The Gazette 1971

incapable of being modified by deletion to confine it to Saturdays. The remaining member of the court, Mr. Justice Kenny, in a dissenting judgment, said that in his opinion, the Order was valid; the appeal should be allowed and the action should be dismissed. He said that we were in religion a pluralist society made up of people of many religious persuasions and beliefs and so it was likely that parts of legislation would occasionally indirectly affect the practice of some religion. If the State had to abstain from law making on matters which indirectly affected the practice of religion by some of the citizens the scope of legislation would be seriously reduced. It seemed to him that the prohibition on discrimination on the ground of religious profession or belief did not apply to legislation passed to secure or encourage the free profession and practice of religion. [Quinn v Attorney General and others.] The Irish Times (3rd April 1971) NON-AVAILABILITY OF CIVIL LEGAL AID CONSTITUTIONAL Plaintiff, a former hackney owner, now unemployed, claimed that Sections 2-7 of the Criminal Justice (Legal Aid) Act, 1962, are unconstitutional, inasmuch as they appear to be inconsistent with the Constitution, and in particular with : (a) Article 15, Section 4, whioh declares that the Oireachtas shall not enact any law which is in any way repugnant to the Constitution. (b) Article 34, Section 3, Subsection 1, which declares that the Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions, whether of law or fact, civil or criminal. (c) Article 40, Section 1, which declares that all citizens shall, as human persons, be held equal before the law. (d) Article 40, Section 3, which declares that the State guarantees in its laws to respect, and as far as possible and practicable by its laws to defend and vindi- cate the personal rights of the citizen. (e) Article 45, which is not cognisable by the Courts. The plaintiff was advised he had a good cause of action in respect of a loss occasioned to him by the Act or default of some defendants; he appears personally in this action, and could not finance the action. O'Keeffe P. stated that under the Criminal Justice (Legal Aid) Act, 1962, the State had chosen to provide legal aid for persons charged with criminal offences. But a person contemplating civil proceedings is left wholly without legal aid from the State. The plaintiff has a legal right which has been infringed, but has not got the necessary means to vindicate that legal right. He looks to the State for assistance, and finds that none is forthcoming. However, according to O'Keeffe P., it is for the legislature to determine how the personal rights of the citizen are to be vindicated. The legis- lation confining legal aid to criminal cases does not fail to accept and acknowledge the equality of all citizens before the law. Consequently, although he sympathised with the plaintiff, he was compelled to dismiss his claim. [O'Shaughnessy v Attorney General; O'Keeffe P.; unreported; 16th February 1971.] UNREPORTED IRISH CASES Costs A wife petitioner without means in matrimonial action can get costs of abortive hearing. 21

Mr. Justice Walsh then reviewed a number of United States cases on similar questions and, having done so, he said : "Our Constitution reflects a firm conviction that we are religious people. The Preamble to the Con- stitution acknowledges that we are a Christian people and Article 44 (1) acknowledges that the homage of public worship is due to Almighty God but does so in terms which do not confine the benefit of that acknowl- edgment to members of the Christian faith." In Article 44 (1) of the Constitution the State recog- nised the existence of the several religious denomina- tions there named, including the Jewish congregations, as well as all other ones existing at the date of the coming into operation of the Constitution. "This declaration is an express recognition of the separate co- existence of the religious denominations, named and unnamed. It does not prefer one to the other and it does not confer any privilege or impose any disability or diminution of status upon any religious denomin- ation and it does not permit the State to do so." Mr. Justice Walsh said it appeared to him that the primary object and aim of Article 44 was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and moralitv and to ensure that the practice of religion and the holding of particular religious beliefs would not subject the person concerned to any disability on that account or to permit distinctions on the ground of religious profession, belief or status between persons in the State who were free to profess and practice their religion. If, however, the implementation of the guarantee of free profession and practice of religion required that a distinction should be made to make possible for the persons professing or practising a, particular religion their guaranteed right to do so then such a distinction was not invalid having regard to the provisions of the Constitution. It would be completely contrary to the spirit and intendment of the provisions of Article 44 (2) to permit the guarantee against discrimination on the ground of religious profession or belief to be made the very means of restricting or preventing the free profession or practice of religion. The primary purpose of the guarantee against discrimination was to ensure the freedom of practice of religion. It was quite clear that the exemption which was achieved in the Order of 1948 was in fact intended to avoid any such restriction upon the practice of their religion by members of the Jewish religion in the trading area set out in the order. "So long as the present dietary laws remain a binding part of the Jewish religion then a sufficient exemption of the type under review would be not merely not invalid but would be necessary if the hours of trading were regulated as at present." Mr. Justice Walsh then dealt with the plaintiffs' complaint that the discrimination was more than was necessary as it resulted in shops in which the only business carried on was the sale of kosher meat being open without restriction as to hours. In his opinion the complaint was justified that the discrimination was more than was necessary in so far as it related to week- days other than Saturdays. There was no evidence whatsoever to suggest that the free practice of the Jewish religion would be hampered in any way by the application of the fixed hours to the kosher meat shops on those days. For the reasons he had already given, a discrimination on Saturdays would not be invalid. However, the words of the exemption in the 1948 Order gave exemption for every day and by its terms was