THE SUPREME COURT
Appeal No. 202/98
Hamilton C.J.,
O’Flaherty J.
Barrington J.
Lynch J.
Barron J.
DENIS RIORDAN
Applicant/Appellant
and

AN TAOISEACH BERTIE AHERN, THE GOVERNMENT OF
IRELAND, DÁIL ÉIREANN, MINISTER FOR THE
ENVIRONMENT NOEL DEMPSEY, ATTORNEY GENERAL
DAVID BYRNE S.C. AND IRELAND
Respondents

JUDGMENT of the Court delivered on the 19th day of November 1998, by Barrington, J.

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On the 19th day of May, 1998 the Applicant/Appellant (hereinafter called the Appellant) obtained from the High Court leave to institute the present judicial review proceedings.  The first relief claimed by the Plaintiff in the proceedings is:- 

“A declaration that Section 1 of the 19th Amendment of the Constitution Bill, 1998 is repugnant to the Constitution”.

This Court accepts that the system of judicial review referred to in Order 84 of the Rules of the Superior Courts is a very useful jurisdiction. It recognises also that an application for judicial review commencing with an attack on a particular Order or administrative decision, may, as the proceedings unfold, raise constitutional issues and develop into an attack on a particular Act of Parliament. Clearly the issue ought to be disposed of in the quickest way possible and the quickest way to do this may be to decide it in the judicial review proceedings.  See the Comments of Walsh J. in the State (Lynch) v. Cooney [1982] IR p337 at p373. No rigid rule should be laid down on the matter. But when the primary relief claimed by an Applicant for judicial review is the validity of an Act or the repugnancy of a Bill, having regard to the Constitution this Court considers that the case is not an appropriate one for judicial review and that the Applicant ought to be left to claim relief, if any, in a plenary action.

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However the Appellant is a lay litigant and he obtained his leave to apply for judicial review on the 19th May, 1998.

On the 20th May he brought an application before Mr. Justice Kelly for an injunction restraining the holding of the referendum on the 19th Amendment to the Constitution. This application was heard by Mr. Justice Kelly on the same date. It was agreed between the parties that the hearing of the motion for the injunction should be treated as the trial of the action. On the same date Mr. Justice Kelly delivered an ex-tempore Judgment in which he dismissed the Plaintiff’s application on the merits and also on the grounds of delay.

After the hearing the Appellant informed the Press that he did not intend to appeal Mr. Justice Kelly’s decision.

The proposed referendum was held on the 22nd day of May, 1998 and the people approved the proposal contained in the 19th Amendment of the Constitution Bill, 1998 by 1,442,583 votes to 85,748 votes.

The Appellant subsequently served his Notice of Appeal dated the 19th day of July, 1998 against the Judgment and Order of Kelly, J.

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In the appeal proceedings the Appellant has brought the present motion in which he seeks a stay on the said Order of Mr. Justice Kelly dated the 20th May, 1998 and also the Court’s permission under Order 58 Rule 8 of the Rules of the Superior Courts to amend the relief sought to include the following:- 

1. 	“An Order of Prohibition prohibiting and/or restraining the Respondents, their servants and/agents from changing or interfering with Articles 2 and 3 of the Constitution until such time as the provisions of Article 46 and Article 47 have been complied with.

2. 	A declaration that the 19th Amendment of the Constitution Act, 1998 is repugnant to the Constitution and is therefore unconstitutional, null, void and inoperative.

3. 	An Order of Certiorari to quash the Judgment of Judge Peter Kelly delivered on the 20th day of May, 1998.

4. 	An Order of Certiorari to quash the Order of Judge Peter Kelly made on the 20th day of May, 1998 and perfected on the 1st day of July, 1998.

5. 	A declaration that the Constitution does incorporate within it protection against self mutilation.

6. 	A declaration that the 19th Amendment of the Constitution Act, 1998 is a law enacted by the Oireachtas.

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7. 	An Order of Discovery on the Central Office of the High Court for a copy of the transcript of the High Court proceedings on the 19th and 20th day of May, 1998.

8. 	An Order for Discovery on the Government for the production of the legal advice obtained from the Attorney General and Cabinet discussions relating to the mechanism adopted to change Articles 2 and 3 of the Constitution.

9. 	Such further declarations or injunctions as (to) the Court may seem appropriate to secure, protect, and vindicate the constitutional rights of the Appellant to prevent mutilation of the Constitution”.

The procedural difficulties confronting the Appellant in obtaining any of these reliefs are indeed formidable. This Court cannot make an Order of Certiorari to quash a Judgment or Order of the High Court as requested by the Appellant at points 3 and 4 above. The relief claimed at point 5 is superfluous and unnecessary. The declaration claimed at point 6 is not available in view of this Court’s decision in the sister case between the same parties Supreme Court ref. No. 38 1/97.  This Court is not prepared to make the Orders for Discovery sought at points 7 and 8 above. This Court cannot grant the relief claimed at point no. 2 because the amendment referred to has been carried and is now part of the Constitution. The relief claimed at paragraph 1 does not therefore arise.

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The Appellant’s problem is that matters have not stood still since the hearing in the High Court. In the interval a referendum was held on the 22nd day of May, 1998.  The people approved of the proposal to amend the Constitution by an overwhelming majority. The referendum Returning Officer published his provisional Referendum Certificate pursuant to S.40 of the Referendum Act, 1994 on the 26th day of May, 1998.  On the 3rd June, 1998 the Master of the High Court notified the Returning Officer that no Referendum Petition had been presented to the High Court within the time limit fixed by the Referendum Act, 1994. The Returning Officer accordingly issued his final Certificate pursuant to S.40 (3) of the Referendum Act, 1994 on the 3rd June, 1998. The President duly signed the amending Act and promulgated it as a law on the same date. It thereupon became part of the Constitution and cannot now be attacked in the light of the Constitution.

