The Gazette 1980

GAZETTE

DECEMBER 1Q80

show either that he had been personally affected by it or was in imminent danger of becoming the victim of it. The great advantage of such an approach, according to the learned judge, is that it would give "concreteness and first hand reality to what might otherwise be an abstract or hypothetical legal argument," 8 thereby preserving the flexibility and reach of the particular constitutional provision involved. On the other hand, the actio popularis had a number of disadvantages. Firstly such a case, being decided 'in vacuo', would tend to lack the force and urgency of reality; secondly, there was a danger that a person whose case had been argued unsuccessfully by another, might feel aggrieved on the grounds that his case was wrongly or inadequately presented; thirdly, the 'actio popularis' might result in the court's jurisdiction to review legislative provisions being abused by "the litigious person, the crank, the obstructionist, the meddlesome, the perverse, the officious man of straw". 9 These considerations led the learned judge to lay down, as a precondition to the exercise of the constitutional power of judicial review, "that the impact of the impugned law on (the litigant's) personal situation discloses an injury or prejudice which he has either actually suffered or is in imminent danger of suffering". 10 This rule is not absolute, however, and may be qualified whenever the justice of the case so requires, e.g. where those prejudicially affected by the impugned statute are not in a position to assert adequately, or in time, there constitutional rights. Henchy J. declined to establish the precise limits of this rule of personal standing, stating that it could be relaxed wherever the particular circumstances of a case disclose weighty countervailing considerations justifying such an approach. In the instant case the plaintiff failed to satisfy this test of personal standing as she had been at all times aware of the material facts which constituted her claim and there- fore was not directly affected by the alleged con- stitutional infirmity in Section 11(2) (b), viz., the absence of a proviso protecting those litigants who did not know of the accrual of the cause of action within the three year limitation period. Nor did there appear to be any pressing constitutional need to examine the validity of Section 11(2) (b), which might justify a waiver of the test of'locus standi' in this case. Henchy J. did suggest however that the Oireachtas should consider the introduction of a qualification to Section 11(2) (b) similar to that contained in Section 1 of the Limitation Act 1963 in the U.K. which protects a person in the position of the plaintiff's putative litigant. A brief concurring judgment was delivered by O'Higgins C.J. 11 It would appear therefore that before a citizen can challenge the validity of a piece of legislation, it must be shown that such legislation has adversely affected or is about to affect adversely, that citizen, though this requirement may be waived in certain unspecified cases. The decision in Cahill v. Sutton has an additional and deeper significance however. It is submitted that it is evidence of a reaction among members of the judiciary against the growing tendency to utilise the courts for the resolution of issues which might be more properly dealt with by the Oireachtas. Since the decision in the East Donegal case in 1970, the Irish Courts have had to tackle a number of controversial issues. These include the right of Irish citizens to obtain contraceptives; 12 discrimination

based on sex and property in relation to jury service; 13 discrimination based on marital status in the Government's fiscal policy. 14 It is submitted that the decision in Cahill v Sutton will have the effect of impeding this development and of limiting the involvement of the courts in these types of controversial political and social issues. Support for this can be found in the judgment of Henchy J. At page 18-19 thereof, he says, "In particular, the working interrelationship that must be presumed to exist between parliament and the judiciary in the democratic scheme of things postulated by the Constitution would not be served if no threshold qualification were ever required for an attack in the courts on the manner in which the legislature has exercised its law-making powers. Without such a qualification the courts might be thought to encourage those who have opposed a particular Bill on its way through Parliament to ignore or devalue its elevation into an Act of Parliament by continuing their opposition to it by means of an action to have it invalidated on constitutional grounds. It would be contrary to the spirit of the Constitution if the courts were to allow the opposition that was raised to a proposed legislative measure, inside or outside Parliament, to have an unrestricted and unqualified right to move from the political arena to the High Court once a Bill has become an Act. And it would not accord with the smooth working of the organs of State established by the Constitution if the enactments of the National Parliament were liable to be thwarted or delayed in their operation by litigation which could be brought at the whim of every or any citizen, whether or not he has a personal interest in the outcome". No one would deny that the balance of powers between the three branches of Government (i.e. the legislative, executive and judicial branches) must be respected under our present Constitution. It does not follow, however, that Cahill v. Sutton makes good law. It is conceded that a similar test of 'locus standi' is applied by the American courts, 15 who also function under a Constitution which recognizes the separation of the powers of Government. However there are significant differences between the constitutional position of the American judiciary and that of their Irish counterparts. Firstly, the power of judicial review was implied into the U.S. Constitution by the American Supreme Court in Marbury v. Madison,™ whereas it is expressly conferred on the Irish judiciary by Art. 34 of the Irish Constitution. Secondly, the American courts have to deal with a greater volume of work than that coming before the Irish courts. Both of these factors distinguish the Amierican position from that which obtains in the Republic, and therefore the fact that a test of 'locus standi' exists in American constitutional law should not deter us from levelling a number of criticisms at the existence of a similar test in Irish law. Firstly, the Irish Superior Courts were not without protection against the "busybody and the crank" prior to the adoption of the test of locus standi in Cahill v Sutton. 0.19, r. 28 of the Rules of the Superior Courts, 1962 empowers the High Court to stay any "frivolous or

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