The authors of JM Kelly: The Constitution (4th ed., Tottel Publishing, 2003) have noted that the Preamble to the Irish Constitution ‘… has been used to lay the ground for the deployment of later parts of the Constitution, or to underpin judgments rhetorically and emotionally’ (at 53), has proven to be ‘… a dubious forensic weapon…’ (at 55) and has on occasion ‘… been invoked to justify judicial activism in the construction of the Constitution’ (at 54).   Do you agree with these statements and views? Give reasons for your answer.

 

 

Introduction

Ireland is not unique in having a preamble to its constitution. Other nations with constitutions containing a preamble include the United States, Poland and France. The Preamble of the Constitution is a short introduction to the Constitution that holds no binding authority. However, there is no doubt, great weight has been placed on the Preamble in the decisions of the judiciary on constitutional law matters. Particularly in cases involving the issue of fundamental rights. No case before the courts has been decided on the content of the Preamble alone. That is not to say that the Preamble is an underutilised feature of the Constitution. The judiciary in their struggle to interpret the Constitution have on occasion looked to the Preamble for guidance. On many occasions, for reasons set out below, the judiciary have referred to the Preamble in both their obiter and ratio. The use of the Preamble as a reference by the judiciary has divided both members of the judiciary and academic commentators alike. This essay will analyse, whether the Preamble has laid the ground for the deployment of later parts of the Constitution, the use of the Preamble to rhetorically and emotionally support decisions of the judiciary, has been appropriately used as an instrument for analysing legislation and has played a part in invoking judicial activism. A critical analysis of the appropriate use of the Preamble in each of these situations will also be discussed.

‘[H]as been used to lay the ground for the deployment of later parts of the Constitution’

            In Byrne v. Ireland Walsh J with Ó Dálaigh CJ concurring held that the Irish state is not just created in the articles of the Constitution itself but begins in the Preamble. This is arguably the most accurate interpretation of the Preamble.[1] However, despite his accuracy, Walsh J has placed undue influence on the binding character of the Preamble in his decision. From a first reading of the Preamble without any prior knowledge of any article of the Constitution it is a mere statement introducing the Constitution. In Buckley v. Attorney General O’Byrne J was of the view that the Preamble is to be viewed as informing the interpretation of the various articles of the Constitution.[2]  A similar view was held in Attorney General v. Southern Industrial Trust[3] Lavery J said the Preamble may help in determining the meaning of and the effect to be given to particular provisions.’ The words of the Preamble ‘in the name of the Most Holy Trinity’ and later ‘our Divine Lord, Jesus Christ’ lay the ground for natural law or ‘God’s law’ to appear regularly throughout the Constitution. Following the Preamble, the first reference to God in the Constitution appears in Article, 6 which states ‘All powers of government, legislative, executive and judicial, derive, under God, from the people’.

The Preamble has also been referred to in cases involving the controversial topic of the re-unification of the island. In Russell v. Fanning[4] Hederman J in his dissenting judgment was of the opinion that the Preamble could be construed as creating an obligation of re-unification. This was subsequently endorsed by the Supreme Court in McGimpsey v. Ireland[5], again making reference to the Preamble. Following amendments to Article 2 and Article 3 of the Constitution in 1998 this is no longer the considered to be an obligation. The use of the Preamble by the judiciary to assist in their interpretation of the Constitution is again called into question here. The Preamble having been interpreted as deploying an interpretation of a desired re-unification of the national territory in Article 2 and Article 3 was clearly not the will of the people following the referendum on the matter in 1998. Another consideration is why the Preamble was not amended following this referendum given its stance on the issue of re-unification is perhaps, now at odds with Article 2 and Article 3. The fact that the Preamble was not amended reaffirms the position that it is not a binding authority.

In a contrasting view Clarke fails to apportion any particular importance to references to the Preamble in cases involving the issue of national re-unification.[6] This is perhaps naïve of Clarke as prior to the 1998 referendum amending Article 2 and Article 3 the Preamble arguably played a significant role in the interpretation of these articles in favour of an obligation on the State for re-unification.

