The Gazette 1974

Preamble and General Observations

Per Walsh J. The plaintiff also invoked the portion

of the Preamble to the Constitution in which "the

People, in giving themselves the Constitution, express the

intention to seek to promote the common good with

due observance of Prudence, Justice and Charity so that

the dignity and freedom of the individual may be

assured".

There is no law in force in the State which prohibits

the use of contraceptives either in or outside of marriage,

or the manufacture or distribution of contraceptives

manufactured within the State. (There are none of

these.)

The Attorney-General contended that a statutory

provision in force prior to the Constitution could con-

tinue to be in force and to be carried over by Article 50

even though its provisions were such as could not now

be validly enacted by the Oireachtas, because of the

provisions of the Constitution. Stated as a general pro-

position, this is in direct conflict with Article 50 and

is quite unsustainable. In my view, Article 50 by its very

terms, both in its Irish and English texts, makes it

clear that laws in force in Saorstát Éireann shall con-

tinue to be in force only to the extent that they are not

inconsistent with the Constitution. If the inconsis-

tency arises for the first time after the coming into

force of the Constitution, i.e. 29 December 1937, the

law carried forward thereupon ceases to have effect.

To control or prohibit the sale of contraceptives

is not

per se

necessarily unconstitutional, nor is a

control on the importation of contraceptives

per se

necessarily unconstitutional. There may be many reasons

grounded on considerations of public health, such as

risk of infection, or of public morality, or even fiscal or

protectionist reasons, why there should be a control on

the importation of such articles. What is challenged

here is the constitutionality of making these articles

unavailable . . . in the present state of the law, which

involves the possibility of a criminal prosecution and

conviction. In concrete terms, O'Byrne J's dictum in

Buckley v. Attorney-General

—(1950)

I.R. 67—that the

Legislature is not free unjustifiably to encroach upon the

fundamental rights of individuals, or of the family, in

the name of the common good, or by act or omission

to abandon or to neglect the common good, or the

protection or enforcement of the rights of individual

citizens, is approved.

Counsel for the Revenue Commissioners contended

that it was a matter for the plaintiff to prove that, if

she had a right to use contraceptives within the

privacy of her marriage, that it was for her to prove

from whence this right sprang. At first sight, this

appears reasonable, but it ignores an essential funda-

mental point—the rights of a married couple to decide

how many children they will have, if any—these are

matters outside the reach of positive law, where the

means employed to implement such decisions, do not

impinge upon the common good, or destroy or en-

danger human life. It is clear that, in the case of a

moral code governing private morality, where the

breach of it is not one which injures the common good,

then it is not the State's business to intervene. It is

outside the authority of the State to intrude into the

privacy of the husband and wife relationship for the

sake of imposing a code of private morality upon the

husband and wife, which they do not desire.

The claim under Article 41 is admissible on the

basis that the plaintiff is a married woman, whereas the

claim under Article 40(3) is admissible on the

d i f f e r e nt

ground that her state of health is impaired.

Both in its Preamble and in Article 6 of the Consti-

tution, God is acknowledged as the ultimate source of all

authority. The Natural or Human Rights which I have

referred to earlier are part of Natural Law. Many argue

that Natural Law may be regarded only as an ethical

concept, and, as such, is a re-afhrmation of the ethical

content of law in its ideal of justice. The Natural Law

as a theological concept is the law of Cod promulgated

by reason and is the ultimate governor of all the laws

of man. In view of the acknowledgment of Christianity

in the Preamble, and the acknowledgment of God in

Article 6, it must be accepted that the Constitution

intended Natural Human Rights as being in the latter

theological category of Natural Law rather than simply

as an acknowledgment of the ethical content of law.

When the Constitution speaks of certain rights as being

imprescriptible or inalienable, or being antecedent or

superior to all positive law, it does not specify what all

of those are. In a pluralist society such as ours, the

Courts cannot, as a matter of constitutional law, be

asked to choose between the differing reasons, where

they exist, of experts on interpretation by the different

religious denominations of either the nature and extent

of the duties which flow from Natural Law, such as the

inalienable duty of parents to provide for the religious,

moral, intellectual and physical education of their

children. In this country, it falls finally upon the Courts

to interpret the Constitution—and, in so doing, where

necessary, to determine what are the Rights which are

superior or antecedent to positive law, and which are

unprescriptible and inalienable. In the performance ol

this difficulty duty, there are certain guide lines laid

down in the Constitution for the Judge. The very struc-

ture of the Articles and the content of the Articles

dealing with Fundamental Rights indicate that Justice

is not subordinate to Law. In particular Article 40

Section 3 expressly subordinates Law to Justice. Both

Aristotle and the Christian philosophers have regarded

Justice as the highest human virtue, but the virtue of

Prudence was also esteemed. But the great additional

virtue introduced by Christianity was that of Charity—-

not the charity which consists of giving to the deserving,

which is but Justice, but that Charity which is also

called mercy. The Preamble mentions the due observance

of Prudence, Justice and Charity, so that the freedom

of the individual may be assured. The Judges must

therefore, as best they can, from their training and

experience, interpret these Rights, in accordance with

their idea of Prudence, Justice and Charity. No intre-

pretation of the Constitution is intended to be final for

all time. It is given in the light of prevailing ideas and

concepts. The development of the constitutional law of

the U.S.A. is ample proof of this.

Per Henchy J. The Criminal Law Amendment Act,

1935, is aimed, not at population control, but at the

suppression of vice, and the amendment of the law

relating to sexual offences. Section 17 creates a criminal

prohibition in an area in which the Legislature thought

fit to intervene in the interests of public morality. What

it seeks to do is, by means of the sanction of the

criminal law, to put an end, as far as it was possible

to do so by legislation, to the use of contraceptives

in the State.

{t does not in terms make the use of

contraceptivesi

crime, but the totality of the prohibi-

tion aims at nothing less. The effect of Section 17(1)

makes it legally impossible to sell or buy a contra-

ceptive within the State. Because contraceptives are not