The Gazette 1971

Some Aspects of Irish Constitutional

Reform

Colum Gavan-Duffy, M.A., LL.B. (Editor)

LECTURE DELIVERED TO THE IRISH ASSOCIATION OF JURISTS IN MAY 1968

PART 1

It is vital for lawyers and for laymen to understand that

the Constitution is the Fundamental Law of the Land

and that it supersedes all other laws. Furthermore, any

legislative enactment that contravenes the text of the

Constitution is to the extent of such contravention

unconstitutional (Article 15, Section 4, Subsection 2).

It is necessary to insist on this in view of the fact that

lawyers when they are arguing a case are very often

inclined to leave any argument based on Constitutional

Law as what might be termed a "final resort argument"

rather than to base their main argument on the alleged

unconstitutionality of a statutory provision. Only on the

18th November 1967 an experienced parliamentary

correspondent of an Irish newspaper wrote. "In my

own experience, nothing causes Deputies collectively

greater irritation than to be told that the Constitution

prevents them from doing this or that, or that the

Courts have pronounced an action of theirs to be repug-

nant to the Constitution. In this centre of power, it is

not pleasant to find that there is an overriding power

on fundamentals, and whether consciously or not, there

is a constant striving to ease off Constitutional hand-

cuffs. There is plenty of circumstantial evidence to illus-

trate this. Efforts of the High Court and Supreme Court

to uphold the Constitution are seldom, if ever, men-

tioned, and apparent disregards of Constitutional restric-

tions by the Administration are not often pursued. To

mention such a matter to a Deputy is to risk a quick

change of subject, or an impatient wave of the hand."

This quotation hardly flatters the attitude of the average

legislator and of the average layman towards the Funda-

mental Law nor to the guardian of our Constitution—

the Supreme Court. Instead of respecting it, they are

quite prepared to override it if they think they can get

away with it. The fact that in 1937 twenty-three of

the eighty-three articles of the 1922 Constitution had

been deleted and no less than forty-three articles

amended, made it necessary to enact a new Constitution.

But no less than 31 per cent of the registered voters

abstained from voting one way or another on the plebi-

scite as to whether the new Constitution was to be

accepted in July 1937; this appears to have led to some

scepticism regarding various fundamental matters in the

Constitution. As a result of abstentions, this vital docu-

ment could only muster a majority of 39 per cent as

against a minority of 30 per cent opposing it. But this

result, repeated in Continental countries, such as France

and Italy, seems to show that the Constitutional Refer-

endum, which has been inserted as a compulsory method

of amending the Constitution by submitting it to the

people, requires mature voters. It can hardly be con-

tended that we have attained the political maturity of

the Swiss mountaineers who are used to voting in refer-

endums. Yet this maturity is, nonetheless, apparent, for

not only in 1959, but also in 1966, a large majority of

the people rejected the idea that the electoral system of

proportional representation by the single transferable

vote should henceforth be replaced by single member

constituencies.

The Constitution Committee

When the late Taoiseach, Mr. Lemass, announced in

August 1966 that a Parliamentary Committee had been

appointed to revise the Constitution, this did not arouse

the interest of Constitutional lawyers, as it was under-

stood in advance that this Committee would fail to

tackle any amendments that would not be desirable by

agreement among the political parties. From the

advance scoop in

The Cork Examiner,

followed by the

publication of the Committee Report in December 1967,

there is ample evidence to suggest that the labours of

this Parliamentary Committee have been unduly con-

fined to the electoral problem and some other minor

amendments have been thrown in for make-weight. In

order to excuse their inactivity, these parliamentarians

have speciously acknowledged that, if the people were

presented with too many separate Constitutional amend-

ments at any one time, they would get confused and

fail to understand them. Let us, however, remember

that if the Constitution could be altered by an ordinary

Act, no legislation passed by the Oireachtas could

subsequently be declared invalid.

Let us not consider how should the Constitution as

Fundamental Law be construed.

It seems to me that, in the words of Mr. Justice

Megarry, one should try to construe the Constitution so

as to produce a workable and just system even if this

puts some strain on the literal meaning of the Irish or

English words in the Constitutión. As Lord Denning

has said in

Henry v Taylor

(1954; IQB), if there is to be

a fair choice between a literal interpretation and a

reasonable interpretation, we should always choose the

reasonable interpretation. Neither the Constitution nor

Acts of Parliament have been drafted with divine pre-

science and perfect clarity, and we should not presume

to construe them in that way. As O'Byrne J. delivering

the judgment of the Supreme Court in

Sullivan v

Robinson

(1954, I.R., at p. 174) said: A Constitu-

tion is to be liberally construed so as to carry into effect

the intentions of the people as embodied therein.

As Lord Justice Slesser said in

The Art of Judgement:

Since the decay of the mediaeval reference to

eternal and natural laws, we have been driven

in England to rely upon the edicts of Parliaments and

in other countriesGovernment decrees are not to

nuestioned

in anv

Court of Justice,

the function of the

Judge being limited to the pedestrian task of finding

facts or endeavouring to assist jurists to find them

correctlv and to interpret laws. There appears to be

little doubt that, despite the lack of strict rules of

evidence, the French Conscil d'Etat tends to protect

the individual much more efficiently.