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  • Judgments The Supreme Court Office The Legal System Publications Links Constitution of Ireland Judgments of the Supreme Court Search Judgments by Year Advanced Search Latest Judgments Important Judgments Article 26 References Search Judgments by Year 2016 2015 2014 2013 2012

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  • Judgments The Supreme Court Office The Legal System Publications Links Constitution of Ireland Judgments of the Supreme Court Search Judgments by Year Advanced Search Latest Judgments Important Judgments Article 26 References Search Judgments by Year 2016 2015 2014 2013 2012

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  • Cuardach Casta Cuardaigh le haghaidh Uasmhéid Taifid tugann 0 gach toradh ábhartha Breithiúnas ó fág folamh chun cuardach de réir gach breithimh Faoi láthair tugann an áis chuardaigh gach toradh in ord ábharthachta Trí uimhir a chur isteach in Uasmhéid Taifid tá tú ag teorannú an líon torthaí Mar shampla má chuireann tú 10 isteach is iad na torthaí a bheidh ar an gcuardach ná an 10 toradh is ábhartha

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  • Judgments by Year Advanced Search Latest Judgments Important Judgments Article 26 References Advanced search Search String Maximum Records 0 returns all relevant results Judgment By leave blank to search by all judges The search facility currently returns all results in order of relevance By entering a number into Maximum Records you will limit the number of results For example if you enter 10 the search results will be the 10

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  • Language Error Page_ga
    Córas Dlíthiúil Leabharliosta Naisc Bunreacht na hÉireann Language Error Page ga Níl ábhar ar fáil sa Ghaeilge don rannóg seo de na Breithiúnais Níl ábhar ar fáil sa Ghaeilge don rannóg seo de na Breithiúnais Cliceáil ar an nasc Content

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  • of the exceptions set out expressly in that Article Art 38 clauses 2 3 4 The Constitution clearly does not contemplate a person being detained without trial on a criminal matter This Bill is of the nature of a criminal jurisdiction Art 34 provides that justice shall be administered in public Courts The protection of the personal and fundamental rights of individuals as between themselves and in relation to the State involves the idea of justice It involves also that any person thought guilty of an infringement of the law should be charged and tried by the public Courts These provisions would be a mockery if the Executive could refuse to charge and try such persons and could arbitrarily imprison them instead With two exceptions the examples of detention without trial given on behalf of the Attorney General fall within the terms of Art 40 clause 1 being persons such as lunatics children etc who are being protected and cared for by the State 2 The first example given of detention without trial not falling within Art 40 clause 1 relates to the powers given under the Defence of the Realm Consolidation Act 1914 and the decision in The King Zadig v Halliday 3 was relied on But that decision is not relevant to our Constitution That decision was solely concerned with the question whether the Regulations made were authorised by the Act The constitutionality of the Act could not be questioned the dominant feature of English constitutional law being the sovereignty of Parliament Under our 1 This Act is not numbered like other Acts It is an amendment of the Constitution made in pursuance of Art 51 2 Article 40 1 All citizens shall as human persons be held equal before the law This shall not be hold to mean that the State shall not in its enactments have due regard to differences of capacity physical and moral and of social function 3 1917 A C 260 1940 In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 474 1 I R Supreme Court Constitution which is a rigid Constitution having an Oireachtas with limited powers of legislation such an Act would not be valid save in a time of war or armed rebellion as provided by Art 28 clause 3 par 3 The second example of detention without trial not falling within Art 40 clause 1 relates to the power of detention conferred by the Income Tax Act 1918 but it may be doubted whether this power of detention is valid under our Constitution In any event the person liable to detention in that case has had an opportunity of being heard and of defending himself by means of the provisions for appeal against assessment Preventive justice is of the nature of justice and Art 34 provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by this Constitution The maintenance of public peace is inherently a function of the Courts exercised by means of its powers of taking sureties and directing persons to enter into recognizances to be of good behaviour But in all such cases there must have been a judicial determination that a state of facts existed which justified the prisoner s imprisonment and punishment The King Boylan v Justices of Londonderry 1 per Palles C B at p 380 The necessity of arriving at any judicial determination is removed by this Bill Art 40 clause 4 par 1 provides that no person may be deprived of his liberty save in accordance with law The expression in accordance with law means in accordance with law which is not repugnant to the Constitution Can it be suggested that if this Bill be enacted detention under it will be in accordance with law They referred to Story on the Constitution of the United States of America Vol II 5th edn ss 1338 1778 9 1858 1860 66 1938 1941 on the subjects of habeas corpus trial by jury and the meaning of the phrase due process of law and to Marbury v Maddison 2 Art 38 provides for the trial of persons on a criminal charge This Bill proposes to punish without trial for breach of regulations made under it and s 5 of the Bill creates four specific offences It cannot be held that because the word contravention is used in place of offence that the provisions of Art 38 can be nullified Martin Maguire K C replied The remaining arguments of counsel are referred to in the course of the opinion of the Court Cur adv vult 1 1912 2 I R 374 2 1 Cranch 137 1940 