The Gazette 1979

GAZETTE

APRIL 1979

the State are to have regard to differences of birth. It refers solely to physical and moral capacity and social function. "Social Function" The meaning of the term "social function" was discussed by Walsh J. in the de Burca case. 11 "To be of either sex, without more, is not per se to have a social function within the meaning ot Art. 40 of the Constitution. To be an architect or a doctor for example is to have a social function, but the function does not depend upon the sex of the person exercising the profession." Clearly therefore the term "social function" is not applic- able to distinctions drawn between children purely be- cause of their birth. "Physical and Moral Capacity" The term "physical and moral capacity" is twofold in that one must examine on the one hand what is meant by an individual's physical capacity and on the other hand by his moral capacity. Presumably one's "physical capacity" would refer to, for example, elements of employment peculiar to an individual. It could also be of relevance, as was pointed out by Walsh J. in the McGee case 12 to the question of discrimination where contraceptives were made available to a married woman whose life was endangered by conception but were not made available to a married woman who was not likely to incur such danger. How- ever, it could not refer to a child's birth per se as there is nothing in the factor of birth itself to distinguish it from any other child since it has no control whatsoever over the birth nor the circumstances surrbunding it. "It was ack- nowledged by Mr. Justice Henchy in the recent adoption case 13 that "all children, whether legitimate or illegitimate share the common characteristic that they enter life with- out any responsibility for their status and with an equal claim to what the Constitution expressly or impliedly postulates as the fundamental rights of children." The words "moral capacity" imply a somewhat vague or obscure term although they could perhaps be of rele- vance in a Hart-Devlin type debate on the distinction between and justifications for a private and public morality. They could also be of relevance for example, in an argument to justify the availability of contraceptives to named couples as opposed to unmarried couples living together. However, it is impossible to see how they can be adopted to justify distinctions between legitimate and illegitimate children on the grounds of their birth, for their moral capacity, whatever it may appear to be, cannot no more than their "physical capacity", be related to their circumstances of birth when they themselves have no control over their birth nor their parents' "morality" which gave rise to the birth. Accordingly, we are now left with the question whether the discrimination in our succession law relating to illegitimate children can be deemed "invidious" or "arbitrary". Neither of these terms have been examined to any degree by the Courts although O'Higgins C. J. in the de Burca caae 14 seemed to equate the word "invidious" with the words "unjust" and "unfair". In the East Donegal

Livestock Mart case 13 O'Keeffe J. held in the High Court (overruled to a large extent on appeal) that where a Minister can grant or refuse to revoke a particular licence "in his uncontrolled discretion and on purely arbitrary grounds" the relevant legislation must be invalid having regard to the provision of Article 40.1. Again the word "arbitrary" was not examined in itself but rather in context. In fairness it would not be possible to delimit the extent to which any act may amount to invidious or arbitrary discrimination under Article 40.1 without it being independently examined and consequently each case must depend, as is apparent from the case law to date upon its merits. Fundamental Distinctions In determining whether any particular act is to be deemed invidious or arbitrary it is felt that the issue will not so much depend upon the meaning attached to those two words but rather to one's own primarily subjective views as to what constitutes discrimination in this context of illegitimacy. There are obviously objective views to be taken into consideration (e.g. the reasons for an already existant state of discrimination, the objects of a society in perpetuating same) but essentially it is the Judge's own personal views on the topic grounded upon solid legal argument which will determine the issue. In the ensuing pages the writer will examine some of the earlier decisions dealing with the question of discrimination and will argue that, in his opinion, those various judgements do indeed provide a solid legal framework upon which our existing law of succession in relation to illegitimate children can be declared invalid having regard to the provision of Article 40.1. However one must first of all recall that there are certain distinctions which can be drawn between various members of our society without interfering with the essential concept that "all citizens shall as human persons be held equal before the law". What is being argued here is that fundamental distinctions which go to the root of the concepts of the equality of man cannot be justified. Kenny J. examined this concept of equality in the Quinn Supermarket case: 16 "This guarantee (in Art. 40.1) ... is one of equality before the law in so far as the characteristics inherent in the idea of human personality are involved: it does not relate to trading activities or to the hours during which persons may carry on business for neither of these is connected with the essentials of the concept of personality. The qualifying clause in the Article which provides that the State may in its enactments have regard to differences of capacity and social functions shows that the Article is not a guarantee of equality before the law in all matters: see the decision of this Court in The State (Nicolaou) v. An Bord Uchtala 81966] IR 567, 639." Unfortunately Mr. Justice Kenny did not define what was meant by "the essentials of the concept of personality" nor "the characteristics inherent in the idea of human personality." However at the same time it could be argued that the principle he was enunciating in his judgement referred to the equality of man as a being who is born in a resemblance, both physical and mental to e v ®ry other being. Therefore it is upon the birth of man

54