14
November 1997
COSTELLO
P: INTRODUCTION.
Article
41.3.2 of the Constitution provided that no law should be enacted providing for
the grant of a dissolution of marriage. A proposal to amend this provision was
contained in the 15th Amendment of the Constitution Bill, 1995. It was proposed
that there should be substituted for this sub-article a provision by which a
court designated by law would be entitled to grant a dissolution of marriage in
certain circumstances set out in the proposed amendment. The proposal was
submitted to the people by Referendum held in November, 1995 and by a majority
of votes cast in the Referendum approved. The validity of the Referendum was
challenged by a petition which was heard in the High Court and then the Supreme
Court. The challenge was unsuccessful and the Bill was signed and promulgated
by the President on the 17 June, 1996.
In
these proceedings the plaintiff has six distinct causes of action. Firstly, he
challenges the constitutionality of the 15th Amendment of the Constitution Act,
1995, as distinct from the validity of the Referendum. Secondly, he challenges
the validity of the Family Law (Divorce) Act, 1966, an Act which permitted a
court to grant a dissolution of marriage provided certain provisions (being
those contained in the constitutional amendment) were fulfilled; Thirdly, he
challenges the appointment of Mr Alan Dukes as a Minister of the Government
which retired from office on the 26 June, 1997; Fourthly, he challenged the
validity of the appointment of Miss Justice Carroll as chairperson of a
committee concerned with nurses pay and conditions; Fifthly, he challenges the
constitutional validity of the appointment of Mr Justice McCracken as sole
member of a Tribunal established under the provisions of the Tribunals of
Enquiries (Evidence) Act 1921. Sixthly, he challenges the constitutional
validity of the establishment by the Government which left office on the 26
June, 1997 of the office of Tanaiste and the appointment of Minister of State
to that office.
THE
FIRST CLAIM.
The
Constitution makes a clear distinction between (a) the power to make laws for
the State, which is vested in the Oireachtas (Article 15.2) and (b) the power
to amend the Constitution, which is vested in the people (Article 46). It makes
provision as to how these distinct powers are to be exercised. Laws enacted by
the Oireachtas are instituted by a Bill (Article 20). As soon as a Bill (other
than a Bill expressed to be a Bill containing a proposal for the amendment of
this Constitution) has been passed or deemed to have been passed by both Houses
of the Oireachtas it is presented to the President by the Taoiseach and is
signed by the President and promulgated by him (Article 25.1). Every Bill
becomes law as and from the date it is signed by the President (Article
25.4.1). Different provisions apply to the exercise of the power to amend the
Constitution. A proposal to amend the Constitution must be initiated in Dail
Eireann as a Bill. If passed or deemed to have been passed by both Houses of
the Oireachtas the proposal is submitted by a Referendum for decision of the
people. If a majority of votes cast in a Referendum are in favour of its
enactment into law then the proposed amendment has been approved by the people.
On being satisfied that the constitutional provisions have been complied and
that the proposal to amend the Constitution has been approved by the people the
President is required to sign the Bill containing the proposed amendment and
promulgate it as a law (see Articles 46 and 47). It is clear, therefore, that
the Oireachtas has no power to enact laws which amend the Constitution -- its
power is merely to submit constitutional amendments for the approval of the
people. It follows, therefore, that the "laws" referred to in Article 15.2.1
and which that Article empowers the Oireachtas to make do not include laws
which amend the Constitution. Furthermore the prohibition against the enactment
of "laws" repugnant to the Constitution contained in Article 15.4.1 must be a
reference to "laws" other than laws to amend the Constitution itself. The
Constitution is, of course, a "law" but it is different in kind to laws enacted
by the Oireachtas. Approved constitutional amendments are contained in "laws"
promulgated by the President. Such laws become part of the Constitution and
these too are different in kind to laws enacted by the Oireachtas.
The
jurisdiction of the High Court is extended to "the question of the validity of
any law having regard to the provisions of the Constitution" by Article 34.3.2.
