The Gazette 1979

GAZETTE

APRIL 1979

that the principle of equality begins and yet our dis-

tinctions between legitimate and illegitimate children

stem from that very root. In effect by trying to justify the

distinction between legitimate and illegitimate children we

are doing so under an argument not at all related to the

subject matter itself, namely illegitimate children who as

human beings cannot through character, appearance or

physical being be deemed different to legitimate children.

Walsh J. in the same case was more precise in his

examination of Article 40.1 and his judgement could well

be deemed to be the pinpoint upon which an argument

against essential discrimination between legitimate and

illegitimate children will be based on the grounds that it

infringes the Constitution.

" . . . this provision is not a guarantee of absolute

equality for all citizens in all circumstances but it is a

guarantee of equality as human persons and (as the

Irish text of the Constitution makes clear) is a guaran-

tee related to their dignity as human beings and a

guarantee against any inequalities grounded upon an

assumption, or indeed a belief, that some individual or

individuals or classes of individuals, by reason of their

human attributes or their ethnic or racial, social or

religious background, are to be treated as the inferior

or superior of other individuals in the community. This

text does not pretend to be complete but it is merely in-

tended to illustrate the view that the guarantee refers to

human persons for what they are in themselves rather

than to any lawful activities, trades or pursuits which

they may engage in or follow."

Preamble

In referring to "their dignity as human beings" one

must have regard to the wording of the Preamble because

as Walsh J. stated in the

McGee

Case:

"According to the Preamble, the people gave them-

selves the Constitution to promote the common good

with due observance of prudence, justice and charity

so that the dignity of the individual might be

assured."

It is submitted that the dignity of the individual cannot be

assured by blatant discrimination in our succession laws

between legitimate and illegitimate children solely on the

grounds of their birth and consequently such distinctions

cannot be "validly the subject of legislation by the

Oireachtas."

In the

de Burca

case,

the Supreme Court declared un-

constitutional that section of the Juries Act 1927 which

imposed a property qualification on those members of the

community who would otherwise have been eligible for

jury service. One of the points made by the Court was

that a property qualification was totally unrelated to a

person's mental capabilities. The relevant or what ought

to have been the relevant consideration was a person's

own individual ability to serve on a jury. The amending

legislation

which was introduced as a result of the

decision in that case abolished the property qualification

entirely and so the present position, subject to certain ex-

ceptions,

is that once a person has readied the qualifying

age of 18 years and is entered on the local register of

electors he/she is eligible for jury service. As Walsh J.

pointed out

a property owner may be illiterate or insane

whilst a non property owner may be highly intelligent.

A parallel form of argument could be used against the

existing discrimination of illegitimate children on an

intestacy,

but the one essential difference and drawback

is that the State could have a legitimate legislative aim

under Article 41 of the Constitution in that it must abide

by its guarantee to protect the Family in its constitution

and authority.

It has already been established that "the

Family" in this case is one founded upon the institution of

marriage

' and consequently unsolemnised unions are not

included.

Following on from this is the point made by Walsh J.

in the

Nicolaou

case

that:

"An illegitimate child has the same natural rights as a

legitimate child though not necessarily the same legal

rights. Legal rights as distinct from natural rights are

determined by the Court for the time being in force in

the State."

However, despite this statement by Walsh J. it must be re-

membered that legal rights as enacted by the State are still

subject to the Constitution and the constitutionality of a

discriminatory legal right which is sought to be justified

under Article 40, should depend upon "The character of

the discrimination and its relation to legitimate legislative

aims."

Obviously there must come a point beyond which the

State cannot uphold its action in favour of the members of

a lawful family to the detriment of other members not

deemed to be part of that family. Article 41 cannot be

used to override the essential concept of the equality of

man as guaranteed by Article 40.1. To determine the

limits of Article 41 in relation to the present subject

matter, it is submitted that the Courts should adopt the

test used by the U.S. Supreme Court when it held that a

Federal State's Succession Act, which allowed illegitimate

children to inherit by intestate succession from their

mothers estate only, violated the Equal Protection clause

of fiie 14th Amendment

of the American Constitution;

namely that a constitutional analysis of this nature is

incomplete unless the Court addresses itself to the rela-

tion between Article 40.1 and the promotion of legitimate

family relationships.

Trimble v. Gordon

Trimble v. Gordon,

the U.S. Supreme Court held

that the lower Court gave inadequate consideration to the

relation between that particular section of the Statute

under consideration and "the State's proper objective of

assuring accuracy and efficiency in the disposition of

property at death. The Court failed to consider the

possibility of a middle ground between the extreme of

complete exclusion and case-by-case determination of

paternity. For at least some significant categories of

illegitimate children of intestate men, inheritance rights

can be recognised without jeopardizing the orderly settle-

ment of estates on the dependability of titles to property

passing under intestacy law. Because it excludes those

categories of illegitimate children unnecessarily, Section

12 is constitutionally flawed."

The problem arising from a distinction between Article

40.1 and Article 41 cannot as was held by the Court in

that case,

"be lightly brushed aside

(nor)

be made into an