The Gazette 1989

GAZETTE

OCTOBER 1989

down markers in advance for future events. The Constitution in Ireland has been brought in - even to the construction of common law - to every sphere of legal activity. By laying down markers one might inspire practitioners to pick them up and use them in the next case that may be more central. We certainly didn't stick to the rigid system of saying nothing about anything except the precise point before us, and we didn't attempt to avoid issues. In other words, we got away from what is perhaps the easier judicial approach of saying no. We went out of our way to try and find remedies and, effectively, adopted the view that if the Constitution provided a right, there was automatically a remedy; and one doesn't have to wait for legislation to provide a remedy. What sort of markers did you lay down? The question of personal liberty was very important, It was laid down very early on that every citizen had a right of access to the courts and, for example, on a matter like extradition, could not be hustled out of the country before he got to the court. In fact we held a Chief of Police in contempt of court for having done that. That was something quite new, because we struck down the law which permitted that at the same time. We said any law which would impede access to the courts was au t oma t i ca l ly uncons t i t u t i onal because access to the courts was a guaranteed fundamental right. Now that had wide repercussions. Then, later on, when we came to the question of admissibility of evidence, we laid down the rule that any evidence obtained in violation of a constitutional right was automatically excluded even though it might have been, say in the case of a statement, complete- ly voluntary. The court held that the safeguard in the Constitution was the higher interest. That also had very widespread repercussions. Quite a number of convictions have been quashed, even when the facts were really beyond dispute, because the incriminating ad- missions were obtained in violation of the constitutional rights of the accused. The Constitution has been con-

strued, particularly in relation to Article 40, in much the way that the 14th Amendment of the United States Constitution is construed. It covers a great variety of cases but, essentially, they all support the view of the primacy of the Con- stitution. On the other hand, the view that had been taken in England was that how evidence was obtained was immaterial, save in the case of statements obtained involuntarily. Once they were volun- tary, they were admitted irre- spective of any illegality connected w i th obtaining them. We dis- tinguished between, say, con- fessions obtained in violation of the law from those in violation of the Constitution. The latter were absol- utely excluded no matter how true they were; the others were subject to a different test: whether they were voluntary. The constitutional cases emphasised this concept of fairness. Over the years, the courts have held that the Constitution contains, without expressly stating it, a guarantee of fair procedures, not merely before the courts them- selves but even in the police activities. So these were the developments which arose from the early markers put down by the court. Then, when the precise cases came along, they were laid down quite definitely. But by laying down these indications in advance, then people's minds and practitioners' minds were directed towards these issues. Arguments they mightn't have thought would be worth putting years earlier they now, suddenly, saw might be of use. You upheld the primecy of the Constitution end you found certsin footholds for humsn rights under ft. But how good wee the constitutions! meterisl thet you hsd to work with? The material was very good, because the Constitution, in its f undamen t al rights area, is essentially a natural law document. It doesn't seek to confer rights. It recognises and guarantees to protect what it regards as pre- existing rights, which are inherent in the human person because he is a human person. Therefore that gives the courts a very wide scope because, while particular rights in this context are mentioned in the Constitution, courts have held that

there are also great numbers of unenumerated rights. So, effect- ively that means that, in the progress of time, the judges have the opportunity to think up extra rights depending on the state of progress of whatever age we are in. That is logical because t he Constitution gives legal effect to moral concepts and is, therefore, far from being a document based on legal positivism. It was the opposite. One would search one's mind for what is a human right, or a natural right, and give effect to that. The Constitution gave the judges that great latitude and, as the Constitution of Ireland can only be amended by a national referendum, it meant in effect that no decision of the court could be changed w i t h o ut a na t i onal referendum, save by the court itself. The parliament was com- pletely excluded from changing any cons t i t u t i onal interpretat- ion. What happened with the court after that initial spurt of activism? I think it is still relatively active, but there are fewer cases which lend themselves to this. The whole field of personal liberty was virtually exhausted in about twelve to fifteen years. But the court still finds occasion to strike down laws as being unconstitutional. One of the noticeable things has been that, in recent years, a number of cases concerning property rights have begun to emerge and the court has given important decisions in that field. For example, it struck down the rent control legislation. This was done mainly because it was based upon the criteria es- tablished in about 1915, so it had become quite unreal. Then, when an amending law was brought in, the court struck that down also because it wasn't sufficient. The t h i rd law b r ought in wa s n 't challenged so it still stands. The executive erm of govern- ment eppointed you end, through the Prime Minister, urged you towsrds e more sctivist role. Yet when you went obout being more sctive, the politicsl erme of government didn't respond pertlculsrly well to It. Is thet correct?

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