The Gazette 1990

GAZETTE

j A nua R y/february

1990

Mr. Justice Brian Walsh - One of the Helmsmen of the Constitution

against another for breaking a churn. The justice took time to consider, and then said that he had looked through the statutes and could find nothing about churns and gave judgment for the defendants. Many judges of our own time still display the mentality of that Vermont justice. Mr Justice Walsh was not of that ilk. In constitutional cases the judge often stands at a fork on the road. Justice Cardozo vividly described this process: "There have been two paths, each open though leading to different goals. The fork in the road has not been neutralised by a barrier across one of the prongs with the label of 'no thoroughfare'. [The judge] must gather his wits, pluck up his courage, go forward one way or the other and pray that he may be walking, not into ambush, morass, and darkness, but into safety, the open spaces, and the light". 3 Mr Justice Brian Walsh often plucked up his courage, went for- ward and made new law. The Irish Constitution was not often referred to in Irish courts prior to the appointment of Cearbhall Ó Dálaigh and Brian Walsh. Cearbhall Ó Dálaigh was appointed Chief Justice in 1961 - the day Brian Walsh was appointed a judge of the Supreme Court. The pre- cedents of the United States Supreme Court were a rich fertile ground upon which to base an interpretation of the Irish Constitu- tion. New law was made. The lead- ing judgment of Mr. Justice Walsh in Byrne -v- Ireland* remains a seminal judgment in Irish juris- prudence. The case of McGee -v- Attorney General 5 was another by Eamonn G. Hall, Solicitor

landmark decision. Mr. Justice Walsh held that the use of con- traceptives by married couples within the context of marital privacy was guaranteed against invasion of privacy, and as such assumed the status of a right guaranteed under the Constitution. Mr. Justice Walsh's approach to interpreting the Constitution was fleshed out by him in 1988: "The Constitution in Ireland has been brought in - even to the construction of common law - to every sphere of legal activity. By laying down markers one might inspire practitioners to pick them up and use them in the next case that may be more central. We certainly didn't stick to the rigid system of saying nothing about anything except the precise point before us, and we didn't attempt to avoid issues. In other words, we got away from what is perhaps the easier judicial approach of saying no. We went out of our way to try and find remedies and, effectively, adopted the view that if the Constitution provided a right, there was automatically a remedy; and one doesn't have to wait for legislation to provide a remedy". 6

"The great judge was great because when the occasion cried out for new law he dared to make it .. . " 1 Mr Justice Brian Walsh retired from the Supreme Court in March 1990. Called to the Bar in 1941 and to the Inner Bar in 1954, he was appoint- ed a High Court judge in 1959 and a judge of the Supreme Court in 1961. He served as president of the Law Reform Commission from 1975 to 1985 and as chairman of the Committee on Court Practice and Procedure from 1962 to 1988. A judge of the European Court of Human Rights since 1980, he was president of the International Association of Judges from 1986 to 1988. Constitutional Cases Judgments of Mr Justice Walsh will live for many reasons, but particularly because in these judgments he spoke with an authority greater than his own. That authority was Bunreacht na hÉireann - the document which orders the social, legal and political structure of the State. That law, in the words of Mr Justice Walsh him- self, "speaks always in the present tense and is to be regarded as contemporary law, even though as a document it may be regarded as being of another generation". 2 Thus, there was considerable scope in appropriate cases for judicial discretion. Montesquieu's approach, according to which the judge is simply the mouth that repeats the language of the law, was not accepted by Mr Justice Walsh. Mr Justice Walsh disliked the "mechanical" approach to judging. Oliver Wendell Holmes in The Path of the Law (1897) tells the story of a Vermont justice before whom a suit was brought by one farmer "He spoke with an authority greater than his own".

Eamonn Hall.

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