The Gazette 1979

GAZETTE

APRIL 1979

the State are to have regard to differences of birth. It

refers solely to physical and moral capacity and social

function.

"Social Function"

The meaning of the term "social function" was

discussed by Walsh J. in the

de Burca

case.

"To be of either sex, without more, is not per se to

have a social function within the meaning ot Art. 40 of

the Constitution. To be an architect or a doctor for

example is to have a social function, but the function

does not depend upon the sex of the person exercising

the profession."

Clearly therefore the term "social function" is not applic-

able to distinctions drawn between children purely be-

cause of their birth.

"Physical and Moral Capacity"

The term "physical and moral capacity" is twofold in

that one must examine on the one hand what is meant by

an individual's physical capacity and on the other hand

by his moral capacity.

Presumably one's "physical capacity" would refer to,

for example, elements of employment peculiar to an

individual. It could also be of relevance, as was pointed

out by Walsh J. in the

McGee

case

to the question of

discrimination where contraceptives were made available

to a married woman whose life was endangered by

conception but were not made available to a married

woman who was not likely to incur such danger. How-

ever, it could not refer to a child's birth per se as there is

nothing in the factor of birth itself to distinguish it from any

other child since it has no control whatsoever over the

birth nor the circumstances surrbunding it. "It was ack-

nowledged by Mr. Justice Henchy in the recent adoption

case

that "all children, whether legitimate or illegitimate

share the common characteristic that they enter life with-

out any responsibility for their status and with an equal

claim to what the Constitution expressly or impliedly

postulates as the fundamental rights of children."

The words "moral capacity" imply a somewhat vague

or obscure term although they could perhaps be of rele-

vance in a Hart-Devlin type debate on the distinction

between and justifications for a private and public

morality. They could also be of relevance for example, in

an argument to justify the availability of contraceptives to

named couples as opposed to unmarried couples living

together. However, it is impossible to see how they can be

adopted to justify distinctions between legitimate and

illegitimate children on the grounds of their birth, for their

moral capacity, whatever it may appear to be, cannot no

more than their "physical capacity", be related to their

circumstances of birth when they themselves have no

control over their birth nor their parents' "morality" which

gave rise to the birth.

Accordingly, we are now left with the question whether

the discrimination in our succession law relating to

illegitimate children can be deemed "invidious" or

"arbitrary".

Neither of these terms have been examined to any

degree by the Courts although O'Higgins C. J. in the

Burca

caae

seemed to equate the word "invidious" with

the words "unjust" and "unfair". In the

East Donegal

Livestock Mart

case

O'Keeffe J. held in the High Court

(overruled to a large extent on appeal) that where a

Minister can grant or refuse to revoke a particular licence

"in his uncontrolled discretion and on purely arbitrary

grounds" the relevant legislation must be invalid having

regard to the provision of Article 40.1. Again the word

"arbitrary" was not examined in itself but rather in

context.

In fairness it would not be possible to delimit the extent

to which any act may amount to invidious or arbitrary

discrimination under Article 40.1 without it being

independently examined and consequently each case must

depend, as is apparent from the case law to date upon its

merits.

Fundamental Distinctions

In determining whether any particular act is to be

deemed invidious or arbitrary it is felt that the issue will

not so much depend upon the meaning attached to those

two words but rather to one's own primarily subjective

views as to what constitutes discrimination in this context

of illegitimacy. There are obviously objective views to be

taken into consideration (e.g. the reasons for an already

existant state of discrimination, the objects of a society in

perpetuating same) but essentially it is the Judge's own

personal views on the topic grounded upon solid legal

argument which will determine the issue. In the ensuing

pages the writer will examine some of the earlier decisions

dealing with the question of discrimination and will argue

that, in his opinion, those various judgements do indeed

provide a solid legal framework upon which our existing

law of succession in relation to illegitimate children can be

declared invalid having regard to the provision of Article

40.1. However one must first of all recall that there are

certain distinctions which can be drawn between various

members of our society without interfering with the

essential concept that "all citizens shall as human persons

be held equal before the law". What is being argued

here is that fundamental distinctions which go to the root

of the concepts of the equality of man cannot be justified.

Kenny J. examined this concept of equality in the

Quinn Supermarket

case:

"This guarantee

(in Art. 40.1)

... is one of equality

before the law in so far as the characteristics inherent

in the idea of human personality are involved: it does

not relate to trading activities or to the hours during

which persons may carry on business for neither of

these is connected with the essentials of the concept of

personality. The qualifying clause in the Article which

provides that the State may in its enactments have

regard to differences of capacity and social functions

shows that the Article is not a guarantee of equality

before the law in all matters: see the decision of this

Court in

The State (Nicolaou) v. An Bord Uchtala

81966] IR 567, 639."

Unfortunately Mr. Justice Kenny did not define what was

meant by "the essentials of the concept of personality"

nor "the characteristics inherent in the idea of human

personality." However at the same time it could be

argued that the principle he was enunciating in his

judgement referred to the equality of man as a being who

is born in a resemblance, both physical and mental to

®ry other being. Therefore it is upon the birth of man