The Gazette 1984

JULY/AUGIJST

19

GAZETTE

was the taxpayer's right to a non-arbitrary, rational and consistent tax system; (iii) The Valuation Acts denied to the plaintiffs the fair procedures contemplated by Article 40 (3). Article 40 (3) (1) reads as follows: "The State guarantees in its laws to respect, and, as far as practicable by its laws to defend and vindicate the personal rights of the citizen." Article 40 (3) (2) reads as follows: "The State shall, in particular by its laws protect as best it may fromunjust attack, and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen." The obligation "to defend" and "to protect" in Article 40 (3) refers primarily to the activities of the State in guarding citizens against the unconstitutional actions of third parties. Consequently these words are limited by the words that follow "as far as practicable" and "as best it may" while the obligation "/o respect " appears to be absolute. But this obligation " to vindicate in the case of injustice done " may arise as much from the wrongful acts of third parties as from the wrongful acts of the State. Kenny J. had already stated in the Supreme Court in Crowley -v- Ireland and the Minister for Education 11 "The obligations imposed by the State in these subsections is as far as practicable by its laws to defend and vindicate the personal rights of the citizen. It is not a general obligation to defend and vindicate those rights. It is a duty by its laws, for it is through laws that the State expresses the will of the people who are the ultimate authority." There has been in fact no revision of the agricultural prices prevailing in 1849-52; yet in the intervening 135 years a total revolution has taken place in agriculture. The introduction of modern drainage and of mechanisa- tion and the use of lime and articficial fertilisers has made valuable lands previously thought to be poor. The old system of valuing lands had not taken into account any of these factors, nor had it taken into account the influential social factors such as the overthrow of landlordism, the system of freehold farming and the revolution in transport as well as in agricultural marketing and prices implied by Ireland's entry into the European Economic Community. It followed that in the High Court Barrington J. held that the Valuation Acts and the consequential property valuations of the plaintiffs' lands did not respect the property rights of the plaintiffs under Article 40 (3). The Supreme Court upheld Barrington J. on this point by stating that the complaints of the plaintiffs that Article 40 (3) had not been observed, were fully justified; that the lack of uniformity, inconsistencies and anomalies were of themselves an unjust attack on the property rights of the plaintiffs in finding themselves with poor land for which they paid more than their neighbours with better land. A.G.'s Submissions Consideration should now be given to some of the arguments made by the Attorney-General on behalf of the State, as restated by the Supreme Court. The arguments were as follows: 1. In using the Valuation Acts for assessing rate liability, the State was exercising its true functions

rights of property were, but only recognised private property as an institution and forbade its abolition; and that the rights in respect of particular items of property were protected by Article 40 (3). As regards Article 40 (1) the plaintiffs submitted that, because the Valuation Acts failed to provide a rational and fair system of valuing the property of citizens, the Acts failed to hold citizens equal before the law. In the High Court, Barrington J. stated that the concept of equality before the law was the most difficult and elusive concept in the Constitution. As O'Dalaigh C.J. stated in the State (Hartley) - Governor of Mountjoy Prison 2 2) "A diversity of arrangements does not affect discimination between citizens and their rights. Their legal rights are the same in the same circumstances." See, also, Finlay P. in Landers -v- Attorney-GeneraP. As Kenny J. stated in Murtagh Properties -v- Cleary 4 "Article 40 (1) is not a guarantee that all citizens shall be treated by the law as equal for all purposes, but it means that they shall, as human persons, be held equal before the law. It relates to their essential attributes as persons." The learned Judge had already expressed identical views in Quinn's Supermarket -v- Attorney-General. 5 See also Pringle J. in De Burca -v- Attorney-General. 6 The net result is that Article 40 (1) is not dealing with human beings in the abstract but with human beings in society. The plaintiffs' basic complaint was that the unit of measurement employed was so outdated and inaccurate that it failed to achieve the legitimate purpose of classifying landholders by reference to the value of their lands which the legislature had in mind, and consequently could not make relevant distinctions. The unintentional effect was that equals were treated unequally and unequals equally. As was stated in Italy-v- European Commission 1 "discrimination in substance would consist in treating either similar situations differently, or different situations identically." The High Court held that the Valuation Acts did not respect the plaintiffs' rights to equality before the law in relation to their property rights; but the Supreme Court reversed this finding and held that Article 40 (1) dealt only with the citizen as a human person, and required for each citizen as a human person equality before the law; and that, consequently, a system of taxation imposed on occupiers, which had proved to be unfair and arbitrary and even unjust, was not cognizable under Article 40(1). See judgment of Walsh J. in Quinn's Supermarket -v- Attorney-GeneraP. The inequality of which the Plaintiffs complained in this case did not concern their treatment as human persons but rather concerned the manner in which as occupiers and owners of land their property was rated and. taxed. TTie three submissions made by the Plaintiffs in relation to Article 40 (3) with regard to their property rights, (which were in fact one comprehensive submission, as emphasised in Re Haughey* (a) were: (i) The existing valuation system constituted an unjust attack on property rights; (ii) One of the unspecified rights of the Constitution protected by Article 40 (3) under the decision in Gladys Ryan -v- Attorney-GeneraP 0

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