The Gazette 1992

GAZETTE

DECEMBER 1992

defences. They could have said " l o ok at the wording of this clause (Article 40.3.3) ' The State acknowledges . . . a nd guarantees by its law . . ' We are not the State. Wh a t we are doing - disseminating i n f o rma t i on on Í travelling to En g l a nd - c a n n ot conceivably be regarded as a f o rm of State activity. You have got the wr o ng defendants. T he constitutional duty clearly is on the State a nd it is on it to introduce a p p r o p r i a te laws to protect the u n b o r n ". Mr. Forde said t h at it h a d never been suggested by the c o u r ts t h at the article of the Co n s t i t u t i on on equality applied to private as well as public a c t i o n, but the case for such an a p p l i c a t i on was mu ch stronger. For unlike the a b o r t i on article, the equality clause was not expressed in t e rms of " t h e State shall". If there was to be consistency in o ur Co n s t i t u t i o n al Law then p e r h a ps sex d i s c r imi n a t i on t h r o u g h o ut the private sector was u n c o n s t i t u t i o n al a n d rules which p u r p o r t ed to exclude women f r om a variety of bodies a nd associations were null a n d void a nd p e r h a ps even actionable. Co u ld we now expect the courts, he q u e r i e d, to vindicate the right to equality, for example, whenever a liquor licence a p p l i c a t i on was being h e a rd or p l a n n i ng p e rmi s s i on was being s o u g ht by a me n - o n ly b o d y? O r would a state action principle be applied to the equality article? If t h at were so, why s h o u ld the a b o r t i on article by any d i f f e r e n t? " D o e s Ireland need a new C o n s t i t u t i o n ?" was the t h eme of a lively a nd witty d e b a te chaired by Ms. Justice Susan Denham, d u r i ng the a f t e r n o on session of the Co n f e r e n c e.

said. His c o - p r o p o n e nt of the mo t i o n, Felix McEnroy, BL, said t h at the wh o le t h i n k i ng b e h i nd the 1937 Co n s t i t u t i on h ad been an a t t empt to nail d own certain principles on which it h ad been felt the j u d i c i a ry a nd legislature could not be t r u s t e d. Article 41 was a " m o r a l d i n o s a u r" he stated, a n d its message to the women of Ireland was a simple one: " g o h ome girls". He said there h a d been a d i s t u r b i ng d e v e l o pme nt in recent times where specific interest g r o u ps h ad decided to use the Co n s t i t u t i on as a me a ns of e n f o r c i ng their views a b o ut wh at was g o od for everyone. He said the wh o le " c o p p e r f a s t e n e d" mentality a mo u n t ed to a " t e mp l a te of t e r r o r" by which o ur f u n d a m e n t al d o c um e nt would be used as a sword by p ro life g r o u ps rather t h an a shield to protect f u n d a m e n t al rights. Op p o s i ng the mo t i o n, Nial Fennelly, SC, said that the constitutional interpretation over half a century by judges of all persuasions h ad ma de a living d o c ume nt of the Con s t i t u t i on. T h e Con s t i t u t i on should not be regarded as a suit of clothes to c h a n ge when fashions change. Rather, it was a suit of clothes which h ad served the Irish people well, it did not fit t oo tightly a nd it was large e n o u gh for people to grow into. It h ad been the i n s t r ume nt which h ad achieved the development of h um an rights a nd he did not think the Irish people wanted to be told by their lawyers that they should jettison this tradition a nd all that h ad been achieved u n d er the Co n s t i t u t i o n. Despite massive social c h a n ge in Ireland since 1937, the p r e d om i n a nt e t h os in society was still Ch r i s t i an a n d d emo c r a t ic said Shane Murphy, BL, also a r gu i ng against the mo t i o n. He said it was a p o p u l ar m i s c o n c e p t i on t h at in 1937 De Valera h ad given the Ch u r ch wh at it wa n t e d, a Ca t h o l ic Co n s t i t u t i o n. In fact, the issue h ad been wh e t h er it was possible to express ma j o r i ty principles w i t h o ut o f f e n d i ng minorities. It was possible to d o so a n d the 1937 c o n s t i t u t i on h a d proved this. He said a p a r a n o id fixation a b o ut the events of 1937 i n f u s ed the a r g ume n ts of the p r o p o n e n ts of the

motion, but it was clear that the courts had interpreted the Constitution in a ma n n er which could be seen to be independent. He said interpretation was the basis on which life could be given to this do c ume nt to make it capable of living beyond this generation and into future generations. "We have the basis for organic growth, not a vehicle for social engineering," he stated.

T h e mo t i on wh en put to a vote, was d e f e a t e d. •

Disciplinary Committee (Continued from page 399)

n a me removed f r om the Roll of Solicitors at least three mo n t hs in a d v a n ce of being called to the Bar. Du r i ng the year, Mr. G rattan Roberts, Mr. Michael Hogan a nd Mr. Donal Kelliher were r e - a p p o i n t ed to the C omm i t t ee by the President of the H i gh C o u rt for a n o t h er period of five years. I would like to record my t h a n ks to the memb e rs of the C omm i t t ee for their h a rd work a nd s u p p o rt d u r i ng the past year. Mary Lynch, the Clerk to the Comm i t t e e, h as dealt with its a f f a i rs in a mo st efficient a nd c omp e t e nt ma n n e r. We are indeed grateful to her. A list of the members of the Disciplinary Committee appointed by the President of the High Court appears on page 377. Lawyers Desk Diary 1993 Page - a - Day A4 Now Available! Da t ed this 20th day of No v emb er 1992. Walter Beatty, Chairman

Ar g u i ng for the mo t i o n, Michael McDowell, SC, said t h at it s h o u ld be possible to emb o dy the necessary

m i n i mum p r o t e c t i ons in a c o n s t i t u t i on w i t h o ut the

"me t a p h y s i c al a nd ideological b a g g a g e" c o n t a i n ed in the 1937 Co n s t i t u t i o n. " I d e o l o g i c al c o n t i n e n ce is possible", he asserted. It wo u ld be entirely feasible to put in place a new c o n s t i t u t i on which s h o u ld be b a l a n c ed a nd inclusive, he

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