OPINION:It is to be hoped that changes mooted through a referendum will result in needed improvement to constitutional provisions, writes LAURA CAHILLANE
MINISTER FOR Justice, Equality and Defence Alan Shatter made a surprise announcement last week heralding the intention of the Government to hold a referendum to reform the courts system.
This followed soon after a speech by Chief Justice Susan Denham as part of a conference celebrating the 75th anniversary of the Constitution, where she reiterated her long-held view that the courts structure was in dire need of reform.
The press release issued by the Government was entitled “Government approves in principle a future Referendum on article 34 of the Constitution”. The proposed amendment to article 34 – the constitutional provision which sets out the court structure for the State – would allow for the creation of a new civil court of appeal and a new family court structure.
However, the changes mentioned in the press release are far more wide-ranging and include some proposed changes to article 26. This is the provision that allows the president of Ireland to refer a Bill to the Supreme Court for a decision on its constitutionality.
Currently, if the Supreme Court decides a Bill does not offend the Constitution, the president must sign it into law and the law then receives a seal of constitutionality and can never again be questioned as to its compatibility with the Constitution.
This is something that has long been criticised as it is quite possible that, at a later date, circumstances might change or information which was not available to the Supreme Court may come to light which might reveal an unconstitutionality.
However, under the current scheme, despite any such new developments, it is impossible to challenge the provision in question. This has been targeted for change by Shatter, who has suggested such legislation might later be challenged on the basis of a question which did not arise under the original article 26 reference, or simply that it might be open to challenge following the lapse of a period of five years, or some other specified period. This would certainly be welcome and would surely solve the problems with what is predominantly a very useful provision.
Another proposed change to article 26 is the removal of the one-judgment rule. Currently, when considering the compatibility of a law with the Constitution under an article 26 reference, the decision of the Supreme Court must issue as a single unanimous judgment, and it is not revealed as to whether any of the judges dissented.
This provision, contained in article 26.2.2, was inserted into the Constitution by the Second Amendment of the Constitution Act 1941, in response to the judgment of the Supreme Court in the case of Re Article 26 and the Offences Against the State (Amendment) Bill 1940.
In giving judgment for the court, chief justice O’Sullivan announced it was the judgment of a majority of the judges, implying there had not been a consensus on the issue of the constitutionality of the Bill. For reasons of clarity and to obtain a definite decision, it was then decided that any such judgment should have the appearance of unanimity, in order to provide certainty in the law.
While Shatter has expressed his intention to reverse this position to allow for dissenting opinions in article 26 reference cases, there has been no mention of article 34.4.5, which contains the same rule and was inserted at the same time as article 26.2.2.
The former provision requires the one-judgment rule in all cases involving the constitutionality of a law, and not just article 26 reference cases.
Surely, if the one-judgment rule is removed from article 26 it should also be removed from article 34.
While there may be arguments for keeping the rule, it cannot be denied that the rule only offers a false sense of unity. It is unlikely that decisions that include a dissent would be considered any less authoritative than those which are unanimous.
Furthermore, it could be argued that dissenting judgments have added to our constitutional jurisprudence, and some of the most famous judgments, such as that issued by chief justice Kennedy in the case of The State (Ryan) v Lennon, have come from a dissentient.
The final change which is proposed for article 26 is the idea that, following a referral of a Bill by the president, the Supreme Court, if satisfied that there is a lack of factual or evidentiary basis for the reference, can refuse to consider the Bill.
Unlike the first two, this proposal is of a completely different nature in that it would undermine one of the few real powers of the president. It is unclear why such a change is even being considered, since Bills are referred only very rarely and always for good reason. If the issue is one of time and workload of the Supreme Court, then the establishment of the civil court of appeal should solve that problem.
In general, these proposals are to be welcomed. As Chief Justice Denham pointed out in her aforementioned speech: “The drafters of the Constitution could never have anticipated the growth in the volume of litigation, its complexity and diversity throughout the legal system . . . The court structure required in 2012 is different to that of 1937” (and indeed that of 1924, when the current structure was established).
Thus it is to be hoped a useful debate will now ensue and that these proposals will result in much-needed improvements to the constitutional provisions dealing with these issues.
One question remaining to be considered is why the Government has decided to bring issues such as this one, the children’s rights amendment and the proposal to abolish the Seanad straight to a referendum, while the body being set up to consider reform of the Constitution will be left to debate the (clearly non-) issues of reducing the term of the presidency and the voting age?
Laura Cahillane is a post-doctoral fellow in the department of law at University College Cork