The Gazette 1971

Mr. Justice Henchy said that he found nothing in the Act or the proceedings laid down by the Committee in its interim report that could be said to be a depri- vation or diminution of the constitutional or legal rights that a witness would be entitled to in a Court established under the Constitution. (12) Finally it was argued that Section 3 (4) of the Act was repugnant to the Constitution in failing to provide a punishment for the offence created by the sub-section. He could not find any validity in this argument, for since the offence created was a constructive contempt of the High Court and there was attached to it the punishment that it would attract if it were a contempt of the High Court, the punishment was thereby clearly defined by reference. In this, as in other respects, there was nothing novel or unique about the section; it merely reproduced provisions that were to be found in a wide range of statutory provisions. For those reasons he would disallow the Cause shown. Mr. Haughey had not asked for trial by jury and the court, having considered the law and the facts, did not consider a trial by jury to be called for. Having regard to all the circumstances the sentence of six calendar months imprisonment seemed to him to be appropriate. [In re Committee of Public Accounts of Dáil Eireann Privilege and Procedure Act, 1970, and in re Courts (Supplemental Provisions) Act, 1961, and in re Paric Haughey. ] The Irish Times (1st April 1971) BUTCHERS MAY OPEN SHOPS ON SATURDAY NIGHTS The Supreme Court, in a reserved judgment delivered yesterday, by a majority of four to one, dismissed an appeal by the Attorney General, the Minister for Industry and Commerce, and James O'Leary, in an action arising out of exemptions granted in respect of trading hours to shops selling kosher meat. The appeal was against a decision given in the High Court by Mr. Justice McLoughlin on 1st July 1968 in which he granted a declaration sought by Quinn's Supermarket Ltd., Finglas, and Fergal Quinn that the Victuallers' Shops (Hours of Trading on Week Days) (Dublin, Dun Laoghaire and Bray) Order, 1948, was repugnant to the Constitution. The majority judgment in the Supreme Court was delivered by Mr. Justice Walsh and the Chief Justice (Mr. Justice Ó Dálaigh), Mr. Justice Budd and Mr. Justice Fitzgerald agreed. Mr. Justice Kenny read a dissenting judgment. Mr. Justice Walsh, in his judgment, said that the plaintiffs had challenged the validity of the Order on the grounds (1) that it discriminated between victuallers' shops, namely, those which sold all kinds of fresh meat and those which sold only meat killed and prepared by the Jewish ritual method. It was submitted that this discrimination imposed a disability upon the plaintiffs on the ground of religious profession, belief or status and that it was in any event a discrimination grounded upon religious profession, belief or status and that such disability or discrimination was prohibited by Article 44 (2) (3) of the Constitution and that it was contrary to the provisions of Article 40 (1) of the Constitution. Mr. Justice Walsh said that the provisions of Art. 40 (1) had been discussed in the Livestock Marts Act case before the Court and, as was there decided, that provision was not a guarantee of absolute equality for all citizens in all circumstances but was a guarantee of equality as human persons and, as the Irish text of the Constitution made quite clear, was a guarantee related to their dignity as

human beings and a guarantee against any inequalities grounded upon an assumption or indeed a belief that some individuals or classes of individuals were by reason of their human attributes or their ethnic or racial, social or religious background, to be treated as the inferior or superior of other individuals in the community. In his view, this provision had no bearing on the point to be considered in the present case as no question of human equality or inequality arose. Mr. Justice Walsh then quoted the provisions of Article 44 of the Constitution : "Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen;'the State guarantees not to endow any religion; the State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status." The plaintiffs had certainly suffered a disability in the sense that they were legally disqualified from selling meat outside the hours set out in the Order. This was a deprivation. But in his view, where the provision spoke of disabilities the disability must be one which was suffered and imposed on the ground of the religious profession, belief or status of the person so disabled. Here there was no evidence that the disability suffered by the plaintiffs had anything to do with the religious profession, belief or status of Mr. Quinn or of the shareholders of the plaintiff company. Mr. Justice Walsh said he was of opinion that the exception made in relation to the sale of meat killed according to the Jewish ritual was a discrimination on the ground of religious profession, belief or status and was, prima facie at least, unconstitutional on its face. The facts were that it was an essential element of the Jewish religion that only meat killed and authorised by the Jewish ritual method should be eaten by persons practising the Jewish religion and that the shops dealing in the sale method were owned (at the date the order was made) by members of the Jewish religion who would, by the tenets or rules of their religion, be compelled to close their shops before the hours of sunset on Friday afternoons and would be prohibited from re-opening before 6.30 p.m. on Saturdays. This was so even though many, if not all, of the employees of these shops would not be of the Jewish religion. It also appeared that over 90 per cent of all the Jewish families in Ireland accepted these rules as binding rules of their religion and acknowledged that the required duty of Judaism was to observe these rules regarding meat and other kosher foods. Such observance was a strict commandment in the code of Jewish law. The conclusion of fact was that between the hours of sunset on Friday afternoons and 6.30 p.m. on Saturday afternoons it would not be possible for any practising member of the Jewish religion to obtain any meat for consumption save that which by the commandments of his religion he was forbidden to eat. Such person would, between those hours, be left with the choice of going without meat or being compelled to buy the type of meat he was forbidden to buy. If by law the hours of trading in meat killed and prepared by the Jewish ritual method was confincd to hours which presented a member of that religion with such a choice, then that law interfered with the free profession and practice of that religion. There therefore arose a conflict between the constitu- tional guarantee of the free profession and practice of religion and the constitutional guarantee against dis- crimination on the ground of religious profession, belief or status.

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