The Gazette 1971

Some Aspects of Irish Constitutional Reform Colum Gavan-Duffy, M.A., LL.B. (Editor) LECTURE DELIVERED TO THE IRISH ASSOCIATION OF JURISTS IN MAY 1968

the people rejected the idea that the electoral system of proportional representation by the single transferable vote should henceforth be replaced by single member constituencies. The Constitution Committee When the late Taoiseach, Mr. Lemass, announced in August 1966 that a Parliamentary Committee had been appointed to revise the Constitution, this did not arouse the interest of Constitutional lawyers, as it was under- stood in advance that this Committee would fail to tackle any amendments that would not be desirable by agreement among the political parties. From the advance scoop in The Cork Examiner, followed by the publication of the Committee Report in December 1967, there is ample evidence to suggest that the labours of this Parliamentary Committee have been unduly con- fined to the electoral problem and some other minor amendments have been thrown in for make-weight. In order to excuse their inactivity, these parliamentarians have speciously acknowledged that, if the people were presented with too many separate Constitutional amend- ments at any one time, they would get confused and fail to understand them. Let us, however, remember that if the Constitution could be altered by an ordinary Act, no legislation passed by the Oireachtas could subsequently be declared invalid. Let us not consider how should the Constitution as Fundamental Law be construed. It seems to me that, in the words of Mr. Justice Megarry, one should try to construe the Constitution so as to produce a workable and just system even if this puts some strain on the literal meaning of the Irish or English words in the Constitutión. As Lord Denning has said in Henry v Taylor (1954; IQB), if there is to be a fair choice between a literal interpretation and a reasonable interpretation, we should always choose the reasonable interpretation. Neither the Constitution nor Acts of Parliament have been drafted with divine pre- science and perfect clarity, and we should not presume to construe them in that way. As O'Byrne J. delivering the judgment of the Supreme Court in Sullivan v Robinson (1954, I.R., at p. 174) said: A Constitu- tion is to be liberally construed so as to carry into effect the intentions of the people as embodied therein. As Lord Justice Slesser said in The Art of Judgement: Since the decay of the mediaeval reference to eternal and natural laws, we have been driven in England to rely upon the edicts of Parliaments and in other countriesGovernment decrees are not to be nuestioned in anv Court of Justice, the function of the Judge being limited to the pedestrian task of finding facts or endeavouring to assist jurists to find them correctlv and to interpret laws. There appears to be little doubt that, despite the lack of strict rules of evidence, the French Conscil d'Etat tends to protect the individual much more efficiently. 77

PART 1 It is vital for lawyers and for laymen to understand that the Constitution is the Fundamental Law of the Land and that it supersedes all other laws. Furthermore, any legislative enactment that contravenes the text of the Constitution is to the extent of such contravention unconstitutional (Article 15, Section 4, Subsection 2). It is necessary to insist on this in view of the fact that lawyers when they are arguing a case are very often inclined to leave any argument based on Constitutional Law as what might be termed a "final resort argument" rather than to base their main argument on the alleged unconstitutionality of a statutory provision. Only on the 18th November 1967 an experienced parliamentary correspondent of an Irish newspaper wrote. "In my own experience, nothing causes Deputies collectively greater irritation than to be told that the Constitution prevents them from doing this or that, or that the Courts have pronounced an action of theirs to be repug- nant to the Constitution. In this centre of power, it is not pleasant to find that there is an overriding power on fundamentals, and whether consciously or not, there is a constant striving to ease off Constitutional hand- cuffs. There is plenty of circumstantial evidence to illus- trate this. Efforts of the High Court and Supreme Court to uphold the Constitution are seldom, if ever, men- tioned, and apparent disregards of Constitutional restric- tions by the Administration are not often pursued. To mention such a matter to a Deputy is to risk a quick change of subject, or an impatient wave of the hand." This quotation hardly flatters the attitude of the average legislator and of the average layman towards the Funda- mental Law nor to the guardian of our Constitution— the Supreme Court. Instead of respecting it, they are quite prepared to override it if they think they can get away with it. The fact that in 1937 twenty-three of the eighty-three articles of the 1922 Constitution had been deleted and no less than forty-three articles amended, made it necessary to enact a new Constitution. But no less than 31 per cent of the registered voters abstained from voting one way or another on the plebi- scite as to whether the new Constitution was to be accepted in July 1937; this appears to have led to some scepticism regarding various fundamental matters in the Constitution. As a result of abstentions, this vital docu- ment could only muster a majority of 39 per cent as against a minority of 30 per cent opposing it. But this result, repeated in Continental countries, such as France and Italy, seems to show that the Constitutional Refer- endum, which has been inserted as a compulsory method of amending the Constitution by submitting it to the people, requires mature voters. It can hardly be con- tended that we have attained the political maturity of the Swiss mountaineers who are used to voting in refer- endums. Yet this maturity is, nonetheless, apparent, for not only in 1959, but also in 1966, a large majority of