Irish & Constitution

Cases

MacCarthaigh v. Éire

[1998] IESC 11; [1999] 1 IR 186 (15th July, 1998)

Breithiúnas a thus an Príomh-Bhreitheamh Ó h-Aimiltín, an 15ú lá d’Iúil 1998. [Nem. Diss.]

Acomharc é seo atá á dhéanamh ag an t-Iarratasóir/Acomharcóir Ruairí Mac Carthaigh i gcoinne Ordú na h-Ard Cúirte, 14/09/1994, ag diúltiú (agus costasaí dá gearradh air comh maith) don t-Iarratasóir iarratas athbhreithnithe a dhéanamh ar mhaithe leis na faoisimh seo a leanas, sé sin:

(2)

1. Ordú choisc ag fógairt don Freagróir triú-luaite gan dul ar aghaidh le h-aon triail don Iarratasóir ach amháin os comhair giúire atá ar a gcumas Gaeilge a thuiscint gan cabhair ath-teangaire;

2. Ordú mandamus ag fógairt don Freagróir triú-luaite giúire feidhmiúil a thionól maidir le riachtanasaí triail de réir cirt a bheith ag an t-Iarratasóir in-luaite;

3. Dearbhú chomh maith nó ina ionad sin go bhfuil an Iarratasóir dteideal giúire nach bhfuil baill éagcumasacha páirteach ann de réir forálacha Acht na Giúirithe, 1976.

Cúisiodh an Iarratasóir i dteannta duine eile agus cuireadh ina leith:-

1. Go rinne sé, ar an 28ú 1á Bealtaine, 1990, ag Bóthar Suardais, Corballis, Iaistigh de Dhúiche Chathrach Atha Cliath, meascán seaclaidí agus milseogra go raibh luach iomlán £11,252.50 orthu a goid, contrartha d’alt 23 den Larceny Act, 1916, mar leasaíodh ag an Acht urn Dlí Coirúil (Dlinse), 1976;

2. Go rinne sé, ar an 1á in-luaite, le bagairt foirnirt, feithicil a ghabháil go neamhdleathach, contrartha d’alt 10 den Acht urn Dlí Coiriúil (Dlinse), 1976;

3. Go rinne sé, ar an 1á in-luaite, ag 5 Lána Henrietta, Baile Atha Cliath, in nDúiche Chathrach Átha Cliath, meascán seaclaidáí, milseáin agus

(3)

milseogra, maoin John Nelson, go raibh luach iomlán £11,252.50 orthu, a ghlacadh agus fios aige gur maoin goidte a bhi iontu, contrartha d’alt 33(1) den Larceny Act, 1916

Tá sé socraithe go dtrialfar an Iarratasóir ar na cúiseanna sin os comhair breitheamh den Chúirt Chuarda agus giúiré, ach caithfear an triail a chur ar ath-1ó go dti go dtabharfaí breith ar an acomharc seo a leanas.

Tógadh an t-Iarratasóir i mBaile Átha Cliath, agus dearbhaíonn sé gur tógadh le Gaeilge é. Dá bhrí sin b’fhearr leis a chás féin a phlé tri Gaeilge. Mothaíonn sé nach mbeadh an éifeacht céanna le h-aon rud a deireadh sé féin, nó a deireadh dliodóir ar a shon, mura mbeadh cruinn-eolas na Gaeilge ag gach ball den giúire. Aighníonn an tIarratasóir go ndéanfar sarú ar a chearta bhunreachtúla, mura roghnófar giúire a mbeidh an Ghaeilge go líofa acu, gur féidir leo gach rud a bheas ráite in nGaeilge le linn na trialach a thuiscint, gan cabhair ateangaire.

Seo iad forálacha na Bunreachta a bhaineann leis an acomharc seo:

(4)

Airteagal 8.

1. Os í an Ghaeilge an teanga náisiúnta is i an phriomhtheanga oifigiúil í.

2. Glactar leis an Sacs-Bhéarla mar theanga oifigiúil eile.

3. Ach féadfar socrú a dhéanamh le dlí d’fhonn ceachtar den dá theanga sin a bheith ma haonteanga le haghaidh aon ghnó nó gnóthaí oifigiúla ar fud an Stáit ar fad nó in aon chuid de.

Airteagal 38

1. Ní cead aon duine a thriail in aon chúis choiriúil ach mar is cuí de réir dlí.

2. …

3. …

4. …

5. Ní cead duine a thriail in aon chúis choiriúil ach i láthair choiste tiomanta, ach amháin i gcás cionta a thriail faoi alt 2, alt 3 nó alt 4 den Airteagal seo.

Ins an Ard-Chúirt, rinne an Breitheamh Ó hAnluain coimriú ar chásanna ina raibh ceisteanna cosúla á chur phlé trí chéile – ó Éireann, ó Cheanada agus ó na Stáit Aontaithe. D’admhaigh sé go raibh céim speisialta ag baint leis an

(5)

Ghaeilge mar phríomh-theanga, agus go raibh sé de chomhacht ag an Iarratasóir a chosaint a dhéanamh trí Ghaeilge más mian leis. Ach ó thaobh roghnú an ghiúiré de, bhí bun-phrionsabal ag obair narbh fhéidir a chur ar leataobh, sé sin:-

“Ba chóir go bhfeadfaí a rá i dtaobh giúiré ar bith i ngach cás coiriúil go seasann siad do ghach aicme den phobal sa cheantar ma bhfuil an chúis le héisteacht.”

Tá a thios ag an saol nach bhfuil morán daoine in Éireann faoi láthair gur féidir leo cúrsaí dlí a thuiscint as Gaeilge gan cabhair ateangaire. Tar éis staitistic a luadh ón daonáirearnh ón mbliain 1986, dúirt an Breitheamh Ó hAnluain:-

“Fagann san, dá mbeifí ag tabhairt faoi rolla giúire do chur le chéile agus gan éinne ar an rolla ach daoine go raibh eolas maith acu ar an dteangain labhartha, go gaithfí 75% ar a laghad de phobal Chathair Átha Cliath d’fhágáil ar leataobh ó thús, agus táim den bharúil go mbeadh an figiúr níos comhgaraí do 90% nó os a chionn nuair a bhiefi ag plé le daoine a bheadh ag dul i ngleic le ceisteanna casta san dlí choiriúil do phlé is do thuiscint.”

