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GAZETTE
N
W
DECEMBER 1992
A Living Law?
Second Bar Conference Examines the Constitution
At the Second Annual Conference of the Bar were L-R: Sir Ninian Stephen, who opened
the Conference and the Chairman of the Bar Council, Peter Shanley, SC, who chaired
the Conference.
T h e " I r i sh Co n s t i t u t i on - A Living
L a w ? " was an intriguing t h eme said
the Right H o n . Sir
Ninian Stephen,
o p e n i ng the S e c o nd A n n u al
Co n f e r e n ce of the Bar which t o ok
place at the e nd of October. T h e 100
p a r t i c i p a n ts h e a rd Sir N i n i an say
t h at he h ad not been aware t h at
Ireland h ad a c o n s t i t u t i on until a
few mo n t hs ago. Since t h e n,
however, he h a d b e c ome " a g o od
deal familiar with the small p o r t i on
of it, in p a r t i c u l ar t wo articles."
Sir N i n i an said it was p o i g n a nt t h at
while mo st c o n s t i t u t i o ns suffered
f r om the e x t r a o r d i n a ry o p t i m i sm of
their ma k e rs w h o s o u g ht to express
timeless t r u t h s, nonetheless, mo st
h a d a limited life. Mo st of the
n a t i o ns of the world since World
War II h a d exchanged o ne
c o n s t i t u t i on for a n o t h e r. T h e ability
of a c o n s t i t u t i on to c h a n ge with
c h a n g i ng times was a crucial f a c t or
in its being a living law a n d he
suggested t h at a c h a n ge me c h a n i sm
such as t h at provided in Article 46
of the Irish Co n s t i t u t i on was an
i nd i c a t or t h at a c o n s t i t u t i on c o u ld
be a living thing.
T h e Co n f e r e n c e, which was chaired
by
Peter Shanley,
SC, h e a rd p a p e rs
delivered by
Paul Gallagher,
SC, on
the Co n s t i t u t i on a nd C o mm u n i ty
Law;
Anne Dunne,
SC, on the
Co n s t i t u t i o n al Family,
Michael
Forde,
BL, on the State Action
Qu e s t i on a nd R i c h a rd Hump h r i e s,
BCL, on Co n s t i t u t i o n al
I n t e r p r e t a t i o n.
Paul Ga l l a g h er a r gu ed t h at wh en the
Co n s t i t u t i on was ame n d ed on
I r e l a n d 's accession to the E EC in
o r d er to ensure c omp a t a b i l i ty
between the t wo legal orders, t h at
a m e n dm e nt created a d y n am ic force
which h as resulted in EC law having
a substantial i n f l u e n ce a nd effect on
the d e v e l opme nt of c o n s t i t u t i o n al
law in Ireland since 1972. H e a r gu ed
t h at EC Law was n ow in a position
to protect s ome of t ho se rights
which were previously protected only
by the Irish Co n s t i t u t i o n. In
a d d i t i o n, if properly utilised, EC
Law c o u ld provide a rich source of
new ideas a n d precedents to assist in
the c o n t i n u ed d e v e l opme nt a n d
evolution of the f u n d a m e n t al rights
enjoyed u n d er Irish law. In t u r n,
a r gu ed Mr. Gallagher, the
d e v e l o pme nt of f u n d a m e n t al rights
u n d er Irish law c o u ld i n f l u e n ce the
d e v e l o pme nt of t h o se rights u n d er
E C Law.
A n n e Du n n e, SC, in her p a p er
entitled " T h e Co n s t i t u t i o n al
Family", said it was a p p r o p r i a te to
consider wh e t h er or not the
provisions relating to the family in a
c o n s t i t u t i on that h a d been with us
for a lmo st thirty years were a d e q u a te
in present day Ireland. She said it
was q u e s t i o n a b le wh e t h er the
p e r s on al rights available to p e op le
u n d er Article 40 were being
disregarded by the blind a d h e r e n ce
to the p r o h i b i t i on on divorce in
Article 41. T h e c o n s e q u e n c es of
Article 41 were t h at parties to a
b r o k en ma r r i a ge could not r ema r ry
a n d therefore there existed in Ireland
a growing n umb er of
u n c o n s t i t u t i o n al families the
memb e rs of which were not
p e rmi t t ed to e n j oy the b e n e f i ts
available to memb e rs of the
c o n s t i t u t i o n al family.
Mi c h a el Forde examined the classic
" s t a te a c t i o n" d o c t r i ne which h o l ds
t h at the obligation to respect
f u n d a m e n t al rights g r a n t ed to
citizens u n d er a c o n s t i t u t i on is an
obligation on the State a nd only on
the State. He a r gu ed t h at there
would be i mp o r t a nt practical
difficulties with a b a n d o n i ng a state
action restriction on c o n s t i t u t i o n al
obligation a nd t h at it wo u ld
i n t r o d u ce e n o r mo us un c e r t a i n ty into
the law. Ex am i n i ng case law, Mr.
Forde said that there h a d been only
o ne S u p r eme C o u rt case where the
state action a r g ume nt was ma d e,
McGralh and O'Rourke
-v-
Maynooth College (1979 ILRM 166)
in which Mr. Justice Kenny held t h at
the g u a r a n t ee of religious f r e e d om
b o u n d only the State a n d did not
place obligations on private bodies
even if they o b t a i n ed s ome State
f u n d i ng for their activities.
Mr. Forde p o s t u l a t ed t h at if the state
action principle h ad been applied in
the
Open Door, Grogan,
a nd
'X'
cases t h en the d e f e n d a n ts in t h o se
cases would have h a d cast iron
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