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Supreme Court that is the end of the matter for all
time, as the decision is not open to review (Article
34.3.3). (3) As a result of Article 26.2.2 only the decision
of the majority is delivered and this by a single judge.
No other opinion whether assenting or dissenting is
permitted. The Constitution deserves amendment to
deal with these criticisms. The first criticism could be
met by conferring on the President an additional power
to enable him to refer an Act to the Supreme Court
within a year or so of its being brought into operation,
as distinct from its enactment. He would retain his
present power of referring Bills as obviously some Bills
by their very nature need not be put into. practice to
decide on their constitutionality, but would also have
this additional power. The second criticism was consid-
ered by the Committee on the Constitution in the
following words: "The best solution would be to retain
the existing provisions with an amendment to the effect
that the Supreme Court decision could be challenged
in further legal proceedings after a period of say seven
years. This would provide some answer to the criticism
that the existing arrangements have the effect of calci-
fying the law for all time, and it would be in harmony
with the abandonment of Stare Decisis for ordinary
proceedings." Finally I believe that judges should have
the opportunity to express their opinions as freely as
they do in the United States, and as recommended by
the Committee on Court Practice and Procedure.
Danger of administrative tribunals
It is a reasonable assumption that any revised Con-
stitution would again be founded on the doctrine of
the separation of powers. The growth on a large scale
in our society of administrative tribunals frightens me.
These are undoubtedly dangerous symptoms of a disease
—the ever-increasing encroachment by the adminis-
trators and the executive into the judicial domain. This
disease ought to be checked in its prime before it
becomes cancerous. I would recommend as a remedial
measure the same cure enunciated by the Editor when
he wrote in the
Gazette
in July/August 1971, namely
the appointment as chairmen of these tribunals of
experienced legal practitioners such as Senior Counsel.
This would ensure a degree of rationality to the pro-
ceedings and bring them more in line with the
spirit of the Constitution. It may, however, produce
some difficulties with the text of the Constitution which
declares in Article 34 that "Justice shall be adminis-
tered in courts established by law by judges appointed
in the manner provided by the Constitution." There
are other improvements which should be made to
ensure the independence of the judicial arm of State.
A better system of appointing judges is the most often
cited. It would seem that the best alternative method so
far suggested is that the Government should appoint
whoever meets jointly with their approval as well as
that of the Bar Council and of the Council of the
Incorporated Law Socitv. Clauses should be added to
the present provisions for appointment which would
firstly fix the number of judges there are to be in the
Supreme Court and would also provide that the age of
retirement of a iudge, irrespective of any change in the
law after he had taken office, would be the age limit in
force on his taking office.
Human Rights
The second part of my paper is concerned with
"Human Rights"—a topic which, since the last war, has
received considerable attention from both governments
and international bodies as a result of the atrocities
perpetrated during arid immediately after that war and
the fear of Communism particularly after the Russian
invasion of Czechoslovakia in 1948. In 1948 the United
Nations Universal Declaration of Human Rights was
issued and 1949 saw the foundation of the Council of
Europe which was to lead to the European Convention
on Human Rights signed in Rome in 1950. The ques-
tion of Fundamental Rights is to the fore in the Six
Counties at the present time. Many people have advo-
cated the drawing up of a Bill of Rights as a major
contribution towards a solution. The Irish Government
has brought the British Government before the Com-
mission of Human Rights in Strasbourg in regard to
specified violations of human rights by British forces in
the Six Counties. The importance of this topic cannot
be over-emphasised.
State of emergency suspends Constitution
Articles 40 to 44 of our Constitution set out the
Fundamental Rights. While these Articles were com-
mendable at the time when the Constitution was adopted
some flaws have since appeared and it would seem that
in the modern world they are far from adequate. Let us
first protest at such an abhorrent Article as Article
28.3.3 by which we are, even at this very moment, living
in the Republic of Ireland in a "State of Emergency".
When it is invoked it prevents anything in the Consti-
tution from being used to invalidate any law enacted by
the Oireachtas—or in simple terms the Constitution can
be suspended. Such an Article makes nonsense of the
Constitution and must find no permanent place in a
revised document.
Importance of Natural Law
Assuming that item 28.3.3 disappears it would be
necessary that the Fundamental Rights articles be exten-
ded to cover "all persons" and not just "citizens". It
was stated in the High Court in
The State (Nicolaou) v
The Adoption Board
(1966) I.R., that any rights
guaranteed to "citizens" as opposed to "persons" could
only be availed of by Irish citizens. It seems hard to
see why the liberties of our citizens alone should be
protected but not those of others, as surely these rights
ae basic to the human person. There is little doubt but
that a revised Constitution should contain an express
recognition of the natural law—a vague reference to it
in the Preamble seems insufficient. We note with satis-
faction that our courts are returning to this concept in
recent years. It seemed at first that Chief Justice
Kennedy's dissenting judgment in
The State (Ryan) v
Lennon
(1935) I.R., had fallen on stony ground but
there has been a reappraisal and such cases as
MacDon-
ald v Bord na gCon
(1965) I.R., and
Macauley v
Minister for Posts and Telegraphs
(1966) I.R. 345,
demonstrate that the Bench is again actively engaged
in a more dvnamic way in guarding the natural rights
of the people. Such a recognition in our fundamental
law could be used by the Courts to enable them to give
more equitable decisions. There are obvious cases of
iniustice and the system of Equity as we know it today
is in its own way as rigid as the Common Law. These
two systems should be fully integrated and a new Equity
allowed to flourish using as its basis the Constitution
and all that is guaranteed therein. Is not "justice" to
be administered in the courts? Perhaps the most liberal
and reasonable interpretation of the fundamental rights
articles was triven by Mr. Justice Kenny in
Rvan v A.G-
(1965)—the famous "fluoridation case". He declared in
the course of his judgment, that, apart from the Funda-
mental Rights formally listed in the Constitution, all
those riehts which resulted from the Christian and
democratic nature of the State were implied therein-
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