Has been used to ‘underpin judgments rhetorically and emotionally’

The courts are inherently void of emotion and strive to reach decisions that do not attach any emotional weight. However, it is not surprising that the Preamble has been used on many occasions in cases by the judiciary to rhetorically assert the existence of an intention by the people for natural law or ‘God made law’. In Norris v. Attorney General[7] O’Higgins CJ emphasised his opinion that in the Preamble the people of Ireland ‘proudly’ asserted their acknowledgment and commitment to ‘Our Divine, Jesus Christ’. O’Higgins CJ went on to state that he believed this statement in the Preamble by the people further emphasised their intention that the Constitution should be interpreted through the tainted glass of Christian beliefs. It must be stressed that no reference is made in the Preamble or any article of the Constitution prohibiting homosexuality. Following this decision homosexuality was decriminalised by the Oireachtas five years later. It may be argued that O’Higgins CJ used the Preamble in a rhetorical and emotional sense in an erroneous decision by the Supreme Court. In The State (Burke) v. Lennon[8] Gavan Duffy J used rhetorical and emotional language to describe the Preamble as ‘most impressive’.

More recently Murphy J in the Supreme Court decision in Sinnott v. Minister for Education strayed into emotional territory in his reference to the Preamble as a ‘logical basis’ to deny the State to engage in any function that would result in an individual not fulfilling their purpose or destiny to the best of their ability within the economic constraints of the State. [9] The language used by Murphy J can only be described as rhetorical and emotional. It is also arguably that Murphy J did not need to make reference to the Preamble as the case in question is governed by Articles 41 (The Family) and 42 (Education) of the Constitution.

Has proven to be ‘… a dubious forensic weapon…’

            In Re Philip Clarke[10] the court was asked to determine whether members of An Garda Síochána could take mentally disturbed persons into charge under the Mental Treatment Act 1945 as it was argued it breached their right to dignity. The Supreme Court stated that by allowing these alleged persons suffering from a mental illness to remain at large, as a possible danger to themselves and others, would clearly have a detrimental effect on society. The court referring to the Preamble held this would not allow the common good or the dignity and freedom of the individual to be achieved.

In contrast to Re Philip Clarke, Murray CJ in A v. Governor of Arbour Hill Prison[11] made use of the Preamble to support his decision that a declaration of unconstitutionality did not retrospectively delete all previous effects of a statute, making reference to the common good phrased in the Preamble. Murray CJ stated that the concepts of ‘Prudence, Justice and Charity’ are not to be considered as static but that their meaning developed with changes in society.

When used as a ‘dubious forensic weapon’ the judiciary are usually retreating to the Preamble to deny a person a right or are refusing to extend a right to an individual in the belief that the ‘social order’ of the state is being preserved. In Norris[12] the judiciary justified their restrictions against homosexual activity by consenting adults with reference to the ‘social order’ in the Preamble. ‘Social order’ was again referenced in Osheku v. Ireland[13] where Gannon J placed limitations on the individual rights of a person. The High Court held that State possessed a right to deport aliens in pursuit of attaining true social order. The Preamble continues to be frequently referenced by the judiciary, most recently in Sacikis v Governor of Castlerea Prison[14] Hogan J reiterated the Preamble’s commitment that the State has a duty to uphold the dignity of the individual.

With the exception of the Norris case, the cases where the judiciary have used the Preamble as a ‘dubious forensic weapon’ have produced the most practical decisions of the superior courts that have made reference to the Preamble. The use of the Preamble by the judiciary also highlights that the Oireachtas may have enacted legislation that without reference to the Preamble would be deemed to be repugnant to the Constitution.

Has on occasion ‘… been invoked to justify judicial activism in the construction of the Constitution’

The phrase ‘Prudence, Justice and Charity’ taken from the Preamble is often referred to by the judiciary when making reference to fundamental rights or when concerned with an unenumerated right. Kenny J in Ryan v. Attorney General[15] openly admitted to legislating when creating unenumerated rights stating

‘ascertaining and declaring what are the personal rights of the citizen which are guaranteed by the Constitution… would seem to be a function of the legislature rather than of the judicial power but it was done by the Courts in the formative period of the Common Law and there is no reason why they should not do it now’.

