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 ls 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 ° r centuries. It is difficult to understand how the Supreme Court may hold a detention valid and lawful e 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 0 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 " Um <*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- ak ln 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 1 recognised as part of the Natural Law. This appears ° be an unduly strict interpretation. t It was unfortunate that the Adoption Act 1952 had of u c o n ? t r u e < l 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) v 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. In 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 35