The Gazette 1971

Mr. Justice Walsh then reviewed a number of United

States cases on similar questions and, having done so,

he said : "Our Constitution reflects a firm conviction

that we are religious people. The Preamble to the Con-

stitution acknowledges that we are a Christian people

and Article 44 (1) acknowledges that the homage of

public worship is due to Almighty God but does so in

terms which do not confine the benefit of that acknowl-

edgment to members of the Christian faith."

In Article 44 (1) of the Constitution the State recog-

nised the existence of the several religious denomina-

tions there named, including the Jewish congregations,

as well as all other ones existing at the date of the

coming into operation of the Constitution. "This

declaration is an express recognition of the separate co-

existence of the religious denominations, named and

unnamed. It does not prefer one to the other and it

does not confer any privilege or impose any disability

or diminution of status upon any religious denomin-

ation and it does not permit the State to do so."

Mr. Justice Walsh said it appeared to him that the

primary object and aim of Article 44 was to secure and

guarantee freedom of conscience and the free profession

and practice of religion subject to public order and

moralitv and to ensure that the practice of religion and

the holding of particular religious beliefs would not

subject the person concerned to any disability on that

account or to permit distinctions on the ground of

religious profession, belief or status between persons in

the State who were free to profess and practice their

religion.

If, however, the implementation of the guarantee of

free profession and practice of religion required that a

distinction should be made to make possible for the

persons professing or practising a, particular religion

their guaranteed right to do so then such a distinction

was not invalid having regard to the provisions of the

Constitution. It would be completely contrary to the

spirit and intendment of the provisions of Article 44

(2) to permit the guarantee against discrimination on

the ground of religious profession or belief to be made

the very means of restricting or preventing the free

profession or practice of religion. The primary purpose

of the guarantee against discrimination was to ensure

the freedom of practice of religion.

It was quite clear that the exemption which was

achieved in the Order of 1948 was in fact intended to

avoid any such restriction upon the practice of their

religion by members of the Jewish religion in the trading

area set out in the order.

"So long as the present dietary laws remain a binding

part of the Jewish religion then a sufficient exemption

of the type under review would be not merely not

invalid but would be necessary if the hours of trading

were regulated as at present."

Mr. Justice Walsh then dealt with the plaintiffs'

complaint that the discrimination was more than was

necessary as it resulted in shops in which the only

business carried on was the sale of kosher meat being

open without restriction as to hours. In his opinion the

complaint was justified that the discrimination was

more than was necessary in so far as it related to week-

days other than Saturdays. There was no evidence

whatsoever to suggest that the free practice of the

Jewish religion would be hampered in any way by the

application of the fixed hours to the kosher meat shops

on those days. For the reasons he had already given, a

discrimination on Saturdays would not be invalid.

However, the words of the exemption in the 1948

Order gave exemption for every day and by its terms was

incapable of being modified by deletion to confine it to

Saturdays.

The remaining member of the court, Mr. Justice

Kenny, in a dissenting judgment, said that in his

opinion, the Order was valid; the appeal should be

allowed and the action should be dismissed. He said

that we were in religion a pluralist society made up of

people of many religious persuasions and beliefs and so

it was likely that parts of legislation would occasionally

indirectly affect the practice of some religion. If the

State had to abstain from law making on matters

which indirectly affected the practice of religion by

some of the citizens the scope of legislation would be

seriously reduced. It seemed to him that the prohibition

on discrimination on the ground of religious profession

or belief did not apply to legislation passed to secure or

encourage the free profession and practice of religion.

[Quinn v Attorney General and others.]

The Irish Times

(3rd April 1971)

NON-AVAILABILITY OF CIVIL LEGAL AID

CONSTITUTIONAL

Plaintiff, a former hackney owner, now unemployed,

claimed that Sections 2-7 of the Criminal Justice (Legal

Aid) Act, 1962, are unconstitutional, inasmuch as they

appear to be inconsistent with the Constitution, and in

particular with :

(a) Article 15, Section 4, whioh declares that the

Oireachtas shall not enact any law which is in any way

repugnant to the Constitution.

(b) Article 34, Section 3, Subsection 1, which declares

that the Courts of First Instance shall include a High

Court invested with full original jurisdiction in and

power to determine all matters and questions, whether

of law or fact, civil or criminal.

citizens shall, as human persons, be held equal before

the law.

(d) Article 40, Section 3, which declares that the

State guarantees in its laws to respect, and as far as

possible and practicable by its laws to defend and vindi-

cate the personal rights of the citizen.

(e) Article 45, which is not cognisable by the Courts.

The plaintiff was advised he had a good cause of action

in respect of a loss occasioned to him by the Act or

default of some defendants; he appears personally in

this action, and could not finance the action.

O'Keeffe P. stated that under the Criminal Justice

(Legal Aid) Act, 1962, the State had chosen to provide

legal aid for persons charged with criminal offences.

But a person contemplating civil proceedings is left

wholly without legal aid from the State. The plaintiff

has a legal right which has been infringed, but has not

got the necessary means to vindicate that legal right.

He looks to the State for assistance, and finds that none

is forthcoming. However, according to O'Keeffe P., it

is for the legislature to determine how the personal

rights of the citizen are to be vindicated. The legis-

lation confining legal aid to criminal cases does not fail

to accept and acknowledge the equality of all citizens

before the law. Consequently, although he sympathised

with the plaintiff, he was compelled to dismiss his claim.

[O'Shaughnessy v Attorney General; O'Keeffe P.;

unreported; 16th February 1971.]

UNREPORTED IRISH CASES

Costs

A wife petitioner without means in matrimonial action

can get costs of abortive hearing.