In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 475 1 I R Supreme Court Sullivan C J â 9 Feb In pursuance of the provisions of Art 26 of the Constitution the President of Ireland on the 8th January 1940 after consultation with the Council of State referred to this Court a Bill entitled Offences Against the State Amendment Bill 1940 for a decision on the question whether the said Bill is repugnant to the Constitution or to any provision thereof The said Article admittedly refers to a Bill such as this which had been duly passed by both Houses of the Oireachtas Under the Article it is provided that the Court consisting of not less than five Judges shall consider every question referred to it by the President and having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court shall pronounce its decision in open Court as soon as may be and in any case not later than sixty days after the date of reference The Article further provides that the decision of the majority of the Judges of this Court shall for the purposes of this Article be the decision of the Court clause 2 par 2 It is further provided that in every case in which this Court decides that any provision of a Bill so referred to the Court is repugnant to the Constitution or to any provision thereof the President shall decline to sign such Bill and that in every other case the President shall sign the Bill as soon as may be after the date on which the decision of this Court shall have been pronounced In accordance with the provisions of the Article the Court assigned counsel and subsequently the Court heard arguments by counsel on behalf of the Attorney General and by counsel so assigned by the Court and at the conclusion of the said arguments reserved its decision The decision now announced is the decision of the majority of the Judges and is within the meaning of clause 2 par 2 of the said Article the decision of the Court The long title of the Bill so referred to this Court is An Act to repeal Part VI of the Offences against the State Act 1939 and to make other provisions in relation to the detention of certain persons Sect 2 which is contained in Part I of the Act repeals Part VI of the Offences Against the State Act 1939 The Part of the Act of 1939 so repealed is substantially to the same effect as Part II of the Bill now before this Court Part II of the Bill consists of seven sections Sect 3 provides that Part II of the Act is to come into force when and so often as the Government makes and publishes a Proclamation declaring that the powers conferred 1940 In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 476 1 I R Sullivan C J Supreme Court by the said Part of the Act are necessary to secure the preservation of public peace and order and that if the Government makes and publishes a Proclamation declaring that the said Part of the Act shall cease to be in force same shall forthwith cease to be in force It further provides that it shall be lawful for Dail Eireann at any time while the said Part of the Act is in force to pass a resolution annulling such first mentioned Proclamation and thereupon such Proclamation shall be annulled and the said Part of the Act shall cease to be in force but without prejudice to the validity of anything done after the making of the Proclamation and before the passing of the resolution Sect 4 provides as follows â 4â 1 Whenever a Minister of State is of opinion that any particular person is engaged in activities which in his opinion are prejudicial to the preservation of public peace and order or to the security of the State such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section 2 Any member of the Garda Siochana may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub section of this section 3 Every person arrested under the next preceding sub section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act whichever first happens 4 Whenever a person is detained under this section there shall be furnished to such person as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act 5 Every warrant issued by a Minister of State under this section shall be in the form set out in the Schedule to this Act or in a form to the like effect Sect 5 confers on any member of the Garda Siochana power in respect of any person arrested and detained under this Part of the Act â a to demand his name and address b to search him or cause him to be searched c to photograph him or cause him to be photographed and d to take or cause to be taken his fingerprints It also provides that any person who obstructs or impedes a member of the 1940 In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 477 1 I R Sullivan C J Supreme Court Garda Siochana in the exercise of the said powers or who refuses to give to a member of the Garda Siochana his correct name and address shall be guilty of a contravention of the regulations to be made under this Part of the Act and shall be dealt with accordingly Sect 6 provides that a Minister of State may by writing under his hand order the release of any person who is being detained and such person shall forthwith be released Sect 7 empowers a Minister of State to make regulations for all or any of the following purposes that is to say â a Prescribing the prisons internment camps and other places in which persons may be detained under this Part of this Act b providing for the efficient management sanitation control and guarding of such prisons internment camps and other places c providing for the enforcement and preservation of discipline amongst the persons detained in any such prison internment camp or other place as aforesaid d providing for the punishment of persons so detained who contravene the regulations e prescribing or providing for any other matter or thing incidental or ancillary to the efficient detention of persons detained under this Part of this Act Sub s 2 of the said section provides that â Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty one days on which such House has sat after such regulation is laid before it such regulation shall be annulled accordingly but without prejudice to the validity of any thing previously done under such regulation Sect 8 provides for the setting up of a Commission to which any person detained under this Part