Irish constitutional law assignment. The Oireachtas has certain exclusive powers that only it may exercise, in Article 15.2 of the Constitution states that, only the Oireachtas can make laws in respect of the state.

In McDaid v Sheehy, the applicant challenged the constitutionality of section 1 of the Imposition of Duties Act 1957 which empowers the Government by order to impose, vary or terminate any excise, customs or stamp duty. The applicant had been convicted of the relevant offence in 1986. He sought to have his conviction quashed, arguing inter alia that section 1 of the 1957 Act was an unconstitutional delegation of legislative power.

The Courts do not legislate:

The courts have a very distinct function and that is to interpret the law and the Constitution but not to make it.

The Supreme Court noted in Norris v Attorney General, that it does not engage in law reform. In other words, the courts consider that in performing their functions, they are limited to stating what the law is, rather than what is ought to be. However in McGrath v McDermott, The Supreme Court refused to accept that it could “add or delete from” legislative provisions with a view to closing off loopholes in the tax code. To do so, it said, would involve attering the law of the state, a function that is reserved solely to the Oireachtas.

In State (Murphy) v Johnston, it was clearly established that a court cannot change legislation so as to rectify even an obvious error in such measures. In this case, the High Court refused to amend legislation so as to alter a mistake in cross-referencing between sections, ruling that only the Oireachtas had the power to alter legislation in this manner.

In Maher v Attorney General, the Supreme Court was called on to alter a law so as to give it constitutional validity. This case concerned a motorist accused of a “drink driving” offence. The law was enacted by the Oireachtas purported to make a certificate that an accused was driving under the influence of excessive amounts of alcohol, “Conclusive” evidence of the guilt of the accused. The State had asked for the legislation to be read without the word “Conclusive.” The Supreme Court refused to alter the single offending word which made the law unconstitutional.

The Executive:

The Government too enjoys certain powers that are extended to other functionaries. For instance, the sole and exclusive power to determine the State’s foreign policy which is reserved to the Government.

1. Foreign Affairs:

In Foreign affairs it may and do, few statutory provisions intrude into this area. The Government concludes international agreements by virtue of its executive power. It is obliged to lay such agreements before the Dail, but they are binding without either advance or subsequent Dail approval.

In State (Gilliard) v Governor of Mountjoy Prison, In this case the prosecutor claimed an extradition agreement between Ireland and United States was not binding on the State because, though it involved a charge on the public funds, it had not been approved by Dail Eireann. The Attorney General was to provide the representation of the interests of the United States in any relevant proceedings in Ireland. It was a common case that the treaty was laid before the Dail under Article 29.5.1, but equally the Dail approvals of its terms were not sought.

In Kavanagh v Government of Ireland, this case involved inter alia a challenge to the 1972 Executive Proclamation establishing the Special Criminal Court. The Supreme Court held the three organs of Government were bound to act in accordance with the Constitution and where it was alleged that either the legislature or executive had failed so to act, only the judicial organ could determine the issue. The onus was on the person challenging the exercise of the executive power to establish a clear disregard by the Government of the powers and duties conferred on it by the Constitution. The applicant had failed to establish the continuance in being of the Special Criminal Court could be regarded as an invasion of the Constitutional rights of individual citizens.

2. Domestic Affairs:

Domestic practise of executive power is curtailed in the sense that the Government cannot act outside the Constitution and is answerable to the Dail. So it is extremely unlikely that the executive could impose burdens or obligations on citizens.

In Youngstown Sheet and Tube Co. v Sawyer, The Supreme Court had to consider the validity of President Truman’s order to the defendant to seize the country’s steel mills and keep them in operation. The steel strike was threatened which halted almost all production. It was admitted that no statute authorised such action, but the defendant contended that the constitutional grant of the executive power to the president was sufficient. The Supreme Court rejected this argument and held the seizure unlawful.

The Supreme Court of India applied the same principle in State of Madhya Pradesh v Singh, in this case the defendant had been ordered by the State government to reside only in a specified place. The statute under which this order was issued had been ruled unconstitutional. However the Supreme Court rejected this contention saying that the citizen’s rights were prejudicially affected, executive action must be supported by the authority of law.

Overlap between the Executive Power and the Judiciary:

Having looked at the executive power on its own, it is not possible to discuss it further without looking at it in terms of the Judiciary to review executive decisions. It mainly concerns the doctrine of the separation of powers and to what extent that separation is a distinct doctrine. The courts are expected to deal with justiciable issues only and it is for the courts to decide if the issue in question is such an issue or not.

It has not always been an easy task for the courts to establish where the line is to be drawn between justiciability and non-justiciability, particularly when the vindication of rights of citizens may also require the executive to spend public resources.

