most liberal and reasonable interpretation of the fundamental rights articles was triven by Mr. Justice Kenny in Rvan v A.G- (1965)—the famous "fluoridation case". He declared in the course of his judgment, that, apart from the Funda- mental Rights formally listed in the Constitution, all those riehts which resulted from the Christian and democratic nature of the State were implied therein- 70

Supreme Court that is the end of the matter for all time, as the decision is not open to review (Article 34.3.3). (3) As a result of Article 26.2.2 only the decision of the majority is delivered and this by a single judge. No other opinion whether assenting or dissenting is permitted. The Constitution deserves amendment to deal with these criticisms. The first criticism could be met by conferring on the President an additional power to enable him to refer an Act to the Supreme Court within a year or so of its being brought into operation, as distinct from its enactment. He would retain his present power of referring Bills as obviously some Bills by their very nature need not be put into. practice to decide on their constitutionality, but would also have this additional power. The second criticism was consid- ered by the Committee on the Constitution in the following words: "The best solution would be to retain the existing provisions with an amendment to the effect that the Supreme Court decision could be challenged in further legal proceedings after a period of say seven years. This would provide some answer to the criticism that the existing arrangements have the effect of calci- fying the law for all time, and it would be in harmony with the abandonment of Stare Decisis for ordinary proceedings." Finally I believe that judges should have the opportunity to express their opinions as freely as they do in the United States, and as recommended by the Committee on Court Practice and Procedure. Danger of administrative tribunals It is a reasonable assumption that any revised Con- stitution would again be founded on the doctrine of the separation of powers. The growth on a large scale in our society of administrative tribunals frightens me. These are undoubtedly dangerous symptoms of a disease —the ever-increasing encroachment by the adminis- trators and the executive into the judicial domain. This disease ought to be checked in its prime before it becomes cancerous. I would recommend as a remedial measure the same cure enunciated by the Editor when he wrote in the Gazette in July/August 1971, namely the appointment as chairmen of these tribunals of experienced legal practitioners such as Senior Counsel. This would ensure a degree of rationality to the pro- ceedings and bring them more in line with the spirit of the Constitution. It may, however, produce some difficulties with the text of the Constitution which declares in Article 34 that "Justice shall be adminis- tered in courts established by law by judges appointed in the manner provided by the Constitution." There are other improvements which should be made to ensure the independence of the judicial arm of State. A better system of appointing judges is the most often cited. It would seem that the best alternative method so far suggested is that the Government should appoint whoever meets jointly with their approval as well as that of the Bar Council and of the Council of the Incorporated Law Socitv. Clauses should be added to the present provisions for appointment which would firstly fix the number of judges there are to be in the Supreme Court and would also provide that the age of retirement of a iudge, irrespective of any change in the law after he had taken office, would be the age limit in force on his taking office. Human Rights The second part of my paper is concerned with "Human Rights"—a topic which, since the last war, has received considerable attention from both governments and international bodies as a result of the atrocities perpetrated during arid immediately after that war and