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Before considering the five submissions by which
Section 2 and 3 of the Juries Act would be deemed
unconstitutional, it is necessary to summarise them.
Section 2 of the Juries Act 1927 states that the
Minister for Justice may by order prescribe for every
jury district the rateable value of land which is the
minimum rating qualifications for jurors in that dis-
trict. Furthermore the Minister may prescribe different
rateable values in respect of different classes of land,
and he may from time to time vary such rateable values.
The Jurors (Minimum Rating Qualification) Order
1927—S.l, No. 92 of 1927—showed a considerable
variation between the jury districts in different coun-
tries; for instance the minimum qualifications for land
in Co. Waterford is £15 PLV, while that in Co. Wex-
ford is £40 PLV.
Section 3 of the Juries Act 1927 provides that, every
Irish Citizen between the ages of 21 and 65, shall be
liable to serve as a juror if the minimum rateable
qualification in respect of his premises exceeds the
Minimum laid down by the order, unless he is dis-
qualified or exempt. A juror is disqualified if he is not
entered as a Dail or Local Government elector for the
jury district concerned. A juror is exempt if he is
serving in the Army, or if he is a clergyman, a member
of the legal profession, a member of the Oireachtas, etc.
There are some exempted persons who are entitled to
serve on application and these include women. The
submissions put forward were :
(1) Sections 2 and 3 of the Juries Act 1927 violated
the right of citizens to participate equally in the runn-
ing of a democratic State.
This was due to the exclusion
of citizens who have not the necessary property qualifi-
cations and to the exclusion of women. The following
Articles of the Constitution were relied upon :
(a)
Article
5 (Ireland a democratic State).
(b) Article 9 (2)—(No person may be excluded from
Irish Nationality by reason of their sex.)
(c) Article 38 (5)—(Right to trial by jury.)
(d) Article 40 (1)—(Equality before the law.)
(e) Article 40 (3)—(Protection from unjust attack.)
It was contended that citizens had a right to serve
on juries and a right in respect of ordinary criminal
cases to be tried by a jury. There was therefore a right
for men and women to serve on a jury, which was a
special personal right not specifically enumerated by the
onstitution (see dictum of Kenny J. in
Ryan v. Attor-
ney General
(1965) I.R. 313). It would be contended
that serving on a jury is an obligation rather than a
right, but in any event this whole submission was un-
sustainable. Democracy does not mean that every citizen
has a right to take part personally in the government of
the country, nor does it mean that every citizen has a
right to act as juror. Since 1871, there has always been a
property qualification, and a restriction on women to
serve as jurors; in fact, women may only serve since
1919. A citizen on a criminal charge has not got a right
to be tried by a jury selected at random, but only a
right to be tried by a jury selected at random from
citizens compellable to serve as jurors.
(2) The exemption of women from liability to serve
on juries save on application, is inconsistent with Article
40 (1) of the Constitution, as being a discrimination
on the ground of sex alone, and not on that of
capacity, physical or moral, nor on that of social func-
tion.
It was contended that the effect of Sections 2 and
3 of the Juries Act 1927 was as if the Act made all
Christians compellable to serve as jurors, which Jews
would not be compellable, save on special application.
In
Hartley's
case—21 December 1967— O Dalaigh C.J.
had stated, in relation to Article 40(1) that a diversity
of arrangements in relation to extradition does not
effect discrimination between citizens in their legal
rights. In the
Nicolaou
case
—11966
l.R. 639—it was
stressed that Article 40(1) does not either envisage or
guarantee equal measures in all things to all citizens.
In
O'Brien v. Keogh and
O'Brien—
24
July 1972—
it was held that Article 40(1) does not require identical
treatment of all persons without recognition of differ-
ences in relevant circumstances—it only forbids indivi-
dious discrimination. The right to serve as a juror is
not a right relating to the essential attributes of women
as human persons, but, as in the Quinn's supermarket
case, should be regarded on the same basis as their
trading activities. Accordingly this submission fails. It
is further contended, that:
There is an invidious dis-
crimination against women as litigants in that they are
likely to have their cases tried by an all male jury.
It
has not been established that women will not get as
fair a trial before an all-male jury rather than before
a mixed jury. This contention fails.
(3)
The property qualification under the Juries Act
1927 infringes Article 40(1) of the Constitution, in that
it discriminates either in favour of, or against, property
owners or from a property owners according as to
whether one regards jury service as a right or as a
burden.
This contention is, for reasons previously stated,
quite unsustainable.
(4) Section 2 of the Juries Act 1927, inasmuch as it
authorises the Minister to prescribe and vary the
minimum rating qualifications for jurors is unconstitu-
tional:
(a) on the ground that legislative power, which is
vested solely and exclusively in the Oireachtas, is dele-
gated to the Minister. In fact, in this case the Minister
is simply implementing the policy and provisions of the
Act as laid down by the Legislature;
(b) on the ground that the Minister's powers are
arbitrary and, as the legislation was enacted before the
Constitution of 1937, the Minister would not be bound
to act in accordance with the Constitution. This con-
tention cannot be sustained.
(5)
Sections 2 and 3 of the Juries Act 1927 are in-
consistent with Article 40(3) o fthe Constitution, be-
cause they failed to defend and vindicate the personal
rights of the citizen.
As the alleged rights of the plaintiffs as citizens to
serve on a jury, nor their alleged right to be tried
selected at random from all citizens, are not "personal
rights" protected by Article
4 0 ,
it follows that this con-
tention must also fail. Accordingly the Declarations
sought will be refused, and the actions will be dismissed
with costs.
[Mairin De Burca and Mary Anderson v. Attorney
General—Pringle J—unreported—1 June 1973.]
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