(6)

De réir an breitheamh Ó hAnluain, dá ngéillfeá d’éileamh an Iarratasóra, ní bheadh formhór muintir na hÉireann in ann freastal ar giúiré i gcás mar sin; agus bheadh sé sin contrartha don chiall a bhain an Cúirt Uachtarach as Airteagal 38.5 den Bhunreacht i gcás de Béirca v. Attorney General [197ó] IR 38. Luaigh sé sliocht ó bhreithúThas an Breitheamh 0 Griofa sa chás sin:-

“Therefore, in my opinion, the jury should be a body which is truly representative, and a fair cross-section of the community. This is widely recognised and accepted in many jurisdictions and, in particular, in the United States, where, by reason of the diversity of the ethnic groups in the population, the question has been considered frequently by the Supreme Court in that country. I would adopt what was stated by the Supreme Court of the United States in Thiel v. Southern Pacific Company : –

‘Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case…. The broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility.

(7)

Séard a bhí i gceist i De Búrca ná Acht na nGiúrithe, 1927. D’ordaigh alt 2 den acht go mbeadh cáilíocht rátúcháin iosmhóideadh choisteoirí i ngach giúiré-dhúthaigh. De réir ailt 5 agus 16, ní bheadh mná in ann fónamh mar choisteoirí ach amháin ar a iarraidh sin dóibh. Bhí an Acht céanna á phlé i gcás The State (Byrne) v. Frawley [1978] IR 326

In a bhreithiunas dúirt an Breitheamh Ó hInnse ag paiste 347 agus 348:-

“The gravimen of the complaint made in the de Burca case against such jury lists was not that the system was unfair to those who, although eligible were excluded (for no excluded person has come ever come forward to complain) that his or her exclusion was unconstitutional but that such jury lists were so artificially shrunken and selective that an accused person was denied the representative jury source which is vital for the jury guaranteed by s.5 ofArticle 38 of the Constitution. The extent to which juries drawn from those lists were incapable of presenting a genuine reflection of community values and standards is shown when it is pointed out that the combined effect of the rating qualification and the exclusion of women meant that some 80% of the adult citizens in a jury district were shut out from jury service. The proposition that juries drawn from the remaining 20% were valid because no ineligible persons served on them I find no more supportable

(8)

than a proposition that an election would be valid when 80% of those who should have had an opportunity of voting were barred from the polls

For that conclusion I would respectfully adopt (in addition to the reasons I gave in my judgment in the de Burca case) the reasoning of the United States Supreme Court in Taylor v. Louisiana (1975) 419 US. 522 where that court, in condemning as unconstitutional a jury system which resulted in the exclusion of women jurors, said at p.530 of the report.

In a bhreithiúnas léigh an Breitheamh Ó hInnse an páirt so den bhreithiúnas:-

“We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power to make available the common sense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana at 155-156 This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive

(9)

groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.”

Aontaíonn an Chúirt seo leis sin, agus leis an méid a bhi le rá ag an mBreitheamh Ó hAnluain sa chás seo. Cinnte tá deacrachtaí ag baint le ateangaireacht – deacrachtai a luaigh Michael Shulman san Vanderbilt Law Review (1993) vol. 46, p175 at 177 mar seo:-

“When a defendant testifies in a criminal case his testimony is critically important to the jury ‘s determination of his guilt or innocence. The first noticeable difficulty in the present system of court interpretation is that non-English speaking defendants are not judged on their own words. The words attributed to the defendant are those of the interpreter. No matter how accurate the interpretation is, the words are not the defendant ‘s, nor is the style, the syntax, or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of

(10)

being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony. While juries should not attribute to the defendant the exact wording of the interpretation and the emotion expressed by the interpreter, they typically do just that…. Given that juries often determine the defendant’s guilt or innocence based on small nuances of language or slight variations in emotion, how can it be fair for the defendant to be judged on the words chosen and the emotion expressed by the interpreter?”

Tá sé sin fíor go leor, ach caithfear a rá, in Eireann faoi láthair, nach bhfuil réiteach níos fearr ann. Dá mbeadh ar gach ball den ghiúire bheith in ann cúrsai dlí a thuiscint as Gaeilge gan cabhair ateangaire, chuirfí formhór de mhuintir na hÉireann ar leataobh. Dhéanadh sé sin sarú ar Airteagal 38.5 den Bhunreacht, mar a mhinigh an Chúirt Uachtarach é i gcás de Búrca v. Attorney General agus The State (Byrne) v. Frawley .

Ar an ábhar sin, dúiltaíonn an Chúirt don acomharc seo.

 

O’Beoláin v. Fahy [2001] IESC 37; [2001] 2 IR 279 (4th April, 2001)
AN CHÚIRT UACHTARACH

ATHBHREITHNIÚ BREITHIÚNACH

Uimh. 230/99

McGuinness B.
Hardiman B.
Geoghegan B.

IDIR:

SÉAMUS Ó BEOLÁIN

IARRATASÓIR/
ACHOMHARCACH
AGUS

BREITHEAMH NA CÚIRTE DÚICHE MARY FAHY,
STIÚRTHÓIR NA nIONCHÚISEAMH POIBLÍ,
AN tAIRE DLÍ AGUS CIRT, ÉIRE AGUS AN tÁRD AIGHNE

FREAGRÓIRÍ

[Judgments by McGuinness J. (primary judgment in Irish; secondary judgment in English); Hardiman J. (primary judgment in Irish – not currently available here; secondary judgment in English); Geoghegan J. (primary judgment in English; secondary judgment in Irish – not currently available here).]

Breithiúnas a thug an Breitheamh McGuinness ar an 4ú Aibreán 2001

1. Seo achomharc ó bhreithiúnas agus órdú na hÁrd Chúirte (Laffoy B.) inar dhiúltaigh an Breitheamh léannta iarratas an Iarratasóra/Achomharcach Órdaithe Thoirmisc agus Órdaithe Dearbhaithe tré Athbhreithniú Breithiunach. Tá sé de bhuntáiste agam breithiúnais Hardiman B agus Geoghegan B. a léamh sul ar scríobhas an breithiúnas seo.

 

 

CÚLRA
2. Tá fíricí an ábhair seo agus stair na n-imeachtaí leagtha amach go coimsitheach i mbreithiúnas Hardiman B. agus ní gá dom-sa iad a athrá arís go mion annseo.

