The Gazette 1971

Although Dr. Wu in Fountain of Justice has stated that Natural Law has gone underground in England, yet the late Richard O'Sullivan had always emphasised that the original concern of the Common Law for the indis- solubility of marriage, never modified by statute, was derived from Natural Law, as also was the right of every man, who is the subject of litigation, not to be con- demned without his case being first heard. Despite the lip service paid to democracy, it is obvious that the removal of all spiritual and natural restraints, leaving all undisputed authority to Parliament or to a Minister, must give to those with power, an oppor- tunity to make the law in their own interest, and enforce it as they wish. As Pope Pius XII said : The nineteenth century is the one largely responsible for juridical positivism. It finally remained for the totali- tarian State to reveal to the world the true nature of juridical positivism. Natural Law Professor Kelly, in the second edition of his learned work on Fundamental Rights in the Irish Law and Constitution published in December 1967 is quite un- repentant in his view, expressed in the first edition and now reiterated at page 68, that internment without trial in the face of an emergency or of sub- versive conspiracy is not necessarily contrary to natural law. What the learned author does not appear to appre- ciate is that the Emergency Powers (Amendment) Act, 1940, made full provision for the internment without trial of Irish citizens during the emergency and that therefore permanent legislation like the Offences Against the State (Amendment) Act, 1940, which was declared Constitutional by a majority of the Supreme Court was completely superfluous. One cannot approve of Dr. Kelly's statement which Chief Justice Sullivan made in relation to the reference under the Offences Against the State (Amendment) Bill, 1940 (1940; I.R. 470), that arguments against the justice of a statute might more properly be addressed to the Oireachtas, as it would seem that this statement takes no cognisance at all of Article 40 (3) of the Constitution relating to personal rights of the citizen. Yet, Dr. Kelly is of the rather narrow opinion that democracy itself contains thié best remedy against its own abuse. This in my view is largely theoretical as the electorate as a whole would, despite the' excesses of Nazi Germany, have remained passive, unless for instance there may have been unjustified cases of wholesale internment which might conceivably have led to various forms of street protest. Tt seems inconceivable that extermination camps in which millions were killed flourished in Germany without protest. ' Dr. Kelly states at page 73 of his book that in those who make or administer laws, all one can hope for is an honest conscience, and that to assert that Natural Law provides a clear set of rules beyond and above a Consti- tution is to imagine a vain thing. Yet. Mr. Justice Walsh, in McDondld v Bord na gCon (1965; I.R. 242), did assert that: "In the context of the Constitution, natural justice might more appropriately be termed constitutional justice and must be under- stood to import more than the two well-established principles that—no man shall be a judge in his own cause—and audi alteram partem." It seems clear that Dr. Kelly will have to explain this view later on. One may now question a judicial dictum in the case of the State, Brown v Feran and the Governor of Limerick Prison (1967;T.R. 147, at p. 159), in which it was apparently stated that, in the construction of a Constitution, words which in their ordinary meaning

import inclusion or exclusion cannot be given a meaning other than their ordinary literal meaning save where authority to the contrary is specifically given within the Constitution itself. It is claimed that despite the pre- sumption of Constitutionality which has been conferred on Irish legislation since 1937—see State (Sheerin) v Kennedy (1966; I.R. 379, at p. 386) provisions in a national Constitution which have been submitted to a popular referendum should be construed in the broadest possible way in favour of the individual citizen. Further- more, in the State (Nicolava) v Adoption Board (1966; I.R., 547), it was pointed out that legal rights, unless guaranteed by the Constitution, can be adversely affected or completely taken away by legislation. This appears to conflict with the view of Mr. Justice Kenny in Macaulay v Minister for Posts and Telegraphs (1966; I.R., 345, at p. 357) that "there are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not men- tioned in Article 40 at all." It is hoped to consider this further subsequently. The instincts of the British Constitution As Lord Denning has said, the British Constitution rests upon three main instincts. First, the instinct for justice so notably represented by the independence of the judiciary. Second, the instinct for liberty in which the vital principles of freedom of discussion and of freedom of association are properly guaranteed, save in times of emergency. Third and last, a practical instinct in which a proper balancing of rights with duties and responsibilities is shown. As Professor McWhinney pointed out, the major adverse factor of the Courts in the whole Common- wealth has been their incurable positivism which has ruthlessly obscured the process of analysis in the conflicting interests involved. There does not appear to be sufficient evidence to suggest that our Courts have tended to apply Natural Law principles consistently recently. It will be recalled that the external principles of Natural Law are based on the respect and feeling of the dignity of the human person. Because of the fact that he is a person, man possesses rights, by virtue of his dignity as man, not because he is subject to any law other than that of his will and freedom. By virtue of Natural Law, the law of nations as well as positive law—a body of laws enforced in a given community—take on the force of law and impose themselves upon the conscience. For — as Professor d'Entreves states — Natural Law requires that whatever it leaves undetermined shall subsequently be . determined. For instance, man's rights to existence, to personal freedom and to the pursuit of perfection belong strictly to NatUral Law, whereas his right to private property belongs to the law of nations. One must never forget that, according to Natural Law, the human person transcends the State. He has natural aspirations to a spiritual life. Therefore, laws are valid only in so far as they are just as contem- plated bv a legitimate authority and not merely because the Parliamentary majority of the State can act as the standard of conscience. Let us first consider a few institutional matters such as the Senate, the referendum relating to ordinary laws as opposed to Constitutional referendums, and other Constitutional intricacies. (1) Amendments to the Constitution Other than Fundamental Rights (1) Impeachment under Article 12, Clause 10 This procedure is cumbrous and completely obsolete.

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