of the Act may apply in writing to consider the continuation of his detention and requires the Minister for Justice to furnish to the Commission such relevant information and documents in the possession or procurement of the Government or of any Minister of State as shall be called for by the Commission and further provides that if the Commission reports that no reasonable grounds exist for the continued detention of such person he shall with all convenient speed be released Sect 9 provides that the Government shall once at least in every six months furnish to each House of the Oireachtas certain particulars therein specified with reference to persons detained 1940 In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 478 1 I R Sullivan C J Supreme Court Counsel so assigned by the Court contended that the Bill was repugnant to the Constitution and in particular they relied upon the Preamble and on Article 34 clause 1 and Articles 38 and 40 We propose to deal specifically with the aforesaid Articles but in arriving at our conclusion we have had regard not only to those Articles but also to all such other Articles as seemed to us material to the question which we have to determine Before dealing however with the said Articles we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and nevertheless there is no express prohibition in the Constitution against such legislation This is a matter to which we are bound to attach considerable weight in view of the fact that many Articles of the Constitution prohibit the Oireachtas in plain and unambiguous language from passing certain laws therein specified Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy we are of opinion as a matter of construction that such repugnancy must be clearly established The material portion of the Preamble is that which declares that in enacting the Constitution the People of Ireland are Seeking to promote the common good with due observance of prudence justice and charity so that the dignity and freedom of the individual may be assured true social order attained the unity of our country restored and concord established with other nations In dealing with the Preamble counsel laid great stress on the words dignity and freedom of the individual and focussed their attention upon those words exclusively This does not seem to us to be the correct method of arriving at the true meaning and effect of the Preamble The main object aimed at is the promotion of the common good which it is contemplated will assure the dignity and freedom of the individual the attainment of social order the restoration of the unity of our country and the establishment of concord with other nations Apart from the grammatical construction of the words of the Preamble it seems to us difficult to understand how the dignity and freedom of the individual member of a State can be attained unless social 1940 In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 479 1 I R Sullivan C J Supreme Court order is maintained in that State There is nothing in this clause of the Preamble which could be invoked to necessitate the sacrifice of the common good in the interests of the freedom of the individual Article 34 deals with the establishment of Courts and the administration of justice therein and the particular Clause on which reliance was placed is Clause 1 which provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by the Constitution In order to rely upon this Article it would be necessary to establish that the Minister in exercising the powers conferred upon him by the Bill is administering justice within the meaning of the Article This proposition seems to us to be wholly unsustainable Article 38 deals with the trial of offences and provides in clause 1 that no person shall be tried on any criminal charge save in due course of law The remaining clauses of the Article prescribe the methods in which criminal charges may be tried and specify various Courts for this purpose The argument necessarily proceeds upon the basis that the Minister in performing his functions under the Bill is engaged in the trial of a criminal charge and that the detention contemplated by the Bill is punishment in respect of a criminal offence In the opinion of this Court neither s 4 nor s 5 of the Bill creates or purports to create a criminal offence The only essential preliminary to the exercise by a Minister of the powers contained in s 4 is that he should have formed opinions on the matters specifically mentioned in the section The validity of such opinions is not a matter that could be questioned in any

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  • the dominant rights in the Article The right of the parents is to provide such education as they think fit subject to a minimum standard if and when prescribed by statute The right of the State specified in Art 42 clause 3 par 2 is not to be exercised in a way which will prevent parents providing education in their homes The Bill does not prescribe a minimum standard of education It is submitted that the Constitution imposes on the Legislature the duty of defining the minimum standard The correct view of clause 3 par 2 of Art 42 is that a certain amount of education must be provided for the child at all stages As to the meaning of the phrase a certain minimum it is submitted that the minimum must be certain and precise There is nothing in s 4 of the Bill to show that the minimum is certain nor that it is precise i e such that parents can know what they must provide if they educate their children at home It is clear that under the Bill the Minister could prescribe a standard which the parents could not provide at home This certain minimum must be an ascertained minimumâ a definite quantum of education in essentials which cannot vary for each child or for each area The State is not entitled to require that the certain minimum education shall be given in any particular manner Under s 4 sub s 1 of the Bill unless a child attend a national school a suitable school or a recognised school the child is not to be deemed to be receiving suitable education unless such education and the manner in which such child is receiving it has been certified by the Minister to be suitable In this respect the Bill