3. Go h-achomair, tháinig an tIarratasóir/Achomharcach ós comhair na Cúirte Dúiche ar an 18 Meán Fomhair 1997 agus e cúisithe maidir le cionta i gcoinne Alt 49(3) agus (6)(a) den Acht um Thrácht ar Bhóithre 1961, arna chur isteach ag Alt 10 den Acht um Thrácht ar Bhóithre 1994. Is cainteoir Gaeilge é an tIarratasóir ar seirbheáladh toghairm air ins an teanga Gaeilge agus a phlé i nGaeilge leis na Gárdaí Síochána i gcónaí maidir leis an ábhar seo. Chuir sé in iúl don Chúirt gur mhian leis e féin a chosaint i nGaeilge agus gur mhian leis go seirbheálfaí na cáipéisí cui air i nGaeilge. D’iarr sé go háirithe leagain Ghaeilge den Acht um Thrácht ar Bhóithre 1994, an tAcht um Thrácht ar Bhóithre 1995, agus Rialacha na Cúirte Dúiche 1997. Ní raibh ceachtar den dá Acht de chuid an Oireachtais ná na Rialacha le fáil i nGaeilge.

4. Dá bhárr seo cuireadh an cás ins an gCúirt Dúiche siar ó am go h-am chun deis a thabhairt do údaráis an Stáit na cáipéisí a chur ar fáil agus le na chintiú go mbeadh Breitheamh ag a raibh labhairt na Gaeilge ar fáil leis an gcúis a éisteacht. Bhí an cás liostaithe ós comhair an Chéad Fhreagróir ar an 13 Feabhra 1998. Um a dtaca sin bhí “dréacht” nó aistriúchán neamh-oifigiúil de na hAchtanna um Thrácht ar Bhóithre 1994 agus 1995 tugtha don Iarratasóir, ach ní raibh aon aistriúchán de Rialacha na Cúirte Dúiche curtha ar fáil.

5. Ar an 13 Feabhra 1998 rinne an tIarratasóir tríd a abhcóide iarratas ar an bhFreagróir céad luaite órdú a thabhairt don Fhreagróir dara luaite na cáipéisí cui a chur ar fáil. Dhiúltaigh an Breitheamh Dúiche léannta don iarratas seo.

6. D’eisigh an tIarratasóir ansin na h-imeachta athbhreithniú breithiúnach seo. Ar an 19 Marta 1998 thug an Árd Chúirt (Smyth B.) cead athbhreithniú breithiúnach a eisiúint ar lorg na bhfaoisimh seo leanas:

“(a) Órdú Thoirmisc ag cur bac ar na Freagróirí a ainmnítear sa chéad agus sa dara áit ins na h-imeachtaí seo dul ar aghaidh, éisteacht a thabhairt nó breith a thabhairt san ábhar 03942297 go dtí go mbeidh tiontú oifigiúil na Road Traffic Act 1994 agus Road Traffic Act 1995 ar fáil don Iarratasóir;
(b) Órdú Thoirmisc ag cur bac ar na Freagróirí a ainmnítear sa chéad agus sa dara áit ins na h-imeachtaí seo dul ar aghaidh, éisteacht a thabhairt nó breith a thabhairt san ábhar 03942297 go dtí go mbeidh tiontú oifigiúil na Rules of the District Court (Ionstraim Reachtúla Uimhir 93/1997) ar fáil don Iarratasóir;
(c) Dearbhú go bhfuil dualgas bunreachtúil ar na Freagróirí a ainmnítear sa tríú agus sa ceathrú áit ins na h-imeachtaí seo tiontú oifigiúil den Road Traffic Act 1994 a chur ar fáil sa phríomh-teanga oifigiúil don phobal fré chéile, ar a n-áirítear an tIarratasóir.
(d) Dearbhú go bhfuil dualgas bunreachtúil ar na Freagróirí a ainmnítear sa tríú agus sa ceathrú áit ins na h-imeachtaí seo tiontú oifigiúil den Road Traffic Act 1995 a chur ar fáil sa phríomh-teanga oifigiúil don phobal fré chéile, ar a n-áirítear an tIarratasóir;
(e) Dearbhú go bhfuil dualgas bunreachtúil ar na Freagróirí a ainmnítear sa tríú agus sa ceathrú áit ins na imeachtaí seo tiontú oifigiúil Achtanna an Oireachtais a chur ar fáil don phobal sa phríomh-teanga oifigiúil nuair a chuireann an tUachtarán a lámh le téacs Bille sa dara teanga oifigiúil agus
(f) Dearbhú go bhfuil dualgas bunreachtúil ar na Freagróirí a ainmnítear sa tríú agus sa ceathrú ait ins na h-imeachtaí seo tiontú oifigiúil Ionstraim Reachtúil Uimh 93/97 a chur ar fáil sa phríomh-teanga oifigiúil don pobal fré chéile, ar a n-áirítear an tIarratasóir.”

7. Teaspáineann na mionnscríbhinni forais atá comhadaithe ins na h-imeachta iarrachta attornae an Iarratasóra na cáipéisí a h-iarradh a fháil, agus na freagraí a fritheadh ó áisínteachta éagsúla an Stáit. Tá sé soiléar on gcomhfhreagras a teaspáineadh gur éiríodh as an gcleachtadh uathoibritheach aistriúcháin oifigiúla Gaeilge ar gach Acht de chuid an Oireachtais a chur ar fáil thart ar an mbliain 1980. Is é imleabhar 1980 de na Reachta an ceann deireadh a foillsíodh in Gaeilge agus i mBéarla. Is cosúil an cleachtadh atá anois i bhfeidhm a bheith bunaithe ar Chiorclán den dáta 23 Feabhra 1998 atá luaite ag attornae an Iarratasóra ins an mionnscríbhinn a mionnaíodh ar an 18 Márta 1999. Sheol príomh-aistritheoir Rannóg an Aistriúcháin de chuid Tithe an Oireachtais an ciorclán chuig gach Roinn Rialtais. Séard atá sa Chiorclán ná ráiteas nach n-aistreofar aon Ionstraim Reachtúil go Gaeilge de bharr ganntanas fóirne agus brú oibre muna gcuirfí teastas sainiúil ar fáil a déarfadh go raibh riachtanas trom nó gá phráinneach le aistriúchán Gaeilge de Ionstraim Reachtúil sainiúil agus sin sínithe ag oifigeach nach ísle a ghrád na Leas-Rúnaí Roinne.

