Procedure Referenda are regulated by the Referendum Act (see generally the section on electoral law). The legislation sets out the procedure for a Constitutional referendum. Once a bill proposing an amendment to the Constitution has been passed by the Oireachtas, the Minister is to order a polling day. It must be within 30-90 days thereafter. It may be the same day as an election or […]
Article 46 Article 46 of the Constitution provides that any provision of the Constitution may be amended by way of variation, addition or appeal in the manner provided by the Article. It requires that the proposal for referendum must be first passed by the Oireachtas, in the same way as an act. The amendment only takes effect on ratification by referendum. A referendum is passed […]
Constitutional Principles and Law Most constitutional principles are reflected in the existing law. The ordinary rules of civil and criminal procedures give effect to and protect constitutional rights. Where a right is not being protected by legislation, delegated legislation, rules, administration action or practices, this may breach constitutional requirements. The court will usually grant an appropriate remedy. The courts will interpret rules, statutory instruments, etc. […]
A Basic Cornerstone It is a fundamental principle of the Constitution that the State and State authorities must follow the rule of law. This requires that their actions be justified and mandated by law. The principles are seen in so-called administrative law, dealing with the relationships between government and quasi-governmental bodies and the citizen. The principle of legality or the rule of law is not […]
Presumption of Constitutionality The presumption of constitutionality reflects the proposition that those asserting a position must bear the onus of proving their claim. The Courts presume that the Oireachtas is aware of and has legislated in accordance with the Constitution. Generally, courts do not wish to readily strike down legislation, given its disruptive effect on the executive. The Oireachtas, as the representative of the people, […]
General Many fundamental freedoms and rights in the Constitution are expressed in very general terms. They are subject to limitations that are equally open and general. Most of the individual rights are actually qualified in terms of public interest and the common good. The starting point for interpretation, even in the Constitutional context, is the ordinary or literal meaning of the words concerned. Reference to […]
Express Power of Review The Irish Constitution allows for the judicial review of laws in relation to their compliance with the Constitution. The courts have express power to declare a law, whether made by the Oireachtas, a statutory instrument or otherwise made under the authority of statute, to be unconstitutional. This power is in marked contrast to the practice in the United Kingdom where the […]
Non-State Parties The Constitution binds the State and its various departments, bodies and agencies. Some cases have taken the view that fundamental rights place obligations on private persons as well as the State. In Moyne v. Londonderry Port & Harbour Commissioners, it was stated: “to succeed in a claim that the exercise of a personal right referred to in Article 40.3.1 has been infringed, it […]
Challenging Constitutionality The constitutionality of laws can be challenged by private parties in proceedings. There are two slightly different procedures which apply depending on whether the laws are made prior to or after 1938. In the case of post-1938 legislation, the Supreme Court must deliver a single judgment. There is a special procedure by which the President can refer legislation to the Supreme Court where […]