The Gazette 1984

GAZETTE

JANUARY/FEBRUARY 1984

exception of his references to legislative intent the

remarks of Fitzgerald C.J. in

Maker -v- A.G.

were

appropriate and proper to be applied to a question of

consistency under Article 50. Section 4 of the Vagrancy

Act 1824, the constitutional debility of which was

established in

King-v- A.G. created inter alia,

the offence

of loitering with intent to commit a felony. To prove the

requisite intent no other act was required to be shown,

instead such intent could be inferred from the prior

disreputable past of an accused person. Moreover the

application of the provision was limited to "suspected

persons" and "reputed thieves". Thus the

gravamen

the offence consisted of being a prescribed kind of person.

It was held by the High Court and Supreme Court

successively that the offence, in both evidential and

substantive respect failed to comport with the basic

norms of the legal order postulated by the Constitution.

The Chief Justice believed that what should be excluded

as inconsistent with the Constitution were the words

"suspected" and "reputed t h i e f' in the original version of

the questioned provision contained in section 4 as well as

the amendment sought to be made by s.15 of the

Prevention of Crimes Act 1871.

However this argument did not meet with approbation

of the majority members of the court whose disinclination

to accept its implications was, it is respectfully submitted,

well-founded. Kenny J. pertinently observed

that the

Parliament which passed the Act of 1824 had expressly

circumscribed its effect by confining the sphere of its

operation to "suspected persons" and "reputed thieves".

The removal of these limitations would fundamentally

alter and increase the scope of the section. Henchy J. did

not accept that verbal amputation would necessarily cure

the unconstitutionality alleged against the section as

amended, but in any event was satisfied that the suggested

rewriting of the phrase would not be within the judicial

power of leaving part of a statutory provision intact after

another part of it has been severed as unconstitutional in

pursuance of Art. 50 s.l. The learned judge put the matter

thus:

"It is one thing to strike down on constitutional

grounds a particular statutory provision. It is quite

a different thing, and one for which there is no

constitutional warrant, for the courts to attempt to

breathe statutory and constitutional life into a set of

words which acquire a new and separate existence

after the severance, but were never enacted as law.

That would be a legislative function, which the

Constitution expressly reserves to the Oireachtas....

In other words, the Courts have no power to declare

a truncated or residual part of a statutory provision

to have constitutional validity as a law unless they

first find that it had the force of law in Saorstat

Eireann immediately prior to the coming into

operation of the present Constitution. This

necessarily involves a finding that, in that form and

to that extent, it was expressly or impliedly enacted

as a law by the legislative authority or authorities

from which it emanated".

Foreign precedents were also mustered in favour of this

proposition. His Lordship referred

inter alia,

Lynch -

U.S.

There Brandeis J. said that no provision, however

unobjectionable in itself, can stand unless it appears both

that, standing alone, the provision can be given legal

effect and that the legislature intended the

unobjectionable provision to stand in case other

provisions held bad should fall.

Conclusion

Clearly, the power of the courts to sever unconstitu-

tional portions of the statute is constricted. This

limitation owes its origin to the separation-of-powers

policy embodied in the Constitution. Courts, exercising

the power of constitutional review, cannot undertake

restorative functions which more properly pertain to the

legislative arm of government. This was made clear by

Keane J. in

Somjee

-v-

Ministerfor Justice**

wherein it was

said that the court has no jurisdiction to substitute for the

impugned enactment a form of enactment which it

considers desirable. These sentiments are clearly

consistent with the restrictions which have developed on

the doctrine of severance. The courts have no mending

power but it is difficult to see any objection on grounds of

principle in the courts indicating to the Oireachtas the

appropriate mode of enactment which should be

substituted for the impugned provisions. Keane J. in

Somjee

felt this was precluded.

The practice however

might be regarded as validated by long usage. As

McCarthy J. explained in

Norris

-v-

A. G.

the courts have

not hesitated in making tolerably clear to the Legislature

their views on the desirability of a particular piece of

legislation they are called on to interpret.

This has

nothing to do with the application of the principle of

separability. In conclusion one might venture the opinion

that the case law which has grown up on the subject of

severance illustrates the sophistication of constitutional

adjudication.

Footnotes

1. In

Ashwonder

-v-

T.V.A.

297 U.S. 288 Brandeis J. at pp. 346-349

referred to a number of rules the U.S. Supreme Court has developed

for its own governance in cases confessedly within its jurisdiction by

means of which it avoids passing upon a large part of all the

constitutional questions pressed on it for decision. These include a

requirement of standing which must be met before a constitutional

claim can be entertained and the principle that the court will not

consider a constitutional question if there is also present some other

ground upon which the case may be disposed of. For the application

of these concepts to our courts exercising the power of constitutional

review see

Cahill -v- Sutton

[1980] I.R. 269 and

-v-

An Bord

Uchtala and A.G.

[1977] I.R. 282.

2. In this connection it is apt to note what was said by Mr. de Valera on

the subject of the "presumption of constitutionality" during the Dail

debates on the draft Constitution:

"Even where there is a Supreme Court, as there is in the United

States of America, some of the best judges of those courts, when

asked to decide as a constitutional court, have said, and put it as the

foreground of their work and interpretation that, ordinarily, the

view of the legislature, interpreting their Constitution should be

their guide: that there is a presumption, and should be a presumption

that they are doing their work reasonably and fairly, and that it is

only in cases where there is clearly and definitely a departure, not

merely from the letter of the Constitution, but from the spirit of the

Constitution, that they should decide differently". 67 Dail Debates

Col. 427.

3. [1973] I.R. 140, 147, and sec generally Kelly

The Irish Constitution

(Dublin 1980) at pp. 65-67.

4. [1963] I.R. 170.

Ibid

at p. 184.

6. [1966] I.R. 379.

Ibid

at p. 395.

8. [1967] I.R. 106.