is repugnant to the Constitution The minimum prescribed by the Legislature must not infringe on the conscience 1 1935 I R 170 2 1939 I R 413 1943 In re Art 26 of the Constitution and the School Attendance Bill 1942 338 1 I R Supreme Court and lawful preference of parents as to where their children shall be educated The minimum prescribed must be such as can be provided by parents according to their means Under s 4 of the Bill the Minister can prescribe any standard of education there is no restriction on his powers and there is nothing to relate the standard so prescribed by him to the certain minimum which the State can require under the Constitution nor is the Minister under a duty to have regard to the lawful preference of the parents as to the schools which their children shall attend If a Minister be given a power which he may exercise in a constitutional manner and also in an unconstitutional manner it is submitted that the section conferring such a power is repugnant to the Constitution Moreover the Minister is not entitled to prescribe the certain minimum this is the duty of the Legislature Sect 4 sub s 2 clause c of the Bill is repugnant to the Constitution since the Constitution requires that a certain uniform minimum shall be prescribed and the section authorises the Minister to prescribe various standards for different children Under the School Attendance Act 1926 every child who reaches the age of six must receive education The Bill requires the education to be suitable If a child be sent to any school other than those specified in the Bill a certain time must elapse before the Minister can certify that the education which the child is receiving is suitable The certificate cannot have a retrospective effect and hence whether the certificate be granted or not the parent will have committed an offence under s 19 of the Bill Under the Constitution the Oireachtas is a subordinate Legislature and it is submitted that any law made by a subordinate Legislature which creates such an absurd position cannot be authorised by the powers of such subordinate Legislature They cited The Commissioners of Public Works in Ireland and Williams v Monaghan 1 R McLoughlin K C in reply Cur adv vult The decision of the Court was delivered by Sullivan C J Sullivan C J â April 15 In this case the President in pursuance of Art 26 of the Constitution and after consultation with the Council of State referred to this Court a certain Bill entitled the School Attendance Bill 1942 for decision on the question 1 1909 2 I R 718 1943 In re Art 26 of the Constitution and the School Attendance Bill 1942 339 1 I R Sullivan C J Supreme Court whether s 4 of the said Bill is repugnant to the Constitution or to any provision thereof In accordance with the said Article this Court assigned counsel and subsequently heard arguments by counsel on behalf of the Attorney General and by counsel so assigned and having considered such arguments has arrived at the following decision The Bill is entitled An Act to make further and better provision for ensuring school attendance by children to whom the School Attendance Act 1926 applies and for that and other purposes to amend the said School Attendance Act 1926 By s 1 it is provided that the expression the Principal Act means the said Act of 1926 and the Bill if and when passed is to be read and construed as one with the Principal Act The Act of 1926 is expressed to be an Act to make provision for ensuring the attendance of children at elementary schools By s 2 the expression child to whom this Act applies means and includes a child who has attained the age of six years and has not attained the age of fourteen years and every other child to whom this Act is for the time being applied by virtue of an Order made by the Minister under the power in that behalf hereinafter conferred on him By s 24 the Minister is authorised by Order from time to time to apply the provisions of the Act to children or any class of children who have attained the age of fourteen years and have not attained the age of sixteen years Up to the present the Minister has not exercised the power so conferred on him By s 17 it is provided that whenever a parent fails or neglects to cause his child to whom the Act applies to attend school in accordance with the Act and so far as is known to the enforcing authority of the school attendance area in which the child resides there is no reasonable excuse for such failure or neglect such enforcing authority shall serve on such parent a warning in the prescribed form as required by the section and it is further provided that if a parent does not comply with such warning duly served on him under the section he shall unless he satisfies the Court that he has used all reasonable efforts to cause the child to attend school in accordance with the Act be guilty of an offence under the section and shall be liable in the case of a first offence to a fine not exceeding twenty shillings and in the case of a second or subsequent offence whether 1943 In re Art 26 of the Constitution and the School Attendance Bill 1942 340 1 I R Sullivan C J Supreme Court in relation to the same or another child to a fine not exceeding forty shillings The section contains other provisions to which it is unnecessary to refer in detail including provisions under which the Court may order a child in respect of whom default has taken place to be sent to a certified industrial school or to be committed to the care of a relative or other fit person named by the Court By s 3 of the said School Attendance Bill 1942 it is provided sub s 1 that the parent of every child to whom the Principal Act applies shall unless there is a reasonable excuse for not so doing cause such child to attend a national school a suitable school or a recognised school on every day on which such school is open for secular instruction and for such time on such day as shall be prescribed or sanctioned by the Minister in respect of such day Sub s 2 of the same section provides that any of the following but no other shall be a reasonable excuse for failure to comply with the section that is to say â a that the child has been prevented from attending school by the sickness of such child b that the child is receiving