The Gazette 1974

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