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Although Dr. Wu in
Fountain of Justice
has stated
that Natural Law has gone underground in England, yet
the late Richard O'Sullivan had always emphasised that
the original concern of the Common Law for the indis-
solubility of marriage, never modified by statute, was
derived from Natural Law, as also was the right of every
man, who is the subject of litigation, not to be con-
demned without his case being first heard.
Despite the lip service paid to democracy, it is obvious
that the removal of all spiritual and natural restraints,
leaving all undisputed authority to Parliament or to a
Minister, must give to those with power, an oppor-
tunity to make the law in their own interest, and
enforce it as they wish. As Pope Pius XII said : The
nineteenth century is the one largely responsible for
juridical positivism. It finally remained for the totali-
tarian State to reveal to the world the true nature of
juridical positivism.
Natural Law
Professor Kelly, in the second edition of his learned
work on
Fundamental Rights in the Irish Law and
Constitution
published in December 1967 is quite un-
repentant in his view, expressed in the first edition
and now reiterated at page 68,
that internment
without trial in the face of an emergency or of sub-
versive conspiracy is not necessarily contrary to natural
law.
What the learned author does not appear to appre-
ciate is that the Emergency Powers (Amendment) Act,
1940, made full provision for the internment without
trial of Irish citizens during the emergency and that
therefore permanent legislation like the Offences
Against the State (Amendment) Act, 1940, which was
declared Constitutional by a majority of the Supreme
Court was completely superfluous. One cannot
approve of Dr. Kelly's statement which Chief Justice
Sullivan made in relation to the reference under
the Offences Against the State (Amendment) Bill, 1940
(1940; I.R. 470), that arguments against the justice of
a statute might more properly be addressed to the
Oireachtas, as it would seem that this statement takes
no cognisance at all of Article 40 (3) of the Constitution
relating to personal rights of the citizen. Yet, Dr. Kelly
is of the rather narrow opinion that democracy itself
contains thié best remedy against its own abuse. This in
my view is largely theoretical as the electorate as a
whole would, despite the' excesses of Nazi Germany,
have remained passive, unless for instance there may
have been unjustified cases of wholesale internment
which might conceivably have led to various forms of
street protest. Tt seems inconceivable that extermination
camps in which millions were killed flourished in
Germany without protest.
' Dr. Kelly states at page 73 of his book that in those
who make or administer laws, all one can hope for is an
honest conscience, and that to assert that Natural Law
provides a clear set of rules beyond and above a Consti-
tution is to imagine a vain thing.
Yet. Mr. Justice Walsh, in
McDondld v Bord na gCon
(1965; I.R. 242), did assert that: "In the context of the
Constitution, natural justice might more appropriately
be termed
constitutional justice
and must be under-
stood to import more than the two well-established
principles that—no man shall be a judge in his own
cause—and
audi alteram partem."
It seems clear that
Dr. Kelly will have to explain this view later on.
One may now question a judicial dictum in the case
of the State,
Brown v Feran and the Governor of
Limerick Prison
(1967;T.R. 147, at p. 159), in which it
was apparently stated that, in the construction of a
Constitution, words which in their ordinary meaning
import inclusion or exclusion cannot be given a meaning
other than their ordinary literal meaning save where
authority to the contrary is specifically given within the
Constitution itself. It is claimed that despite the pre-
sumption of Constitutionality which has been conferred
on Irish legislation since 1937—see
State (Sheerin) v
Kennedy
(1966; I.R. 379, at p. 386) provisions in a
national Constitution which have been submitted to a
popular referendum should be construed in the broadest
possible way in favour of the individual citizen. Further-
more, in the
State (Nicolava) v Adoption Board
(1966;
I.R., 547), it was pointed out that legal rights, unless
guaranteed by the Constitution, can be adversely affected
or completely taken away by legislation. This appears
to conflict with the view of Mr. Justice Kenny in
Macaulay v Minister for Posts and Telegraphs
(1966;
I.R., 345, at p. 357) that "there are many personal
rights of the citizen which follow from the Christian
and democratic nature of the State which are not men-
tioned in Article 40 at all." It is hoped to consider this
further subsequently.
The instincts
of
the British Constitution
As Lord Denning has said, the British Constitution
rests upon three main instincts. First, the
instinct for
justice
so notably represented by the independence of
the judiciary. Second, the
instinct for liberty
in which
the vital principles of freedom of discussion and of
freedom of association are properly guaranteed, save in
times of emergency. Third and last, a
practical instinct
in which a proper balancing of rights with duties and
responsibilities is shown.
As Professor McWhinney pointed out, the major
adverse factor of the Courts in the whole Common-
wealth has been their incurable positivism which has
ruthlessly obscured the process of analysis in the
conflicting interests involved.
There does not appear to be sufficient evidence to
suggest that our Courts have tended to apply Natural
Law principles consistently recently. It will be recalled
that the external principles of Natural Law are based on
the respect and feeling of the dignity of the human
person. Because of the fact that he is a person,
man possesses rights, by virtue of his dignity as man,
not because he is subject to any law other than that of
his will and freedom. By virtue of Natural Law, the law
of nations as well as positive law—a body of laws
enforced in a given community—take on the force of
law and impose themselves upon the conscience. For
— as Professor d'Entreves states — Natural Law
requires that whatever it leaves undetermined
shall subsequently be . determined. For instance,
man's rights to existence, to personal freedom and to
the pursuit of perfection belong strictly to NatUral Law,
whereas his right to private property belongs to the law
of nations. One must never forget that, according to
Natural Law, the human person transcends the State.
He has natural aspirations to a spiritual life. Therefore,
laws are valid only in so far as they are just as contem-
plated bv a legitimate authority and not merely because
the Parliamentary majority of the State can act as the
standard of conscience.
Let us first consider a few institutional matters such
as the Senate, the referendum relating to ordinary laws
as opposed to Constitutional referendums, and other
Constitutional intricacies.
(1) Amendments to the Constitution
Other than Fundamental Rights
(1) Impeachment under Article 12, Clause 10
This procedure is cumbrous and completely obsolete.
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