On this basis what happened in the High Court on the proposal to amend the Constitution is now moot. What the Appellant is attempting to do by the proposed amendments to his proceedings is to make a new case which would attack, not the proposal to amend the Constitution, but the amendment to the Constitution already carried. Were the Court to grant the proposed amendments it would be authorising the Appellant to make, in this Court, a case which had never been made in the Court below. Were this Court to do that

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it would be turning itself from a Court of Final Appeal into a Court of First Instance. This it cannot do.

At the same time the Court recognises that there is a certain consistency in the case the Appellant has been making throughout, and the Court will, therefore, attempt to isolate the Appellant’s real grievance.

In effect he has been saying that the Oireachtas cannot propose, and the people cannot approve of, a conditional amendment to the Constitution.  He is saying that a second referendum should have been held to amend Articles 2 and 3 of the Constitution when the power sharing Executive and cross-border bodies contemplated by the Belfast Agreement were in place.

He accepted that the cross-border bodies contemplated by the Belfast Agreement would exercise some of the powers formerly exercised by institutions established by the Constitution and that therefore an amendment to the Constitution to authorise the Government to become bound by, and to implement, the Belfast Agreement was necessary. He accepted also that a legitimate way of doing this was to amend Article 29 of the Constitution in much the same way as had been done when the people authorised the

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Government to become party to the Treaties founding the European Economic Community.

The Appellant therefore has no quarrel with S.7 s.s. 1 in the Schedule to the 19th Amendment of the Constitution Act, 1998 which provides as follows:- 

“The State may consent to be bound by the British - Irish Agreement done at Belfast on the 10th day of April, 1998, hereinafter called the Agreement”

His quarrel is with S.7 s.s.3 which provides as follows:- 

“If the Government declare that the State has become obliged, pursuant to the Agreement, to give effect to the amendment of this Constitution referred to therein, then, notwithstanding Article 46 hereof this Constitution shall be amended as follows:”

There then follows the text of the proposed new Articles to replace the present Articles 2 and 3 in the event of the Government making the Declaration referred to.

To give the Appellant his due he has always conceded that he could not object to the content of the proposed referendum, he could only object to the

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method of putting it before the people. In particular he claims that he can object if provisions of Article 46 of the Constitution are not being, or have not been, complied with.

His problem is that the provisions of Article 46 were complied with in relation to the proposed amendments to the Constitution contained in the Schedule to the 19th Amendment of the Constitution Act, 1998.

Notwithstanding this the Appellant still maintains three objections to the procedures adopted. These are as follows:- 

1. What was put before the people was a proposed amendment to Article 29 of the Constitution and not to Articles 2 and 3.

2. S.7 s.s.3 of the Amendment violates the Constitution by providing that Article 46 of the Constitution may, in effect, be ignored.

3. S.7 s.s.3 also violates the Constitution by providing that the Government may, of its own initiative, and without reference to the people, amend the Constitution.

The Appellant has failed to understand the problem which confronted the Government in relation to the Belfast Agreement. That Agreement imposed reciprocal obligations on the various parties to it and each party wished to be

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reassured that the other parties would carry out their respective obligations. For instance the Irish Government undertook to have Articles 2 and 3 of the Constitution amended but only on the basis that the British Government and the Unionist parties to the Agreement would establish the power sharing executive and the cross-border bodies contemplated in the Agreement. On the other hand the British Government and the Unionist parties did not wish to establish the power sharing executive and the cross-border bodies only to find that the proposal to amend Articles 2 and 3 was defeated in a constitutional referendum.

The text of the new S.7 is a clever drafting device designed to resolve this problem. By means of it the people have given a conditional assent to the amendment of Articles 2 and 3 of the Constitution.  

The people have a sovereign right to grant or withhold approval to an amendment to the Constitution. There is no reason therefore why they should not, provided the matter is properly placed before them, give their approval subject to a condition.

It is quite wrong to suggest that the people have delegated to the Government the right to amend the Constitution.  This is not so.  The people have consented to an amendment to the Constitution subject to the happening

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of a particular future event. That future event is that the Government should have made the declaration referred to in S.7 s.s.3.  S.7 s.s.3 provides that if the Government makes that declaration 

“then, notwithstanding Article 46 hereof this Constitution shall be amended as follows……….”  But it is the people, not the Government who are speaking in the passage quoted. The reference to “Notwithstanding Article 46 hereof”, is merely an indication that the people have consented to the making of the amendment on the happening of the event referred to and that they do not wish to be consulted again.

Finally it is true that the amendment effected by the 19th Amendment of the Constitution Act, 1998 is, in form, an amendment to Article 29 of the Constitution and not an amendment to Articles 2 and 3. But it is important to remember that the 19th Amendment to the Constitution, having been approved by the people, and promulgated by the President as law now forms part of the Constitution. The amendment is now S.7 of Article 29 of the Constitution. The proposed new texts of Articles 2 and 3 are now lying - as it were in the form of an escrow - in Article 29 of the Constitution. But they are there for all to see and on the happening of the anticipated future event - that is to say the Government making the declaration contemplated by Article 29 S.7 s.s.3 - the draft Articles 2 and 3 will, by virtue of the internal workings of the Constitution itself, move to replace the existing Articles 2 and 3.

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Under these circumstances there is no substance in the Appellant’s objections to the 19th Amendment of the Constitution Act, 1998 and for this reason, as well as the other reasons previously stated, the Court will refuse leave to amend the grounds of appeal and the Motion will be dismissed.