The Gazette 1974

can protect rights other than those specifically con-

ferred in the Constitution as specified by Mr. Justice

Kenny and the Supreme Court in the Fluoridation

Case—

Ryan v Attorney-General

(1965) I.R. 294. This

dictum appears furthermore to give undue power to the

legislature. Article 34, Clause 4, Sub-Clause 3, reads :

The Supreme Court shall with such exception and sub-

ject to such regulations as may be prescribed by law

have appellate jurisdiction from all decisions of the

" i gh Court. It was held that, as no Statute had been

Passed since 1937 specifically stating that the decision

of the High Court in making a conditional Order of

habeas corpus

absolute, was final and conclusive, the

^tate had consequently a right to appeal against this

acquittal. With respect, it would seem that the securing

an Order of

habeas corpus

once it is made absolute

one of the greatest protections a citizen has against

jtoy unlawful detention by the Executive, and this has

Oeen recognised as one of the bulwarks of our liberties

f °

centuries. It is difficult to understand how the

Supreme Court may hold a detention valid and lawful

ven after the High Court as a result of a full investi-

gation has held it invalid, and that if the applicant

happens to be still within the jurisdiction he could be

to-arrested and detained. As was pointed out in the

Browne case, the jurisdiction of the High Court here is

absolute, because no exception prescribed by law can

hmit its jurisdiction.

The final order granted by the High Court means in

/ t o ct that a thorough investigation of the circumstances

Been carried out and that the Judge is fully satis-

hed that the accused is entitled to be set free. It seems

me that no procedural construction of the Consti-

tution should entitle a higher Court to question this,

t would seem to be a fundamental condition of the

Gommon Law that the matter should rest there, regard-

ess of any literal interpretation of any Constitutional

•

e x t

' a s the principle of

habeas corpus

is such a vital one

jn Common Law. In the Browne case, it was stated

toat the Constitution of 1922 and 1937 represented new

atements of fundamental principles, and that they

ould have to prevail if they were inconsistent with the

. der law—but, with respect, it was not intended to

introduce a new procedure for

habeas corpus

in 1922.

Article 40, Clause 1, reads that

all citizens shall as

<*n persons be held equal before the law.

This shall

not be held to mean that the State shall not in its

oactments have due regard to the differences of capa-

/ Y> Physical and moral, and of social function. This

^rticle as mentioned in the Nicholaou Case—(1966)

' f ; 639—is not to be read as a guarantee or under-

g that all citizens are to be treated by the law as

9ual for all purposes, but rather as an acknowledgment

toe human equality of all citizens, and that such

quality will be recognised in the laws of the State,

urthermore, in the same case—(1966) I.R. 64—in con-

struing Article 40, Clause 3, Sub-Clause 1, of the Consti-

ution, the Supreme Court stated that it had not been

°wn to its satisfaction that the father of an illegiti-

ate child has any natural rights as distinct from legal

^ghts to either custody or society of that child. The

°urt was not satisfied that any such rights has ever

j J

recognised as part of the Natural Law. This appears

° be an unduly strict interpretation.

It was unfortunate that the Adoption Act 1952 had

of u

c o n

t r u e <

s o

strictly in Nicolaou where the father

.toe child had at all times a genuine interest in the

child's welfare.

Presumption of constitutionality

In the State

(Sheerin, McGarry and O'Hanlon)

The Governor of St. Patrick's Institution

(1966) I.R.

379, it was stated by the Supreme Court that the

Oireachtas established by the 1937 Constitution is the

only Parliament subject to the Constitution. It follows

that all laws previously in force are presumed not to

be in conflict with the Constitution unless they speci-

fically infringe some provision of it.

In the State

(Quinn)

v Ryan

(1965) I.R. 124, Mr. Justice Walsh stated that

amongst the personal rights guaranteed by the Consti-

tution is the right not to be deprived of personal

liberty, save in accordance with law. It is quite clear

that a right to apply to the High Court in respect of

habeas corpus

is conferred on every person who wishes

to challenge the legality of his detention. It seems to

follow that any law which makes it possible to restrict

that right, must necessarily be invalid having regard to

the provisions of the Constitution.

Acts of the Oireachtas also enjoy the presumption of

being not repugnant to the Constitution in force at the

date of the enactment, unless such repugnancy be

clearly shown. Acts of the Parliament of the former

United Kingdom of Great Britain and Ireland, of which

the Petty Sessions Act, 1851, was one, enjoy no such

privileged position. By virtue of Article 50 of the Consti-

tution, the Petty Sessions Act, 1851, was continued in

force after the coming into operation of the Constitution

only to the extent to which its provisions were not

inconsistent therewith. This Supreme Court is the crea-

tion of the Constitution and is not in any sense the

successor in Ireland of the House of Lords. The juris-

diction formerly enjoyed by the House of Lords is but

part of the much wider jurisdiction which has been

conferred upon this Court by the Constitution. It is

only in the case of a law the Bill for which has been

referred to the Supreme Court by the President, under

Article 26 of the Constitution, that there is no longer

jurisdiction in any Court to question the constitutional

validity of that law.

Attorney-General

v Ryan's Car Hire Service

(1965)

I.R. 654, Mr. Justice Kingsmill Moore had stated the

principles by which the Supreme Court was no longer

bound by the doctrine of precedent as follows : In my

opinion the rigid rule of

Stare Decisis

must in a court of

ultimate resort give place to a more elastic formula.

Where such a court is clearly of opinion that an earlier

decision was erroneous, it should be at liberty to refuse

to follow it, at all events in exceptional cases.

Article 45: Directives of Social Policy

It is understood that these fine-sounding phrases have

been derived from the almost Marxist Spanish Repub-

lican Constitution of 1931. These are all pious aspira-

tions allegedly for the guidance of the Oireachtas, but

as the Courts cannot take any cognisance of them, they

appear to be completely superfluous, as the average

Deputy or Senator is completely unaware of their exis-

tence.

You will apreciate that it is not possible in a short

space of time to deal adequately with this most intricate

subject, but an endeavour has been made to present to

you what appears to me to be the most glaring defects

of our Constitution, and to suggest to you the best way

in which they could be remedied.

It has only been possible to point out briefly some of

the innumerable problems that would arise in the event

of a wholesale revision of the Constitution. It will be