The Gazette 1981

DECEMBE R

GAZETTE

1981

naturalised citizen) might automat- ically acquire citizenship on her mar- riage by lodging a declaration in the prescribed manner with the Minister. The Minister, by letter dated 24 August 1978, stated that in the case of the first-named Plaintiff the residential qualification would be reduced to two years and the requirements as to advance notice would be waived. The Minister refused to waive the residence qualification in its entirety and proceedings were instituted claiming a declaration that Sections 8, 15 and 16 of the 1956 Act were uncon- stitutional and contrary to natural justice and seeking an order directing the Minister for Justice to grant a certificate of naturalisation to the first named Plaintiff. It was argued on behalf of the second named plaintiff that the fact that she was deprived of the right to confer an automatic entitlement to Irish citizenship on her spouse was a violation of the guarantee contained in Article 40.1 of the Constitution (equality before the law). It was submitted on behalf of the first named Plaintiff that the differentiation between alien men and alien women in the Sections already referred to was a breach of the guarantee of equality before the law contained in Article 40 and a breach of Article 9.1.3 which stated: "No person may be excluded from Irish nationality and citizenship by reason of the sex of such person". It was argued for the defendants that the impugned provisions simply provided for a diversity of arrangements which did not amount to discrimination between citizens in their legal rights, that the first-named Plaintiff, not being a citizen, could not claim the protection of the Articles of the Constitution which guaranteed the fundamental rights of citizens and that the second named Plaintiff was not capable in law of asserting any constitutional rights on his behalf. The High Court (per Keane, J.), accepted that there were certain legal propositions that were clearly established and not disputed. 1. The enactment under attack, being an Act of the Oireachtas which became law subsequent to the enactment of the Constitution was entitled to the presumption of constitutionality operating in

favour of all such statutes. (McDonald v. Bord na gCon [1965] IR 217; and, East Donegal Co-Operative Livestock Mart Limited v. The Attorney- General [1970] IR 317). 2. The guarantee of equality before the law contained in Article 40 of the Constitution was not infringed because of an existence of a diversity of arrangements (State (Nicholau) v. An Bord Uchtala [1966] IR 567; and, O'Brien v. Keogh [1972] IR 144). 1. That the provisions of the Sections in question (i.e. that female aliens were upon marriage automatically entitled at their option to Irish citizenship, while male aliens were not) do no more than provide a diversity of arrangements which was not prohibited by Article 40.1 of the Constitution. 2. That, accordingly, the sections in question did not infringe the constitutional guarantee and undertaking of equality before the law, nor did they infringe the provisions of Article 9.1.2. of the Constitution providing that no person might be excluded from Irish nationality and citizenship by reason of his or her sex. 3. TTiat no benefit would be conferred on the Plaintiff if the relevant sections were held to be invalid. The Court had no jurisdiction to substitute for the impugned enactment a form of enactment which it considered desirable or to indicate to the Oireachtas the appropriate form of enactment which should be substituted for the impugned enactment. and Margaret Sontjee v. The Minister for Justice and The Attorney General — High Court (per Keane J.) - 20 De- cember 1979 - unreported. Held: (per Keane J.) dismissing the Plaintiff's claim; Mohammed All Source

Recent Irish Cases

Constitutional Law — Statute — Validity — Personal Rights. Application to Minister for Justice for Certificate of Naturalisation; Claim that certain provisions of the Irish Nationality and Citizenship Act, 1956, are invalid. The first-named Plaintiff, a native of Pakistan, came to this country in March 1977 and has resided here since then. He married the second- named Plaintiff, an Irish citizen, on 15 April 1978. On the 21 August 1978 the first named Plaintiff applied to the Minister for Justice for a certificate of naturalisation as an Irish citizen. Section 15 of the Irish Nationality and Citizenship Act, 1956, provided that an alien man might — at the Minister's absolute discretion — acquire Irish citizenship if the Minister was satisfied that the applicant complied with certain conditions, including one year's notice to be given of the intention to make the application and the applicant to have resided in this country for five years in all. These conditions might be dispensed with by the Minister in certain cases. Section 16 of the 1956 Act provided that the Minister mifcht dispense with any of those conditions (inter alia) "(d) where the applicant is a woman who is married to a naturalised Irish citizen; (e) where the applicant is married to a woman who is an Irish citizen (otherwise then by naturalisation)." Those two Sections contrast with Section 8 of the 1956 Act which provided that an alien woman who married an Irish citizen (other than a

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