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 he or she believes it is invalid.  This has happened on a number of occasions with mixed results.  The President has an absolute discretion to refer a Bill.  He must first consult with the Council of State which is a body made up of major officeholders.

The reference is direct to the Supreme Court and Counsel are appointed representing the two opposing arguments.  The Attorney General nominates Counsel supporting the Bill and the Court appoints Counsel against it.

If the Bill is found unconstitutional it has no effect.  A disadvantage and reason why such references are relatively rare is that the Bill can never be challenged after that point.  Where part of the Bill is found unconstitutional the whole Bill falls.  Part of a Bill may be referred.  However, if it is found unconstitutional the whole Bill falls.

Interest / Standing

Generally, only persons having an actual interest in the outcome of a case or personally affected by the legislation may challenge it in a constitutional case.  The rights of third parties cannot be relied on.  The arguments must be made by reference to the actual position of the party making the challenge.

Exceptionally and out of necessity the Courts will relax the requirement that the person must be directly and actually affected by the case.  If this were not allowed certain types of case may never be subject to challenge.

A bona fide interest group may be allowed to challenge the general rights.  Exceptionally a person may take a case if it affects the rights and interests of the public as a whole and no one individually in a position to be affected any more than another.

Immunity from Constitution

Certain provisions cannot be challenged at all.  Emergency legislation made under a declaration of emergency is immune from challenge.  An emergency can only be declared in times of war, armed rebellion or other conflicts.  This may include situations in which the State is not directly participating.

Two successive emergencies existed from September 1939 to 1995.  The first emergency ran until 1976.  This was continued in view of the troubles in Northern Ireland.

Only legislation passed specifically enacting the emergency is immune.  For example, despite the long period of emergency that technically existed until 1995.

Legislation mandated by the membership of the European Union is exempt from constitutional scrutiny.  This arises from special legislation enacted when Ireland joined the EU together with several subsequent referenda.

The Courts decided in 1986 that any significant changes to the original EU treaties themselves required a further amendment.  The consequence was that most of the major treaties amending the European Union Constitution required referenda of the people.

Interpretation of the Constitution I

In common with the 1922 Constitution, the 1937 Constitution gives the High Court and Supreme Court on appeal power to find legislation made by the Oireachtas invalid on the basis that it is unconstitutional.  There have been numerous cases where laws have been found unconstitutional and have been struck down by the Court. This means that the legislation is deemed void and never to have been effective.  This can have the most profound legal consequences.

Precedent (see our separate section on the common law) is less significant in the context of constitutional law.  The interpretation of the Constitution has changed over time in accordance with prevailing notions of prudence justice and charity.  The Supreme Court has decided that in appropriate cases it may overrule its own prior decisions on constitutional matters.

As with legislation, there are a number of different methods which the Courts use to interpret the Constitution.  A literal interpretation involves looking at the plain meaning.  This is often the approach but other approaches are more common.  A broad or purposive interpretation looks at the Constitution in the context of its overall purpose and aims.  In this case, it is the spirit rather than the letter that prevails.  The broad sentiment is more important than the literal words.

Interpretation of the Constitution II

Another approach seeks to interpret the Constitution in a harmonious way so that the parts complemented each other rather than being looked at as a whole.  A hierarchical interpretation ranks rights according to their relative importance.

In some cases more important and fundamental rights such as the right to life take precedence over less important rights.  For example, in one case it was justified to detain a person beyond the legal time where the Garda acted with a view to saving a third party’s life.  Sometimes the historical approach is taken so that the meaning of the provisions at the time the Constitution was adopted is looked at in order to make sense of its provisions.

In some cases, the Courts interpret natural in rights which are presumed to be antecedent to man-made law.  These are often expressed in terms of universal human rights.  These have been justified by reference to the Christian content of the Constitution which is controversial.  In this sense rights are said to be acknowledged.

Presumption of Constitutionality

There is a presumption that laws made after the Constitution commenced are unconstitutional.  This means the burden is on the person alleging that they are unconstitutional to show this.

The presumption arises from the respect the Courts have for the Oireachtas being the other constitutional entity or body or institution.  The presumption of constitutionality does not apply to pre-1937 laws.

It is presumed that cases will be interpreted so that they are unconstitutional.  Therefore broad literal meanings may be narrowed so that they are interpreted in light of the fundamental constitutional rights.

Effect of Invalidity

If any law is found unconstitutional it is null and void.  Strictly where, for example, persons have been imprisoned it is deemed retrospectively unlawful.

In some cases, the finding of constitutionality can have dramatic retrospective effect.  This showed in relation to the unlawful nursing home cases.

However, where the discriminatory treatment of married couples in the tax code was struck down with retrospective effect the Courts decided that the State did not have to repay married couples who had been overtaxed.  It took the view that the State had spent the money in good faith and could not be ordered to repay.  Only those who instituted legal proceedings were entitled to repayment of the surplus money.


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Draft Articles; The articles on this website are in draft form and are subject to further review for typographical errors and, in some cases, updating and correction. It is intended to include references to the sources of materials and acknowledgements in the final version. The content of articles with [EU] in the title and some of the articles in the section on Agriculture are a reproduction of or are based on European or Irish public sector information.

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