This is arguably a grave erroneous statement made by Kenny J as he disregards the function of the legislature that has long since taken precedence over the common law. This attitude taken by Kenny J is not to be promoted among the judiciary. Clarke is of the opinion that the judiciary should not stray into the territory of judicial activism when interpreting the Constitution.[16] That is not to say that the doctrine of unenumerated rights has not be unwelcomed by Irish society. It must be noted that the right to bodily integrity created by Kenny J along with other unenumerated rights are of the upmost importance to the development of the State. However, the question must be asked how the unelected judiciary referring to an authority that is not binding namely the Preamble, can create such rights? The role of both the Judiciary and the Oireachtas is clearly defined in the Article 15 Constitution. In McGee v. Attorney General[17] Walsh J quoting from the Preamble in his ratio stated that in interpreting the Constitution the judiciary may look to the Preamble as they seek to find the appropriate interpretation of the Constitution. Walsh J inferred that the Preamble may be used to interpret articles of the Constitution in a contemporary light as ‘no interpretation of the Constitution is intended to be final for all time.’[18] The reference to ‘dignity and freedom of the individual’ in the Preamble is not only used by the judiciary when using the Preamble as a ‘forensic weapon’ but also in judicial activism. In the Matter of Article 26 of the Constitution and 1995 No.87[19] Kavanagh notes the Supreme Court’s obvious avoidance of reference to Christian principles and God in both the obiter and ratio of judgment of the court.[20] This is arguably proof of purposeful judicial activism in the blatant selective reference to the previous judgment of Norris by the Supreme Court. This approach was subsequently followed with approval by O’Higgins CJ in The State (Healy) v. Donoghue[21] the Preamble was described as clearly allowing an interpretation of the Constitution in light of prevailing societal ideas of ‘prudence justice and charity’. Finlay CJ also approved both of the judgments above with approval in Attorney General v. X[22]. Hogan and Whyte note that such an approach to constitutional interpretation has the potential effect of producing a more liberal interpretations by way of judicial activism.[23]

When the Oireachtas is openly reluctant to legislate, particularly on moral issues, the judiciary often take it upon themselves to interpret the Constitution as a living instrument. Often relying on the use of the word ‘justice’ in the Preamble to interpret the Constitution in a contemporary light as was the case in The State (Healy) v. Donoghue[24] However, a judiciary that is frustrated at inactivity by the Oireachtas does not have a right to become a legislator.

Clarke remarks that the Irish courts could be accused of misinterpreting their role in interpreting the Constitution with the role of ‘legislating’ that is required by them in the common law.[25] Clarke is also critical a lack of an attempt by the judiciary to explicitly define ‘justice’ and having implicitly taken ‘justice’ as a reference to become makers of law.[26] This highly critical analysis of the use of the Preamble by the judiciary to promote judicial activism is to be encouraged among academic commentators who seek to highlight instances when the judiciary may have acted outside their judicial function and stepped into the role of legislators.

Conclusion

            It may also be argued that due to the significant number of times the judiciary have resorted to the reference of ‘dignity’ in the Preamble it may be considered to be an unenumerated right. However, this has not yet been stated by the judiciary and due to the explicit reference to ‘dignity’ in the Preamble and the judiciary’s fondness of retreating to the Preamble when fundamental rights issues arise it may be unlikely that the judiciary are willing to forego this piece of non-binding authority in the future.

In light of this perhaps, too much emphasis has been placed on the Preamble by the judiciary. The question may be raised in the event that the Preamble was never included as an introduction to the Constitution is it likely that any of the decisions by the judiciary in the cases mentioned above have reached a different conclusion?

The Preamble’s stance on Irish re-unification as a united island perhaps provided an influential interpretation of Article 2 and Article 3 prior to the referendum in 1998. This influence even turned out to be in conflict with the opinion of the people in the 1998 referendum. The judiciary have certainly found the Preamble to cover a wide range of societal issues making reference to it on a broad range of topics as outlined above. Taking the influence of the Preamble on the issues of society that have been brought before the Irish superior courts since the enactment of Bunreacht na hÉireann in 1937, as outlined above, the question must be asked has this influence given to the Preamble by the judiciary been positive for Irish society? From analysis of the case law referencing the Preamble, its contribution to Irish case law has not been significant enough to warrant its continued influence on issues of such importance to the state.