There are two reasons why the "law" referred to in this Article can only be
construed to be a law enacted by the Oireachtas under Article 15.2.1 and not a
"law" which contains an amendment approved by the people and promulgated by the
President under Article 46.5. Judges are required to uphold the Constitution
which the people have enacted (Article 34.5.1). And the judges obligation is to
uphold the Constitution both as originally enacted and as amended. It would be
entirely inconsistent with that duty if judges could declare invalid any
provision contained in the Constitution either as originally enacted or as
later amended. It follows, therefore, that Article 34.3.2 cannot be construed
as conferring on the High Court any jurisdiction to consider the validity of
laws which amend the constitution.
Secondly,
the Constitution expressly provides that the people have the right "in final
appeal to decide all questions of national policy according to the requirements
of the common good" (Article 6). Decisions relating to the amendment of the
Constitution involve decisions of national policy (see judgment of the Chief
Justice in Hanafin v Minister for the Environment and Others 12 June, 1996 at
page 39; Reported at [1996] 2 ILRM 161). And so the courts can have no power
judicially to review any question of national policy, which has finally been
determined by the people, including amendments the people make to the
Constitution, and Article 34.3.2. should be so construed.
There
is another reason why this claim must fail. The power of amendment expressly
enables the people to vary the original Constitution in any way it thinks fit.
This means that they are empowered to insert a new provision into the
Constitution which is different from and perhaps incompatible with the original
text. Such an incompatible provision cannot be invalid as the Constitution
permits it to be made. The claim that an amendment to the Constitution can be
declared invalid because it infringes some provision of the original text of
the Constitution is unsustainable.
The
preliminary objection to this first claim which has been raised by the
defendants is that the plaintiff is not entitled to make, and the court has no
jurisdiction to entertain a challenge to an Act to amend the Constitution which
has been duly approved by the people in Referendum and signed by the President
pursuant to Article 46 of the Constitution. The objection is, in my judgment,
correct and I will dismiss this claim.
THE
SECOND CLAIM.
The
second claim is a claim for a declaration that the
Family Law (Divorce) Act
1996 is repugnant to the Constitution and is therefore unconstitutional null
and void and is inoperative. The plaintiff has not pleaded nor has he submitted
that this Act is not permitted by the 15th Amendment of the Constitution.
Accordingly, if the 15th Amendment cannot be impugned then the
Family Law
(Divorce) Act 1996 is valid. I therefore must dismiss this claim.
THE
THIRD CLAIM.
The
third claim is for a declaration that the appointment of Alan Dukes on the 3
December, 1996 as a member of the Government was unconstitutional and therefore
null void and inoperative. This claim is based on an allegation that on the 3
December, 1996 the President was physically outside the State, that Mr Dukes
was appointed a member of the Government by the Commission constituted by
Article 14.2.1 of the Constitution, that the Commission acted
unconstitutionally in acting in place of the President on that date and that
the appointment was therefore invalid.
The
Government of which Mr Dukes was a member left office on the 26 June, 1997. The
plaintiff has accepted that the point raised by him is now moot and did not
press me to make a declaration under this claim. This is clearly correct and
accordingly I dismiss the claim.
THE
FOURTH CLAIM.
The
fourth claim is for a declaration that the appointment of Miss Justice Mella
Carroll as Chairperson of the Commission on Nursing is repugnant to Article
35.3 of the Constitution.
Article
35.3 of the Constitution provides that no judge shall be eligible to hold any
other office or position of emolument. It is claimed that as Miss Justice
Carroll is still being paid her "wages as a judge by the taxpayer even though
she is deliberately, intentionally and knowingly not performing her
constitutional duties as a judge". It is claimed that this is a fraud against
the taxpayer by people placed in a position of public trust and that as she is
still being paid her salary by the taxpayer she occupies a position of
emolument as chairperson of the Commission on Nursing.
The
defendants have submitted that the plaintiff has failed to establish the locus
standi necessary to invoke the jurisdiction of the court to make the
declaration sought and that accordingly this part of the claim should be
dismissed. I agree with this submission for the following reasons.
