The Gazette 1972

the preservation of our accepted standards and yet take ognisance of the evolution of society in general. European Convention of Human Rights to be part of municipal law In order to clarify the situation so that we would know exactly what our rights are, I strongly recommend that a suggestion made by the Chief Justice, in March of this year, and by Professor O'Hanlon, Professor of Criminal and Constitutional Law in this college, some years ago, be adopted. They suggested that the European Convention of Human Rights and Funda- mental Freedoms be made part of our municipal law. The Chief Justice said that personal rights in Ireland might be more clearly stated and in some important fields extended if we were to do this. Though Ireland was one of the first signaturies of the Charter, we are not bound by it as Article 29 (6) of our Constitution states that "no international agreement shall be part of the doestic law of the State save as may be determined by the Oireachtas". The Oireachtas has failed to do this with respect to the European Convention as was shown by the Lawless case in 1960. The present position in Ireland is best summed up by the Chief Justice. "In looking at this part of Ireland today (warts and all) it is a matter for congratulations that the fundamental law not alone protects personal rights but acknowledges certain inalienable rights ante- cedent and superior to all positive law." This has only become clear in recent years. The Chief Justice con- tinued : "This is not to say that personal rights would not be more clearly stated and, in important fields, considerably extended by the enactment, as part of our municipal law, of the European Convention of Human Rights and Fundamental Freedoms." These are senti- ments which, I feel, all of us should endorse. A State, which has accepted the Convention as binding on it, is under very strict obligations and can only derogate from the Convention "in time of war or other public emergency threatening the life of the nation . . . to the extent strictly required by the exigen- cies of the situation, provided that such measures are not inconsistent with its other obligations under inter- national law". Article 15 of the Convention would per- mit a member State to intern without trial if the neces- sity really arose, only as a last resort. Trends of recent decisions Our Superior Courts are undoubtedly to be praised for some recent decisions in cases which involved consti- tutional rights other than personal liberty. In Ryan v A.G. (the "fluoridation case"), Kenny J. held that there were other rights to be protected besides those guaran- teed by the Constitution. The State (Quinn) v Ryan and Others showed that the Supreme Court had no hesitation in holding the police authorities in contempt of Court when they removed Quinn from the juris- diction unlawfully. In the case of A.G. v O'Brien, Kingsmill-Moore J. and Walsh J. stated quite decisively that the rules of evidence must conform to the Consti- tution. Indeed it would appear from the dicta in this case, that the right to personal and bodily inviolability is better protected by the Courts in Ireland than in the United States where, in the case of Schomber v Cali- fornia , the American Supreme Court held that evidence of a blood test on an unconscious defendant was admis- sible despite the fifth amendment in the U.S. Consti- tution, which says that no person shall be compelled to be a witness against himself in a criminal case. After A.G. v O'Brien it is doubtful if the Irish Courts would 37

law". A majority decided that by virtue of this phrase a person who was detained under the Act was being detained in accordance with the provisions of a statute duly passed by the Oireachtas, and therefore he could not question the constitutionality of the Act. It was, I respetfully submit, a bad decision and one which would not be arrived at today. The narrow interpretation of the phrase "save in accordance with law" could have led to a situation where the other guarantees in the Constitution would have become meaningless. A far more liberal and, I think, more just interpre- tation was given to the same phase by Gavan Duffy P. In The State (Burke) v Lennon (1940, I.R.), where he said : "Article 40, if I understand it, guarantees that no citizen shall be deprived of liberty save in accordance with a law, which respects his fundamental right to personal liberty and defends and vindicates it, as far as practicable, and protects his person from unjust attack; the Constitution clearly intends that he shall be liable to forfeit that right under the criminal law on being duly tried and found guilty of an offence." However, the decision in the Offences Against the State case has not yet been modified though I think that Gavan Duffy P.'s interpretation of the phrase "without accordance with law" would be preferred by our present Supreme Court, in view of some of their more recent decisions. An interesting comparison exists between the 1940 interpretation of the phrase in the Irish Constitution a nd its counterpart in the United States Constitution which is "save in due process of law", which to many Hy people, and indeed to law students, would appear to be one and the same. The American Supreme Court has interpreted it in a far more liberal fashion in a number of cases. The Supreme Court in the United States has assumed that "due process of law" should be considered as both a safeguard of procedural rights and a safeguard of substance and that any action undertaken by the Federal Authority or a State Auth- ority should not violate "fundamental fairness". Supreme Court should have power to review judgments The obvious question which must now be put is how are we to overcome the Offences Against the State Bill decision ? By virtue of Article 34 (3) (iii) which states that "No Court shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court fiy the President . . ." the Superior Courts cannot over- l i e their earlier decision. It is therefore suggested that this provision be amended so that the Supreme Court should be entitled to review after a certain number of V^ars, say five, judgements given by that Court on a fiill referred to it by the President. The section in the Article should be amended rather than deleted alto- gether, as there may be occasions when the President Would have good reasons to refer a Bill to the Supreme Court. This recommendation would be in line with present Supreme Court policy with respect to decisions where the Constitution is not pleaded. In Ryan's case and Wuinn's case, both of which are reported in the 1965 Irish Reports, the Court decided that the common law uoctrine of stare decisis, by which a Court was bound hy its own former decisions, no longer applied, as it had heretofore. There were alleged good reasons for u pholding the old doctrine of stare decisis, the main °ue being, of course, that it guarantees certainty in the law. Despite this, I consider that on balance, the .upreme Court's 1965 decisions and the recommenda- tlQ ns made in regard to Article 34 (3) (3) would ensure