The Gazette 1981

GAZETTE

DECEMBE

1981

Recent

Irish

Cases

Constitutional Law — Statute —

Validity

—

Personal

Rights.

Application to Minister for Justice

for Certificate of Naturalisation;

Claim that certain provisions of the

Irish Nationality and Citizenship

Act, 1956, are invalid.

The first-named Plaintiff, a native of

Pakistan, came to this country in

March 1977 and has resided here

since then. He married the second-

named Plaintiff, an Irish citizen, on 15

April 1978.

On the 21 August 1978 the first

named Plaintiff applied to the

Minister for Justice for a certificate of

naturalisation as an Irish citizen.

Section 15 of the Irish Nationality

and Citizenship Act, 1956, provided

that an alien man might — at the

Minister's absolute discretion —

acquire Irish citizenship if the

Minister was satisfied that the

applicant complied with certain

conditions, including one year's

notice to be given of the intention to

make the application and the

applicant to have resided in this

country for five years in all. These

conditions might be dispensed with

by the Minister in certain cases.

Section 16 of the 1956 Act

provided that the Minister mifcht

dispense with any of those conditions

(inter alia) "(d) where the applicant is

a woman who is married to a

naturalised Irish citizen; (e) where the

applicant is married to a woman who

is an Irish citizen (otherwise then by

naturalisation)."

Those two Sections contrast with

Section 8 of the 1956 Act which

provided that an alien woman who

married an Irish citizen (other than a

naturalised citizen) might automat-

ically acquire citizenship on her mar-

riage by lodging a declaration in the

prescribed manner with the Minister.

The Minister, by letter dated 24

August 1978, stated that in the case

of the first-named Plaintiff the

residential qualification would be

reduced to two years and the

requirements as to advance notice

would be waived. The Minister

refused to waive the residence

qualification in its entirety and

proceedings were instituted claiming

a declaration that Sections 8, 15 and

16 of the 1956 Act were uncon-

stitutional and contrary to natural

justice and seeking an order directing

the Minister for Justice to grant a

certificate of naturalisation to the first

named Plaintiff.

It was argued on behalf of the

second named plaintiff that the fact

that she was deprived of the right to

confer an automatic entitlement to

Irish citizenship on her spouse was a

violation of the guarantee contained

in Article 40.1 of the Constitution

(equality before the law).

It was submitted on behalf of the

first named Plaintiff that the

differentiation between alien men and

alien women in the Sections already

referred to was a breach of the

guarantee of equality before the law

contained in Article 40 and a breach

of Article 9.1.3 which stated:

"No person may be excluded from

Irish nationality and citizenship by

reason of the sex of such person".

It was argued for the defendants

that the impugned provisions simply

provided

for

diversity

arrangements which did not amount

to discrimination between citizens in

their legal rights, that the first-named

Plaintiff, not being a citizen, could

not claim the protection of the

Articles of the Constitution which

guaranteed the fundamental rights of

citizens and that the second named

Plaintiff was not capable in law of

asserting any constitutional rights on

his behalf.

The High Court (per Keane, J.),

accepted that there were certain legal

propositions

that were clearly

established and not disputed.

1. The enactment under attack,

being an Act of the Oireachtas

which became law subsequent to

the enactment of the Constitution

was entitled to the presumption of

constitutionality

operating in

favour of all such statutes.

(McDonald v. Bord na gCon

[1965] IR 217; and,

East

Donegal Co-Operative Livestock

Mart Limited

The Attorney-

General

[1970] IR 317).

2. The guarantee of equality before

the law contained in Article 40 of

the Constitution was not infringed

because of an existence of a

diversity of arrangements

(State

(Nicholau) v. An Bord Uchtala

[1966] IR 567; and,

O'Brien v.

Keogh

[1972] IR 144).

Held:

(per Keane J.) dismissing the

Plaintiff's claim;

1. That the provisions of the

Sections in question (i.e. that

female aliens were upon marriage

automatically entitled at their

option to Irish citizenship, while

male aliens were not) do no more

than provide a diversity of

arrangements which was not

prohibited by Article 40.1 of the

Constitution.

2. That, accordingly, the sections in

question did not infringe the

constitutional

guarantee

and

undertaking of equality before the

law, nor did they infringe the

provisions of Article 9.1.2. of the

Constitution providing that no

person might be excluded from

Irish nationality and citizenship

by reason of his or her sex.

3. TTiat no benefit would be

conferred on the Plaintiff if the

relevant sections were held to be

invalid. The Court had no

jurisdiction to substitute for the

impugned enactment a form of

enactment which it considered

desirable or to indicate to the

Oireachtas the appropriate form

of enactment which should be

substituted for the impugned

enactment.

Mohammed

All

Source

and

Margaret Sontjee v. The Minister for

Justice and The Attorney General —

High Court (per Keane J.) - 20 De-

cember 1979 - unreported.

cclxxii