33 / 300
Some Aspects of Irish Constitutional
Reform
PART 3
by COLUM GAVAN-DUFFY, M.A., LL.B. (Editor)
Part 2 was published in the September/October
Gazette
(1973) at page 197
The Right to Property
The right to property elaborated in Article 43 of the
Constitution will next be considered. It will be noted
that
as
Section
1,
1, of
this
Article
has
been drafted in exceptionally strong terms, it should be
so construed regardless of subsequent limitation. Sub-
section 1 reads: "The State acknowledges that man in
virtue of his rational being has the natural right ante-
cedent to positive law to private ownership of external
goods." Subsection 2 : "The State accordingly guaran-
tees to pass no law attempting to abolish the right to
private ownership or the general right to transfer,
bequeath and inherit property." Section 2 of this
Article tries to restrict this right, and ought accordingly
to be very strictly construed. Section 2, Subsection 1,
states that the State recognises, however, that the exer-
cise of the aforementioned rights ought in civil society
to be regulated by the undefined principles of social
justice. Subsection 2 : "The State accordingly may as
occasion require, delimit by law the exercise of the said
rights with a view to reconciling their exercise with the
(undefined) exigencies of the common good."
In Pigs
Marketing
Board v Donnelly
(1939) I.R. 413, it was
contended that the then law delegated legislative power
to the Pigs Marketing Board in contravention of Article
15 of the Constitution, and that it interfered with trade
competition and contraction of proprietary rights, thus
violating Article 43. Unless the broad definition of
"Social Justice" contained in the Encyclicals is to be
accepted, one would be inclined to agree with Mr.
Justice Hanna's view that in a Court of Law, Social
Justice seems to be a nebulous phrase involving no
question of law for the Courts, but mere questions of
ethics, morals, economics and sociology. It was there
stated that as the days of
laissez-faire
were at an end,
it followed that the omniscient and all-wise members of
the Oireachtas must be the sole judge of whatever
limitation is established on property rights.
However, a different emphasis was placed on prop-
erty rights in the so-called Sinn Fein Funds Act 1947
case,
Buckley v The Attorney General
(1950) I.R. 67.
An Act called the Sinn Fein Funds Act 1947 had been
passed by the Oireachtas. By Section 10 of that Act it
was provided that all further proceedings in the action
between the present representatives of Sinn Fein and the
old Sinn Fein were to be stayed, and that upon an
ex parte
application being made by the Attorney Gen-
eral to the High Court, that Court should dismiss the
action and direct that the Sinn Fein Funds should be
disposed of in a manner specifically laid down by the
Act. When the application was made to the High
Court, it was held to the consternation of the State,
that it should be refused on the ground that the Court
could not comply with the provisions of that Act with-
out arrogating its proper jurisdiction in a cause of
which it was duly seized. On appeal to the Supreme
Court, that Court held, affirming the High Court, per
O'Byrne J., that insofar as the provisions of that Act
were repugnant to the Declaration contained in Article
43 of the Constitution as to the right of private prop-
erty, so as to recognise such exercise with the exigencies
of common good, the exigencies of the common good is
not peculiarly a matter for the legislator, but the deci-
sion of the Legislature is at all times capable of review
by the Courts. As Mr. Justice O'Byrne stated, the
effect of Article 6 combined with Article 34 to 37 of
the Constitution is to vest in the Courts the exclusive
right to determine justiciable controversies or between
citizens and the State. In bringing these proceedings,
the plaintiffs were exercising their Constitutional right
and they were and are consequently entitled to have
the matter in dispute determined by the judicial organ
of the State. The decision in the Sinn Fein Funds case
obviously represents the only logical view as to how
Article 43 of the Constitution is to be interpreted and
can in no way be restricted by the subsequent decision
of
Attorney General v Southern Industrial Trust and
Simons
(1960) 94 I.L.T.R., because that case merely
decided that the Customs Authorities had a right to
seize a car belonging to a hire purchase firm because
it had been exported illegally to Britain by the hirer
through Northern Ireland by means of a false declara- ,
tion. It seems most unlikely that this decision will be
followed as it is hard to reconcile some of the vague
statements in the judgment of the Court delivered by
the late Mr. Justice Lavery.
!
The next human right to be considered is the
Right
to be treated as a Human Person,
more specifically set
out in Article 40, Section 3, of the Constitution previ-
ously considered and subsequently put into effect, parti-
cularly in the case of
The State
(Quinn)
v Ryan
(1965)
I.R. 118, where the action of police officers in arresting
the accused near the Four Courts after he had obtained
an order of
habeas corpus,
bundling him into a car, and
driving him straight to the Northern Ireland border,
and handing him over to British police officers to be ,
transported to Britain to face a charge of larceny of
television sets, without giving him an opportunity of
getting in touch with his solicitors nor applying anew
for
habeas corpus,
was rightly characterised by the
Chief Justice as a scheme to eliminate the Courts com-
pletely and to defeat the rule of law as a factor of
Government. He added at p. 121 : The claim made on .
behalf of the police to be entitled to arrest a citizen
and forthwith to bundle him out of the jurisdiction
before he has had opportunity of considering his rights
is the negation of law and a denial of justice. It is
unfortunate that the Supreme Court deemed it suffi-
cient to exonerate in that instance the police officers
who had taken part in this miscarriage of justice, ,
despite the fact that they were found guilty of contempt
of court.
32