315 / 346
GAZETTE
JULY/AUGUST
1983
no element of any possible prejudice
to any party. The prosecutor was
entitled to relief.
The State (at the prosecution of
Michael Murphy)
v.
The Governor of
Saint Patrick's Institution
— High
Court (per Barron J.) 11982| ILRM 475.
E. G. Hall
BROADCASTING — Section 31 (1)
of the Broadcasting Authority Act
1960 (as inserted by Section 16 of the
Broadcasting Authority (Amend-
ment) Act 1976) does not contravene
the Constitution — Locus Standi of
applicant
The Respondent was one of seven
candidates standing on behalf of the
Sinn Fein Party in the General Election
of February 1982. In its coverage of
that election Radio Telefis Eireann
agreed to allow Sinn Fein a two minute
broadcast. The Respondent was
selected to make the broadcast on
behalf of his party. When RTE's
decision to allow the broadcast was
announced, the Minister made an Order
entitled the "Broadcasting Authority
Act (Section 31 (No. 2) Order 1982"
(Statutory Instrument 21 of 1982)
which specifically prohibited the
proposed broadcast. The Order was
made under Section 31 (1) of the
Broadcasting Authority Act 1960 as
inserted by Section 16 of the
Broadcasting Authority (Amendment)
Act 1976, which gives to the Minister
the power to order RTE to refrain from
broadcasting certain matters where he
is of the opinion that they would
undermine the authority of the State, or
promote or incite crime.
The Respondent challenged the
Order, and the Section pursuant to
which it was made, on several grounds,
including the claim that it constituted an
infringement of the Citizen's Right to
express convictions and opinions as
provided for in Article 40.6.1 of the
Constitution.
The Respondent succeeded in the
High Court before O'Hanlon J. who
accepted that the Section gave the
Minister a far reaching power of veto
over material for broadcasting which he
found was not ^úsceptible of control by
the Courts, as the Minister's opinion did
not admit of judicial review and
accordingly the Section enabled the
Minister to act in an unfettered and
unreviewable manner and contravened
the Constitution.
On appeal to the Supreme Court and in
considering the constitutionality of the
Order and The Locus Standi of the
respondent the Court held:
(1) The decision of the High Court
Judge followed opinions expressed by
the Supreme Court in 1940 and again in
195 7 to the effect that the expression "is
of opinion" did not admit of judicial
review. However, judicial thinking has
since undergone a change and recent
decisions show that the power of the
courts to subject the exercise of
administrative powers tojudicial review
has a wider reach than that shown by the
older decisions.
Article 40.6.1 of the Constitution
enables the State, in certain instances,
to control the freedom ofexpression and
free speech granted by the Constitution.
It places an obligation on the State to
ensure that the organs of public opinion
(for example, television) shall not be
used to undermine public order or
morality or the authority of the State. It
is the State's duty to intervene to
prevent broadcasts which are aimed at,
or which in anyway would be likely, to
have that result. These however are
objective determinations and the
fundamentalrights ofcitizens to express
their opinion cannot be restricted on any
irrational or capricious ground. It must
be presumed that when the Oireachtas
conferred these powers on the Minister
it intended that they be exercised only in
conformity with the Constitution. The
Section does not exclude review by the
Courts and any opinion formed by the
Minister must be one which is bona fide
held and factually sustainable and not
unreasonable. The invalidity alleged
against the Section has not been
established.
(2) The Respondent had a sufficient
locus standi to bring the action.
Although a citizen does not have access
as of right to television, radio etc. RTE
had agreed to afford him the opportunity
of making the political broadcast, and
the Minister's action deprived him of
that benefit. As a result, the Respondent
was entitled to complain that this
deprivation was unlawful.
(3) Although it might be preferable
in other circumstances to have
questions concerning the constitution-
ality of legislation dealt with by
declaratory action, with the benefit of
pleadings, the securing of the relief
sought in this particular case was of the
utmost urgency, and the Respondent
was quite entitled to use the quick and
effective method of certiorari.
(4) The Order made by the Minister
was not invalid, as alleged, on any ofthe
other grounds claimed by the
Respondent.
Firstly
, the prohibition
was within the type of Order
authorised by the Section.
Secondly,
the Order was not made without regard
to the requirements of Justice. Even
though the Respondent was not notified
of the Minister's intention to make the
Order, the Minister was bound to act
immediately as he did, both by the
Statute and the Constitution, as time
was short and delay and debate would
have defeated the very object of the
Section. This was not a case where
justice required that the person affected
be heard.
Thirdly,
on the basis that the
Order is reviewable by the Court, there
are no grounds where the Court should
set aside the Order. The Minister has
disclosed fully ón affidavit the factual
evidence on which he made his
decision, none of which the Respondent
has controverted, and which evidence
clearly shows that Sinn Fein aimed at
undermining the authority of the State.
The fact that the contents of the
proposed broadcast did not merit any
condemnation is an irrelevant con-
sideration, as the purpose of the broad-
cast was to support an organisation
which the Minister had reasonable
grounds for believing was intent on
undermining the State.
The State (At the Prosecution of Sean
Lynch)
v.
Patrick Cooney, Minister for
Posts & Telegraphs, and the Attorney
General
— Supreme Court (per
O'Higgins C J nem. diss.) (unreported)
28 July 1982.
Karl Hayes
Edited by Gary Byrne
Copies ofjudgments in the above cases are
available to members on request from the
Society's Library.
xii