The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

or herself to such court to be sworn and full

answers make to the satisfaction of such court

to all such lawful questions as shall be put'."

The State (K.M.) -v- Minister for Foreign Affairs

Finlay P. also performed surgical work on a statutory

provision; this time an emanation from the Oireachtas,

the Adoption Act, 1952, s.40 of which unduly interfered

with the right of an illegitimate child to travel outside the

State. However the learned judge found it possible, by

reason of the operation of the doctrine of severance, to

rescue particular portions of the provision from the

constitutional infirmity which afflicted the remainder of

the section; the resultant section "would be sufficient

vindication and protection by the State of the right of an

illegitimate child to travel in the manner in which I have

defined that as a constitutional right and as such would be

a constitutional section."

Maher -v- A.G.

The separability principle was subjected to limitations

by the Supreme Court decision in

Maher

-v-

A.G.

wherein it was emphasised that its application must be

coherent with the spirit of the general scheme of things

postulated by the Constitution and the institutional

disposition of law-making power. In this case the plaintiff

was successful in having the provisions of s.44 (2) (a) of

the Road Traffic Act 1968 declared unconstitutional on

the ground that by making a certificate of blood alcohol

content "conclusive evidence" as to the matter certified,

the judicial function under the Constitution, which

necessarily encompassed the power to determine whether

all the essential ingredients of an offence had been proved

against an accused person, had been invaded and

infringed. Apart from the evidential conclusiveness

attributed to the certificate the impugned provision was

otherwise unobjectionable. Despite the fact that

exclusion of the offending phrase would not necessitate

the substitution of other words to give substance and

sense to the section, the Supreme Court refused to

accede to the argument that it could, consistently with

the Constitution, perform this surgical function.

Fitzgerald C.J. expressed himself as follows:

"Article 15 .4 .2 . . . . lays down that every law

enacted by the Oireachtas which is in any respect

repugnant to the Constitution or to any provision

thereof shall, but to the extent only of such

repugnancy, be invalid;

therefore there is a

presumption that a statute or a statutory provision is

not intended to be constitutionally operative only as

an entirety.

This presumption however, may be

rebutted if it can be shown that, after part has been

held unconstitutional the remainder may be held to

stand independently and legally operable as •

representing the will of the legislature. But if what

remains is so inextricably bound up with the part

held invalid that the remainder cannot survive

independently, or if the remainder would not

represent the legislative intent, the remaining part

will not be severed and given constitutional validity.

It is essentially a matter of interpreting the will of

the legislature in the light of the relevant

constitutional provisions, and it must be borne in

mind in all cases that Art. 15.2 . . . . provides that

'the sole and exclusive power of making laws for the

State is hereby vested in the Oireachtas. No other

legislative authority has power to make laws for the

State'. If, therefore the courts were to sever part of a

statutory provision as unconstitutional and seek to

give validity to what is left so as to produce an effect

at variance with the legislative policy, the court

would be invading a domain exclusive to the

legislature and thus exceeding the Courts

competency.

On reviewing the legislative history of the measure the

Supreme Court found that the insertion of the word

"conclusive" was a matter of deliberate legislative choice.

The Oireachtas had specifically rejected the recommenda-

tion of the "

Commission on Driving while under the

influence of Drink or a Drug"

that the blood or urine

analysis should be rherely

prima facie

evidence. Thus a

judicial preservation of S.44 (2) (a) with the phrase

"conclusive" omitted, would amount to an impermissible

usurpation of the legislative function by setting up as law

some t h i ng that the Na t i onal Pa r l i ament had

unambiguously denounced. It was also scarcely

conceivable that if the word "conclusive" were to be

dropped, the legislature would have been content to use

the word "evidence" without the precision of qualifying

words which were to be found elsewhere in the same

section.

It has been noted

that there appears to be an element

of internal inconsistency in the passage quoted above.

The words italicised contain a presumption in favour of

allowing a statute to be severed; whereas the very next

sentence assumes the opposite, in that it states that a

presumption needs to be rebutted before the remainder of

the statute can be upheld. It would seem that the italicised

words constitute a correct deduction from Art. 15.4.2 and

that, as a consequence, the sentence following them is

mistaken. If this proposition is correct then there is a

presumption that, if the constitutionally improper parts

of a statute have been severed, the remaining parts can be

accorded the

imprimatur

of judicial approval.

Antecedents of these Limitations

Maher -v- A.G.

is by no means the only example of

judicial reticence in the area of statutory reconstruction.

Melling-v- O'Mathghamhma

O'Dalaigh J. (as he then

was) had opined that the court was not free where the

framework of a section collapsed from constitutional

infirmity to take upon itself restorative functions which

were proper only to the legislature. Similarly in

O'Brien -

v- Keogh

the Supreme Court stated a propos S. 49 (2) (a)

(11) of the Statute of Limitations 1957:

"It is not possible to save by deletion some part of

the impugned paragraph. The provision has no

purpose without the words that establish the date of

the running of the Statute. It must therefore for its

constitutional frailty fall in its entirety."

Likewise in the earlier case of

In Re Evelyn Doyle, an

Infant

it was said by the "old" Supreme Court in

declaring invalid most of S.10 (1) (d) and (e) of the

Children Act 1941:

"It is unfortunate that this declaration involves the

invalidation of provisions which if they stood alone