The Gazette 1984

JANUARY/FEBRUARY 1984

GAZETTE

exception of his references to legislative intent the remarks of Fitzgerald C.J. in Maker -v- A.G. were appropriate and proper to be applied to a question of consistency under Article 50. Section 4 of the Vagrancy Act 1824, the constitutional debility of which was established in King-v- A.G. created inter alia, the offence of loitering with intent to commit a felony. To prove the requisite intent no other act was required to be shown, instead such intent could be inferred from the prior disreputable past of an accused person. Moreover the application of the provision was limited to "suspected persons" and "reputed thieves". Thus the gravamen of the offence consisted of being a prescribed kind of person. It was held by the High Court and Supreme Court successively that the offence, in both evidential and substantive respect failed to comport with the basic norms of the legal order postulated by the Constitution. The Chief Justice believed that what should be excluded as inconsistent with the Constitution were the words "suspected" and "reputed t h i e f' in the original version of the questioned provision contained in section 4 as well as the amendment sought to be made by s.15 of the Prevention of Crimes Act 1871. 28 However this argument did not meet with approbation of the majority members of the court whose disinclination to accept its implications was, it is respectfully submitted, well-founded. Kenny J. pertinently observed 29 that the Parliament which passed the Act of 1824 had expressly circumscribed its effect by confining the sphere of its operation to "suspected persons" and "reputed thieves". The removal of these limitations would fundamentally alter and increase the scope of the section. Henchy J. did not accept that verbal amputation would necessarily cure the unconstitutionality alleged against the section as amended, but in any event was satisfied that the suggested rewriting of the phrase would not be within the judicial power of leaving part of a statutory provision intact after another part of it has been severed as unconstitutional in pursuance of Art. 50 s.l. The learned judge put the matter thus: "It is one thing to strike down on constitutional grounds a particular statutory provision. It is quite a different thing, and one for which there is no constitutional warrant, for the courts to attempt to breathe statutory and constitutional life into a set of words which acquire a new and separate existence after the severance, but were never enacted as law. That would be a legislative function, which the Constitution expressly reserves to the Oireachtas.... In other words, the Courts have no power to declare a truncated or residual part of a statutory provision to have constitutional validity as a law unless they first find that it had the force of law in Saorstat Eireann immediately prior to the coming into operation of the present Constitution. This necessarily involves a finding that, in that form and to that extent, it was expressly or impliedly enacted as a law by the legislative authority or authorities from which it emanated". 30 Foreign precedents were also mustered in favour of this proposition. His Lordship referred inter alia, to Lynch - v- U.S. 11 There Brandeis J. said that no provision, however unobjectionable in itself, can stand unless it appears both that, standing alone, the provision can be given legal

effect and that the legislature intended the unobjectionable provision to stand in case other provisions held bad should fall. 32

Conclusion Clearly, the power of the courts to sever unconstitu- tional portions of the statute is constricted. This limitation owes its origin to the separation-of-powers policy embodied in the Constitution. Courts, exercising the power of constitutional review, cannot undertake restorative functions which more properly pertain to the legislative arm of government. This was made clear by Keane J. in Somjee -v- Ministerfor Justice** wherein it was said that the court has no jurisdiction to substitute for the impugned enactment a form of enactment which it considers desirable. These sentiments are clearly consistent with the restrictions which have developed on the doctrine of severance. The courts have no mending power but it is difficult to see any objection on grounds of principle in the courts indicating to the Oireachtas the appropriate mode of enactment which should be substituted for the impugned provisions. Keane J. in Somjee felt this was precluded. 34 The practice however might be regarded as validated by long usage. As McCarthy J. explained in Norris -v- A. G. 35 the courts have not hesitated in making tolerably clear to the Legislature their views on the desirability of a particular piece of legislation they are called on to interpret. 36 This has nothing to do with the application of the principle of separability. In conclusion one might venture the opinion that the case law which has grown up on the subject of severance illustrates the sophistication of constitutional adjudication. Footnotes 1. In Ashwonder -v- T.V.A. 297 U.S. 288 Brandeis J. at pp. 346-349 referred to a number of rules the U.S. Supreme Court has developed for its own governance in cases confessedly within its jurisdiction by means of which it avoids passing upon a large part of all the constitutional questions pressed on it for decision. These include a requirement of standing which must be met before a constitutional claim can be entertained and the principle that the court will not consider a constitutional question if there is also present some other ground upon which the case may be disposed of. For the application of these concepts to our courts exercising the power of constitutional review see Cahill -v- Sutton [1980] I.R. 269 and M. -v- An Bord Uchtala and A.G. [1977] I.R. 282. 2. In this connection it is apt to note what was said by Mr. de Valera on the subject of the "presumption of constitutionality" during the Dail debates on the draft Constitution: "Even where there is a Supreme Court, as there is in the United States of America, some of the best judges of those courts, when asked to decide as a constitutional court, have said, and put it as the foreground of their work and interpretation that, ordinarily, the view of the legislature, interpreting their Constitution should be their guide: that there is a presumption, and should be a presumption that they are doing their work reasonably and fairly, and that it is only in cases where there is clearly and definitely a departure, not merely from the letter of the Constitution, but from the spirit of the Constitution, that they should decide differently". 67 Dail Debates Col. 427. 3. [1973] I.R. 140, 147, and sec generally Kelly The Irish Constitution (Dublin 1980) at pp. 65-67. 4. [1963] I.R. 170.

5. Ibid at p. 184. 6. [1966] I.R. 379. 7. Ibid at p. 395. 8. [1967] I.R. 106.

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