suitable education within the meaning of this Act in a manner other than by attending a national school a suitable school or a recognised school c that there is not a national school a suitable school or a recognised school accessible to the child which the child can attend and to which the parent of the child does not object on religious grounds to send the child d that the child has been prevented from attending school by some other unavoidable cause Sub s 3 defines the schools that are to be deemed to be accessible to the child for the purposes of the section A national school is defined in s 1 of the Act of 1926 as being a public elementary day school for the time being recognised by the Minister as a national school suitable school is defined in the same section as a school for the time being certified by the Minister under the Act to be a suitable school within the meaning of the Act and recognised school is defined in s 2 of the Bill under consideration as a school for the benefit of which grants are for the time being made from public moneys and which is recognised by the Minister as a school at which education suitable for children to whom the Act of 1926 applies is given The expression the Minister means the Minister for Education s 1 of the Act of 1926 Sect 4 of the Bill provides as follows â 4 1 A child shall not be deemed for the purposes of 1943 In re Art 26 of the Constitution and the School Attendance Bill 1942 341 1 I R Sullivan C J Supreme Court this Act to be receiving suitable education in a manner other than by attending a national school a suitable school or a recognised school unless such education and the manner in which such child is receiving it have been certified under this section by the Minister to be suitable 2 The following provisions shall apply and have effect in relation to every certificate under this section by the Minister that is to say â a the Minister may before giving such certificate in respect of a child require such child to be submitted by his parent to such educational test at such time and place as the Minister shall direct and the Minister may refuse to give such certificate if such parent fails or refuses so to submit such child b the Minister shall not refuse otherwise than under the next preceding paragraph of this sub section to give such certificate in respect of a child until he has informed the parent of such child and also if such child is receiving education in a school the manager or conductor of such school of the ground on which he proposes to refuse such certificate and has given such parent and where appropriate such manager or conductor a reasonable opportunity of meeting the requirements of the Minister for the purpose of removing the said ground of refusal c where a child is receiving education in a school other than a national school a suitable school or a recognised school and the Minister refuses to give a certificate under this section in respect of such child the Minister may so refuse to give such certificate on the ground that such school is not appropriate for that particular child or that such school is not appropriate for children to whom the Principal Act applies d where an application is made to the Minister for a certificate under this section in respect of a child the Minister may make such inquiries and investigations as he shall think proper for the purpose of determining whether to give or to refuse such certificate and if the parent of such child or the manager or conductor of the school if any at which such child is receiving education fails or refuses to give to the Minister any information in his possession or procurement required by the Minister for the purpose aforesaid such failure or refusal shall be a ground for refusing to give such certificate 3 The Minister may at any time as and when he thinks fit revoke a certificate given by him under this section but the Minister shall not revoke otherwise than under the next following sub section of this section any such certificate 1943 In re Art 26 of the Constitution and the School Attendance Bill 1942 342 1 I R Sullivan C J Supreme Court until he has informed the parent of the child to whom such certificate relates and also if such child is receiving education in a school the manager or conductor of such school of the ground on which he proposes to revoke such certificate and has given such parent and where appropriate such manager or conductor a reasonable opportunity of meeting the requirements of the Minister for the purpose of removing the said ground of revocation 4 Whenever the Minister has given a certificate under this section in respect of a child he may at any time while such certificate is in force require such child to be submitted by his parent to such educational test at such time and place as the Minister shall direct and if such parent fails or refuses so to submit such child the Minister may revoke such certificate because of such failure or refusal 5 Whenever a child to whom the Principal Act applies is receiving education in a manner other than by attending a national school a suitable school or a recognised school the parent of such child shall inform the enforcing authority for the school attendance area to which such child belongs of the fact that such child is so receiving education and of the place and manner in which he is receiving education and if such parent fails so to inform such enforcing authority he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding five pounds The object of s 3 of the Bill is to compel parents to send their children within the prescribed age limits to one or other of the schools mentioned in the section and failure to do so can only be justified on one or other of the four grounds mentioned in sub s 2 of that section One of these grounds is that the child is receiving suitable education within the meaning of the Act otherwise than by attending one of the prescribed schools and the object of s 4 is to prescribe and define what is meant by suitable education within the meaning of this clause Sect 19 of the Bill imposes penalties on parents who fail or neglect without a reasonable excuse to send their children to school and contains similar provisions to those contained in s 17 of