Constitutional Law Flashcards
Constitutional law and interpretation
summary
What is Irish constitutional law? The literal approach The broad approach Harmonious interpretation The Historical Approach Natural law approach
What is Irish constitutional law?
summary
- What is it:
- Ethos:
- Interpretation of the constitution:
Other constitutional principles
summary
- Presumption of constitutionality:
- Double construction rule:
- Judicial deference:
- Non-justiciability:
- Mootness:
- Locus standi:
What is Irish constitutional law?
• What is it:
Constitutional law is a branch of public law i.e. the law which governs the relationship between individuals and government and those relationships which are of direct concern to society.
The constitution of a State is the wider systems of laws, customs and conventions which create and validate the organs of government and which regulate interaction of those organs with one another and with the individual.
In every modern democratic state, there will be a constitution (unless there is a dictatorship or monarchy). It is the fundamental law of the state and comes above all other laws. There will also be a provision which allows ordinary laws be deemed invalid with the constitution i.e. null and void (this is called the supremacy of the constitution).
Therefore, ‘constitutional’ means in conformity with the constitution and ‘unconstitutional’ means in violation of the constitution. As the constitution is the fundamental law of the state it is immune from easy and unconsidered amendment. The Irish constitution (Bunreacht na hEireann or ‘BnaH’) is divided between political and personal rights.
• Ethos:
It is obvious from a literal reading of BnaH that it has a strong Christian ethos. See also ‘natural law’ below. Apart from the Christian nature of BnaH, it is also obvious that the people enacted BnaH by popular vote and this is the only way it can be amended. This demonstrates the democratic nature of the BnaH.
• Interpretation of the constitution:
It falls to our domestic judges to interpret the provisions of BnaH.
HC has jurisdiction regarding the provisions of the constitution
SC has appellate jurisdiction from such decisions on the validity of law - evident in McGee v AG: interpretation should be carried out in a way which is in accordance with ideas of prudence, justice and charity.
There are various interpretative techniques employed by the Irish cts in interpreting BnaH. Some of these canons/rules of interpretation may overlap and no one particular approach is in the supremacy amongst the judiciary. The approaches are outlined below.
The literal approach
Plain language reading of BnaH; and suits interpretation of very technical provisions. This therefore militates against a high degree of judicial interpretation, but can also be unhelpful as it obliges cts to fall back on standard common law principles of statutory interpretation which may not be appropriate in the context of the fundamental law of the State.
People (DPP) v O’Shea: whether or not a prosecution is entitled to appeal a jury acquittal. BnaH must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning. BnaH must be looked at as a whole and not merely in parts and, where doubts or ambiguities exists, regard may be had to other provisions of BnaH and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by BnaH itself.
The broad approach
This approach best advances the intentions of the people as informed by the broad purpose or spirit of BnaH. This approach prevents a rigid application of traditional common law interpretative methods which can be inappropriate in the case of a constitution.
NUR v Sullivan: challenge to the constitutionality of an act which allowed only one union to represent workers in each industry, SC noted that constitutions’ frequently embody important principles expressed in general language, although he also pointed to “language which is simple and clear” in BnaH addressing the rights of citizens to form unions.
Harmonious interpretation
This is the idea that constitutional provisions should not be construed in isolation but in the context of their entire paragraph, article, and BnaH itself.
O’Byrne v Minister for Finance: ct employed this approach to read the prohibition in Article 35.5 in the context of the article as a whole, the purpose of which he said was to safeguard the independence of the judiciary.
McGee v AG: Article 40.3.1 was noted to be read in the light of BnaH as a whole.
The Historical Approach
This approach takes into account the state of affairs, legal as well as extra-legal, at the time of BnaH’s enactment.
This was most patently seen in Melling v Ó Mathghamhna i.e. the state of affairs in 1937. The relevance attributed by the judiciary to the state of affairs rests at least in part on long-established cannons of statutory (and not constitutional) interpretation. This cannon of interpretation is often held to be of less importance by cts.
Sinnott v Minister for Education: what age, if any, the right to a free primary education expires. Many of the judges employed the doctrine of historical interpretation in reaching their conclusions, although they employed it simultaneously with the competing approach of the ‘living constitution’ (which holds that BnaH evolves as society does).
Natural law approach
Natural law is a body of law based on unchanging moral principles regarded as the basis for all human conduct i.e. based on a natural construction of what is right and wrong.
A clear example of this is in McGee v AG: BnaH acknowledges god as the ultimate source of all authority i.e. natural law. Ct further noted that the natural law as a theological concept is the law of god promulgated by reason and is the ultimate governor of all the laws of men.
In view of the acknowledgment of Christianity in the preamble and in view of the reference to god in Article 6, it must be accepted that the constitution intended the natural human rights as being part of natural law rather than simply an acknowledgment of the ethical content of law in its ideal of justice.
What exactly natural law is and what precisely it imports is a question which has exercised the minds of theologians for many centuries and on which they are not yet fully agreed. The doctrine of unenumerated rights has been largely influenced by this approach.
DPP v Best:
DPP v Best:
makes reference to natural law but also include elements of purposive interpretation (looking to the aims of the constitution in protecting or advancing natural rights) and harmonious interpretation (deducing those aims from sources such as the preamble of BnaH).
Other constitutional principles
1. Presumption of constitutionality: TOG v AG.
Every act is presumed constitutional but obviously in the exam, acts are being tested to their constitutionality so you have to rebut that presumption.
This is an obstacle for a litigant: ESB v Gormely and is essentially a rule of avoidance i.e. if a case can be determined on a non-constitutional ground, ct will refrain from making any constitutional argument.
Other constitutional principles
2. Double construction rule:
where there are 2 meanings, ct will give the constitutional interpretation: McDoanld v Bord na gCon.
The rationale is that otherwise legislation would be struck down and there would be a gap (lacuna in the law) which could not be filled by judge made law.
This presumption also extends to the non-delegation doctrine where ct will prefer to find the body who delegated the power to be ultra vires than the finding the statute, which is practically an administrative nightmare.
- Judicial deference:
when a ct yields or submits its judgment to another legitimate party (usually the executive branch) in certain areas like social and taxation; and national security. A standard of proportionality will be applied (Tuohy).
