426 / 462
GAZETTE
DECEMBER 1992
defences. They could have said " l o ok
at the wording of this clause (Article
40.3.3) ' The State acknowledges . . .
a nd guarantees by its law . . ' We are
not the State. Wh a t we are doing -
disseminating i n f o rma t i on on
Í travelling to En g l a nd - c a n n ot
conceivably be regarded as a f o rm of
State activity. You have got the wr o ng
defendants. T he constitutional duty
clearly is on the State a nd it is on it
to introduce a p p r o p r i a te laws to
protect the u n b o r n ".
Mr. Forde said t h at it h a d never
been suggested by the c o u r ts t h at the
article of the Co n s t i t u t i on on
equality applied to private as well as
public a c t i o n, but the case for such
an a p p l i c a t i on was mu ch stronger.
For unlike the a b o r t i on article, the
equality clause was not expressed in
t e rms of " t h e State shall". If there
was to be consistency in o ur
Co n s t i t u t i o n al Law then p e r h a ps sex
d i s c r imi n a t i on t h r o u g h o ut the private
sector was u n c o n s t i t u t i o n al a n d rules
which p u r p o r t ed to exclude women
f r om a variety of bodies a nd
associations were null a n d void a nd
p e r h a ps even actionable. Co u ld we
now expect the courts, he q u e r i e d, to
vindicate the right to equality, for
example, whenever a liquor licence
a p p l i c a t i on was being h e a rd or
p l a n n i ng p e rmi s s i on was being
s o u g ht by a me n - o n ly b o d y? O r
would a state action principle be
applied to the equality article? If
t h at were so, why s h o u ld the
a b o r t i on article by any d i f f e r e n t?
" D o e s Ireland need a new
C o n s t i t u t i o n ?" was the t h eme of a
lively a nd witty d e b a te chaired by
Ms. Justice
Susan Denham,
d u r i ng
the a f t e r n o on session of the
Co n f e r e n c e.
Ar g u i ng for the mo t i o n,
Michael
McDowell,
SC, said t h at it s h o u ld be
possible to emb o dy the necessary
m i n i mum p r o t e c t i ons in a
c o n s t i t u t i on w i t h o ut the
"me t a p h y s i c al a nd ideological
b a g g a g e" c o n t a i n ed in the 1937
Co n s t i t u t i o n. " I d e o l o g i c al
c o n t i n e n ce is possible", he asserted.
It wo u ld be entirely feasible to put
in place a new c o n s t i t u t i on which
s h o u ld be b a l a n c ed a nd inclusive, he
said. His c o - p r o p o n e nt of the
mo t i o n,
Felix McEnroy,
BL, said
t h at the wh o le t h i n k i ng b e h i nd the
1937 Co n s t i t u t i on h ad been an
a t t empt to nail d own certain
principles on which it h ad been felt
the j u d i c i a ry a nd legislature could
not be t r u s t e d. Article 41 was a
" m o r a l d i n o s a u r" he stated, a n d its
message to the women of Ireland
was a simple one: " g o h ome girls".
He said there h a d been a d i s t u r b i ng
d e v e l o pme nt in recent times where
specific interest g r o u ps h ad decided
to use the Co n s t i t u t i on as a me a ns
of e n f o r c i ng their views a b o ut wh at
was g o od for everyone. He said the
wh o le " c o p p e r f a s t e n e d" mentality
a mo u n t ed to a " t e mp l a te of t e r r o r"
by which o ur f u n d a m e n t al d o c um e nt
would be used as a sword by p ro life
g r o u ps rather t h an a shield to
protect f u n d a m e n t al rights.
Op p o s i ng the mo t i o n,
Nial Fennelly,
SC, said that the constitutional
interpretation over half a century by
judges of all persuasions h ad ma de a
living d o c ume nt of the Con s t i t u t i on.
T h e Con s t i t u t i on should not be
regarded as a suit of clothes to
c h a n ge when fashions change. Rather,
it was a suit of clothes which h ad
served the Irish people well, it did
not fit t oo tightly a nd it was large
e n o u gh for people to grow into. It
h ad been the i n s t r ume nt which h ad
achieved the development of h um an
rights a nd he did not think the Irish
people wanted to be told by their
lawyers that they should jettison this
tradition a nd all that h ad been
achieved u n d er the Co n s t i t u t i o n.
Despite massive social c h a n ge in
Ireland since 1937, the p r e d om i n a nt
e t h os in society was still Ch r i s t i an
a n d d emo c r a t ic said
Shane Murphy,
BL, also a r gu i ng against the mo t i o n.
He said it was a p o p u l ar
m i s c o n c e p t i on t h at in 1937 De Valera
h ad given the Ch u r ch wh at it
wa n t e d, a Ca t h o l ic Co n s t i t u t i o n. In
fact, the issue h ad been wh e t h er it
was possible to express ma j o r i ty
principles w i t h o ut o f f e n d i ng
minorities. It was possible to d o so
a n d the 1937 c o n s t i t u t i on h a d proved
this. He said a p a r a n o id fixation
a b o ut the events of 1937 i n f u s ed the
a r g ume n ts of the p r o p o n e n ts of the
motion, but it was clear that the
courts had interpreted the
Constitution in a ma n n er which could
be seen to be independent. He said
interpretation was the basis on which
life could be given to this do c ume nt
to make it capable of living beyond
this generation and into future
generations. "We have the basis for
organic growth, not a vehicle for
social engineering," he stated.
T h e mo t i on wh en put to a vote, was
d e f e a t e d.
•
Disciplinary
Committee
(Continued from page 399)
n a me removed f r om the Roll of
Solicitors at least three mo n t hs in
a d v a n ce of being called to the Bar.
Du r i ng the year, Mr.
G rattan
Roberts,
Mr.
Michael Hogan
a nd
Mr.
Donal Kelliher
were r e - a p p o i n t ed
to the C omm i t t ee by the President of
the H i gh C o u rt for a n o t h er period
of five years.
I would like to record my t h a n ks to
the memb e rs of the C omm i t t ee for
their h a rd work a nd s u p p o rt d u r i ng
the past year.
Mary Lynch,
the Clerk
to the Comm i t t e e, h as dealt with its
a f f a i rs in a mo st efficient a nd
c omp e t e nt ma n n e r. We are indeed
grateful to her.
Da t ed this 20th day of No v emb er
1992.
Walter Beatty, Chairman
A list of the members of the
Disciplinary Committee appointed by
the President of the High Court
appears on page 377.
Lawyers
Desk Diary
1993
Page - a - Day A4
Now Available!
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