 

Bibliography

Constitution

The Preamble

Article 2

Article 3

Article 6

Article 15

Article 41

Article 42

Legislation

The Mental Treatment Act 1945

Case Law

A v. Governor of Arbour Hill Prison [2006] 4 IR 88

Attorney General v. Southern Industrial Trust [1960] 94 ILTR 161

Attorney General v. X [1992] 1 IR 1

Buckley v. Attorney General [1974] IR 284.

Byrne v. Ireland [1972] IR 241

In the Matter of Article 26 of the Constitution and 1995 No.87 [1995] 2 ILRM 81

McGee v. Attorney General [1974] IR 284

McGimpsey v. Ireland [1990] 1 IR 110

Norris v. Attorney General [1984] IR 86

Re Philip Clarke [1950 IR 235

Russell v. Fanning [1988] ILRM 333

Ryan v. Attorney General [1965] IR 294 AT 313

Sinnott v. Minister for Education [2001] 2 IR 545.

The State (Burke) v. Lennon [1940] IR 136

The State (Healy) v. Donoghue [1976] IR 325

Unreported Judgments

Savickis v. Governor of Castlerea Prison 27 October 2016 (IECA)

Book

Hogan and Whyte, J M Kelly: The Irish Constitution (4th ed., LexisNexis Butterworths 2003)

Journal Articles

Desmond Clarke, “Ireland: A Republican Democracy, A Theocracy, or a Judicial Oligarchy?” (2011) 29 Irish Law Times 81-84

Desmond Clarke, “Nation, State and Nationality in the Irish Constitution” (1998) 16 Irish Law Times 252-256

Aileen Kavanagh, “The Irish Constitution at 75 Years: Natural Law, Christian Values and the Ideal of Justice” (2012) 48(2) The Irish Jurist 71-101

[1] Byrne v. Ireland [1972] IR 241.

[2] Buckley v. Attorney General [1974] IR 284.

[3] Attorney General v. Southern Industrial Trust [1960] 94 ILTR at 174.

[4] Russell v. Fanning [1988] ILRM 333.

[5] McGimpsey v. Ireland [1990] 1 IR 110.

[6] Desmond Clarke, “Nation, State and Nationality in the Irish Constitution” (1998) 16 Irish Law Times 252-256

 

[7] Norris v. Attorney General [1984] IR 86.

[8] The State (Burke) v. Lennon [1940] IR 136 at 155.

[9] Sinnott v. Minister for Education [2001] 2 IR 545 at 672.

[10] Re Philip Clarke [1950 IR 235.

[11] A v. Governor of Arbour Hill Prison [2006] 4 IR 88.

[12] Norris v. Attorney General [1984] IR 86.

[13] Osheku v. Ireland [1986] IR 733.

[14] Savickis v. Governor of Castlerea Prison 27 October 2016 (IECA).

[15] Ryan v. Attorney General [1965] IR 294 AT 313.

[16] Desmond Clarke, ‘Ireland: A Republican Democracy, A Theocracy, or a Judicial Oligarchy?’ (2011) 29 Irish Law Times 81-84 at 82.

[17] McGee v. Attorney General [1974] IR 284.

[18] McGee v. Attorney General [1974] IR 284 at 319.

[19] In the Matter of Article 26 of the Constitution and 1995 No.87 [1995] 2 ILRM 81.

[20] Aileen Kavanagh, “The Irish Constitution at 75 Years: Natural Law, Christian Values and the Ideal of Justice” (2012) 48(2) The Irish Jurist 71-101, at 91.

[21] The State (Healy) v. Donoghue [1976] IR 325.

[22] Attorney General v. X [1992] 1 IR 1.

[23] Hogan and Whyte, J M Kelly: The Irish Constitution (4th ed., LexisNexis Butterworths 2003).

[24] The State (Healy) v. Donoghue [1976] IR 325.

[25] Desmond Clarke, ‘Ireland: A Republican Democracy, A Theocracy, or a Judicial Oligarchy?’ (2011) 29 Irish Law Times 81-84 at 83.

[26] Desmond Clarke, ‘Ireland: A Republican Democracy, A Theocracy, or a Judicial Oligarchy?’ (2011) 29 Irish Law Times 81-84.

 

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