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 the putative intention or purpose may more readily be made in case of constitutional interpretation. The Constitution is informed by a wider historical, legal and societal background. Taking account of the political and social conditions is sometimes appropriate.
Presumption of Constitutionality
The deference of the courts to the Oireachtas justifies the presumption of constitutionality. The onus is on the person who claims the unconstitutionality of a legislative provision to show that it is so. The deference of the courts to the elected representatives reflects the fact that they represent the will of the people.
The Oireachtas is allowed a significant margin of appreciation in legislating and providing limits on individual freedoms such as expression, public safety, etc. The courts will avoid considering constitutional principles, if at all possible, in determining a private dispute. If the dispute can be decided on other grounds, there is a very strong tendency to do so.
An important aspect of the deference by the courts and presumption of constitutionality is that a law will be interpreted in such a way as upholds its constitutionality. This is of the utmost practical importance. Principles of constitutional justice and procedure are effectively implied in much legislation involving the dealings of private persons with public authorities.
Even where a provision is found unconstitutional, the court may in some cases be able to sever it. This has the effect that the surrounding and other provisions of the legislation will remain in place. Short of actual severance of words, the Irish courts have been prepared to find legislation to be unconstitutional in part and to be inoperative to that extent only.
Justification for Presumption
The presumption of constitutionality has a number of bases. At the most basic, the onus of proof rests on the person who asserts a proposition in civil proceedings in almost all circumstances.
In the context of constitutionality, at least in the case of post-constitutional laws, the presumption is justified by reference to the provision of the Constitution which requires the Oireachtas to legislate in accordance with the Constitution.
Similarly, the Oireachtas (and also governmental bodies in administrative action) are presumed not to enact and not to intend to enact unconstitutional provisions or act in an unconstitutional manner.
The presumption may be rebutted with reference to constitutional principles as established in case law. Evidence may be offered to show that in its application and effect the legislation breaches the constitutional protection.
Reach Constitutional Issues Last
Where the challenge is based on secondary legislation, typically a statutory instrument, the court may find the secondary legislation to be outside the powers of what is permitted under the primary legislation passed by the Oireachtas. Accordingly, the court interprets the power under primary legislation to be limited by constitutional considerations, so that the secondary legislation may be invalid on the basis of being outside the scope of the primary legislation. Rather than being unconstitutional in itself, this avoids courts striking down primary legislation, and in effect requires the remaking of secondary legislation.
There have been numerous cases where courts have decided constitutional challenges on other grounds. In some cases, the courts have determined matters on constitutional grounds where it could have avoided so doing but where public interest considerations require a determination.
Interpret in Constitutional Way
Where two interpretations are possible, courts will make the interpretation that preserves the constitutionality of the provision, i.e., it will make the interpretation which is consistent with the Constitution and will reject the interpretation inconsistent with the Constitution. If a statute can be reasonably construed so as to comply with the provisions of the Constitution, such construction should usually be placed on it.
Where statutory provisions allow for a discretionary power, those powers should be interpreted in a way that is consistent with the Constitution. In particular, the principles of constitutional justice have been implied into dealings between the State and individuals.
The general principles of interpretation applicable to legislation applies to the interpretation of the Constitution, but with some variation. See generally the sections on legislative interpretation. Unlike the case with deeds, documents and even legislation, Constitutions may evolve over time with reference to the needs, expectations and values of society. For example, the US Bill of Rights is over 230 years old, but has been consistently adopted in modern circumstances, giving rise to sophisticated, modern, fundamental rights.
Common Law Background
The traditional common-law freedoms have sometimes informed constitutional guarantees. This is particularly so in the criminal procedure sphere. Many long-standing freedoms have been interpreted as being implied in general Constitutional wording. This has occurred particularly in relation to offences, whereby a person must not be deprived of his liberty, other than in accordance with law.
In some cases, the very clear literal interpretation of the Constitution may be overridden by a clear common law background which suggests that the literal meaning may not have been intended.
Where there are contradictory provisions or principles in the Constitution, a harmonious interpretation should be given. The interpretation should be consistent with the general scheme of the Constitution.
The courts may look at particular constitutional provisions in a hierarchical sense. Some rights are more fundamental and important than others. Accordingly, giving expression to these rights may require that some rights take precedence over other rights guaranteed by the Constitution.
Irish Language Version
In principle, the Constitution provides that the text in the Irish language takes precedence. However, in practice, almost all cases are heard and judgment is given in English. The primacy of the Irish language does not appear to have been expressly invoked in Constitutional cases.
In some cases, the courts have regard to both the Irish and English wordings in interpreting the Constitution.
Despite the primacy of the Irish language and the fact that the Irish language was not used for the original version of the Constitution, there have been a handful of cases, principally arising from disputes in Gaeltacht areas or involving matters concerning the Irish language, where judgments have been given in Irish. Generally, most judges of the Superior Court have sufficient fluency in the language.
The Intent in 1937
In some cases, reference has been made to the original intention of the people in adopting the Constitution in 1937, in the context of pre-existing laws and norms. In some cases, reference has been made to social norms of the time. While this approach has been taken in some cases, it has largely fallen out of favour.
The courts have more commonly emphasised that the Constitution is a living document and was intended to be interpreted in its modern context. It was not intended to be frozen in 1937.
Irish Free State Constitution
Reference is sometimes made to the Constitution of the Irish Free State and the cases decided about it. Many of the human rights protections and fundamental rights were stated in broadly similar terms in the 1922 Constitution. However, there are relatively few cases under the 1922 Constitution.
Reference has been made, however, to the background of the 1922 Constitution in the context of particular statutes, particularly those relating to the structure of the State and to the general legal scheme. The minority judgment on the famous Burke and Lennon case in the early 1930s was later cited in the 1960s with the commencement of more rigorous constitutional scrutiny in criminal procedure matters.
International Human Rights Instruments
Reference is made on occasion to cases and norms under international human rights documents, including in particular the European Convention on Human Rights and the U.S. Constitution. The Irish courts have emphasised that US precedents may not necessarily be relevant and should not be followed rigidly. However, many basic fundamental principles in the Irish Constitution are reflected in the Bill of Rights and reference has been made to US cases and instances.
On some occasions, reference has been made to other common law courts, in particular, Australian and Canadian cases. Occasional reference has been made to decisions of constitutional courts in continental Europe.