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 have legislated in accordance with the Constitution. Generally, courts do not wish to strike down legislation readily, given its disruptive effect on the executive

The Oireachtas should be allowed a margin of appreciation as the representative of the people. This is particularly so in relation to commercial, social and economic matters.

Decide on Other Grounds

Where it is possible to determine a matter on non-constitutional grounds, the courts will seek to do so. This approach is reflected in the notion of reaching constitutional issues last. The courts will decide on questions other than on constitutional grounds, if possible.

If the question involves the validity of a statute or a section,  it should be postponed until consideration has been given to any other question of law, the resolution of which could determine the issues between the parties. There have been numerous such instances, where courts have employed this principle. If a decision on such question does determine such issues, then in principle, it is not necessary for the court to address the constitutional issues.

Where a challenge is made to the validity of secondary legislation, statutory instruments made under primary legislation/statutes, then the courts may find that the regulations are outside the powers of the act on the basis of the presumption of the Act’s constitutionality.

Sometimes the courts express a view on constitutionality, where it is not essential to the case. This may be done as a matter in terms of general public interest on the question of law concerned. There have been other instances where the courts have determined issues of constitutionality notwithstanding that they could have decided on other grounds.

The double construction principle is another aspect of the presumption of constitutionality. Where two interpretations are possible, the interpretation of the statute that is consistent with the Constitution will be upheld.

Where a statute confers discretion, the courts may restrict the exercise of the discretion so as to conform with the Constitution. In particular, the courts have usually read in the requirements of constitutional justice and fair procedures into the exercise of statutory powers and discretion.

Pre-1938 Statutes

The courts have indicated on a number of occasions that pre-1938 statutes do not enjoy the presumption of constitutionality. It is arguable in respect of laws passed by the Irish Free State Oireachtas that they intended to comply with the 1922 Constitution.

Many of the protections were in similar terms to those in the 1937 Constitution,. A number of cases indicate that where practical to do so, deference or the benefit of the doubt should be accorded to pre-1938 law.

Literal Meanings

Constitutions are said to be living documents. Accordingly, interpretations in other areas do not carry the same weight as may apply to the interpretation of a statute. Fundamental rights evolve in line with society and changing value.

As with statutes, many of the same dilemmas apply in the interpretation of the Constitution, as apply to a statute. There may be conflicts between the literal meaning and a harmonious contextual meaning. In a case involving DPP, People (DPP) O’Shea, the question whether the literal words of the Constitution allowing appeal to the Supreme Court against all decisions of the High Court overruled the traditional principle against double jeopardy.

Some judges held that it must be given its literal meaning. Other dissenting judges held that that the Constitution should be interpreted, not that this provision should not be interpreted in a literal manner but as a component in an ensample of interconnected and interacting provisions which must be brought into play as part of a larger composition and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulations.No single constitutional provision, particularly one designed to safeguard personal liberty or social order may be isolated and construed with undeviating literalness.

Harmonious Interpretation

Where provisions of the Constitution are apparently inconsistent, they should be given an integrated, harmonious interpretation in accordance with the general constitutional order.

Although, court should seek to a harmonious interpretation, some rights are patently are more important than another. This is referred to as so-called hierarchy of norms. This would apply both to expressed and enumerated and unenumerated rights. Where one important right such as the right to life may take precedence over rights, less critical rights, in particular context.

In (DPP) People v Shaw, it was stated that when a conflict of constitutional rights arises, it must be resolved by having regard to the terms of the constitution. The ethical values which all Christians living in the State acknowledge and accept and the main tenants of our system of constitutional parliamentary democracy.

The Irish text is to take precedence. However, in practice, they seek to reconcile both versions insofar as the issue arises at all. It has been stated that it is not be thought that those who framed the Constitution would knowingly do anything so absurd as to frame or enact text with different meanings in different parts.

Accordingly, courts will seek to reconcile apparent inconsistencies.

Works on Origin of Constitution

It is not yet clear to what extent proprietary works on the Constitution may be taken into account. The Supreme Court has averted to Attorney General’s memos in the interpretation, deciding how separation in legislative and executive powers should be applied in the context of delegated legislation, Galan v Labour Court.

There are two very substantial publications available on the origin of the Constitution. Hogan, ‘The Origins of the Irish Constitution’ 1928 to 1942 and Keogh and McCarthy, ‘The Making of the Irish Constitution’.

The courts have had regard to the intent of the Constitution as originally enacted in its 1937 context in a number of instances. For example, references have been made in support of the arguments from time to time by the courts to state of affairs and criminal procedure that existed in 1937.

This justifies interpretation to the effect that it would have been unlikely that a meaning radically inconsistent with the 1937 legal setting was intended.

A living Evolving Document

On the other hand, the courts have in social matters, courts have explicitly rejected reliance on public opinion in 1937. In McGee v Attorney General, Walsh J stated that from time-to-time, the prevailing ideas of justice — of prudence, justice and charity may be conditioned by the passage of time.

No interpretation of the Constitution is intended to be final for all time. Other courts have strongly denied that the Constitution freezes the mores of society in 1937. Courts have referred to constitutions of other States, in particular, the U.S. Constitution from time to time. Because of the significant differences, textual differences, US cases are unlikely to be followed directly. However, given the common, common law background, similarity of some of the protections in broad terms, if not in detail, regard may be had to US case law in interpreting, the US Supreme Court decisions in interpreting the Constitution.

International Legal Instruments

Courts on rare occasioned have looked at Continental European decisions of Superior Court. It cannot be expected that given the human rights jurisdiction of the UK Supreme Court that its decisions may be considered, in some contexts, constitutional interpretation.

Decisions of the European Court of Human Rights are persuasive authority in the analysis of constitutional rights. In AO & DL v Minister for Justice, Fennely J said that it was not valid to deduce from the fact of compatibility with the European Convention that an impugned act complied with the constitution. It may conversely be possible to argue persuasively that the act, which satisfied the minimum standards of European Convention, should not likely be considered compatible with the more rigorous demands of the Constitution.

Under EU law, courts may refer issues of interpretation of EU law to the European courts by way of preliminary reference. EU law takes precedence over inconsistent domestic law in accordance with principles of EU law itself. See sections on EU law.

Article 29.4 provides that the EU Treaties and  legislation adopted under them or measures to which the State is obliged to adopt because of EU membership, may not be declared unconstitutional.


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