8. Níor teaspáineadh an ciorclán seo leis an mionnscríbhinn ach in argúintí os comhair na Cúirte seo níor séanadh gur mar seo atá cúrsaí. Níor cuireadh aon fhianaise ós comhair na hÁrd Chúirte nó na Cúirte seo a thiúrfadh le fios gur eisíodh aon teastas den tsórt fós maidir le Rialacha na Cúirte Dúiche 1997. I mionscríbhinn freagrach thar cheann na bhFreagróirí dearbhaíonn an Ceannfort William Collins de chuid An Roinn Tráchta, Caisleán Bhaile Átha Cliath, go bhfuill fáisnéis aige ó Tony Fagan de chuid Oifig an Phríomh Attornae Stáit

“that he had made enquiries as to when an official translation will be available
of the District Court Rules 1997. I am informed by him that his researches to date
indicate that it is the intention of the Department of Justice, Equality and Law
Reform to provide such a translation however there is at present no date fixed for
the production of same. I understand that there is a considerable body of both
primary legislation and Statutory Instruments which has not yet been translated.
I am advised that it is the intention of the Secretariat of the Houses of the
Oireachtas and indeed the Minister for Justice, Equality and Law Reform that
Acts of the Oireachtas and Statutory Instruments be available in both the language
in which they were enacted (in the case of theDistrict Court Rules, English) and
in Irish or English as the case may be, as soon as circumstances permit.”

9. Más fíor, mar is cosúil é a bheith, nach bhfuil aon teastas práinne eisithe fós, ní léir gur móide ar bith é go gcuirfear aistriúchán de Rialacha na Cúirte Dúiche ar fáil aon am gur féidir anois sin a mheas.

Socrú na hÁrd Chúirte
10. Tháinig athbhreithniú breithiúnach an Iarratasóra chun éisteachta ós comhair na hÁrd Chúirte (Laffoy B.). Thug an breitheamh léannta a breithiúnas forcoimeádta ar an 17 Meitheamh 1999. Ar an dáta sin dhein sí ordu ag diúltú an faoiseamh a bhí an tIarratasóir ag lorg. Ina breithiúnas thug Laffoy B. suntas do gur ghlac na Freagróirí go raibh dualgas ar an Stát tiontú oifigiúil de gach Acht den Oireachtas a chur amach (leathanach 4). Chuir sí ar shúile freisin nach raibh sé soiléar cioca ar admhaigh na Freagróirí nó nár admhaigh go raibh siad faoin oibleagáid chéanna maidir le Rialacha na Cúirte Dúiche 1997. Chuir na Freagróirí in iúl, áfach, don bhreitheamh léannta Árd Chúirte go raibh sé ar intinn acu aistriúchán oifigiúil de na Rialacha 1997 a chur ar fáil “as soon as possible” . Ina breithiúnas thagair Laffoy B. do bhreithiúnas Ó hAnluain B. i gcúis Delap v. An tAire Dlí agus Cirt agus Daoine Eile [1980 – 1998] Tuairiscí Speisialta 46 . Sa chás sin rinne an tIarratasóir, attornae a bhaineadh leas as an nGaeilge ina chleachtadh dlí, gearán nach raibh aistriúchán oifigiúil de Rialacha na nUaschúirteanna 1986 ar fáil. Ina bhreithiúnas bhreathnaigh Ó hAnluain B. ar na cuntair ins an mBunreacht a bhain leis an teanga Ghaeilge agus chinn sé mar seo leanas (leathanach 50 den Tuairisc):

“Sa chás so, áfach, ní dóigh liom gur ghá don Iarratasóir dul i muinín forálacha Ailt 8 den mBunreacht. Glacaim leis go raibh comhacht ag an gCoiste a cheapadh fé fhorálacha na nAchtanna Cúirteanna Breithiúnais, i dteannta an Aire Dlí agus Cirt, Rialacha a dhéanamh fés na hAchtanna san i mBéarla amháin (fé mar tharla) agus nach raibh aon sárú ar Alt 8 den mBunreacht i gceist nuair dhein a Coiste agus an tAire rogha de cheann amháin des na teangacha oifigiúla, chun na Rialacha (agus na Foirmeacha a ghabhann leo) a dhéanamh, gan iad a chur ar fáil ag an am gcéanna san dara theanga oifigiúil.. . . . .

. . . . tá ceart bunreachtúil ag gach saoránach teacht os comhair na gCúirteanna a bunaítear le dlí fén mBunreacht d’fhonn a chearta fén mBunreacht agus fén dlí d’agairt nó do chosaint, agus nuair is mian leis sin do dhéanamh tá iachall air de réir dlí cloí le forálacha Rialacha na gCúirteanna Árd-Chéime i ngach a bhaineann le himeachta san Árd-Chúirt agus sa Chúirt Uachtarach. Caithfidh sé feidhm do bhaint as na foirmeacha atá le fáil ins na hAguisíní a ghabhann leis na Rialacha nó foirmeacha atá ar aon dul leo (Ordú 125, Riail 3) agus déanamh do réir mar leagtar síos ins na Rialacha ó thús na himeachta go dtí an deiridh.

Tá sé de cheart aige fén mBunreacht a thaobh féin des na himeachta do riaradh go hiomlán as Gaeilge, má’s mian leis rogha do dhéanamh den príomh-theanga oifigiúil. Táim den bharúil go bhfuil constaic mhór san mbealach roimhe má’s mian leis an Gaeilge d’úsáid agus má tharlaíonn ag an am gcéanna nach bhfuil aon leagan oifigiúil ar fáil den dlí a gheibhtear ins na Rialacha maidir le riaradh na nimeachta, nó des na foirmeacha a ghabhann leo, agus nach bhfuil cothrom na Féinne le fáil aige sa chás san i gcomparáid leis an aicme den phobal a bhíonn lán-tsásta an leagan Béarla d’úsáid i gconaí. . . .

Dá réir sin, chítear dhom go raibh dualgas ar an Stát sa chás so, aistriúchán des na Rialacha do chur ar fáil laistigh de thréimhse réasúnta taréis don Choiste agus don Aire glacadh leis na Rialacha san leagan Béarla, agus gur theip ar an Stát an dualgas sin do chomhlíonadh.”

