The Gazette 1990

GAZETTE

nua

y/february

1990

Mr. Justice Brian Walsh - One of the

Helmsmen of the Constitution

"The great judge was great

because when the occasion

cried out for new law he dared

to make it .. . "

Mr Justice Brian Walsh retired from

the Supreme Court in March 1990.

Called to the Bar in 1941 and to the

Inner Bar in 1954, he was appoint-

ed a High Court judge in 1959 and

a judge of the Supreme Court in

1961. He served as president of the

Law Reform Commission from

1975 to 1985 and as chairman of

the Committee on Court Practice

and Procedure from 1962 to 1988.

A judge of the European Court of

Human Rights since 1980, he was

president of the International

Association of Judges from 1986

to 1988.

Constitutional Cases

Judgments of Mr Justice Walsh

will live for many reasons, but

particularly because in these

judgments he spoke with an

authority greater than his own.

That authority was Bunreacht na

hÉireann - the document which

orders the social, legal and political

structure of the State. That law, in

"He spoke with an authority

greater than his own".

the words of Mr Justice Walsh him-

self, "speaks always in the present

tense and is to be regarded as

contemporary law, even though as

a document it may be regarded as

being of another generation".

Thus, there was considerable

scope in appropriate cases for

judicial discretion. Montesquieu's

approach, according to which the

judge is simply the mouth that

repeats the language of the law,

was not accepted by Mr Justice

Walsh.

Mr Justice Walsh disliked the

"mechanical" approach to judging.

Oliver Wendell Holmes in

The Path

of the Law

(1897) tells the story of

a Vermont justice before whom a

suit was brought by one farmer

against another for breaking a

churn. The justice took time to

consider, and then said that he had

looked through the statutes and

could find nothing about churns

and gave judgment for the

defendants. Many judges of our

own time still display the mentality

of that Vermont justice. Mr Justice

Walsh was not of that ilk.

In constitutional cases the judge

often stands at a fork on the road.

Justice Cardozo vividly described

this process:

"There have been two paths,

each open though leading to

different goals. The fork in the

Eamonn G. Hall, Solicitor

road has not been neutralised by

a barrier across one of the

prongs with the label of 'no

thoroughfare'. [The judge] must

gather his wits, pluck up his

courage, go forward one way or

the other and pray that he may

be walking, not into ambush,

morass, and darkness, but into

safety, the open spaces, and the

light".

Mr Justice Brian Walsh often

plucked up his courage, went for-

ward and made new law.

The Irish Constitution was not

often referred to in Irish courts prior

to the appointment of Cearbhall

Ó Dálaigh and Brian Walsh.

Cearbhall Ó Dálaigh was appointed

Chief Justice in 1961 - the day

Brian Walsh was appointed a judge

of the Supreme Court. The pre-

cedents of the United States

Supreme Court were a rich fertile

ground upon which to base an

interpretation of the Irish Constitu-

tion. New law was made. The lead-

ing judgment of Mr. Justice Walsh

Byrne -v- Ireland*

remains a

seminal judgment in Irish juris-

prudence. The case of

McGee -v-

Attorney General

was another

landmark decision. Mr. Justice

Walsh held that the use of con-

traceptives by married couples

within the context of marital

privacy was guaranteed against

invasion of privacy, and as such

assumed the status of a right

guaranteed under the Constitution.

Mr. Justice Walsh's approach to

interpreting the Constitution was

fleshed out by him in 1988:

"The Constitution in Ireland has

been brought in - even to the

construction of common law -

to every sphere of legal activity.

By laying down markers one

might inspire practitioners to

pick them up and use them in

the next case that may be more

central. We certainly didn't stick

to the rigid system of saying

nothing about anything except

the precise point before us, and

we didn't attempt to avoid

issues. In other words, we got

away from what is perhaps the

easier judicial approach of saying

no. We went out of our way to

try and find remedies and,

effectively, adopted the view

that if the Constitution provided

a right, there was automatically

a remedy; and one doesn't have

to wait for legislation to provide

a remedy".

Eamonn Hall.