The Gazette 1971

It was submitted that the full effect of the State's sovereignty had not been considered before in regard to its immunity. It was also contended that, as the State was sovereign, it could not be sued in its own Courts. This contention necessarily equates the State with the former position of the Crown. It is sufficient to consider whether the State is sovereign in the sense that it has immunity from suit under the Constitution. While the State may be internationally sovereign in the sense that it is not answerable to a foreign State, yet it was not intended to impart to the State that internal sovereignty which would give it, against the citizens, a legal and constitutional immunity from pro- ceedings in law. This is evident from the words of the Preamble by which "we the people, adopt enact and give ourselves this Constitution". As it was passed at first by a referendum, and can only subsequently be amended by a referendum, the Constitution is the crea- tion of the people, and depends upon the will of the people for its existence and its form ultimately. It is thus to be seen that as the People are paramount, and not the State, such a conclusion is inconsistent with any suggestion that the State is sovereign internally. This is further evidenced by the strong wording of Art. 6 of the Constitution which confers all powers of govern- ment upon the People. In so far as the Constitution imposes many restric- tions on the State, every restriction on the power of the State, and every imposition upon it of duties, obliga- tions or guarantees tend to show that it is not sover- eign :—-They impinge upon its authority, power and status. As regards the restrictions on the power of the State it must hold all citizens equal before the law, and must not impose any disabilities on the ground of religious profession or belief. The State shall not oblige parents in violation of their conscience, to send their children to schools designated or established by the State; these are punitive restrictions upon the State. The guarantees to protect from unjust attack and vin- dicate the life, person and good name of the citizen as well as that of the personal liberty of the citizen which cannot be withheld save in accordance with law, are guarantees that are incompatible with sovereignty. In giving guarantees, the State is subject to the Con- stitution. The theory of immunity from suit is based on the mediaeval theory that the King can do no wrong, which is quite irreconcilable with modern ideas. The nature of our modern State is irreconcilable with feudal notions. The King has gone from the Constitution and gone with him is any idea of the King as the personni- fication of the State. Any feudal ideas of government are impliedly rejected by Art. 6 of the Constitution. Although by Art. 13 Section 8, the President shall not be answerable to any Court for the exercise and per- formance of the powers and functions of his office, yet no such immunity has been given to the State. The Constitution is not imbued with feudal con- ceptions, but rather with modern conceptions of the recognition of human rights. The State is therefore in its internal affairs, subject to the Constitution which limits, confines and restricts its power. (2) Whether an action based on an alleged tortious act was maintainable in law against the State having regard to the claim that the sovereign authority enjoy- ed immunity against such actions? Per Budd J. Let us consider whether the State is vicariously re- sponsible in law for their acts or omissions of a tor-

tious nature. It is abundantly clear from the evidence that those persons employed in the Department of Posts and Telegraphs who were concerned in carrying out the excavations which resulted in the subsidence of the pathway were civil servants. There is therefore no reason for supposing that the plaintiff was not entitled to sue the State, and, if successful, to recover compen- sation from it, on the principle of "Qui Facit per alium facit per se". It seems clear that the plaintiff can proceed against the State on the basis of its vicarious liability, and, if successful recover damages against it. There might be an alleged difficulty in enforcing any decree obtained or in compelling the payment of any award made. In Conroy v Minister for Defenc (1934) I.R. it was held that the applicant was entitled to a pension under the Military Service Pensions Act, and he was granted a declaration that the Minister was bound to grant him such a pension. The Supreme Court in that case felt no apprehension about the en- forcement of the orders of the Courts. Here, if the plaintiff is awarded damage, there would seem to be no reason why the State would not follow the rule of law and would not honour its legal obligations. Comyn v A.G. (1950) I.R. shows clearly that a decree can be made against the State, and no point was raised as to the ultimate recovery of the amount raised by the State. (2A) That the word "prerogative" in Article 49 of the Constitution includes a right of immunity from suit. Art. 49 (1) of the Constitution states:— All power, functions, rights and prerogatives whatsoever exercisable in respect of Saorstat Eireann immediately before the 11 day of December, 1936, whether in virtue of the Con- stitution then in force or otherwise, by the authority in which the executive power of Saorstat Eireann was then vested, are hereby declared to belong to the people. Per Walsh J. As these prerogatives are declared to belong to the People, and, by Art. 2 of the 1922 Constitution, can- not be exercised in future save only by or on the authority of the Government, this will not save the royal prerogative, as the King had by 1936 been removed from all executive functions in Saorstat Eireann, and could only act henceforth on the authority of the Executive Council. Even if the royal immunity had been carried over by virtue of Art. 49, it would have be- come thereby the immunity of the People, and not of the State, which could only be asserted by authority of the Government. Per Budd J. In so far as the argument is based upon the effect of Art. 49 of the Constitution, I agree with the reasons which Walsh J. advanced for rejecting this contention, whatever type of power, function, rights, and preroga- tives are covered by Art. 49, and whether they include a right of immunity from suit or not, these were not vested in the State, but were expressly declared to be- long to the People. There is no provision made by the Constitution for the exercise by any organs established by the Constitution of any of these powers, functions, rights or prerogatives, nor has any provision been made by any post-Constitution legislation for the exercise of these powers. As the prerogative right did not exist under the Saorstat Eireann Constitution, it cannot con- sequently be transferred to this Constitution, by virtue 127