The Gazette 1974

the most rigorous scrutiny. Professor McWhinney has well summarised convincing arguments in favour of the Doctrine of Activism as follows : (1) The Judges are an elite group better intellectually equipped than mere Ministers or Civil Servants. (2) When certain basic rights are threatened, it is far fetched to rest upon any abstract academic conception of the separation of powers. (3) There is little doubt that the maintenance of a free society rests on the existence of an independent judiciary. The most famous Judges associated with the doctrine of activism are Justices Black, Douglas and Mu r phy and Brennan, in the United States, Chief Justice Duff of the Supreme Court of Canada, and Mr. Justice Faz-Ali of the Supreme Court of India as well as Lord Denning in Britain. As against the activist attitude, where the Constitution is inter- preted liberally, there is, of course, the strict and literal interpretation of the Constitution which has often be- come the traditional attitude of various Supreme Courts in construing their country's Constitution, and has consequently been called the Tradition of Judicial Self Restraint. One of the main principles of Judicial Self Restraint is, of course, the primary presumption of the constitutionality of legislation no matter how far- fetched, and the implied principle that Judges should humbly defer to the popular will as expressed by legis- lation unless the Statute specifically infringes one of the fundamental principles of the Constitution. Accord- ing to this school, Activism entails taking sides in a political conflict, and the Courts may thus eventually become embroiled in an undignified controversy. Fur- thermore, this school recognises, as Judge Ha n na did, the social-ethical limitations to the effectiveness of human acts. As Judge Frankforter said, a people must make their own salvation and not expect it to be served up to them by Judges—he did not, however, define the expression "a people". The jurisdiction of Common Law Courts has necessarily been limited in Constitu- tional cases, as it has normally been based on the grounds of either Ultra Vires or of Natural Justice. Judge Leonard Hand described the spirit of moderation as the temper that does not press an undue advantage to its bitter end which can understand and will respect other sides, which recognises a common faith and the common aspirations of all citizens. While Judges are highly specialised for wise community policy making, undoubtedly the Courts have but the most rudimentary powers to enforce Decrees, and therefore must ultimately be dependent on the State in this respect. The Habeas Corpus clause In considering Article 40, Clause 4, of the Consti- tution, it is necessary to mention the case of the State (Browne) v Feran (1967) I.R. 147, when the Supreme Court decided that an appeal does lie to the Supreme Court from an Order of Acquittal by the High Court in a habeas corpus case. The Activist School appears to have received a rebuff. It was stated in one of the judgments that in the construction of a Constitution, words which in their ordinary meaning import inclu- sion or exclusion cannot be given a meaning other than their ordinary literal meaning, save where the authority lies within the Constitution itself. It was also stated in the case of Nicolaou v The Adoption Board (1966) I.R. 640, that legal rights, unless specifically guaranteed by the Constitution, may be adversely affected or com- pletely taken away by legislation. This statement seems ' difficult to reconcile with the statement that the Courts 34

Article 40, Section 6, Subsection 1, but it is as usual cir- cumscribed by many restrictions. This Sub-Clause reads as follows : "The State guarantees liberty for the exercise of the following rights subject to public order and morality. I. The right of the citizens to express freely their convictions and opinions. The education of public opinion being, however, a matter of such grave importance to the common good, the State shall, however, endeavour to ensure that organs of public opinion such as the radio, press and the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State. The publication or utterance of blasphemous, seditious or indecent matter is an offence and shall be punishable in accordance with law. There is very little to be added to this Clause save to stress that its provi- sions are strongly worded in favour of the State and could be used to suppress freedom of speech at the pleasure of the Government. In fact there is little doubt but that the former Government has tended to abuse its powers, and to curb the freedom of the press quite unnecessarily. The partial and draconian press censor- ship exercised during the war will forever remain a first-class iniquitous blot on the administration. It is furthermore difficult to justify in regard to statements of illegal organisations how a Minister may interfere with the news talks of Radio Eireann by allegedly censoring any item of news which displeases him even if an accurate statement is issued by a respon- sible body or arranging with a compliant Director- General to curb independent television programmes. In considering this right to freedom of expression it would seem necessary to emphasise the wide right conferred by Article 40, Clause 3 of the Constitution. Of all the Clauses in the Constitution this seems to me the one which requires to be construed in an activist sense. As Chief Justice O'Dalaigh stated "In re Haughey (1972) I.R. at page 264, Article 40 Section 3 of the Constitution is a guarantee to the citizen of the basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the Court to under- line that the words of Article 40, Section 3, are not political shibboleths but provide a positive protection for the citizen and for his good name." It is most un- fortunate that the first case relating to personal rights under this Constitution arose as a result of the Emer- gency created by the situation arising from the Second World War. In the unusual conditions of neutrality then prevailing, the Courts found it necessary to con- strue the powers given to the State in the widest possible terms and to give the most literal construction to the emergency provisions of the Constitution. It is well known that the Emergency Powers (Amendment) Act 1940 permitted the Government to order suspects to be interned without trial during the emergency. In view of these full emergency powers it is submitted that the permanent legislation contained in the Offences against the State (Amendment) Bill 1940 should have been construed in a more liberal spirit. Activism and self-restraint What must the spirit of activism contain? According to Professor McWhinney the tradition involves the notion that in the field of political and civil rights, the Court should keep a sharp look out on any legislation restricting those rights, in order to ensure full compli- ance with the spirit of the Bill of Rights—in other words, laws restricting freedom should be subjected to