11. Dúirt Laffoy B. (ar l. 6) freisin gur thagair Ó hAnluain B. arís do na prionsabail a bhí i gceist i gcúis Delap i mbreithiúnas eile i gcúis Ní Cheallaigh v An tAire Comhshaoil [1980 – 1998] Tuairiscí Speisialta 52 mar seo leanas:

“Cinnte, bhí gnó oifigiúil de chuid an Stáit i gceist, ach ina theannta san se bhí i gceist ná an ceart atá ag gach saoránach fén mBunreacht rochtain a bheith aige ar na Cúirteanna d’fhonn a chearta a dhearbhú agus a chosaint. Ar an ábhar sin, bhíos den bharúil go mbeadh sárú dá dhéanamh ar an gceart san muna gcuirfí Rialacha na nUas-Chúirteanna ar fáil san da theanga oifigiúil.”

12. D’aontaigh an breitheamh léannta Árd Chúirte le O hAnluain B.ins an dá chás thuas luaite. Phlé sí leis an ábhar go bunbhriach mar cheist ionannais, mar a dhein O hAnluain B. i gcúis Delap. Dúirt sí (l. 7):

“Sí mo thuairim go bhfuil dualgas ar an Stát de réir forléiriú cruinn Alt 34.3.1 ag imoibrú le Alt 40.3.1 i gcomhthéacs Alt 8, tiontú oifigiúil Rialacha 1997 a chur ar fáil laistigh de thréimhse réasúnta tar éis don Freagróir sa tríú áit thuasluaite glacadh leo sa leagan Béarla, agus go bhfuil ceart comhaoibhneasach neamháirithe pearsanta ag an saoránach faoi Alt 40.3.1 go gcomhlíonfar an dualgas sin.”

13. Ach thug Laffoy B. suntas do nuair a tháinig an t-ábhar os comhair na hÁrd Chúirte nach raibh teipithe fós ar an Stát a dhualgas maidir leis na Rialacha Cúirte Dúiche a chomhlíonadh. Is ar an 24 Feabhra 1997 a shínigh an tAire na rialacha agus is cáipéis an-fhada é ina bhfuil míle, céad agus nócha leathanach. Cuireadh chuig an bpríomh aistritheoir é ar an 25 Márta 1997. Thosaigh imeachta an Iarratasóir ar an 19 Márta 1998 agus tugadh breithiúnas ins an Árd Chúirt ar an 17 Meitheamh 1999.

14. Dá bhárr seo ba cheart tuilleadh ama a thabhairt don Stát le aistriúchán na rialacha a chríochnú. Dúirt an breitheamh léannta, áfach, go raibh sé fíor-phráinneach go rachfaí i mbun na h-oibre agus go gcríochnófar é chomh luadh agus a b’fhéidir sin.

15. Maidir le triáil an Iarratasóra féin ós comhair na Cúirte Dúiche, dúirt Laffoy B. go mbeadh ar na Cúirteanna gach iarracht a dhéanamh chun na deachrachtaí a d’fhéadfadh a theacht i gcoinne dlíthigh ar mhian leo a ngnó a dhéanamh i nGaeilge a laghdú agus deireadh a chur leo nó go mbeadh fáil ar aistriúchán oifigiúil ar Rialacha 1997. Dá réir sin dhiúltaigh an breitheamh léannta an faoiseamh a d’iarr an tIarratasóir.

16. Tá achomharc déanta ag an Iarratasóir i gcoinne an bhreithiúnais seo agus i gcoinne an órdú. Is mar seo atá a fhorais achomhairc leagtha amach ins an bhFógra Achomharc:

“1. Go ndeachaigh an Breitheamh léannta amú ó thaobh an dlí de:
(i) Nuair a chinn sí go raibh sé intuigthe ó Airteagal 25 den Bhunreacht go mbeadh tréimhse réasúnach ag an Stát tar éis achtú bille chun tiontú oifigiúil de a chur ar fáil;
(ii) Nuair a d’aontaigh sí go raibh dualgas ar an Stát ionstraimí reachtúla a chur ar fáil sa Phríomh-theanga oifigiúil ar choinníoll go mbeadh tréimhse réasúnach aige chun an dualgas sin a chomhlíonadh;
(iii) Nuair a d’aontaigh sí go raibh dualgas ar an Stát ionstraimí reachtúla a chur ar fáil sa Phríomh-theanga Oifigiúil ar choinníoll nach raibh an Ionstraim i gceist ró-fhada;
(iv) Nuair a chinn sí go mba leigheas é ar leagan Gaeilge de The Rules of the District Court gan a bheith ar fáil dá ndéanfadh breithiúna agus oifigigh na Cúirte Dúiche gach iarracht chun gach deacracht a bheidh ar an Iarratasóir/Achomhracóir agus gach constaic a bheidh sa bhealach air de dheasca an tiontú réamhráite gan a bheith ar fáil, a laghdú agus a chealú.

(2) Go ndeachaigh an Breitheamh léannta amú ó thaobh na bhfioras do:
(i) Nuair a chinn sí nach raibh tréimhse réasúnach ag a Stát nuair a bhí ní ba mhó ná dhá bhliain aige;
(ii) Nuair a chinn sí go raibh Ionstraim Reachtúíl Uimhir 93/1997 ró-fhada go n-aistreófaí i laistigh de dhá bhliain;
(iii) Nuair a chinn sí nach bhfuil agus nach mbeidh constaic ar bith sa bhealach ar an Iarratasóir/Achomhracóir agus nach sárófaí a chearta bunreachtúla de dheasca tiontú oifigiúil de The Rules of the District Court gan a bheith ar fáil.”

Aighneacht Abhcóide
17. Thagair Séamus Ó Tuathail, Abhcóide Sinsear an Iarratasóra/Achomharcach go na hAirteagail den Bhunreacht a phléann go díreach leis an teanga Ghaeilge. Pléann Airteagal 8 leis an teanga go ginearálta. Tá a thioncar maidir le imeachtaí Cúirte soiléirithe ag an gCúirt Uachtarach i gcúis Ó Monacháin v An Taoiseach [1986] ILRM 660 . Glacadh leis sa chás sin go raibh an prionsabal é a bheith de cheart ag dlíthi go n-éistfí a chás i nGaeilge teoranta. Ceart a bhí ann taobh an dlíthigh féin a chur i nGaeilge. Ní raibh aon cheart ann tabhairt ar dhaoine eile an teanga Gaeilge a úsáid. Ghlac an tUasal Ó Tuathail leis cé go raibh sé de cheart ag an Iarratasóir a chuid imeachtaí Cúirte féin a reachtáil i nGaeilge, nach raibh sé de chead aige tabhairt ar dhaoine eile a bhí sáite ins na h-imeachtaí an teanga Ghaeilge a úsáid. Da mba gá sin chaifí teangaire a chur ar fáil. D’áitigh sé, áfach, nar mhór do Rialacha na Cúirte Dúiche i nGaeilge agus na foirmeacha atá leo a bheith aige le go stiúrfadh sé cosaint iomlán sa Chúirt Dúiche, scairt ar fhinnéithe, fógraí achomharc a chomhadú agus nithe eile.

