21 / 196
Mr. Justice Henchy said that he found nothing in the
Act or the proceedings laid down by the Committee
in its interim report that could be said to be a depri-
vation or diminution of the constitutional or legal rights
that a witness would be entitled to in a Court established
under the Constitution.
(12) Finally it was argued that Section 3 (4) of the Act
was repugnant to the Constitution in failing to provide
a punishment for the offence created by the sub-section.
He could not find any validity in this argument, for
since the offence created was a constructive contempt
of the High Court and there was attached to it the
punishment that it would attract if it were a contempt
of the High Court, the punishment was thereby clearly
defined by reference. In this, as in other respects, there
was nothing novel or unique about the section; it merely
reproduced provisions that were to be found in a wide
range of statutory provisions.
For those reasons he would disallow the Cause shown.
Mr. Haughey had not asked for trial by jury and the
court, having considered the law and the facts, did not
consider a trial by jury to be called for. Having regard
to all the circumstances the sentence of six calendar
months imprisonment seemed to him to be appropriate.
[In re Committee of Public Accounts of Dáil Eireann
Privilege and Procedure Act, 1970, and in re Courts
(Supplemental Provisions) Act, 1961, and in re Paric
Haughey. ]
The Irish Times
(1st April 1971)
BUTCHERS MAY OPEN SHOPS ON SATURDAY
NIGHTS
The Supreme Court, in a reserved judgment delivered
yesterday, by a majority of four to one, dismissed an
appeal by the Attorney General, the Minister for
Industry and Commerce, and James O'Leary, in an
action arising out of exemptions granted in respect of
trading hours to shops selling kosher meat.
The appeal was against a decision given in the High
Court by Mr. Justice McLoughlin on 1st July 1968 in
which he granted a declaration sought by Quinn's
Supermarket Ltd., Finglas, and Fergal Quinn that the
Victuallers' Shops (Hours of Trading on Week Days)
(Dublin, Dun Laoghaire and Bray) Order, 1948, was
repugnant to the Constitution.
The majority judgment in the Supreme Court was
delivered by Mr. Justice Walsh and the Chief Justice
(Mr. Justice Ó Dálaigh), Mr. Justice Budd and Mr.
Justice Fitzgerald agreed. Mr. Justice Kenny read a
dissenting judgment.
Mr. Justice Walsh, in his judgment, said that the
plaintiffs had challenged the validity of the Order on
the grounds (1) that it discriminated between victuallers'
shops, namely, those which sold all kinds of fresh meat
and those which sold only meat killed and prepared by
the Jewish ritual method. It was submitted that this
discrimination imposed a disability upon the plaintiffs
on the ground of religious profession, belief or status
and that it was in any event a discrimination grounded
upon religious profession, belief or status and that such
disability or discrimination was prohibited by Article 44
(2) (3) of the Constitution and that it was contrary to
the provisions of Article 40 (1) of the Constitution.
Mr. Justice Walsh said that the provisions of Art. 40 (1)
had been discussed in the Livestock Marts Act case before
the Court and, as was there decided, that provision was
not a guarantee of absolute equality for all citizens in all
circumstances but was a guarantee of equality as human
persons and, as the Irish text of the Constitution made
quite clear, was a guarantee related to their dignity as
human beings and a guarantee against any inequalities
grounded upon an assumption or indeed a belief that
some individuals or classes of individuals were by reason
of their human attributes or their ethnic or racial, social
or religious background, to be treated as the inferior or
superior of other individuals in the community. In his
view, this provision had no bearing on the point to be
considered in the present case as no question of human
equality or inequality arose.
Mr. Justice Walsh then quoted the provisions of
Article 44 of the Constitution : "Freedom of conscience
and the free profession and practice of religion are,
subject to public order and morality, guaranteed to
every citizen;'the State guarantees not to endow any
religion; the State shall not impose any disabilities or
make any discrimination on the ground of religious
profession, belief or status."
The plaintiffs had certainly suffered a disability in
the sense that they were legally disqualified from selling
meat outside the hours set out in the Order. This was a
deprivation. But in his view, where the provision spoke
of disabilities the disability must be one which was
suffered and imposed on the ground of the religious
profession, belief or status of the person so disabled.
Here there was no evidence that the disability suffered
by the plaintiffs had anything to do with the religious
profession, belief or status of Mr. Quinn or of the
shareholders of the plaintiff company.
Mr. Justice Walsh said he was of opinion that the
exception made in relation to the sale of meat killed
according to the Jewish ritual was a discrimination on
the ground of religious profession, belief or status and
was,
prima facie
at least, unconstitutional on its face.
The facts were that it was an essential element of the
Jewish religion that only meat killed and authorised by
the Jewish ritual method should be eaten by persons
practising the Jewish religion and that the shops dealing
in the sale method were owned (at the date
the order was made) by members of the Jewish
religion who would, by the tenets or rules of their
religion, be compelled to close their shops before the
hours of sunset on Friday afternoons and would be
prohibited from re-opening before 6.30 p.m. on
Saturdays.
This was so even though many, if not all, of the
employees of these shops would not be of the Jewish
religion. It also appeared that over 90 per cent of all
the Jewish families in Ireland accepted these rules as
binding rules of their religion and acknowledged that
the required duty of Judaism was to observe these rules
regarding meat and other kosher foods. Such observance
was a strict commandment in the code of Jewish law.
The conclusion of fact was that between the hours of
sunset on Friday afternoons and 6.30 p.m. on Saturday
afternoons it would not be possible for any practising
member of the Jewish religion to obtain any meat for
consumption save that which by the commandments of
his religion he was forbidden to eat. Such person would,
between those hours, be left with the choice of going
without meat or being compelled to buy the type of
meat he was forbidden to buy.
If by law the hours of trading in meat killed and
prepared by the Jewish ritual method was confincd to
hours which presented a member of that religion with
such a choice, then that law interfered with the free
profession and practice of that religion.
There therefore arose a conflict between the constitu-
tional guarantee of the free profession and practice of
religion and the constitutional guarantee against dis-
crimination on the ground of religious profession, belief
or status.
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