The Gazette 1988

• GAZETTE

JANUARY/FEBRUARY 1988

Book Review

The Irish Constitution,

Supplement

to Second Edition,

by J. M. Kelly

wi th G. W. Hogan and G. Whyte

(Dublin: Jurist Publishing Co. Ltd.

1987, xvi and 211 pp. IRE12.50).

Two Fundamen t al

p r i nc i p l es

characterise the manner in which

we, the people, are governed in this

State. Firstly, in general, it is a

representative majority who rule

after the people have exercised

their franchise in the electoral

process. Secondly, the governing

majority constituting the Executive

and the Legislature must act in

accordance w i th law which is

interpreted and often in a con-

itutional-rights sense made by the

judicial arm of government, our

judges. The increasing challenge to

the manner in which the majorities

have governed since the Con-

stitution of 1922 was enacted is

reflected in the Supplement to the

second edition of Professor Kelly's

book

The Irish Constitution.

In the

Supplement, Professor Kelly, a

p i onee r i ng

c omme n t a t or

Constitutional Law and t wo legal

scholars, Gerard Hogan and Gerry

Whyte, record approximately 200

Irish decisions wi th a constitutional

dimension in about 3Vi years. This

^p r esen ts a phenomenal increase

litigation which reflects, to a

certain degree, the politico-legal

catch-phrase of recent times - " i t

must be unconstitutional". It is

u n d o u b t e d ly be t t er t h at t he

challenges to the rule of the elected

majority be taken in the courts than

on t he s t r ee t s, a s e n t i me nt

expressed recently by Mr. Justice

Brian Walsh in one of his many

perceptive ex t r a - j ud i c i al com-

mentaries.

In its review of the myriad of

recent cases, the Supplement

illustrates the strength and self-

confidence of the judicial power in

the State. The authority to strike

down a statutory provision as being

u n c o n s t i t u t i o n al

ves ts

enormous power in one man or

woman, the High Court Judge,

subject to review of course, by a

panel of five judges in the Supreme

Court.

The strength and self-confidence

of the judicial power is illustrated in

the words of judges condemning

action as being "(not) permissible

within the Constitutional frame-

wo r k " and in the articulation of the

concept that a statutory provision

is unreasonable and therefore un-

consitutional. The causative factors

influencing the decisions of those

judges on grave constitutional

issues remain complex. Decisions

do not blossom unaided in the

minds of men. Economic back-

ground, social status, cultural

allegiances, political considera-

tions, self-perceptions and the

sheer power of 'rhetoric' - the

process of deliberate and rational

d i scou r se ex c l ud i ng personal

considerations - all play their

parts, consciously or sub-con-

sciously in the blossoming of the

decisions of the judges.

The authors of the Supplement

have sought, in conjunction w i th

the second edition, to make avail-

able on a manageable scale all the

law arising from or relevant to the

Constitution over the 50 years

since

t he

Co n s t i t u t i o n 's

enactment. Where the material in

the Supplement relates to an

existing heading in the second

edition, the second edition page-

number is indicated in bold type

and in square brackets and the

existing heading or side note is

r ep r oduced. New ma t e r i al is

designated by the word (NEW) and

there is a reference to the page in

the second edition where the new

material complements the existing

ma t e r i a l.

This may

appear

somewhat distracting and a new

edition would have been preferable,

but wo u ld have been more

expensive for the reader. In fact,

the scheme of the book works well

in practice and the Supplement can

be read in its entirety as a book

without any distractions.

The cover illustration, Sir John

Lavery's " The Blessing of the

Co l ou r s" is fetching. Do the

authors consider it as a laconic

comment on the current state of

constitutional development in this

State?

It was almost fashionable some

years ago (dare it be mentioned) for

some practitioners of all ilks to

boast that they knew little of

Constitutional law. Today, those

boasts have been transferred to the

latest legal accretion - the law of

the European Communities.

The

Irish

Constitution

and

t he

Supplement to the second edition

may be heartily recommended to

practitioner and student alike and

deserve to sit on the accessible

book shelves of every practitioner

and law student.

Eamonn G. Hall.

BOOKS RECEIVED

Law Reform Commission

Report,

LRC 22-1987.

Hague Convention

on the Service Abroad of Financial

and Extrajudicial Documents in

Civil or Commercial Matters (1965).

Scottish Criminal Case Reports,

Supplement

1950—1980.

Law

Society of Scotland,

1987.

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