The Gazette 1980

GAZETTE

DECEMBER 1980

vexatious" action. It is submitted that this is adequate to protect the balance of powers as it exists between the Oireachtas and the courts. Indeed one would be inclined to hold the view that if a constitutional issue arises which is neither frivolous nor vexatious, then the courts should pronounce judgment on it. Secondly, it is difficult to find any justification in the Constitution for the requirement of 'locus standi' as set out in Cahill v Sutton. The constitutional power of judicial review created by Art. 34(3) (2) when read in the light of the preceding sub- section of Art. 34 is merely part of the High Court's "full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal". It is submitted that it is not apparent from this that a potential litigant must be personally affected by a particular issue before resorting to the High Court for a decision on the point and indeed it is significant that neither member of the Supreme Court, who delivered judgment in Cahill v Sutton, cited any provision of the Constitution in support of his conclusions. Criticising the celebrated decision of Kenny J. in Ryan v A.G., 17 Prof. J. M. Kelly said that it represented " . . . the introduction of the principle of testing . . . legislation against the background of rules whose recognition resides only in the breasts of the judges, whose individual or collective reactions the representatives of the people cannot be expected to forsee". 18 It is submitted that similar criticism can be levelled, mutatis mutandis, at the Supreme Court's decision in Cahill v. Sutton, which appears to have been decided solely on the basis of policy. Deciding a constitutional issue in this way is fraught with danger, especially if the issue involves the fundamental rights of the citizen. What might appear to be sound policy to one section of the community can often be deplored by another. Therefore, if the judiciary wish to retain the confidence of society as a whole they should, in their reasoning, adhere closely to objective legal principles and eschew the subjective morass of public policy, which regrettably appears to form the basis of the judgment in Cahill v Sutton. Postscript The test in Cahill v Sutton was applied in the recent High Court case of Norris v A.G. 19 Here the plaintiff

argue, inter alia, that Sections 61 and 62 of the Offences Against the Person Act, 1861, were unconstitutional inasmuch as they infringed the right of privacy of married couples by criminalising buggery. McWilliam J. held, however, that as the plaintiff was unmarried, he was precluded by the decision in Cahill v Sutton from advancing this argument. The test was also applied by the Supreme Court in the recent decision of King v D.P.P. and the A .G. (31.7.1980 — unreported). In this case, the Plaintiff had been convicted of loitering with intent to commit a felony and of being in possession of house breaking implements with intent to commit a felony contrary to Section 4 of the Vagrancy Act, 1824. This section created a wide variety of offences but the Supreme Court held that the plaintiff could only question those parts of the Section which had effected him personally. [See O'Higgins, C.J. at p. 9 of his judgment; Henchy, J. at p. 19].

FOOTNOTES

1. 11970] I.R. 317. 2. Ibid, at p. 338. 3. Ibid, at p. 339.

4. Supreme Court, 9 July 1980 — unreported. 5. The Plaintiff had waived her claim in tort. 6. Per Henchy J. at p. 10. 7. Cf. p. 1 supra. 8. Per Henchy J. at p. 15.

9. Ibid. p. 18. 10. Ibid. p. 20.

11. As the constitutionality of Section 11(2) (b) was not actually decided by the Supreme Court, the one judgement rule in Art. 34(4) (5) did not apply. 12. McGee v A.G. (1974] I.R. 284. 13. De Burca v. A.G. [1976] I.R. 38. 14. Murphy v. A.G. High Court 12 Oct, 1979 — unreported. Supreme Court, 25 January 1980 — unreported. 15. See, for example, the decision of the U.S. Supreme Court in Tileston v Ullman, 318 U.S. 44 in which it was held that a physician's claim that the lives of certain of his patients would be endangered by child-bearing did not give him a standing to question the constitutionality of a State Statute prohibiting the giving of advice as to the use of contraceptives. 16. I Cranch 137; 2 L.Ed. 60 (1803). 17. 11965] I.R. 294. 18. Prof. J. M. Kelly, Fundamental Rights in the Irish Law and Constitution 2 Ed., Dublin, 1967, at pp. 43. 19. High Court, 10 October, 1980 — unreported.

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