The Gazette 1976

G A Z E T T E

N O V E M B E R 1976

necessary stamp of responsibility and involvement on

the part of the community as a whole. Juries recruited

in that way fall short of minimum constitutional stand-

ards no less than with juries recruited entirely from

female citizens."

The result of that is that the Parliament passed a

new Juries Act 1976 which must be one of the most

democratic in the world, I should think, because it

opens jury service potentially to all on the voting

register and the voting age is 18!.

There are, of

course, circumstances of exemption viz., those ineligible,

for example barristers and solicitors actually practising

as such; members of the police and prison services

and members of the defence forces. Further, those

incapable through inability to read, deafness or other

permanent disability are deemed unfit to serve on a

jury and are excluded. Then there is a category of

persons excusable as a right such as members of

Parliament and persons in Holy Orders.

Finally, I think I should say a word about judicial

review of our statute law. The Constitution makes the

Supreme Court the final arbiter of whether laws are

repugnant to the Constitution or not. Thus, any Act,

whether enacted before or after the Constitution came

into force, is subject to judicial scrutiny. With regard

to enactments "carried over" by the broad sweep of

the Constitution, to the end of 1937, there is no pre-

sumption of constitutionality in their favour,

but

legislation enacted from 1938 since the Constitution

came into effect enjoy the presumption of constitution-

ality.

At first, the Courts were slow to interfere since

the idea of a written Constitution as the idea of a Bill

of Rights was foreign to judges brought up to believe

in the supremacy of Parliament. The first Chief Justice

of the Irish Free State, Chief Justice Kennedy, had

referred to Dicey as "an evangel accepted reverently

and without criticism or question in our schools."

Beginning, however with Mr. Justice Gavan

Duffy's judgment in the

Sinn Fein Funds Case

the Court have increasingly asserted their right to

get involved in the social and economic aspects of

the Personal Rights Articles of the Constitution. Article

40 (3) provides that the State guarantees in its laws to

respect and, as far as practicable, by its laws to defend

and vindicate the personal rights of citizens. The Sup-

reme Court, interpreting this section, has notably struck

down legislative proposals which directed the Courts

to deal with trust funds in a particular way;

State

immunity for torts;

a provision in the Statute of

Limitations, 1957, which rendered an infant plaintiff

vulnerable in a case where his father's insurance com-

pany had pleaded the Statute against him

and a

provision limiting the right to use contraceptives.

My colleague, Mr. Donal Barrington S.C., has

written a most penetrating analysis of these develop-

ments in an article entitled "Private Property under

the Irish Constitution",

which I recommend to you.

Mr. Justice Walsh has summed up the effect of

these personal rights articles best when he said in

McGee's case: -

"(These Articles) of the Constitution all fall within

the section of the Constitution which is entitled

'Fundamental Rights'. (The Articles) emphatically

reject the theory that there are no rights without

laws, no rights contrary to the law and no rights

anterior to the law. They indicate, that justice

is placed above the law and acknowledge that

natural rights or human rights are not created

by law but that the Constitution confirms their

existence and gives them protection".

Chief Justice O Dalaigh, as he then was, said in

re Haughey^

that it is the duty of the Court to under-

line that the words of Article 40, Section 3, are not

political shibboleths but provide a positive protection

for the citizen and for his good name.

There is another form of judicial review which is

rather un

;

que. The President

may refer any Bill to

the Supreme Court for a decision as to whether it is

repugnant to the Constitution or any provision there-

of.

The Supreme Court consisting of not less than five

judges has sixty days from the date of referral to con-

sider the matter and to pronounce its decision, which

unfortunately must be a single decision pronounced

by "such one of those Judges as the Court shall direct,

and no other opinion, whether assenting or dissenting,

shall be pronounced nor shall the existence of any such

other opinion be disclosed".

By the operation of Article 26 and Article 34, section

3 sub-section 3 of the Constitution a decision of the

Court is a constitutional determination on all

points in respect of the Bill or a provision

of the Bill, as the case may be, wh

;

ch is re-

ferred to it. As Mr. Justice Walsh pointed out in

The State (Quinn)

Ryan

the Court gives an

advisory opinion the reason for which was "to avoid

the anomaly of a judicial review of legislation which

only became law upon the advice of this Court after

an unrestricted examination of the measure which thus

acquired validity from the judgment of this Court".

Lawyers, in general, are unhappy that the doctrine

of stare decisis gets this particular recognition since

the Court, is forced to review this type of legislation

in a theoretical setting, it must have regard to the

possibility

of repugnancy in hypothetical circumstances.

There have only been 5 such references in all:

re Article 26 of the Constitution and the Offences

Against the State (Amendment) Bill, 1940A* In re

Article 26 of the Constitution and the School Attend-

ance Bill, 1942;W In re Article 26 of the Constitution

and the Electoral (Amendment) Bill, 1961

and in re

Article 26 of the Constitution and the Criminal Law

(Jurisdiction) Bill, J97and

Jn Re Article 26 of the

Constitution and the Emergency Powers Bill 1976.

all, except the School Attendance Bill case, the con-

stitutionality of the measures was upheld.

One of the most recent judgments relating

to the Criminal Law (Jurisdiction) Bill may

be of interest to you. Broadly speaking the

Bill (now an Act) provided for the prose-

cution within the area of jurisdiction of the

Republic of Ireland of certain subversive or terrorist-

like offences commuted in Northern Ireland. It went

further by providing that the Court (the Special Crim-

inal Court consisting of three judges) should be enabled

to journey to Northern Ireland and there take evidence

On commission. The accused should have the oppor-

tunity of attending at the taking of such evidence or

commission either in person or by solicitor and counsel.

The main thrust of the argument against the con-

stitutionality of the measure was that it permitted the

operat

on of unfair trial procedures and failed to pro-

vide for trials in due course of law and in that and other

respects it failed to defend and vindicate the personal

rights of the citizen in accordance with Article 40 3.1°

of the Consthut

on. The right to be present was sub-

192