The Gazette 1974

Article 40, Section 6, Subsection 1, but it is as usual cir-

cumscribed by many restrictions. This Sub-Clause

reads as follows : "The State guarantees liberty for the

exercise of the following rights subject to public order

and morality. I.

The right of the citizens to express

freely their convictions and opinions.

The education

of public opinion being, however, a matter of such

grave importance to the common good, the State shall,

however, endeavour to ensure that organs of public

opinion such as the radio, press and the cinema, while

preserving their rightful liberty of expression, including

criticism of Government policy, shall not be used to

undermine public order or morality or the authority of

the State. The publication or utterance of blasphemous,

seditious or indecent matter is an offence and shall be

punishable in accordance with law. There is very little

to be added to this Clause save to stress that its provi-

sions are strongly worded in favour of the State and

could be used to suppress freedom of speech at the

pleasure of the Government. In fact there is little doubt

but that the former Government has tended to abuse

its powers, and to curb the freedom of the press quite

unnecessarily. The partial and draconian press censor-

ship exercised during the war will forever remain a

first-class iniquitous blot on the administration. It is

furthermore difficult to justify in regard to statements

of illegal organisations how a Minister may interfere

with the news talks of Radio Eireann by allegedly

censoring any item of news which displeases him

even if an accurate statement is issued by a respon-

sible body or arranging with a compliant Director-

General to curb independent television programmes.

In considering this right to freedom of expression it

would seem necessary to emphasise the

wide right

conferred by Article 40, Clause 3 of the

Constitution.

Of all the Clauses in the Constitution this seems to me

the one which requires to be construed in an activist

sense. As Chief Justice O'Dalaigh stated "In

re Haughey

(1972) I.R. at page 264, Article 40 Section 3 of the

Constitution is a guarantee to the citizen of the basic

fairness of procedures. The Constitution guarantees

such fairness, and it is the duty of the Court to under-

line that the words of Article 40, Section 3, are not

political shibboleths but provide a positive protection

for the citizen and for his good name." It is most un-

fortunate that the first case relating to personal rights

under this Constitution arose as a result of the Emer-

gency created by the situation arising from the Second

World War. In the unusual conditions of neutrality

then prevailing, the Courts found it necessary to con-

strue the powers given to the State in the widest

possible terms and to give the most literal construction

to the emergency provisions of the Constitution. It is

well known that the Emergency Powers (Amendment)

Act 1940 permitted the Government to order suspects

to be interned without trial during the emergency. In

view of these full emergency powers it is submitted that

the permanent legislation contained in the Offences

against the State (Amendment) Bill 1940 should have

been construed in a more liberal spirit.

Activism and self-restraint

What must the spirit of activism contain? According

to Professor McWhinney the tradition involves the

notion that in the field of political and civil rights, the

Court should keep a sharp look out on any legislation

restricting those rights, in order to ensure full compli-

ance with the spirit of the Bill of Rights—in other

words, laws restricting freedom should be subjected to

the most rigorous scrutiny. Professor McWhinney has

well summarised convincing arguments in favour of the

Doctrine of Activism as follows :

(1) The Judges are an elite group better intellectually

equipped than mere Ministers or Civil Servants.

(2) When certain basic rights are threatened, it is far

fetched to rest upon any abstract academic conception

of the separation of powers.

(3) There is little doubt that the maintenance of a

free society rests on the existence of an independent

judiciary. The most famous Judges associated with the

doctrine of activism are Justices Black, Douglas and

Mu r phy and Brennan, in the United States, Chief

Justice Duff of the Supreme Court of Canada, and

Mr. Justice Faz-Ali of the Supreme Court of India

as well as Lord Denning in Britain. As against the

activist attitude, where the Constitution is inter-

preted liberally, there is, of course, the strict and literal

interpretation of the Constitution which has often be-

come the traditional attitude of various Supreme Courts

in construing their country's Constitution, and has

consequently been called the

Tradition of Judicial Self

Restraint.

One of the main principles of Judicial Self

Restraint is, of course, the primary presumption of the

constitutionality of legislation no matter how far-

fetched, and the implied principle that Judges should

humbly defer to the popular will as expressed by legis-

lation unless the Statute specifically infringes one of

the fundamental principles of the Constitution. Accord-

ing to this school,

Activism

entails taking sides in a

political conflict, and the Courts may thus eventually

become embroiled in an undignified controversy. Fur-

thermore, this school recognises, as Judge Ha n na did,

the social-ethical limitations to the effectiveness of

human acts. As Judge Frankforter said, a people must

make their own salvation and not expect it to be served

up to them by Judges—he did not, however, define the

expression "a people". The jurisdiction of Common

Law Courts has necessarily been limited in Constitu-

tional cases, as it has normally been based on the

grounds of either

Ultra Vires or of Natural

Justice.

Judge Leonard Hand described the spirit of moderation

as the temper that does not press an undue advantage

to its bitter end which can understand and will respect

other sides, which recognises a common faith and the

common aspirations of all citizens. While Judges are

highly specialised for wise community policy making,

undoubtedly the Courts have but the most rudimentary

powers to enforce Decrees, and therefore must ultimately

be dependent on the State in this respect.

The

Habeas Corpus

clause

In considering Article 40, Clause 4, of the Consti-

tution, it is necessary to mention the case of the

State

(Browne)

v Feran

(1967) I.R. 147, when the Supreme

Court decided that an appeal does lie to the Supreme

Court from an Order of Acquittal by the High Court

in a

habeas corpus case. The Activist School

appears

to have received a rebuff. It was stated in one of the

judgments that in the construction of a Constitution,

words which in their ordinary meaning import inclu-

sion or exclusion cannot be given a meaning other than

their ordinary literal meaning, save where the authority

lies within the Constitution itself. It was also stated in

the case of

Nicolaou v The Adoption

Board

(1966)

I.R. 640, that legal rights, unless specifically guaranteed

by the Constitution, may be adversely affected or com-

pletely taken away by legislation. This statement seems '

difficult to reconcile with the statement that the Courts