the Act of 1926 for having such children sent to an industrial school or committed to the care of a relative or other fit person named by the Court The substantial provision of s 4 is that contained in sub s 1 namely that a child shall not be deemed to be receiving suitable education in a manner other than by attending school unless such education and the manner in which such child is receiving it have been certified by the Minister to be suitable The remaining sub sections of that section 1943 In re Art 26 of the Constitution and the School Attendance Bill 1942 343 1 I R Sullivan C J Supreme Court contain various provisions with reference to the giving or withholding of such certificate and the manner in which such certificate may be revoked by the Minister and they empower the Minister to require a child to be submitted to such educational test as the Minister shall direct Sub sect 5 of the section provides that whenever a child is receiving education in a manner other than by attending school the parent of such child is bound to inform the enforcing authority of this fact with particulars as to the place and manner in which he is receiving education and failure to do so is an offence punishable by fine Reading the Act of 1926 in conjunction with the provisions of the Bill under consideration it appears clear that the normal method of education contemplated is to be obtained by attending school and that parents failing to send their children to school are subjected to penalties unless they can justify such failure under one or other of the clearly defined and restricted excuses prescribed by the Acts In support of the proposition that the said section is repugnant to the Constitution the preamble and various Articles of the Constitution were referred to and relied upon We propose to refer only to such provisions as appear to us to be material Article 41 deals with the Family Clause 1 par 1 of that Article provides that the State recognises the Family as the natural primary and fundamental unit group of Society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law And clause 1 par

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  • Electoral Amendment Bill 1961 173 1 I R Supreme Court constituencies have an average population per Dà il member deviating by more than 750 from the national averageâ two above it and four below it None diverge from the national average of population per Dà il member by as much as 1 000 The number of persons per Dà il member in the various constituencies ranges from 20 916 in Dublin South Central to 19 294 in Clareâ a total variation of 1 622 the greatest divergence from the national average being 833 in the case of Clare In particular the two groups of adjoining constituencies consisting of the eight constituencies for the City and County of Dublin and of the nine constituencies for the province of Connaught and the Counties of Clare and Limerick have each been allocated 34 Dà il members The former group has a total population of 705 006 which gives it one Dà il member for each 20 735 of population while the latter group has a total population of 664 278 which gives it one Dà il member for each 19 449 of population It would have been not only physically possible but administratively practicable so to have allocated Dà il members to constituencies as to give the former group an extra Dà il member at the expense of the latterâ when virtual mathematical parity of representation as between the two groups and a close correspondence between the ratio for each group and the national average would have been achieved The provision of Art 16 clause 2 para 2 that the total number of members of Dà il à ireann à ireann should not be fixed at less than one member for each thirty thousand or at more than one member for each twenty thousand of the population appeared to envisage the original fixation of the membership of Dà il à ireann à ireann on the basis of one member for each twenty five thousand of the population approximately If this basis had been adhered to by the Oireachtas in enacting this Bill it would have been a simple matter to remedy the disparity of ratio of Dà il members to population between Dublin and the West by allocating another seat or two to Dublin without necessarily interfering with the Western constituencies The administrative difficulties which might be created by such interference resulted from the action of the Oireachtas in providing that the Dà il should contain the maximum number of members constitutionally permissible having regard to the 1956 census figures Fifthly the Oireachtas in purporting to revise the constituencies in this Bill has failed to have due regard to changes in distribution of the population as required by Art 16 clause 2 para 4 If the Court takes the view that the Oireachtas in revising the constituencies pursuant to this 1961 In re Art 26 of the Constitution and the Electoral Amendment Bill 1961 174 1 I R Supreme Court paragraph was bound to have regard to the estimates of population furnished either by the Central Statistics Office or by calculations based on the current electoral lists the Bill is clearly invalid and repugnant to the Constitution for the reasons set out on the second ground If the Oireachtas was entitled to base its revision on the results of the 1956 census the inequalities of distribution produced on this basis have adequately been shown in our arguments on the fourth ground While the consideration of the constitutionality of Acts of the Oireachtas must be approached with a presumption in favour of such constitutionality per Murnaghan J in National Union of Railwaymen and Others v Sullivan and Others 1 it is submitted that no such presumption operates in favour of a Bill referred by the President to this Court in pursuance of the provisions of Art 26 of the Constitution in as much as such reference of itself indicates that the President was aware of the possibility that such Bill if signed by him and promulgated as a law might later be found to be unconstitutional This presumption of constitutionality is expressly related by this Court in In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 2 to any particular law which it is submitted means an Act which has been signed