The
question of locus standi was considered by the Supreme Court in Cahill v Sutton
1980 IR 269. In that case the plaintiff claimed damages for personal injuries
alleged to have been suffered as a result of her treatment by a doctor the
defendant in the proceedings. The defendant inter alia pleaded section 11(2)(b)
of the Statute of Limitations 1957 and claimed that her claim was statute
barred. The plaintiff challenged the validity of this sub-section arguing that
as it did not contain any exception in favour of an injured person who did not
become aware of the relevant facts on which the claim was based until after the
expiration of the period of limitation it was invalid. It was held by the
Supreme Court that it was an admitted fact that the plaintiff had known within
the statutory period all the facts necessary to enable her to institute an
action against the defendant claiming damages for personal injuries and that as
the plaintiff's challenge to the constitutional validity of the sub-section was
based solely on the absence of a statutory provision which, if present would
not be applicable to the facts of the claim she could not establish any right
of hers which had been infringed or was threatened by the absence of such
provision. Accordingly, the Supreme Court held that the plaintiff had failed to
establish the locus standi necessary to invoke the jurisdiction of the court to
determine the validity of an enactment having regard to the provisions of the
Constitution.
In
the course of his judgment (p 276) the Chief Justice pointed out that had the
sub-section been framed so as to incorporate the saver suggested by the
plaintiff this would have availed her nothing and the alleged invalidity of the
section therefore infringed no right of the plaintiff nor caused her any
prejudice. The court, had, therefore, felt bound to consider whether the
plaintiff had a sufficient standing to raise this question and the Chief
Justice indicated that he was satisfied that she had not the standing
necessary. He agreed with the judgment of Mr Justice Henchy and added as
follows;
"This
court's jurisdiction, and that of the High Court, to decide questions
concerning the validity of laws passed by the Oireachtas is essential to the
preservation and proper functioning of the Constitution itself. Without the
exercise of such a jurisdiction, the checks and balances of the Constitution
would cease to operate and those rights and liberties which are both the
heritage and mark of free men would be endangered. However, the jurisdiction
should be exercised for the purpose for which it was conferred -- in protection
of the Constitution and of the rights and liberties thereby conferred. Where
the person who questions the validity of a law can point to no right of his
which has been broken, endangered or threatened by reason of the alleged
invalidity, then, if nothing more can be advanced the courts should not
entertain a question so raised. To do so would be to make of the courts the
happy hunting ground of the busy body and the crank. Worse still, it would
result in a jurisdiction which ought to be prized as the citizens shield and
protection becoming debased and devalued.
That
is not to say, however, that if those whose rights are affected cannot act or
speak for themselves the courts should refuse to hear one who seeks to speak or
act for them, even if his own rights are not affected. Such exceptional cases,
hopefully rare, must be entertained".
In
the course of his judgment (which was the judgment of the court) Henchy, J,
pointed out that in other jurisdictions the widely accepted practise of courts
which are invested with comparable powers of reviewing legislation in the light
of constitutional provisions "is to require the person who challenges a
particular legislative provision to show either that he has been personally
affected injuriously by it or that he is in imminent danger of becoming the
victim of it" (p 282). He pointed out that this general rule whilst not an
absolute rule had much to commend it. He went on (p 283).
"While
a cogent theoretical argument might be made for allowing any citizen,
regardless of personal interest or injury to bring proceedings to have a
particular statutory provision declared unconstitutional, there are
countervailing considerations which make such an approach generally undesirable
and not in the public interest. To allow one litigant to present and argue what
is essentially another persons case would not be conducive to the
administration of justice as the general rule. Without concrete personal
circumstances pointing to a wrong suffered or threatened, a case tends to lack
the force and urgency of reality.
He
added, however, (p 285).
"This
rule, however, being but a rule of practice must, like all such rules, be
subject to expansion, exception or qualification when the justice of the case
so require . . . There will be cases where the want of the normal locus standi
on the part of the person questioning the constitutionality of the statute may
be overlooked if, in the circumstances of the case there is a transcendent need
to assert against the statute the constitutional provision that has been
invoked . . . It is undesirable to go further than to say that the stated rule
of personal standing may be waived or relaxed if, in the particular
circumstances of a case, the court finds that there are weighty countervailing
considerations justifying a departure from the rule".
