The Gazette 1976

SEPTEMBER 1976

GAZETTE

effect to the extent to which they were not inconsistent with the Constitution and subject, of course, to the power of the Oireachtas (Parliament) to repeal or amend them. The original intention was that the Parliament should have the power to amend the Constitution for a period of 8 years from the date of its coming into operation, and that, after that, a referendum would be required. But the very provision limiting the time to 8 years was itself extended to 16 years as the period in which the Oireachtas was to be entitled to amend the Constitution by ordinary legislation. 4 There were 27 Acts in all ex- pressed to be Acts to amend the Constitution in the 15 years of its existence. With the accession of Mr. de Valera to power, after the general election of 1932, the appeal to the Privy Council was removed, as was the oath of allegiance to the British Crown and the way was paved for the enactment of a new Constitution which was put to a plebiscite and was enacted on the 1st July, 1937, and came into force on the following 29th December. It, too, contained power for the Parlia- ment to make amendments but only for a period of three years and that Article was, itself, incapable of amendment. In other words, on this occasion, it was made absolutely clear that once the three years had elapsed from its enactment, the Constitution could only be amended by way of referendum. 5 Article 50 of the Constitution provided that to the extent to which they were no inconsisent therewith the laws in force immediately prior to the coming into operation of the Constitution should continue to be of full force and effect until they should be repealed or amended by enactment of the Oireachtas. Article 34 of the Constitution provided for a Court of Final Appeal to be called the Supreme Court and Courts of First Instance which should 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". 6 In fact the new Courts were not formally established until 1961. 7 Article 58 of the Constitution 8 provided that the existing Courts with their pre-existing jurisdiction should continue but when you read in the Irish Reports references to the "former" Supreme Court or High Court it is a reference to the Court (consisting of the same personnel) which held sway prior to the enactment of the Courts (Establishment and Constitution) Act 1960. There are six members of the Supreme Court presided over by the Chief Justice. 9 There are 8 members of the High Court Bench presided over by the President who ranks second only to the Chief Justice in the judicial hierarchy. High Court judges are available to sit on the Supreme Court if required and vice versa. It would be the reverse of historic fact to say that the Common Law, having been planted here, has had an uneventful progress ever since. During the last century, for example, jury rigging was taken for granted. The 1. Sir Robert Menzies: Afternoon Light. ( L o n d o n: Penguin Books Ltd., 1969). 2. The Road to Justice ( L o n d o n: Stevens & Sons Ltd.). 3. T h e Republic of Ireland Act 1948 (No. 22 of 1948). 4. See Constitution (Amendment No. 16) Act 1929 (No. 10 of 1929) a nd The State (Ryan and others) v. Lennon and others (1935) I.R. 170. 5. Article 51 of the Constitution (omitted f r om every official text of the Constitution published a f t er the expiration of the 3 years). 6. Article 34. Sec. 3. 7. Courts (Establishment a nd Constitution) Act 1961 (No. 38 of 1961). 8. This was also one of the transitory provisions of the Constitution which does not a p p e ar in any text printed since 1942. 9. M r. Justice Walsh is also President of the L aw Commission.

ADDRESS TO MEMBERS OF THE AUSTRALIAN BAR ON THEIR VISIT TO IRELAND — FOUR COURTS, DUBLIN, JULY 12th, 1976 by Hugh 0'Flaherty, Senior Counsel Introduction Some short time ago when I agreed to address you I did so in ignorance of something that Sir Robert Menzies had written :- ,T have no doubt, and most lawyers would, I think agree, that the High Court of Australia, is and has been for a long time, composed of a body of judicial lawyers which has no superior in the English-speaking world". 1 Ideally you should be addressed by somebody with an academic or jurisprudential turn of mind but I must define my area of competence. It is concerned with active practice within this building, or its environs. My remarks, therefore, will centre around some aspects of our common profession. I will attempt to delineate some aspects of Irish law but in so far as a comparison is to be made with Australian law you will have to fill in the lacuna. We all share the inheritance of the Common Law. In the year before American Independence, Edmund Burke had delivered his famous speech on Conciliation with America.. One of the things that he high-lighted as pointing to the "untractable spirit" of the Americans was their education in law. He said that in no country in the world was the law so generally studied. "The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the Congress were lawyers". He said that as many of Blackstone's Commentaries were sold in America as in England. The Australian settlers appear to have taken to the law with as much relish as the American Founding Fathers and, to this day, it appears that the law and politics there go hand in hand. It appears that the three parties in the centre of the Constitutional storm in 1975 were lawyers, namely, the then Prime Minister Mr. Whitlam; the Attorney General and the Governor General. After you leave here you go to England, the home of the Common Law where, too, they have a high opinion of their judges. "If justice had a voice, she would speak like an English Judge". This was quoted unblushingly by Lord Denning in 1955. 2 We think as highly of our judges but we do not express our sentiments so effusively. Historical Evolution It is essential first to consider the historical evolution of the State. Before 1920 the Imperial Parliament at Westminster exercised legislative power over the whole of Ireland. The Government of Ireland Act, 1920, made provision for a Parliament of Northern Ireland with limited jurisdiction over the counties of Antrim, Armagh, Down, Fermanagh, Derry and Tyrone and the parlia- mentary boroughs of Belfast and Derry. It tried to set up a Parliament of Southern Ireland with jurisdiction over the other 26 counties. Articles 11 and 12 of the Treaty between Great Britain and Ireland which was signed on December 6, 1921, were given the force of law in the 26 counties — the Irish Free State (Saorstat Eireann) now known as the Republic of Ireland,3 — by the Constitution of the Irish Free State (Saorstat Eireann) Act, 1922. This Act was passed by Dail Eireann as a Constituent Assembly on October 25, 1922. Article 43 provided that laws actually in force at the coming into operation of the Constitution should continue to be of full force and

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