by the President pursuant to Art 13 clause 3 para 1 and promulgated by him pursuant to Art 13 clause 3 para 2 as distinct from a Bill which has merely been passed by the Oireachtas The necessity of rebutting such presumption of constitutionality arises only where it is sought to establish that a measure is repugnant to the Constitution by reason of some implied prohibition or repugnance In re Art 26 of the Constitution and the Offences Against the State Amendment Bill 1940 1 In re Art 26 of the Constitution and the School Attendance Bill 1942 3 Where as here it is sought to establish that a measure is repugnant to the Constitution by reason of the contravention of an express prohibition contained therein the Court in considering the measure ought not to exercise any presumption in its favour The Attorney General with him R McGonigal Senior Counsel and Sean Butler â The provisions of s 5 of the Bill before the Court relating to the outgoing Ceann Comhairle are necessitated by the combined effects of Art 16 clause 6 of the Constitution which requires provision to be made by law to enable an 1 1947 I R 77 at p 100 2 1940 I R 470 3 1943 I R 334 1961 In re Art 26 of the Constitution and the Electoral Amendment Bill 1961 175 1 I R Supreme Court outgoing Ceann Comhairle to be deemed without any actual election to be elected to Dà il à ireann à ireann at the ensuing general election and of Art 16 clause 2 para 1 which requires Dà il à ireann à ireann to be composed of members who represent constituencies determined by law The provision required by Art 16 clause 6 is made by the Electoral Chairman of Dà il à ireann à ireann Act 1937 s 3 sub s 1 b of which prescribes that where a revision of constituencies takes effect on a dissolution of the Dà il the Ceann Comhairle shall be deemed at the ensuing general election to be elected to the constituency declared on such revision to correspond with the constituency for which he was previously a member of Dà il à ireann à ireann He also referred to the Electoral Chairman of Dà il à ireann à ireann Act 1937 s 4 The provisions of Art 16 clause 2 para 4 of the Constitution which require the Oireachtas to revise the constituencies at least once in every twelve years are directory not mandatory If for any reason the Oireachtas has failed to carry out such revision within the twelve year period its obligation under this paragraph of the Article is fulfilled by a revision as soon as reasonably possible after the expiration of the period If this requirement were to be construed as mandatory there could on the next dissolution of Dà il à ireann à ireann be no constituencies in existence to which members of Dà il à ireann à ireann could be elected The last preceding census to be considered in determining the ratio between the population of the respective constituencies and the number of Dà il members to be elected for each pursuant to Art 16 clause 2 para 3 is still the census of 1956 The census of 1961 has not yet been taken in as much as the counting of the population under such census has not yet been completed The Irish version of the paragraph refers to an daonà irimh is dà anaà dà ndearnadh which might literally be translated the last counting of the population which was made the Irish word daonà irimh involving the concept of counting This indicates that the phrase the last preceding census in the paragraph was intended to refer in this context to the last preceding census which has been completed Paragraphs 2 3 and 4 of Art 16 clause 2 ought to be read together as all being based on the determination of the population both of the State as a whole and of the individual constituencies in a particular way specified only in para 3 This construction finds support in the fact that the one of the three calculations described in the three paragraphs for which the most precise information possible is most essential is that described in para 2 which involves the fixation of 1961 In re Art 26 of the Constitution and the Electoral Amendment Bill 1961 176 1 I R Supreme Court the total membership of Dà il à ireann à ireann by reference to the total population of the State Paragraphs 2 to 5 of Art 16 clause 2 are derived from Art 26 of the Constitution of 1922 from which they are reproduced with no material variation other than the division of the single Article into four separate paragraphs The effect of para 4 is it is submitted that a revision of constituencies must take place once a completed census shows a significant change in the distribution of the population however recently the constituencies had previously been revised The revision of the constituencies by reference to the proportion of electors to the total population in each could not be carried out in such a way as to comply with Art 16 clause 2 para 3 in view of the grave variation of that proportion as between the constituencies ranging from 53 per cent in Dublin County to 66 per cent in West Donegal The provision in Art 16 clause 2 para 3 that the ratio of members of the Dà il for each constituency to the population of that constituency shall be the same throughout the State so far as it is practicable is made in recognition of the necessity of some departure from absolute mathematical equality It is the function of the Oireachtas to determine the extent to which such departure is necessary and the Court in considering whether or not the Oireachtas has exceeded such function is bound to have regard to the law as it existed at the time of the enactment of the Constitution He referred to Melling v à Mathghamhna ó mathghamhna unreported and to In re Article 26 of the Constitution and the Offences Against the State Amendment Bill 1940 1 The Court is therefore bound to consider the operation of the Electoral Acts of 1923 and of 1935 both accepted as implementing the Constitution of 1922 and therefore it must be assumed accepted by those who framed the Constitution of 1937 as indicating the extent to which absolute mathematical parity might be departed from The total variation of persons per member between the most highly represented and the least highly represented constituencies under the Act of 1923 was 3 708 the maximum divergence from the national average being 2 458 Under the Act