18. Maidir le Achta an Oireachtais, lua an tUasal Ó Tuathail Airteagal 25.4.4 den Bhunreacht a deireann

“I gcás an tUachtarán do chur a láimhe le téacs Bille i dteanga de na teangacha oifigiúla agus sa teanga sin amháin, ní foláir tiontú oifigiúil a chur amach sa teanga oifigiúil eile.”

19. Ó 1980 i leith, ar seisean, theip go sonrach agus go callánach ar an Stát a dhualgas bunreachtúil a chomhlíonadh. Ins an Árd Chúirt rialadh Laffoy B. go gcaifí tréimhse réasúnach a thabhairt don Stát chun an dá Acht Oireachtais agus Rialacha na gCúirteanna Dúiche a aistriú. Maidir leis na Reachtaí, ní dhearna Airteagal 25.4.4 aon tagairt in aon chor do ‘taobh istigh de thréimhse réasúnach’ nó do aon leagan cainte dá chineál. Dualgas a bhí ann an obair a dhéanamh ar an toirt. Bhí focla an Airteagail soiléar agus ba chóir glacadh leo de réir bun bhrí na bhfocal.

20. Thagair sé do bhreithiúnas O’Higgins C.J. i People (DPP) v O’Shea [1982] IR 384 inar dhúirt a Príomh Bhreitheamh léannta (leathanach 397 den tuairisc):

“The Constitution, as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning . . . . Plain words must . . . be given their plain meaning unless qualified or restricted by the Constitution itself.”

21. Dúirt an tUasal Ó Tuathail go raibh sé soiléir gur séard a bhí i gceist in Airteagal 25.4.4 ná go mbeadh na Reachtai ar fáil i mBéarla agus i nGaeilge don phobal. Bhíodar ar fáil mar sin go dtí 1978. Ins an tréimhse ó 1937 go dtí 1978, is cosúil go an leagan Gaeilge le linn don téacs Béarla a bheith dá mheas, dá leasú, agus dá rith i dTithe an Oireachtas. Le fiche bliain, áfach, níor cuireadh aon aistriúchán ar fáil munar chuir duine éigin go tréan in aghaidh gan aistriúchán a bheith ar Acht áirithe. Dúirt sé nach bhféadfaí failí agus neamh-chúram fiche bliain a mhaitheamh tré aistriúchán dheifreach dena Reachtaí a bhí de dhíth a chur ar fáil ar an noiméad déannach sa chás seo nó in aon chás aonair eile. Ba cheart don Chúirt a rá go soiléir é a bheith de dhualgas ar an Stát na h-aistriúcháin a bhí de dhíth a chur ar fáil mar atá leagtha amach san mBunreacht.

22. Ghlac Abhcóide an Iarratasóra leis nar bhain Airteagal 25.4.4 le Ionstraimí Reachtúil. Cé gur mhian sé gur chóir gach Ionstraim Reachtúil a fhoillsiú ins an dá theanga oifigiúil, ghlac sé leis go bhféadfadh deacrachtaí praiticiúla a bheith ann i gcur ar fáil aistriúcháin ar lear mór cáipéisi. Ach maidir leis an gcás láithreach, chuir sé béim ar an ngá práinneach a bhí ann don Iarratasoir agus dá chomairleoirí dlí leagan Gaeilge a bheith ar fáil de rialacha nua-aoiseach na Cúirte Dúiche.

23. Thug sé suntas dó gur foillsíodh Rialacha na Cúirte Dúiche 1948 i mBéarla agus i nGaeilge. Bhí sé de cheart ag saoránach ar bith a chás nó a cás a riaradh ins an teanga Gaeilge. Is cearta tréana, socraithe bunreachtúla an ceart dul chun na Cúirteanna agus an ceart triáil chothrom a fháil. Is cearta iad a bhfuil glactha leis ord-thosuíocht a bheith ann i measc cearta bunreachtúla. Is cuid lárnach den cheart dul chun na cúirteanna agus triáil chothrom a fháil go mbeadh fáil ar Rialacha na cúirte i dteanga an té a bhfuil liamhaintí ina leith. Ins an gcomhtéacs sin thagair an tUasal Ó Tuathail do na cearta atá leagtha amach in Airteagal 6 den Choinbhinsin Eorpach um Chearta Daonna.

24. Chuir Abhcóide an Iarratasóra a mhuinín i mbreithiúnas Ó hAnluain B.in Delap v An tAire Dlí agus Cirt [1980-1998] IR Tuairisci Speisialta 46 agus le na ais breithiúnas an bhreitheamh léannta chéanna in Stát (Mac Fhearraigh) v An Breitheamh Dúiche Neilan [1980-1998] IR Tuairisci Speisialta 38, agus thagair sé do na píosaí as na breithiúnais sin a lua Laffoy B.ina bhreithiúnas. Chuir sé in iúl freisin an leagan amach céanna a bheith ag Ó hAnluain B.i leith foirmeacha reachtúla faoi Achta Comhlachtaí i gcás Ó Murchú v Cláraítheoir na gCuideachtaí [1980-1998] IR Tuairisci Speisialta 42. Ins an cás sin bhí an tIarratasóir ag iarradh eagras den ainm Comhar na Muinteoiri Gaeilge a chorprú agus a chlárú mar chuideachta theoranta. Chun seo a dhéanamh d’iarr sí ar Oifig na gCuideachtaí na foirmeacha cuí ins an teanga Gaeilge. Ni raibh siad ar fáil. Tar éis moill agus deacracht i gcur na bhfoirmeacha ar fáil di, chuir sí tús le imeachta ins an Árd Chúirt chun iachall a chur ar Chláraitheoir na gCuideachtaí na foirmeacha cuí a sholathar di. Mhol an Freagróir sa chás sin (mar a bhí dá mholadh sa chás seo) go bhféadfadh an tIarratasóir a h-aistriúchán féin de na foirmeacha a sholáthar. Dhiúltaigh Ó hAnluain B. don mholadh seo agus dúirt sé (leathanach 44):

