Constitutional Challenge

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. so as to be consistent with the Constitution, in so far as possible. If this is not possible, they may be invalidated. Ultimately, an Act itself may be invalidated if it is inconsistent with the Constitution.

Judicial, quasi-judicial and administrative bodies must give expression to the constitutional rights of the citizen in their acts and determination. The basic principle is that of constitutional justice, which has a strong procedural element. See generally the sections on administrative law, the basic constitutional due process/fair hearing and rights which apply to citizens in their dealing with the State.

The European Convention on Human Rights legislation does not allow for the direct invalidation of domestic legislation. A declaration of incompatibility may be made. In the case of the Constitution, there is direct power and jurisdiction for the High Court and Supreme Court on appeal to find laws inconsistent with the Constitution and accordingly, invalid.

Judicial Review of Laws

Article 34.3 allows the High Court to declare a law that contravenes the Constitution to be invalid. Constitutional litigation commonly seeks a declaration of invalidity. Article 34.3.1 empowers the High Court to declare post-1937 legislation unconstitutional. Article 34.3.1? empowers the High Court to hold that pre-1938 legislation has not been carried over by the Constitution.

There is a special procedure in Article 40.4 for challenging the legality of a deprivation of liberty. Apart from these specific instances, the courts may use the general remedies available in private and public law in cases based on alleged breach of constitutional rights. These include a declaration of invalidity, compensation, injunction or damages, including exemplary damages.

It is a basic principle of law that where there is a right, there is a remedy. In the case of constitutional rights, the courts will ensure that the rights are vindicated and given expression. Courts have jurisdiction and a positive duty to protect persons against the invasion of their constitutional rights.

They are obliged, if invasion has occurred, to restore in so far as possible the person so damaged to the position in which he would have been, but for the invasion. They are to ensure that persons acting on behalf of the executive, who consciously and deliberately violate the constitutional rights of citizens, do not for themselves or their superiors obtain the planned results of that invasion.

[Standing]

 

Exceptions to Standing Requirement

There are exceptions to the general principle requiring standing. Where legislation is directed at or operable against a grouping which includes the person who takes the challenge or with whom the person who takes the challenge has a common interest and it is difficult to separate persons affected and those not affected, a challenge may be allowed.

A case by which the electoral boundaries were challenged was allowed to proceed notwithstanding that the individual was not registered to vote in Dáil elections. The High Court has held that members of Dáil Eireann only may challenge action based on the requirement of the Constitution for public expenditure be approved by the Dáil.

A so-called relator action is a common law procedure by which an individual citizen may call on the Attorney General to take action to have a breach of statutory duty that contravenes a public right such as to cause loss or damage to another. The Attorney General may permit the individual to proceed in the name of the Attorney General at the so-called relator of the Attorney General.

A person may take action where his rights are imminently threatened. Accordingly, an injunction may be sought against proposed steps to be taken by an administrative body that are in breach of constitutional rights.

Hypothetical and Moot Points

A similar concept to that of standing is the limitation that may be imposed in arguing breach of constitutional rights with a reference to a hypothetical third party. Accordingly, the particular impact of the impugned legislation may impact on a hypothetical person, while only impacting the challenger in a more limited way.

The Supreme Court has, as a general principle, refused arguments based on the claims of a hypothetical third party, on much the same basis as the principle of standing. However, there are limits to the principle and there is support for the proposition that at least to some extent hypothetical arguments may be made with respect to hypothetical situations similar to or exceptionally similar to that of the challenger/claimant.

A claim may not be allowed to proceed if it is premature. This concept applies generally in law. There must be something sufficiently tangible and ripe for resolution. A determination of fact that a person might be hypothetically affected in the future is not sufficient. However, if a threat is imminent, a challenge is likely to be permitted.

The courts will not allow the State to escape challenges based on the constitutionality of actions or act on the basis that they are not enforced and that accordingly, the claim is hypothetical to this extent. Otherwise, the legislature could escape constitutional scrutiny.

An issue is moot when it is either resolved or otherwise no longer relevant. For example, where a party who challenges his detention is released, habeas corpus proceedings would be moved.

Exceptions to Hypothetical/Moot

As with standing and ripeness, there are exceptions whereby the courts will consider constitutional questions, notwithstanding that they may have become moot. Where the matter may have reverberations or collateral effects, such as in the case of a conviction, a challenge may be permitted notwithstanding that the person has completed his sentence of imprisonment or paid the requisite fine.

Similarly, where the State has detained persons and released them, the courts may determine that there is a public interest that the matter be nonetheless adjudicated and resolved.

In the case where the State enacted a number of temporary measures which expired before the challenge could be taken, the courts permitted a challenge on the basis that to deny it would permit the State to avoid scrutiny by enacting and reenacting provisions in similar terms.