of 1935 the corresponding figures were 4 411 and 2 923 It is submitted that if departures to that extent from absolute mathematical parity could be sanctioned as being as close approximations to absolute mathematical parity as were practicable the much smaller departures from parity contained in the Bill under review must be regarded as permissible under the provisions of Art 16 clause 2 para 3 It is conceded that 1 1940 I R 470 1961 In re Art 26 of the Constitution and the Electoral Amendment Bill 1961 177 1 I R Supreme Court possibly an even closer approximation to absolute mathematical parity of representation as between constituencies could have been achieved by the creation of constituencies of six or seven seats and by the more systematic breaching of county boundaries both courses which are liable to produce administrative difficulties but nevertheless in this Bill a closer approximation to parity as between the constituencies has been achieved than that suggested by Budd J as practicable in O Donovan v The Attorney General 1 Sean MacBride Senior Counsel in reply â The issue as between our construction of the three relevant paragraphs of Art 16 clause 2 and that of the Attorney General is based in essence on the construction to be placed on para 4 Our submission is that para 3 is designed to deal with a revision of constituencies made immediately after the completion of a census and para 4 with a revision made either by the will of the Oireachtas or by the compulsion of para 2 in the light of the most recent population figures in an intercensal period The Attorney General on the other hand construes both para 3 and para 4 as deriving effect from a completed census While both constructions enable effect to be given to paras 3 and 4 without adding words to the paragraphs or taking words therefrom it is submitted that once the population is found to have passed beyond the maximum or minimum number of persons per member of Dà il à ireann à ireann prescribed by para 2 the Oireachtas then has no option but to revise the constituencies forthwith otherwise para 2 can be regarded only as surplusage In determining what the total number of Dà il members should be in relation to the total population of the State the Oireachtas ought to have relied on the more accurate if not precise figures provided either by the current electoral lists or by the most recent population estimates rather than on the precise but no longer accurate figures provided by the census of 1956 The fixing of the total membership of Dà il à ireann à ireann and the revision of the constituencies by reference to an out of date census can be justified only by the importation of the phrase as ascertained at the last preceding census into paras 2 and 4 as well as into para 3 of clause 2 of Art 16 This phrase must be deemed to have been omitted designedly from those two paragraphs in the light of the rule of construction expressio unius rei est exclusio alterius The degree of elasticity with which para 3 may be construed cannot be extended in the manner sought by the 1 1961 I R 114 1961 In re Art 26 of the Constitution and the Electoral Amendment Bill 1961 178 1 I R Maguire C J Supreme Court Attorney General but is restricted by the terms of the paragraph itself to what is practicable Here by the creation of larger constituencies it would have been practicable to have achieved a greater degree of parity in certain cases without the unnecessary breach of county boundaries as for instance by the joining of Counties Monaghan and Louth on one hand and of Counties Leitrim and Roscommon on the the other hand into six seat constituencies rather than by the insertion in the Monaghan constituencies of two isolated areas in Louth and in the Roscommon constituency of a portion of Co Leitrim Cur adv vult The decision of the Court was delivered by Maguire C J Maguire C J â 14 July In this case the President in pursuance of Article 26 of the Constitution and after consultation with the Council of State referred to this Court a Bill entitled the Electoral Amendment Bill 1961 for decision whether the Bill or any provision or provisions thereof is repugnant to the Constitution or to any provision thereof In accordance with the said Article this Court having heard arguments by the Attorney General and by counsel assigned by it and having considered such arguments has arrived at the following decision The Bill is entitled An Act to Fix the Number of Members of Dà il à ireann à ireann and to Revise their Constituencies and to Amend the Law Relating to the Election of Such Members By s 2 it provides that after the next dissolution Dà il à ireann à ireann shall consist of 144 members Sect 3 provides that after the next dissolution the members of Dà il à ireann à ireann shall represent the constituencies specified in the Schedule to the Act Sect 4 provides that a constituency specified in the Schedule shall return the number of members in the third column of the Schedule Sect 5 provides for the re election of the outgoing Ceann Comhairle We are not concerned with the three sections which follow They deal only with arrangements in connection with the holding of elections Sect 9 repeals the Electoral Amendment Acts of 1947 and 1959 The Court accepts the principle laid down by this Court in In re Art 26 of the Constitution and the Offences Against 1961 In re Art 26 of the Constitution and the Electoral Amendment Bill 1961 179 1 I R Maguire C J Supreme Court the State Amendment Bill 1940 1 and adopted in In re Art 26 of the Constitution and the School Attendance Bill 1942 2 that where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy such repugnancy must be clearly established per Sullivan C J at p 344 The authority of the Oireachtas to fix the number of members of Dà il à ireann à ireann and to revise the constituencies derives from Article 16 clause 2 of the Constitution The decision of the Court turns on the construction of this clause It reads as follows â 2 1 Dà il à ireann à ireann shall be composed of members who represent constituencies determined by law 2 The number of members shall from time to time be fixed by law but the total number of members of Dà il à ireann Ã

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