Possible referendums on Articles 26 and 34

By Michael Gallagher

Earlier this week the Minister for Justice announced proposals to amend several articles of the constitution dealing with the role of the judiciary, specifically to add a Civil Court of Appeal and a Family Court, and to reconsider the ‘one judgment rule’ in Article 26.2.2. Details in a press release of 17 July 2012:

1. Add a Civil Court of Appeal and a Family Court structure. This would reduce the load on the Supreme Court, which is responsible for a lengthy backlog of cases, and would also narrow the range of cases that reach it. Specialisation within the judiciary is the norm in many European countries and the diversity of cases that reach our Supreme Court is unusual. The only caveat is that principles can arise in one ‘type’ of case (eg family law) that have implications for other types, so a judicial system with separate silos would not be feasible, but this proposal is unlikely to arouse much opposition.

An additional and more radical step would be to establish a specialist Constitutional Court, separate from the regular court system – again, this is the norm across Europe, the German Federal Constitutional Court being the most high-profile example. Members of the FCC do not, unlike our Supreme Court judges, consider the constitutionality of a piece of legislation one week and listen to an appeal against a conviction for fraud the next week – they have an expertise in one area and they stick to that.

2. Reconsider the ‘one judgment’ rule in Article 26.2.2. This stipulates that when the President refers a bill to the Supreme Court for a verdict on its constitutionality, only one judgment may be delivered, and neither the content nor the existence of any dissenting judgment may be pronounced or disclosed. Perhaps surprisingly, there is no mention of reconsidering Article 34.4.5, which lays down the same one judgment rule in respect of the validity of post-1937 legislation. The Constitution Review Group (CRG), in its 1996 report, advocated the deletion of 34.4.5 but could not reach a consensus on 26.2.2.

The argument for the present situation is that the authority of a majority judgment could be weakened if it transpired that not all judges shared this view, especially if their reasons seemed to many people more persuasive than the arguments of the majority. When the president refers a bill to the Supreme Court the nation wants a firm and definitive answer, not a potpourri of arguments from which everyone can pick the ones that appeal to them most.

The argument for change is that it is difficult to cobble together one judgment from the disparate arguments of several judges; even if judges reach the same conclusion they may do so by very different routes, and a judgment that attempts to take on board everyone’s points may lack coherence. The suggestion that the existence of dissent weakens the force of a judgment seems contradicted by examples such as the Crotty case. Here, three superior court judges (one on the High Court and two on the Supreme Court) found against Crotty, and three Supreme Court judges found in his favour. Moreover, in 1987 constitutional commentators were generally surprised, and not necessarily convinced, by the Supreme Court majority’s reasons for finding in Crotty’s favour. However, this has had no impact whatever on the force of the judgment, which, as we know, is why every major EU treaty requires a constitutional change and hence a referendum in this country.

A change might, then, make life easier for judges, but what would be in this for the rest of us? The argument is that a plethora of judgments contributes to the development of jurisprudence; the CRG, for example, cites dissenting judgments delivered by Oliver Wendell Holmes in the US Supreme Court in the 1920s, which later became accepted as ‘good law’ (p. 83 of its report).

There is certainly a good case for deleting 26.2.2 and 34.4.5, but this is pretty arcane stuff to be putting to the people in a referendum. Any such proposal would surely have to be part of a reform package if it was to generate much interest from the electorate, especially given the ‘referendum fatigue’ noted by Theresa Reidy in her post here on 2 July.

3. Consider amending Article 34.3.3. This states that if a president refers a bill to the Supreme Court for a verdict on its constitutionality, and the Supreme Court upholds the bill, its constitutionality can never again be challenged. The amendment suggested is that any such bill become open once more to challenge after a certain time period, perhaps five years.

This is not a new idea. Way back in 1967 the Oireachtas committee on the constitution suggested a period of seven years, while the 1996 CRG report advocated deleting 34.3.3 entirely. The CRG was unconvinced by the 1967 committee’s recommendation that a positive verdict by the Supreme Court following a presidential referral should give a law immunity for a fixed period, raising, for example, the possibility that the state might be liable to meet claims for deeds done under a law that was initially pronounced to be constitutional but was subsequently pronounced invalid (which has always been taken to mean invalid ab initio). Even so, this course of action might have fewer disadvantages than either the status quo or outright deletion. Clearly there are arguments on both sides, but again it might seem an arcane issue in the context of an economic crisis.