Time Limits

In strict terms, where judicial review relief is sought, the time limits and promptness requirements applicable must be observed notwithstanding that constitutionality is challenged. Similarly, in claims for damages or an injunction based on breach of constitutional rights, the courts apply the statute of limitations periods by way of analogy in respect of Constitution-based claims.

To do otherwise would mean that many common law rights, which in effect give expression to the constitutional right, which have limitation periods, could be circumvented by recasting the claims in terms of breach of constitutional rights.

Accordingly, for example, a person who claims breach of his right to a good name must use the law of defamation to give expression to his constitutional right to his good name, subject as it is, to the Statute of Limitation periods, including, in particular, the short Statute of Limitation periods enacted in 2009.

Retroactivity of Finding

In the case of A v Governor of Arbour Hill, a person had been convicted of an offence that was declared unconstitutional. Notwithstanding the general principle that unconstitutionality is retrospective, the courts held that conviction should stand (for a very serious offence) notwithstanding the declaration.

In certain types of cases, the effect of full retroactivity would become impractical and lead to grave consequences. Accordingly, in challenges to general election spending, referenda and taxation, the courts have balked at giving retroactive effect across the legal system to the consequences of the finding.

Severance

The courts may be in a position to sever laws that have been found to be invalid under the Constitution. In accordance with general principles, this may only be done where the balance of the legislation may stand to represent what the Oireachtas could or should have meant. If it leads to a different meaning than that which had been intended, the entire section will be impugned.

The Constitution provides that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution and any provision thereof, shall to the extent only of such repugnancy, be invalid. There is a presumption that a statute or statutory instrument is intended to be constitutionally operative only in its entirety.

This presumption may be rebutted if it can be shown that after the impugned part has been held unconstitutional, the remainder may be held to stand independently and legally operative as representing the will of the legislature.

Effect and Remedy

The effect of a finding of unconstitutionality or unconstitutional action will generally be that the action is legally invalidated. In the case of criminal procedure and challenges on the basis of unlawful detention, it will require termination of detention.

An injunction may be issued in certain circumstances. General equitable procedures and principles apply. See generally the section on injunctions. Breach of an injunction constitutes contempt of court and may be enforced by attachment.

An interlocutory injunction may be issued at a preliminary stage in proceedings. The general principles of interlocutory injunctions apply. Injunctions will be granted readily.

A mandatory or long-term injunction may be sought in proceedings either restraining or compelling the State body to do or to refrain from doing something. An injunction is less necessary in the case of State action, as a declaration of the legal position is usually acknowledged and accepted by State entities.

Limits to Remedies and Separation of Powers

In other jurisdictions, most notably in the United States pursuant to anti-segregation orders, courts granted extensive jurisdictions requiring States to give effect to programmes to eliminate discrimination. There has been some indication in the Irish courts that orders or injunctions might be granted to compel compliance with constitutional requirements.

However, the Supreme Court has rejected this approach and has indicated that such orders should not be granted as it breaches the separation of powers. The approach has been justified by the separation of deference and a presumption that the State will follow the law.

Several cases have involved children with educational needs or other needs of care. There were failures to provide adequate facilities in the context of the right to primary education. Nonetheless, the courts have indicated that they will not shirk from compelling the Executive to fulfill its duties.

The Supreme Court has held that orders directly compelling the State to take specific action are not appropriate and that it is essentially a matter for the State to delimit how social problems should be dealt with. The Irish courts have been reluctant to come into conflict with political governance.

Damages

An award of damages may be made for breach of constitutional rights. An award of exemplary or punitive damages may be made where the State takes action which interferes with a person’s bodily integrity, property, reputation, earning, right to a livelihood, or liberty. The primary remedy will be under the appropriate law of contract, equity, etc. Where the right falls outside conventional common law rights, the court may nonetheless grant a remedy.

Breaches of many constitutional rights will not ordinarily lead to a right of damages. For the most part, the areas in which compensation may be awarded are those covered by traditional common law principles, or closely analogous principles, in protecting key rights of liberty, property, reputation, livelihood, etc. There is unlikely to be a right of damages for breach of general civil rights, save in the context of an actual impact on the claimant in the above sense.

Courts have been willing to grant awards of damages for breach of Constitutional rights in some cases, notwithstanding that they might be covered by other ordinary actions. These have included an award of damages in the context of breach of privacy in the case of phone tapping, maintenance of a closed shop arrangement by a public authority and breach of rights to primary education due to boycott.

Where unconstitutional legislation or action breaches a person’s private law rights, such as those to property, compensation may be awarded. It remains unclear whether an action for damages lies due to the failure of the Oireachtas to legislate for personal rights or whether it may be awarded for actions on foot of invalid legislation. There are a number of instances where awards of damages have been made in respect of interference with specific rights such as property rights occasioned by legislation that was found to be unconstitutional.