“Dá mba rud é gur ghlac sí leis an gcomhairle sin, do bhéadh uirthi an stró agus an dua a bhainfeadh le saothar an aistriúcháin do ghlacadh uirthi féin – nó b’fhéidir táille d’íoc le duine a bhéadh níos oilte ná í féin i gcúrsaí dlí agus teangan – agus ar deireadh báire ní bhéadh a fhios aici an mbéadh an hláraitheoir sásta go raibh anleagan a chuirfí os a chomhair ‘ar aon dul’ leis an leagan oifigiúil atá le fáil sa Sceideal agus atá ar fáil gan dua don té atá toilteanach an leagan Béarla d’úsáid. Tá sé soiléir gur caitheadh airgead Stáit ar na foirmeacha sa leagan Béarla do chur ar fáil ar an gcuma san agus ní feictear dhom go bhfuil cothrom na Féinne le fáil ag an gcuid sin den phobal gur mian leo an gnó a dhéanamh tré mheán an phrímh-theanga oifigiúil muna gcuirtear na háiseanna céanna ar fáil dóibh-sin freisin.”

25. Mar fhocal deireannach, dúirt an tUasal Ó Tuathail go fiú is dá nglacadh an Chúirt seo le cinneadh Laffoy B. gur cheart tréimhse réasunta a thabhairt leis na rialacha a aistriú agus nach raibh deireadh leis an tréimhse sin ar lá a breithiúnais, bhí bliain caite anois ó thug Laffoy B. a breithiúnas. Ní raibh aon chomhthara ann ón Stát go raibh an obair aistriúcháin tosaithe, gan bacadh le é a bheith críochnaithe. Dá mba rud é nar tugadh a faoiseamh a bhí dá lorg aige don Iarratasóir bhí sé soiléir nach ndéanfadh na Freagróirí a dhath.

26. Phléigh Abhcóide Sinsear na bhFreagróirí, Maurice Gaffney, i dtús báire le ceist aistriúcháin na nAcht um Trácht ar Bóithre. D’admhaigh sé de bharr Airteagal 25.4.4 den Bhunreacht go raibh sé de dhulagas ar an Stát aistriúchán oifigiúil a sholáthar ar aon Bhille a bhí sínithe ag an Uachtarán i dteanga amháin den dá theanga oifigiúil. D’aontaigh sé nach raibh aon teora ama ar sholáthar a leithéid de aistriúchán ins an mBunreacht ach dúirt sé gur cheart glacadh as seo go mbeadh tréimhse réasúnach ar fáil leis an aistriúchán a sholáthar. Ba chir cúinsí ar nós ganntanas aistritheoirí nó easpa achmhainní a chur san áireamh, D’áitigh sé freisin nach ar na Freagróirí a bhí an dualgas sa chás seo aistriúchán na Reachtaí a sholáthar ach ar Thithe an Oireachtais, agus gur dualgas é go h-áirithe a Chléireach na Dála. Ins an aighneacht seo bhí sé ag braith ar Ordú 17(3) de Bhuan-Órdaithe Dáil Éireann a deir:

“Cuirfidh an Cléireach faoi deara go ndéanfar tiontú oifigiúil go Béarla ar gach dlí dá n-achtaíonn an tOireachtas sa Ghaeilge, agus tiontú oifigiúil go Gaeilge ar gach dlí dá n-achtaíonn an tOireachtas sa Bhéarla.”

27. Dúirt an tUasal Gaffney gur chuid de fhoireann riaracháin Thithe an Oireachtais a bhí riamh Rannóg an Aistriúcháin, an rannóg a rinne aistriúcháin ar na Reachta thar na mblianta.

28. Ar aon nós, dúirt an tUasal Gaffney nach raibh anois ach ceist inargóinte nó inphléite in éileamh an Iarratasóra ar sholáthar aistriúcháin oifigiúla de na hAchtanna um Thrácht ar Bhóithre, mar go raibh aistriúcháin ar an dá Acht curtha ar fáil. Mar sin de, ní raibh aon riachtanas ann don Chúirt aon órdú a dhéanamh maidir leis an ghné sin den chás.

29. Maidir le Rialacha na Cúirte Dúiche, ní raibh sé iomlán soiléir ar admhaigh na Freagróirí i ndáiríre a bheith de dualgas cinte ar an Stát aistriúchán ar na rialacha a sholáthar. Ach ó tharla gur rialaigh an breitheamh Árd Chúirte léannta go raibh a leithéid de dualgas ann agus nar chuir na Freagróirí achomharc ina aghaidh sin, sé mo bharúil go bhfuil ar an gCúirt seo glacadh leis go n-aontaíonn na Freagróirí go bhfuil sé de oibleagáid ar an Stát aistriúchán a sholáthar. Ach ba soiléar nach raibh aon iarracht á dhéanamh an t-aistriúchán seo a chur ar fáil mar ghnó práinneach, nó é a chur ar fáil in am do thriáil an Iarratasóra. Is léir go soiléar leagan amach na bhFreagróirí ar an “tréimhse réasúnta” ar thagair Laffoy B. dó a bheith soshínte.

30. Déanann an tUasal Gaffney idirdhealú freisin idir cás Delap agus an cás seo mar gur attornae é an tUasal Delap agus dá bharr sin go mbeadh leagan Gaeilge de Rialacha na nUaschúirteanna ag teastáil uaidh go rialta, b’fhéidir go laethúil, ina chuid oibre. Is gnáth bhaill den phobal é an tIarratasóir seo a bhí san am ag déileáil le liamhúint ina choinne sa Chúirt Dúiche. Cheana féin tugadh na caipéisí cuí dó ina phlé leis an Gárda Síochána; tugadh leagan Gaeilge de na Reachtaí cuí dó; dá mba rud é, mar shámpla, gur theastaigh uaidh fios a chur ar fhínnéithe, níl amhras ann ach go bhfuil ar a chumas féin agus a chomhairleóirí dlí a n-aistriúcháin féin de na foirmeacha atá ins na Rialacha a chur ar fáil.

