The Gazette 1984

JANUARY/FEBRUARY 1984

GAZETTE

or herself to such court to be sworn and full answers make to the satisfaction of such court to all such lawful questions as shall be put'." 12

State is hereby vested in the Oireachtas. No other legislative authority has power to make laws for the State'. If, therefore the courts were to sever part of a statutory provision as unconstitutional and seek to give validity to what is left so as to produce an effect at variance with the legislative policy, the court would be invading a domain exclusive to the legislature and thus exceeding the Courts competency. 15 " On reviewing the legislative history of the measure the Supreme Court found that the insertion of the word "conclusive" was a matter of deliberate legislative choice. The Oireachtas had specifically rejected the recommenda- tion of the " Commission on Driving while under the influence of Drink or a Drug" 16 that the blood or urine analysis should be rherely prima facie evidence. Thus a judicial preservation of S.44 (2) (a) with the phrase "conclusive" omitted, would amount to an impermissible usurpation of the legislative function by setting up as law some t h i ng that the Na t i onal Pa r l i ament had unambiguously denounced. It was also scarcely conceivable that if the word "conclusive" were to be dropped, the legislature would have been content to use the word "evidence" without the precision of qualifying words which were to be found elsewhere in the same section. It has been noted 17 that there appears to be an element of internal inconsistency in the passage quoted above. The words italicised contain a presumption in favour of allowing a statute to be severed; whereas the very next sentence assumes the opposite, in that it states that a presumption needs to be rebutted before the remainder of the statute can be upheld. It would seem that the italicised words constitute a correct deduction from Art. 15.4.2 and that, as a consequence, the sentence following them is mistaken. If this proposition is correct then there is a presumption that, if the constitutionally improper parts of a statute have been severed, the remaining parts can be accorded the imprimatur of judicial approval. Antecedents of these Limitations Maher -v- A.G. X0 is by no means the only example of judicial reticence in the area of statutory reconstruction. In Melling-v- O'Mathghamhma 1 * O'Dalaigh J. (as he then was) had opined that the court was not free where the framework of a section collapsed from constitutional infirmity to take upon itself restorative functions which were proper only to the legislature. Similarly in O'Brien - v- Keogh 19 the Supreme Court stated a propos S. 49 (2) (a) (11) of the Statute of Limitations 1957: "It is not possible to save by deletion some part of the impugned paragraph. The provision has no purpose without the words that establish the date of the running of the Statute. It must therefore for its constitutional frailty fall in its entirety." 20 Likewise in the earlier case of In Re Evelyn Doyle, an Infant 21 it was said by the "old" Supreme Court in declaring invalid most of S.10 (1) (d) and (e) of the Children Act 1941:

In The State (K.M.) -v- Minister for Foreign Affairs 13 Finlay P. also performed surgical work on a statutory provision; this time an emanation from the Oireachtas, the Adoption Act, 1952, s.40 of which unduly interfered with the right of an illegitimate child to travel outside the State. However the learned judge found it possible, by reason of the operation of the doctrine of severance, to rescue particular portions of the provision from the constitutional infirmity which afflicted the remainder of the section; the resultant section "would be sufficient vindication and protection by the State of the right of an illegitimate child to travel in the manner in which I have defined that as a constitutional right and as such would be a constitutional section." 14 Maher -v- A.G. The separability principle was subjected to limitations by the Supreme Court decision in Maher -v- A.G. 15 , wherein it was emphasised that its application must be coherent with the spirit of the general scheme of things postulated by the Constitution and the institutional disposition of law-making power. In this case the plaintiff was successful in having the provisions of s.44 (2) (a) of the Road Traffic Act 1968 declared unconstitutional on the ground that by making a certificate of blood alcohol content "conclusive evidence" as to the matter certified, the judicial function under the Constitution, which necessarily encompassed the power to determine whether all the essential ingredients of an offence had been proved against an accused person, had been invaded and infringed. Apart from the evidential conclusiveness attributed to the certificate the impugned provision was otherwise unobjectionable. Despite the fact that exclusion of the offending phrase would not necessitate the substitution of other words to give substance and sense to the section, the Supreme Court refused to accede to the argument that it could, consistently with the Constitution, perform this surgical function. Fitzgerald C.J. expressed himself as follows: "Article 15 .4 .2 . . . . lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or a statutory provision is not intended to be constitutionally operative only as an entirety. This presumption however, may be rebutted if it can be shown that, after part has been held unconstitutional the remainder may be held to stand independently and legally operable as • representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity. It is essentially a matter of interpreting the will of the legislature in the light of the relevant constitutional provisions, and it must be borne in mind in all cases that Art. 15.2 . . . . provides that 'the sole and exclusive power of making laws for the

"It is unfortunate that this declaration involves the invalidation of provisions which if they stood alone

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