The Gazette 1979

APRIL 1979

GAZETTE

whilst a non property owner may be highly intelligent. A parallel form of argument could be used against the existing discrimination of illegitimate children on an intestacy, 23 but the one essential difference and drawback is that the State could have a legitimate legislative aim 26 under Article 41 of the Constitution in that it must abide by its guarantee to protect the Family in its constitution and authority. 27 It has already been established that "the Family" in this case is one founded upon the institution of marriage 2 ' and consequently unsolemnised unions are not included. Following on from this is the point made by Walsh J. in the Nicolaou case 29 that: "An illegitimate child has the same natural rights as a legitimate child though not necessarily the same legal rights. Legal rights as distinct from natural rights are determined by the Court for the time being in force in the State." 30 However, despite this statement by Walsh J. it must be re- membered that legal rights as enacted by the State are still subject to the Constitution and the constitutionality of a discriminatory legal right which is sought to be justified under Article 40, should depend upon "The character of the discrimination and its relation to legitimate legislative aims." 31 Obviously there must come a point beyond which the State cannot uphold its action in favour of the members of a lawful family to the detriment of other members not deemed to be part of that family. Article 41 cannot be used to override the essential concept of the equality of man as guaranteed by Article 40.1. To determine the limits of Article 41 in relation to the present subject matter, it is submitted that the Courts should adopt the test used by the U.S. Supreme Court when it held that a Federal State's Succession Act, which allowed illegitimate children to inherit by intestate succession from their mothers estate only, violated the Equal Protection clause of fiie 14th Amendment 32 of the American Constitution; namely that a constitutional analysis of this nature is incomplete unless the Court addresses itself to the rela- tion between Article 40.1 and the promotion of legitimate family relationships. 33 Trimble v. Gordon In Trimble v. Gordon, 34 the U.S. Supreme Court held that the lower Court gave inadequate consideration to the relation between that particular section of the Statute under consideration and "the State's proper objective of assuring accuracy and efficiency in the disposition of property at death. The Court failed to consider the possibility of a middle ground between the extreme of complete exclusion and case-by-case determination of paternity. For at least some significant categories of illegitimate children of intestate men, inheritance rights can be recognised without jeopardizing the orderly settle- ment of estates on the dependability of titles to property passing under intestacy law. Because it excludes those categories of illegitimate children unnecessarily, Section 12 is constitutionally flawed." 35

that the principle of equality begins and yet our dis- tinctions between legitimate and illegitimate children stem from that very root. In effect by trying to justify the distinction between legitimate and illegitimate children we are doing so under an argument not at all related to the subject matter itself, namely illegitimate children who as human beings cannot through character, appearance or physical being be deemed different to legitimate children. Walsh J. in the same case was more precise in his examination of Article 40.1 and his judgement could well be deemed to be the pinpoint upon which an argument against essential discrimination between legitimate and illegitimate children will be based on the grounds that it infringes the Constitution. " . . . this provision is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the Constitution makes clear) is a guaran- tee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or their ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community. This text does not pretend to be complete but it is merely in- tended to illustrate the view that the guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow." 17 Preamble In referring to "their dignity as human beings" one must have regard to the wording of the Preamble because as Walsh J. stated in the McGee Case: 1 ' "According to the Preamble, the people gave them- selves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity of the individual might be assured." 19 It is submitted that the dignity of the individual cannot be assured by blatant discrimination in our succession laws between legitimate and illegitimate children solely on the grounds of their birth and consequently such distinctions cannot be "validly the subject of legislation by the Oireachtas." 20 In the de Burca case, 21 the Supreme Court declared un- constitutional that section of the Juries Act 1927 which imposed a property qualification on those members of the community who would otherwise have been eligible for jury service. One of the points made by the Court was that a property qualification was totally unrelated to a person's mental capabilities. The relevant or what ought to have been the relevant consideration was a person's own individual ability to serve on a jury. The amending legislation 22 which was introduced as a result of the decision in that case abolished the property qualification entirely and so the present position, subject to certain ex- ceptions, 13 is that once a person has readied the qualifying age of 18 years and is entered on the local register of electors he/she is eligible for jury service. As Walsh J. pointed out 24 a property owner may be illiterate or insane

The problem arising from a distinction between Article 40.1 and Article 41 cannot as was held by the Court in that case, 36 "be lightly brushed aside (nor) be made into an 55