In O’Reilly v Limerick Corporation, the plaintiff’s members of the traveller community argued that their rights were being infringed as contained in Article 40.3 – personal rights and Article 41.2 – family rights. They were living on an unofficial halting site and this site was unserviced and as a result they were without water, sanitary facilities or refuse collection. The judge held that in his opinion what was at issue here was distributive justice and was therefore non- justiciable and could not be dealt with by the court without breaching the separation of powers doctrine.

A case that concerned the issue of Government bye-elections was Dudley v An Taoiseach, where the plaintiff complained that a local seat had remained vacant for over 14 months and by not conducting a bye-election he was being denied his right to vote. He sought to institute judicial review proceedings. The judge held that no order could be made directed against Dail Eireann arising out of the failure to move a writ for a bye-election. That said, judicial review of the exercise by the government of its executive actions may be permissible where the Government had acted in clear disregard of the powers and duties conferred on it by the Constitution.

The Judicial:

By the same token, the judicial role is deemed to be the sole preserve of the courts. Article 34.1 ascribes the sole and exclusive power to “administer justice” to the judiciary in courts of law.

It has been found that where a case is pending before the courts, the legislature may not interfere and the courts are independent in this situation. This was held in Buckley v Attorney General, where this principle was established. This case concerned Sinn Fein Funds and their ownership. The pleadings were closed and the case was ready for hearing as soon as a judge was available. The Oireachtas then passed the Sinn Fein Funds Act 1947, section 10 of which provided that all further proceedings in the action should by virtue of that action be stayed and the High Court, if an application were made an order dismissing the pending the action without costs.

The prosecutor in State (Divito) v Arklow U.D.C, sought to shelter under the Buckley principle, in rather different circumstances. It was argued that the councils conduct amounted to an unconstitutional intrusion upon the judicial power. The decision to rescind frustrated Divito’s application to the District Court and was analogous to the legislation condemned in Buckley’s case. However the Supreme Court rejected this argument.

Judges, Courts and non-judicial powers:

The courts are sometimes referred to as “lions under the throne” of the British Constitution. This expresses how eager the judiciary are to claw at government if they hinder individuals’ rights and liberties. The judiciary takes an oath to dispense justice “according to the laws and usage of this realm, without fear or favour, affection or ill-will”. Whether it dispenses justice on an individual or on the government the judiciary should not fear scrutiny of any action it takes. The Act of Settlement 1700 offers independence and security to High Court judges, who cannot be dismissed by the executive; only by Her Majesty on an address by both Houses of Parliament on circumstances of serious misbehaviour may a judge be removed. Judicial security was later reinforced with the Supreme Court Act 1981 to ensure the judiciary’s independence.

The judiciary must be independent of the executive to perform their functions properly. The judiciary must be seen to be independent and to garner public confidence for judges must be, and appear to be impartial at all times. Another reason for judicial independence is because of the United Kingdom’s unwritten constitution and the fact that there is no Supreme Constitutional Court and all constitutional issue are solved in regular courts. The judiciary must also be free to try cases against the executive without interference. They must also enforce the principle that no one is above the law and everyone is to be held accountable to the law even the all mighty executive.

On the issue of evidence in court proceedings, it has been held that it is only the court who can evaluate evidence and any certification to another body which withdraws from the court the power to decide on evidence that has been held to be an invalid infringement by the legislature on judicial power. In the State (McEldowney) v Kelleher, this principle was applied to civil proceedings. The Supreme Court held that section 13(4) of the Street and House to House Collections Act 1962 was unconstitutional, because it provided, where an appeal was brought to the District Court against the refusal of a police chief superintended to grant a collection permit.

In State (O’Rourke) v Kelly, the legislation that was purported to make mandatory a particular order on the establishment of certain facts where challenged. However the court did not find that it encroached on judicial powers. Section 62(3) Housing Act 1966, provided that a District Court Judge, if satisfied that a demand had been duly made, issue a warrant. These matters are only established following judicial consideration of the evidence. It was no different from any other legislation that makes it mandatory for the court on foot of certain evidence to make a specific order.

In conclusion we can see how Separation of Powers is divided into branches, each with separate and independent powers and areas of responsibility so that no one branch has more power than the other branches.

Bibliography:

• Brian Farrell, De Valera’s Constitution And Ours (Thomas Davis Lectures, 1st Ed, Dublin, 1988)

• Fergus W. Ryan, Constitutional Law (Round Hall Nutshells, 2nd Ed, Dublin, 2008)

• James Casey, Constitutional Law in Ireland ( Sweet & Maxwell, 3rd Ed, Dublin, 2000)

• Alan J. Ward , The Irish Constitutional Tradition (Irish Academic Press, Dublin, 1994)

• David Gwynn Morgan, The Separation of powers in the Irish Constitution ( Sweet & Maxwell, Dublin, 1997 )

Other Sources:

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