The Gazette 1992

GAZETTE

DECEMBER 1992

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A Living Law? Second Bar Conference Examines the Constitution

A n n e Du n n e, SC, in her p a p er entitled " T h e Co n s t i t u t i o n al Family", said it was a p p r o p r i a te to consider wh e t h er or not the provisions relating to the family in a c o n s t i t u t i on that h a d been with us for a lmo st thirty years were a d e q u a te in present day Ireland. She said it was q u e s t i o n a b le wh e t h er the p e r s on al rights available to p e op le u n d er Article 40 were being disregarded by the blind a d h e r e n ce to the p r o h i b i t i on on divorce in Article 41. T h e c o n s e q u e n c es of Article 41 were t h at parties to a b r o k en ma r r i a ge could not r ema r ry a n d therefore there existed in Ireland a growing n umb er of

u n c o n s t i t u t i o n al families the memb e rs of which were not p e rmi t t ed to e n j oy the b e n e f i ts available to memb e rs of the c o n s t i t u t i o n al family.

At the Second Annual Conference of the Bar were L-R: Sir Ninian Stephen, who opened the Conference and the Chairman of the Bar Council, Peter Shanley, SC, who chaired the Conference.

delivered by Paul Gallagher, SC, on the Co n s t i t u t i on a nd C o mm u n i ty Law; Anne Dunne, SC, on the Co n s t i t u t i o n al Family, Michael Forde, BL, on the State Action Qu e s t i on a nd R i c h a rd Hump h r i e s, BCL, on Co n s t i t u t i o n al I n t e r p r e t a t i o n. Paul Ga l l a g h er a r gu ed t h at wh en the Co n s t i t u t i on was ame n d ed on I r e l a n d 's accession to the E EC in o r d er to ensure c omp a t a b i l i ty between the t wo legal orders, t h at a m e n dm e nt created a d y n am ic force which h as resulted in EC law having a substantial i n f l u e n ce a nd effect on the d e v e l opme nt of c o n s t i t u t i o n al law in Ireland since 1972. H e a r gu ed t h at EC Law was n ow in a position to protect s ome of t ho se rights which were previously protected only by the Irish Co n s t i t u t i o n. In a d d i t i o n, if properly utilised, EC Law c o u ld provide a rich source of new ideas a n d precedents to assist in the c o n t i n u ed d e v e l opme nt a n d evolution of the f u n d a m e n t al rights enjoyed u n d er Irish law. In t u r n, a r gu ed Mr. Gallagher, the d e v e l o pme nt of f u n d a m e n t al rights u n d er Irish law c o u ld i n f l u e n ce the d e v e l o pme nt of t h o se rights u n d er E C Law.

T h e " I r i sh Co n s t i t u t i on - A Living L a w ? " was an intriguing t h eme said the Right H o n . Sir Ninian Stephen, o p e n i ng the S e c o nd A n n u al Co n f e r e n ce of the Bar which t o ok place at the e nd of October. T h e 100 p a r t i c i p a n ts h e a rd Sir N i n i an say t h at he h ad not been aware t h at Ireland h ad a c o n s t i t u t i on until a few mo n t hs ago. Since t h e n, however, he h a d b e c ome " a g o od deal familiar with the small p o r t i on of it, in p a r t i c u l ar t wo articles." Sir N i n i an said it was p o i g n a nt t h at while mo st c o n s t i t u t i o ns suffered f r om the e x t r a o r d i n a ry o p t i m i sm of their ma k e rs w h o s o u g ht to express timeless t r u t h s, nonetheless, mo st h a d a limited life. Mo st of the n a t i o ns of the world since World War II h a d exchanged o ne c o n s t i t u t i on for a n o t h e r. T h e ability of a c o n s t i t u t i on to c h a n ge with c h a n g i ng times was a crucial f a c t or in its being a living law a n d he suggested t h at a c h a n ge me c h a n i sm such as t h at provided in Article 46 of the Irish Co n s t i t u t i on was an i nd i c a t or t h at a c o n s t i t u t i on c o u ld be a living thing.

Mi c h a el Forde examined the classic " s t a te a c t i o n" d o c t r i ne which h o l ds

t h at the obligation to respect f u n d a m e n t al rights g r a n t ed to

citizens u n d er a c o n s t i t u t i on is an obligation on the State a nd only on the State. He a r gu ed t h at there would be i mp o r t a nt practical difficulties with a b a n d o n i ng a state action restriction on c o n s t i t u t i o n al obligation a nd t h at it wo u ld i n t r o d u ce e n o r mo us un c e r t a i n ty into the law. Ex am i n i ng case law, Mr. Forde said that there h a d been only o ne S u p r eme C o u rt case where the state action a r g ume nt was ma d e, McGralh and O'Rourke -v- Maynooth College (1979 ILRM 166) in which Mr. Justice Kenny held t h at the g u a r a n t ee of religious f r e e d om b o u n d only the State a n d did not place obligations on private bodies even if they o b t a i n ed s ome State f u n d i ng for their activities. Mr. Forde p o s t u l a t ed t h at if the state action principle h ad been applied in the Open Door, Grogan, a nd 'X' cases t h en the d e f e n d a n ts in t h o se cases would have h a d cast iron

T h e Co n f e r e n c e, which was chaired by Peter Shanley, SC, h e a rd p a p e rs

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