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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Riordan v. An Taoiseach (No.2) [1998] IEHC 77; [1999] 4 IR 343 (20th May, 1998) URL: http://www.bailii.org/ie/cases/IEHC/1998/77.html Cite as: [1998] IEHC 77, [1999] 4 IR 343 |
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1. This
is an application by Denis Riordan, a man of no small experience in litigation
of this type, to restrain the holding of a Referendum on Friday next.
2. The
Referendum is due to take place so as to obtain the decision of the people on a
Bill which proposes the Nineteenth Amendment to the Constitution.
3. Mr.
Riordan concedes (and even if he did not there is uncontroverted evidence
demonstrating) that this Bill was introduced into the Dáil on the 21st
April, 1998, was passed by both Houses on the 22nd April, 1998 and has now been
submitted for the decision of the people in accordance with Article 46 of the
Constitution and the provisions of the Referendum Act, 1998. In compliance
with Article 46, the Bill is expressed to be an Act to amend the Constitution.
This first concession by Mr. Riordan is of some importance.
4. A
second concession was also made by the Applicant. He accepted that this Court
has no jurisdiction to construe or review the constitutionality of this Bill.
In making this concession, he was of course doing no more than acting in
accordance with the decision of the Supreme Court in
Finn
v. The Attorney General
(1983) IR 154. In that case O'Higgins C.J. (with whom Walsh, Henchy, Griffin
and Hederman JJ. agreed) said:-
5. When
he applied for leave to begin these proceedings yesterday and again throughout
the hearing today, the Applicant was at pains to indicate that he was not
attempting to involve the Court in a consideration of the substance or merits
of the Nineteenth Amendment of the Constitution Bill, 1998 or its contents.
Had he indicated that he intended to do so, I would have been obliged to have
refused him leave to commence these proceedings having regard to the decision
which I have just cited. Both at the leave stage and again during the hearing
today, the Applicant says that his complaint does not involve the substance or
the merits of the Bill but is rather that Article 46 of the Constitution is
being violated in the procedure which has been adopted by the Respondents. He
says that in relation to such a violation, this Court should, and indeed must,
intervene.
6. In
order to understand this submission, it is necessary to examine Article 46 of
the Constitution and some of the contents of the Nineteenth Amendment of the
Constitution Bill, 1998.
9. The
part of the Schedule to which exception is taken is that which is contained at
7.3. It reads:-
10. The
provision then goes on to set forth a substituted text for the existing
Articles 2 and 3 of the Constitution. The point that is taken by the Applicant
is that this proposed amendment to Articles 2 and 3 of the Constitution is
being brought about without due compliance with Article 46.
11. At
least two points are, in my view, fatal to this submission. The first is that
a consideration of this point necessarily involves the Court in a consideration
of the merits of the proposal contained in the Bill. That is the very thing
which this Court cannot do.
12. Secondly,
the appropriate procedures prescribed under Article 46 have been complied with
in respect of this Bill. There is therefore no procedural lacuna or departure
from the provisions of Article 46 in respect of this Bill.
13. Even
if I am wrong in this approach, I do not find anything in the amendment, taking
the form which it does, which runs counter to either the letter or the spirit
of Article 46 of the Constitution. It is the people who will decide the issue.
True it is that before any amendment to Articles 2 or 3 can occur, two
conditions precedent must be met. They are the coming into effect of the
multi-party Agreement which in turn requires, pursuant to Article 4 thereof,
that British legislation shall have been enacted for the purpose of
implementing the provisions of Annex A of the Agreement and the amendments to
the Constitution of Ireland set out in Annex B shall have been approved by
Referendum. The second condition precedent which must be met is the
declaration of the Government to the effect that the State has become obliged,
pursuant to the multi-party Agreement, to give effect to the amendment to the
Constitution. I see nothing objectionable in the amendment taking such a form
provided that the people so decide.
14. It
seems to me that the observations of McCarthy J. in the case of
Slattery
v. An Taoiseach and Others
(1993) 1 IR 286 are apposite to this case. He said at p. 301:-
15. Insofar
as the ancillary claim made by the Applicant to the effect that the multi-party
Agreement could not have been entered into because of its provisions concerning
the release of prisoners and its failure to address the special position of
prisoners convicted of capital offences and the right of the President
concerning the commutation of punishment in respect of such persons, I am of
opinion that this argument is devoid of merit.
16. There
is one further matter that I ought to address and that is the question of
delay. Order 84 Rule 21 of the Rules of the Superior Courts provides:-
17. From
the dates which I have already recited in this judgment, it is clear that the
Bill in suit was passed by both Houses of Parliament on the 22nd April, 1998.
The Applicant left it until the 19th May, 1998 to seek this Judicial Review to
restrain the holding of a Referendum on the 22nd May, 1998. No evidence has
been put before the Court to explain the delay in instituting these
proceedings. I am of opinion that the solemnity and importance of the process
of amending the Constitution by the people dictates that any attempt to review
or challenge or interfere with that process should be commenced speedily in
order to permit the constitutional institutions involved, namely, the
Respondents in this action and the Courts, the necessary time for consideration
of the issues. For example, I would have preferred to deliver a reserved
judgment on the matters raised in these proceedings but because of the
constraints of time, I have been forced to deliver this judgment ex tempore.
The sole reason for that has been the delay in instituting these proceedings,
an explanation for which has not been forthcoming. On the grounds of delay
alone, I would dismiss these proceedings but I also do so on the merits.