4. Consider amending Article 26 so that the Supreme Court can decide to reject a presidential referral if it decides that there is ‘the absence of a proper factual or evidential basis on which to conduct such adjudication’. Whereas most of the proposals have been heard and discussed before, this one comes out of left field, and it would be very surprising if it sees the light of day.

Perhaps it is intended to check the power of the president, by empowering the Supreme Court to reject his or her references and, in effect, allow the bill to pass into law without holding a formal hearing. The implication is that the president would be required to supply some good reasons as to why he or she has concerns about the bill – a suggestion that would surely be seen as demeaning to the president by reducing him or her almost to the status of a plaintiff trying to secure a hearing. One reason for the low number of presidential referrals over the years (just 15 in over seventy years) is the existence of Article 34.3.3 – presidents are reluctant to refer a bill, knowing that an endorsement from the Supreme Court immunises it from challenge for ever more. The thinking may be that if this constraint is removed (point 3 above), then the number of referrals may rise to a level where the Supreme Court will wish to have a means of refusing jurisdiction. However, that assumes a rather cavalier or highly partisan attitude on the part of presidents which flies completely in the face of the experience of the office.

Or perhaps the idea is not that the president would be required to supply some justification for the referral but, rather, that the Supreme Court itself might wish, when faced with certain bills, to shrug its shoulders and declare that it would be unable to pronounce on the constitutionality or otherwise of a bill because there is no basis in fact or evidence to reach a decision. It surely cannot really be proposed that the Supreme Court could take such a position – if the Supreme Court itself cannot tell us whether a piece of legislation is constitutional, who can?
Besides, the process of deciding whether there is sufficient ‘factual or evidential basis’ to consider the constitutionality of a bill is likely to be much the same as, and not much less time-consuming than, the process of deciding the substantive issue of whether it is constitutional, so the attractions of this proposal are hard to see.

5. Consider adding a secular oath as an option instead of the Christian oath currently prescribed for judges (34.5.1). Surely long overdue.

Perhaps some of these issues will arise as ‘other relevant constitutional amendments’ that the constitutional convention may consider.

3 thoughts on “Possible referendums on Articles 26 and 34

  1. It’s not clear why setting up a Family Court would require a referendum. We already have a Commercial Court which is, I think, a division of the High Court. Surely the same could be done for family law.

  2. We need to think a little bit about what the Government is really up to here. No government will voluntarily consider amending the Constitition unless it is under some pressure to do so or there is some naked politcial advantage to be secured. I don’t for a moment doubt Minister Shatter’s good intentions about a Family Court or an Appeals Court to reduce the burden being imposed on the Supreme Court (he has a solid reputation in the family law area), but all this provides cover for the additional Bertiesque ‘smoke and daggers’ about the Supreme Court deciding on the constitutionality of specific bills which is a blatant attempt to avoid, so far as is possible, further referendums driven by institutional and procedural changes in the functioning of the EU. And these changes will be necessary, and are likely to be incremental and drawn out over a long period, if the Euro project is to be saved.

    The Government simply wants to avoid an unending series of demands for referendums as each and every incremental or procedural change in the functioning of the EU is agreed – and to avoid constitutional challenges from individuals, pressure groups or politcial factions.

    This whole thing is rapidly descending in to a farce, but I suspect that most voters have little interest in what are seen as boring constitutional issues – and the Government is getting away, for the moment, with its silly games.

    We are going to have a Constitutional Convention, which was sold initially on the basis that it would do the ‘divil and all’ but will now consider only a handful of largely peripheral issues. In any event it will have no credibility, authority or standing. The second House of the Oireachtas is going to be abolished without any proper procedural evaluation of the options or implications. And now we have this further raft of constitutional amendments.

    The Government lost the Oireachtas inquiries amendment referendum – which would have been only a first, very limited step in separating and re-balancing the powers of the legislature and the executive. But, understandably, it has no stomach for a programme of reform of this nature – unless some naked politcial advantage might be secured – and so we are left with these silly games.

    It may take a while for a sufficient number of voters to wake up to what is going on, but they will eventually.

  3. As a further thought, possibly the changes mooted re Article 26 are intended to address a question raised on this site way back on 3 October 2011, namely what is the situation if a president refers a bill that the constitution explicitly says that he or she cannot refer, such as a money bill? Is the Supreme Court obliged to go through the full review process nonetheless, or can it look behind the referral, at the behest of, say, the government, and refuse to consider the question on the basis that the referral was improper in the first place? The constitution does not provide an explicit answer to that question and maybe this possible change, though it is rather cryptically expressed, is intended to address this.

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