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show either that he had been personally affected by it or
was in imminent danger of becoming the victim of it.
The great advantage of such an approach, according to
the learned judge, is that it would give "concreteness and
first hand reality to what might otherwise be an abstract
or hypothetical legal argument,"
8
thereby preserving the
flexibility and reach of the particular constitutional
provision involved. On the other hand, the actio popularis
had a number of disadvantages. Firstly such a case, being
decided 'in vacuo', would tend to lack the force and
urgency of reality; secondly, there was a danger that a
person whose case had been argued unsuccessfully by
another, might feel aggrieved on the grounds that his case
was wrongly or inadequately presented; thirdly, the 'actio
popularis' might result in the court's jurisdiction to review
legislative provisions being abused by "the litigious
person, the crank, the obstructionist, the meddlesome, the
perverse, the officious man of straw".
9
These considerations led the learned judge to lay down,
as a precondition to the exercise of the constitutional
power of judicial review, "that the impact of the
impugned law on (the litigant's) personal situation
discloses an injury or prejudice which he has either
actually suffered or is in imminent danger of suffering".
10
This rule is not absolute, however, and may be qualified
whenever the justice of the case so requires, e.g. where
those prejudicially affected by the impugned statute are
not in a position to assert adequately, or in time, there
constitutional rights. Henchy J. declined to establish the
precise limits of this rule of personal standing, stating that
it could be relaxed wherever the particular circumstances
of a case disclose weighty countervailing considerations
justifying such an approach.
In the instant case the plaintiff failed to satisfy this test
of personal standing as she had been at all times aware of
the material facts which constituted her claim and there-
fore was not directly affected by the alleged con-
stitutional infirmity in Section 11(2) (b), viz., the absence
of a proviso protecting those litigants who did not know
of the accrual of the cause of action within the three year
limitation period. Nor did there appear to be any pressing
constitutional need to examine the validity of Section
11(2) (b), which might justify a waiver of the test of'locus
standi' in this case. Henchy J. did suggest however that
the Oireachtas should consider the introduction of a
qualification to Section 11(2) (b) similar to that contained
in Section 1 of the Limitation Act 1963 in the U.K. which
protects a person in the position of the plaintiff's putative
litigant. A brief concurring judgment was delivered by
O'Higgins C.J.
11
It would appear therefore that before a citizen can
challenge the validity of a piece of legislation, it must be
shown that such legislation has adversely affected or is
about to affect adversely, that citizen, though this
requirement may be waived in certain unspecified cases.
The decision in
Cahill
v.
Sutton
has an additional and
deeper significance however. It is submitted that it is
evidence of a reaction among members of the judiciary
against the growing tendency to utilise the courts for the
resolution of issues which might be more properly dealt
with by the Oireachtas. Since the decision in the
East
Donegal case
in 1970, the Irish Courts have had to tackle
a number of controversial issues. These include the right
of Irish citizens to obtain contraceptives;
12
discrimination
based on sex and property in relation to jury service;
13
discrimination based on marital status in the
Government's fiscal policy.
14
It is submitted that the
decision in Cahill v Sutton will have the effect of impeding
this development and of limiting the involvement of the
courts in these types of controversial political and social
issues.
Support for this can be found in the judgment of
Henchy J. At page 18-19 thereof, he says,
"In particular, the working interrelationship that
must be presumed to exist between parliament and
the judiciary in the democratic scheme of things
postulated by the Constitution would not be served
if no threshold qualification were ever required for
an attack in the courts on the manner in which the
legislature has exercised its law-making powers.
Without such a qualification the courts might be
thought to encourage those who have opposed a
particular Bill on its way through Parliament to
ignore or devalue its elevation into an Act of
Parliament by continuing their opposition to it by
means of an action to have it invalidated on
constitutional grounds. It would be contrary to the
spirit of the Constitution if the courts were to allow
the opposition that was raised to a proposed
legislative measure, inside or outside Parliament, to
have an unrestricted and unqualified right to move
from the political arena to the High Court once a
Bill has become an Act. And it would not accord
with the smooth working of the organs of State
established by the Constitution if the enactments of
the National Parliament were liable to be thwarted
or delayed in their operation by litigation which
could be brought at the whim of every or any
citizen, whether or not he has a personal interest in
the outcome".
No one would deny that the balance of powers between
the three branches of Government (i.e. the legislative,
executive and judicial branches) must be respected under
our present Constitution. It does not follow, however,
that
Cahill v. Sutton
makes good law. It is conceded that
a similar test of 'locus standi' is applied by the American
courts,
15
who also function under a Constitution which
recognizes the separation of the powers of Government.
However there are significant differences between the
constitutional position of the American judiciary and that
of their Irish counterparts. Firstly, the power of judicial
review was implied into the U.S. Constitution by the
American Supreme Court in
Marbury
v.
Madison,™
whereas it is expressly conferred on the Irish judiciary by
Art. 34 of the Irish Constitution. Secondly, the American
courts have to deal with a greater volume of work than
that coming before the Irish courts. Both of these factors
distinguish the Amierican position from that which
obtains in the Republic, and therefore the fact that a test
of 'locus standi' exists in American constitutional law
should not deter us from levelling a number of criticisms
at the existence of a similar test in Irish law.
Firstly, the Irish Superior Courts were not without
protection against the "busybody and the crank" prior to
the adoption of the test of locus standi in Cahill v Sutton.
0.19, r. 28 of the Rules of the Superior Courts, 1962
empowers the High Court to stay any "frivolous or
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