The Gazette 1976

N O V E M B E R 1976

G A Z E T T E

by law but that the Constitution confirms their existence and gives them protection". Chief Justice O Dalaigh, as he then was, said in re Haughey^ that it is the duty of the Court to under- line that the words of Article 40, Section 3, are not political shibboleths but provide a positive protection for the citizen and for his good name. There is another form of judicial review which is rather un ; que. The President 44 may refer any Bill to the Supreme Court for a decision as to whether it is repugnant to the Constitution or any provision there- of. 45 The Supreme Court consisting of not less than five judges has sixty days from the date of referral to con- sider the matter and to pronounce its decision, which unfortunately must be a single decision pronounced by "such one of those Judges as the Court shall direct, and no other opinion, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed". 46 By the operation of Article 26 and Article 34, section 3 sub-section 3 of the Constitution a decision of the Court is a constitutional determination on all points in respect of the Bill or a provision of the Bill, as the case may be, wh ; ch is re- ferred to it. As Mr. Justice Walsh pointed out in The State (Quinn) v. Ryan 47 the Court gives an advisory opinion the reason for which was "to avoid the anomaly of a judicial review of legislation which only became law upon the advice of this Court after an unrestricted examination of the measure which thus acquired validity from the judgment of this Court". Lawyers, in general, are unhappy that the doctrine of stare decisis gets this particular recognition since the Court, is forced to review this type of legislation in a theoretical setting, it must have regard to the possibility of repugnancy in hypothetical circumstances. There have only been 5 such references in all: In re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940A* In re Article 26 of the Constitution and the School Attend- ance Bill, 1942;W In re Article 26 of the Constitution and the Electoral (Amendment) Bill, 1961 50 and in re Article 26 of the Constitution and the Criminal Law (Jurisdiction) Bill, J97and Jn Re Article 26 of the Constitution and the Emergency Powers Bill 1976. In all, except the School Attendance Bill case, the con- stitutionality of the measures was upheld. One of the most recent judgments relating to the Criminal Law (Jurisdiction) Bill may be of interest to you. Broadly speaking the Bill (now an Act) provided for the prose- cution within the area of jurisdiction of the Republic of Ireland of certain subversive or terrorist- like offences commuted in Northern Ireland. It went further by providing that the Court (the Special Crim- inal Court consisting of three judges) should be enabled to journey to Northern Ireland and there take evidence On commission. The accused should have the oppor- tunity of attending at the taking of such evidence or commission either in person or by solicitor and counsel. The main thrust of the argument against the con- stitutionality of the measure was that it permitted the operat : on of unfair trial procedures and failed to pro- vide for trials in due course of law and in that and other respects it failed to defend and vindicate the personal rights of the citizen in accordance with Article 40 3.1° of the Consthut : on. The right to be present was sub-

necessary stamp of responsibility and involvement on the part of the community as a whole. Juries recruited in that way fall short of minimum constitutional stand- ards no less than with juries recruited entirely from female citizens." The result of that is that the Parliament passed a new Juries Act 1976 which must be one of the most democratic in the world, I should think, because it opens jury service potentially to all on the voting register and the voting age is 18!. 32 There are, of course, circumstances of exemption viz., those ineligible, for example barristers and solicitors actually practising as such; members of the police and prison services and members of the defence forces. Further, those incapable through inability to read, deafness or other permanent disability are deemed unfit to serve on a jury and are excluded. Then there is a category of persons excusable as a right such as members of Parliament and persons in Holy Orders. Finally, I think I should say a word about judicial review of our statute law. The Constitution makes the Supreme Court the final arbiter of whether laws are repugnant to the Constitution or not. Thus, any Act, whether enacted before or after the Constitution came into force, is subject to judicial scrutiny. With regard to enactments "carried over" by the broad sweep of the Constitution, to the end of 1937, there is no pre- sumption of constitutionality in their favour, 33 but legislation enacted from 1938 since the Constitution came into effect enjoy the presumption of constitution- ality. 34 At first, the Courts were slow to interfere since the idea of a written Constitution as the idea of a Bill of Rights was foreign to judges brought up to believe in the supremacy of Parliament. The first Chief Justice of the Irish Free State, Chief Justice Kennedy, had referred to Dicey as "an evangel accepted reverently and without criticism or question in our schools." 35 Beginning, however with Mr. Justice Gavan Duffy's judgment in the Sinn Fein Funds Case 36 the Court have increasingly asserted their right to get involved in the social and economic aspects of the Personal Rights Articles of the Constitution. Article 40 (3) provides that the State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of citizens. The Sup- reme Court, interpreting this section, has notably struck down legislative proposals which directed the Courts to deal with trust funds in a particular way; 37 State immunity for torts; 38 a provision in the Statute of Limitations, 1957, which rendered an infant plaintiff vulnerable in a case where his father's insurance com- pany had pleaded the Statute against him 39 and a provision limiting the right to use contraceptives. 40 My colleague, Mr. Donal Barrington S.C., has written a most penetrating analysis of these develop- ments in an article entitled "Private Property under the Irish Constitution", 41 which I recommend to you. Mr. Justice Walsh has summed up the effect of these personal rights articles best when he said in McGee's case: - 42 "(These Articles) of the Constitution all fall within the section of the Constitution which is entitled 'Fundamental Rights'. (The Articles) emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate, that justice is placed above the law and acknowledge that natural rights or human rights are not created

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