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GAZETTE
OCTOBER 1989
down markers in advance for future
events. 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.
What sort of markers did you lay
down?
The question of personal liberty
was very important, It was laid
down very early on that every
citizen had a right of access to the
courts and, for example, on a
matter like extradition, could not be
hustled out of the country before
he got to the court. In fact we held
a Chief of Police in contempt of
court for having done that. That
was something quite new, because
we struck down the law which
permitted that at the same time.
We said any law which would
impede access to the courts was
au t oma t i ca l ly uncons t i t u t i onal
because access to the courts was
a guaranteed fundamental right.
Now that had wide repercussions.
Then, later on, when we came to
the question of admissibility of
evidence, we laid down the rule
that any evidence obtained in
violation of a constitutional right
was automatically excluded even
though it might have been, say in
the case of a statement, complete-
ly voluntary. The court held that the
safeguard in the Constitution was
the higher interest. That also had
very widespread repercussions.
Quite a number of convictions have
been quashed, even when the facts
were really beyond dispute,
because the incriminating ad-
missions were obtained in violation
of the constitutional rights of the
accused.
The Constitution has been con-
strued, particularly in relation to
Article 40, in much the way that
the 14th Amendment of the United
States Constitution is construed. It
covers a great variety of cases but,
essentially, they all support the
view of the primacy of the Con-
stitution. On the other hand, the
view that had been taken in
England was that how evidence
was obtained was immaterial, save
in the case of statements obtained
involuntarily. Once they were volun-
tary, they were admitted irre-
spective of any illegality connected
w i th obtaining them. We dis-
tinguished between, say, con-
fessions obtained in violation of the
law from those in violation of the
Constitution. The latter were absol-
utely excluded no matter how true
they were; the others were subject
to a different test: whether they
were voluntary. The constitutional
cases emphasised this concept of
fairness. Over the years, the courts
have held that the Constitution
contains, without expressly stating
it, a guarantee of fair procedures,
not merely before the courts them-
selves but even in the police
activities.
So these were the developments
which arose from the early markers
put down by the court. Then, when
the precise cases came along, they
were laid down quite definitely. But
by laying down these indications in
advance, then people's minds and
practitioners' minds were directed
towards these issues. Arguments
they mightn't have thought would
be worth putting years earlier they
now, suddenly, saw might be of use.
You upheld the primecy of the
Constitution end you found
certsin footholds for humsn
rights under ft. But how good
wee the constitutions! meterisl
thet you hsd to work with?
The material was very good,
because the Constitution, in its
f undamen t al rights area, is
essentially a natural law document.
It doesn't seek to confer rights. It
recognises and guarantees to
protect what it regards as pre-
existing rights, which are inherent
in the human person because he is
a human person. Therefore that
gives the courts a very wide scope
because, while particular rights in
this context are mentioned in the
Constitution, courts have held that
there are also great numbers of
unenumerated rights. So, effect-
ively that means that, in the
progress of time, the judges have
the opportunity to think up extra
rights depending on the state of
progress of whatever age we are in.
That is logical because t he
Constitution gives legal effect to
moral concepts and is, therefore,
far from being a document based
on legal positivism. It was the
opposite. One would search one's
mind for what is a human right, or
a natural right, and give effect to
that. The Constitution gave the
judges that great latitude and, as
the Constitution of Ireland can
only be amended by a national
referendum, it meant in effect that
no decision of the court could be
changed w i t h o ut a na t i onal
referendum, save by the court
itself. The parliament was com-
pletely excluded from changing
any cons t i t u t i onal interpretat-
ion.
What happened with the court
after that initial spurt of
activism?
I think it is still relatively active, but
there are fewer cases which lend
themselves to this. The whole field
of personal liberty was virtually
exhausted in about twelve to
fifteen years. But the court still
finds occasion to strike down laws
as being unconstitutional. One of
the noticeable things has been
that, in recent years, a number of
cases concerning property rights
have begun to emerge and the
court has given important decisions
in that field. For example, it struck
down the rent control legislation.
This was done mainly because it
was based upon the criteria es-
tablished in about 1915, so it had
become quite unreal. Then, when
an amending law was brought in,
the court struck that down also
because it wasn't sufficient. The
t h i rd law b r ought in wa s n 't
challenged so it still stands.
The executive erm of govern-
ment eppointed you end,
through the Prime Minister,
urged you towsrds e more
sctivist role. Yet when you went
obout being more sctive, the
politicsl erme of government
didn't respond pertlculsrly well
to It. Is thet correct?
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