The
plaintiff has failed to establish that any right of his has been infringed or
threatened by the appointment of Miss Justice Carroll as chairperson of the
Commission on Nursing. He has failed to advance any countervailing
considerations which would justify a departure from the rule that in the
absence of an infringement or threatened infringement of a plaintiff's
constitutional rights the courts should not entertain his claim. Accordingly, I
must hold that the plaintiff has failed to establish the locus standi necessary
to invoke the jurisdiction of the court to make the declaration he now seeks
and I must dismiss this claim.
FIFTH
CLAIM.
The
fifth claim is for a declaration that the appointment of Mr Justice McCracken
as Chairperson of a Tribunal of Enquiry is repugnant to Article 35.3 of the
Constitution.
It
is pleaded that Mr Justice McCracken was appointed sole member of a Tribunal of
Enquiry. This Enquiry was entitled a "Tribunal of Enquiry into payments to
politicians by Bernard Dunne, Dunnes Stores and its Subsidiary and Associated
Companies". His appointment was made on the 7 February, 1997. The plaintiff
claims that in calling the Chairman of a Tribunal of Enquiry the "sole member
of the Tribunal" that this is a deliberate and blatant attempt to undermine the
spirit of Article 35.3 of the Constitution, that Mr Justice McCracken is still
being paid his wages as a judge by the taxpayer even though he is deliberately
intentionally and knowingly was not performing his constitutional duties as a
judge, that this is a fraud against the taxpayer by people placed in a position
of public trust, that the judge is being paid wages by the taxpayer and hence
he does occupy a position of emolument as a sole member of the Tribunal of
Enquiries (Dunnes Payments)".
The
defendants have pleaded that the plaintiff has failed to establish the locus
standi necessary to invoke the jurisdiction of the court to make the
declarations sought and that accordingly this claim should be dismissed. I
agree.
The
reasons which I have just given as to the locus standi of the plaintiff to seek
the declaration sought in the fourth claim apply equally to this claim. The
appointment of Mr Justice McCracken as a member of the Tribunal of Enquiry has
not infringed any right of the plaintiff or threatened any right of the
plaintiff. He has not been able to advance any countervailing consideration as
to why the ordinary rule of locus standi established in Cahill v Sutton should
not be applied and accordingly I must dismiss this claim.
THE
SIXTH CLAIM.
In
January, 1993 the "office of Tanaiste" it is claimed was established. The
plaintiff claims a declaration that such establishment was illegal and
unconstitutional since no legislation was enacted by the Oireachtas to legalise
its establishment. He further claimed that the "office of Tanaiste" is not a
Department of State and that accordingly the appointment of a Minister of
State, Eithne Fitzgerald, to the Office of Tanaiste was illegal and
unconstitutional and a declaration is sought that such appointment was illegal
and unconstitutional. Other reliefs are claimed arising from what is alleged
are these wrongful acts.
The
Government which established the office of Tanaiste left office on the 26 June,
1997 and the acts of which the plaintiff complains have ceased. In the course
of his submissions I pointed out to the plaintiff that in these circumstances
the point raised by him appeared to me to be moot and that I should not
entertain this claim. The plaintiff disagreed but notwithstanding this
disagreement I ruled against him and concluded that I should dismiss the claim.
The
court has no jurisdiction to hear and determine an issue which is purely
hypothetical; it is not a justiciable issue, no matter how intellectually
interesting the point may be. As the impugned administrative acts were
committed by a government which has left office and have expired with it and as
the plaintiff suffered no personal detriment from them the court must decline
to entertain this claim. Even if an impugned administrative act or statute is
not spent the court may still decline to adjudicate on the issue raised because
of a plaintiff's lack of standing. That is the position in this case. For
reasons already given the plaintiff has no locus standi to raise this issue and
his claim should be dismissed on this ground also.
It
follows, therefore that all the claims advanced by the plaintiff are dismissed.
