The Gazette 1980

238 / 270

GAZETTE DECEMBER 1980
vexatious" action. It is submitted that this is adequate to
protect the balance of powers as it exists between the
Oireachtas and the courts. Indeed one would be inclined
to hold the view that if a constitutional issue arises which
is neither frivolous nor vexatious, then the courts should
pronounce judgment on it. Secondly, it is difficult to find
any justification in the Constitution for the requirement of
'locus standi' as set out in Cahill v Sutton. The
constitutional power of judicial review created by Art.
34(3) (2) when read in the light of the preceding sub-
section of Art. 34 is merely part of the High Court's "full
original jurisdiction in and power to determine all matters
and questions whether of law or fact, civil or criminal". It
is submitted that it is not apparent from this that a
potential litigant must be personally affected by a
particular issue before resorting to the High Court for a
decision on the point and indeed it is significant that
neither member of the Supreme Court, who delivered
judgment in Cahill v Sutton, cited any provision of the
Constitution in support of his conclusions. Criticising the
celebrated decision of Kenny J. in Ryan v A.G.,17 Prof.
J. M. Kelly said that it represented
" . . . the introduction of the principle of testing . . .
legislation against the background of rules whose
recognition resides only in the breasts of the judges,
whose individual or collective reactions the
representatives of the people cannot be expected to
forsee".18
It is submitted that similar criticism can be levelled,
mutatis mutandis, at the Supreme Court's decision in
Cahill v. Sutton, which appears to have been decided
solely on the basis of policy. Deciding a constitutional
issue in this way is fraught with danger, especially if the
issue involves the fundamental rights of the citizen. What
might appear to be sound policy to one section of the
community can often be deplored by another. Therefore,
if the judiciary wish to retain the confidence of society as
a whole they should, in their reasoning, adhere closely to
objective legal principles and eschew the subjective
morass of public policy, which regrettably appears to
form the basis of the judgment in Cahill v Sutton.
Postscript
The test in Cahill v Sutton was applied in the recent
High Court case of Norris v A.G.19 Here the plaintiff
argue, inter alia, that Sections 61 and 62 of the Offences
Against the Person Act, 1861, were unconstitutional
inasmuch as they infringed the right of privacy of married
couples by criminalising buggery. McWilliam J. held,
however, that as the plaintiff was unmarried, he was
precluded by the decision in Cahill v Sutton from
advancing this argument.
The test was also applied by the Supreme Court in the
recent decision of King v D.P.P. and the A .G. (31.7.1980
— unreported). In this case, the Plaintiff had been
convicted of loitering with intent to commit a felony and of
being in possession of house breaking implements with
intent to commit a felony contrary to Section 4 of the
Vagrancy Act, 1824. This section created a wide variety of
offences but the Supreme Court held that the plaintiff could
only question those parts of the Section which had effected
him personally. [See O'Higgins, C.J. at p. 9 of his
judgment; Henchy, J. at p. 19].
FOOTNOTES
1. 11970] I.R. 317.
2. Ibid, at p. 338.
3. Ibid, at p. 339.
4. Supreme Court, 9 July 1980 — unreported.
5. The Plaintiff had waived her claim in tort.
6. Per Henchy J. at p. 10.
7. Cf. p. 1 supra.
8. Per Henchy J. at p. 15.
9. Ibid. p. 18.
10. Ibid. p. 20.
11. As the constitutionality of Section 11(2) (b) was not actually
decided by the Supreme Court, the one judgement rule in Art. 34(4) (5)
did not apply.
12. McGee v A.G. (1974] I.R. 284.
13. De Burca v. A.G. [1976] I.R. 38.
14. Murphy v. A.G. High Court 12 Oct, 1979 — unreported.
Supreme Court, 25 January 1980 — unreported.
15. See, for example, the decision of the U.S. Supreme Court in
Tileston v Ullman, 318 U.S. 44 in which it was held that a physician's
claim that the lives of certain of his patients would be endangered by
child-bearing did not give him a standing to question the
constitutionality of a State Statute prohibiting the giving of advice as to
the use of contraceptives.
16. I Cranch 137; 2 . 60 (1803).
17. 11965] I.R. 294.
18. Prof. J. M. Kelly, Fundamental Rights in the Irish Law and
Constitution 2 Ed., Dublin, 1967, at pp. 43.
19. High Court, 10 October, 1980 — unreported.
SKYPAK International Ireland Ltd.
143 Lower Drumcondra Road,
Dublin 9.
Telephone 376758 - 378371. Telex: 31312.
it Couriers to the Legal World,
it Specialist in Document Handling.
232