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unlikely that a referendum as to whether the people
will approve of a particular Bill or not will ever be held.
The procedure under Article 27 is primarily optional
in-as-much as the President need not accede to the
joint petition signed by the requisite thirty-one Senators
and forty-nine Deputies to have a Bill which has been
passed by the Oireachtas submitted to the people in
order that they may decide whether in fact they approve
of it or not. This whole procedure seems unduly restric-
tive and is further complicated by the fact that, even if
the proposal for a referendum does receive the approval
of the President, nevertheless the referendum need not
be held for a period of eighteen months after the Presi-
dent's decision, because the Government has an option
of avoiding the referendum provided it arranges to have
a resolution passed by the Dáil postponing the opera-
tion of such a Bill until an intervening dissolution has
taken place and that the same Bill is subsequently passed
by the newly-elected Houses of the Oireachtas. Even if
a referendum were actually held, as a result of the
President acceding to the joint Petition of the Houses
of the Oireachtas, the extraordinary rule prevails under
Article 47 that if only one vote less than one-third of
the total electorate is passed, then, even if more than
90 per cent of those voting do in fact reject the pro-
posals in the Bill, nevertheless, the Bill will be deemed
to have been approved. Furthermore, the President can
also avoid the referendum by referring the Bill as to its
constitutionality to the Supreme Court under Article 26
of the Constitution. Thus, unless Article 27 is amended,
it is most unlikely that such a referendum will ever be
held. It would seem essential that if the requisite joint
petition is signed by the required responsible majority,
the President should accede to it automatically. In such
an event the referendum should be held without the
option of a Dáil dissolution and the subsequent re-
enactment of the Bill by the new legislature. Further-
more, the Bill should be deemed to have been rejected
if a majority vote against it, regardless of the percentage
of voters on the total electoral register. Furthermore,
the
initiative
procedure should be availed of, if, as an
alternative, the petition were signed by say 50,000 elec-
ors as in Switzerland which is the foremost referendal
democracy in the world; this would ensure that the
electorate could compel the Government to initiate some
draft legislation which the people wished to see enacted
as law.
Article 25, Section 4, Subsection 6
This subsection was passed in a state of exhilarated
nationalistic enthusiasm. It states : "In case of conflict
between the texts of a law enrolled under this section
in both the official languages, the text in the national
(Irish) language is to prevail." It will be appreciated
that most Judges are not experts in the Irish language
and Professor Kelly has pointed out some inconsistencies
between the two texts. In view of our forthcoming entry-
into the European Community, it would seem to be
wiser to omit this subsection and to allow Judges to
construe the Constitution in whichever official language
suited them best. A commission should be set up to
ensure that there is no conflict between the two texts.
Article 28, New Section 13
Professor Carleton Allen has stated that bureaucracy is
the rule of a small oligarchy of higher civil servants who
are avowedly acting in the national interest. Conse-
quently, their actions have tended to be hidden under a
veil of anonymitv in which thev are too prone to claim
privilege for unimportant documents written bv them-
selves or their Minister, whenever these are produced in
Court. It is satisfactory to note that improvements are
about to be made to counteract these unsatisfactory
claims of privilege, it would seem that an amendment
along these lines would be called for: "If, on a plea of
national interest, Ministers fail or refuse to disclose
information or to hear well-founded grievances, the
complainant may bring before the High Court any
such action by the Minister for a decision as to whether
it is well founded or not. The Minister concerned must
submit all documentary evidence in his possession with-
out exception in this matter to the High Court who
shall determine whether any, and if so, how much, of
this documentary evidence is to be disclosed to the
complainant. If the High Court finds that the action of
the Minister is unjust or unwarranted the Court will
take all necessary steps it considers just to ensure that
the complainant will be awarded suitable monetary
compensation." The decision of the Supreme Court in
O'Leary v Minister for Industry and Commerce
(1966;
I.R., 688) allowing discovery of documents against the
Minister is most satisfactory as evidencing a new trend.
Limitations of privilege
The necessity for this amendment is now reinforced
by the unanimous judgement of the House of Lords in
Conway v Rimmer
(1968; A.C. 910).
Lord Reid declared that it was universally recognised
hat there were two kinds of public interest: (Í) the
public interest that harm should not be done to the
nation by disclosure of certain documents, and (2) the
public interest thatt he administration of justice should
not be frustrated by withholding them.
When the possible injury to the nation was so grave
that no other interest, public or private, could be
allowed to prevail over it, it would be proper to say, as
Lord Simon had said in
Duncan v Cammel Laird and
Co.
(1942; A.C., 624) that, to order production, could
put the State interest in jeopardy. But, in many other
cases, where the possible injury to the public service
was much less, it would be proper to balance the
interests involved.
The Attorney-General had made it clear that, in the
case of the large public corporations, Grown privilege
could not be invoked to prevent disclosure of similar
documents made by them. It was thus difficult to see
why it should be necessary to withhold whole classes of
routine communications with or without a public depart-
ment but unnecessary in the case of a public corporation.
The question that arose was that, if the Court had
the right to question the finality of a Minister's certi-
ficate, how and in what circumstances was it to be
effective ?
It is satisfactory to note that Mr. Justice Kenny, in
the unreported case of
Murphy v Minister for Local
Government
(16th December 1970) stated specifically
that he approved of the decision of the House of Lords
in
Conway v Rimmer,
but unfortunately he declined to
follow it in that case.
In the case of a Minister's view on the contents of a
particular document, it might be possible to separate
those parts, disclosure of which would be innocuous,
from those which ought not be made public. The Minis-
ter's certificate, however, might also be given because
the documents belonged to a class which ought to be
withheld. It was, therefore, proposed for decision that
the Courts had and were entitled to exercise a power
and duty between these two public interests, by exam-
ining each document submitted by the Minister separ-
ately, and deciding whether it should be disclosed.
Furthermore the House of Lords has held, in
Padfield
v Minister for Agriculture
(1968) A.C., 997, that,
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