31. I ndeireadh báire, dúirt an tUasal Gaffney nach raibh éileamh an Iarratasóra an Ordú Toirmisc deá-bhunaithe. Níl tosaíocht ag ceart an Iarratasoir ar leagan Gaeilge de Rialacha na Cúirte Dúiche ar cheart an phobail coireanna a ionchúisiú. Ní raibh aon fhianaise ann i ndáiríre nach bhfuigheadh an tIarratasóir triáil chothrom de bhrí nach raibh fáil ar leagan Gaeilge de na Rialacha. Chinn an breitheamh léannta Árd Chúirte nach sárófaí cearta bunreachtúla an Iarratasóra agus nach gcuirfí aon constaicí ina bhealach ag a thriáil ins an gCúirt Dúiche. D’áitigh an tUasal Gaffney gur chóir don Chúirt seo seasamh le breith na hÁrd Chúirte.

CONCLÚIDÍ
(a) Na Reachtaí
32. Forálann Airteagal 25 den Bhunreacht mar leanas:

“Airteagal 25.
1. Chumh luath agus a ritear Bille, seachas Bille a luaitear a bheith ina Bhille a bhfuil togra ann chun an Bunreacht seo a leasú, nó a mheastar é a bheith rite ag dhá Theach an Oireachtais, ní foláir don Taoiseach an Bille sin a thairiscint don Uachtarán chun a lámh a chur leis agus chun é a fhógairt ina dhlí de réir forálacha an Airteagail seo

2.1 Taobh amuigh de chás dá socraítear a mhalairt leis an mBunreacht seo, gach Bille a thairgtear don Uachtarán mar sin chun a lámh a chur leis agus chun é a fhógairt ina dlí, ní foláir dó a lámh a chur leis lá nach luaithe ná an cúigiú lá agus nach déanaí ná an seachtú lá tar éis an lae a thairgtear an Bille dó.
2.2 Ar achainí an Rialtais, le comhthoil Sheanad Eireann roimh ré, tig leis an Uachtarán a lámh a chur le haon Bhille is siocair don achainí sin níos luaithe ná an cúigiú lá tar éis an dáta réamhráite.

3. Gach Bille a ndearnadh an tréimhse chun a bhreithnithe ag Seanad Éireann a ghiorrú faoi Airteagal 24 den Bhunreacht seo, ní foláir don Uachtarán a lámh a chur leis an lá a thairgtear an Bille sin dó chun é a fhógairt ina dhlí.

4.1 Déanann dlí de gach Bille an lá a chuireann an tUachtarán a lámh leis faoin mBunreacht seo agus is dlí é an lá sin agus ón lá sin amach agus, mura léir a mhalairt d’intinn ina thaobh, is é an lá sin a thagann sé i ngníomh.
4.2 Gach Bille a gcuireann an tUachtarán a lámh leis faoin mBunreacht seo ní foláir dó é a fhógairt ina dlí le fógra san Iris Oifigiúil, faoi ordú uaidh, á rá go bhfuil an Bille ina dhlí.
4.3 Is é téacs de Bhille a gcuirfidh an tUachtarán a lámh leis ná an téacs a ritheadh nó a mheastar a ritheadh ag dhá Theach an Oireachtais agus, má ritear Bille nó má mheastar é a bheith rite amhlaidh sa dá theanga oifigiúla, cuirfidh an tUachtarán a lámh le téacs Gaeilge agus le téacs Sacs-Bhéarla an Bhille..
4.4 I gcás an tUachtarán do chur a láimhe le téacs Bille i dteanga de na teangacha oifigiúla agus sa teanga sin amháin, ní foláir tiontú oifigiúil a chur amach sa teanga oifigiúil eile.
4.5 Chomh luath agus is féidir é tar éis Bille a shíniú agus é a fhógairt ina dhlí, ní foláir an téacs den dlí sin lena mbeidh lámh an Uachtaráin nó, i gcás lámh an Uachtaráin a bheith le téacs Sacs-Bhearla an dlí sin, an dá théacs sínithe sin a chur isteach ina iris nó ina n-iris in oifig Iriseoir na Cúirte Uachtaraí, agus is fianaise dhochloíte ar forálacha an dlí sin an téacs a chuirfear isteach ina iris, nó an dá théacs a chuirfear isteach ina iris, nó an dá théacs a chuirfear isteach ina n-iris, amhlaidh.
4.6 I gcás téacs Gaeilge agus téacs Sacs-Bhéarla de dhlí a chur isteach ina n-iris faoin alt seo agus gan an dá théacs sin a bheith de réir a chéile, is ag an téacs Gaeilge a bheidh an forlámhas. . . . .”

33. Ní bhaineann an chuid eile den Airteagal leis na h-imeachtaí láithreach.

34. Mar a chuir abhcóidí ar an dá thaobh ar shúile, ní leagann Airteagal 25.4.4 aon fhráma ama síos maidir le soláthar aistriúchán ar gach Bille/Acht. Ach is cosúil ón Airteagal ar fad gur nós imeachta sághach scioptha a bhí i gceist. In aon áit a bhfuil teoranna ama i gceist is teoranna gearr iad. Tá an modh oibre réamh-1980 trí na gcuirtí aistriúcháin ar fáil nach mór comhuaineach le achtú an Reacht, níos cosúla go mór le tiún ghinearálta an Airteagail ná an bealach atá ann anois nach gcuirtear aistriúchán ar fáil ach amháin nuair atá gá speisialta nó phráinneach leis, chomh fada agus is féidir les an gCúirt a dheimhniú. Ba mhó a bheadh cuma na macántachta ar argúint na bhFreagróirí gur cheart tréimhse réasúnta ama a thabhairt don aistriúchán marach an fhíric gur ar éigin atá aon aistriúchán oifigiúla curtha ar fáil le fiche bliain. Ní féidir “tréimhse réasúnta” a thabhairt ar sin. Go deimhin féin ní dócha go gcuirfí aistriúchán go deo ar na Reachta atá i gceist sa chás seo – Reachta atá dá n-úsáid go laethúil ins an Chúirt Dúiche – marach iarrachta an Iarratasóra agus a chomhairleoirí dhlí.

35. Níl deacrachta dosháraithe ag baint le aistriúchán; is obair í a dhéantar go rialta agus go minic ar fud an domhain. Ins an Aontas Eorpach aistrítear gach cáipéis ina lán teangacha – líon teangacha a bhéas ag méadú amach anseo de réir mar a mhéadós an Comhphobal. Cé gur mionlach i gCeanada a labhrann Fraincis, bíonn gach cáipéis oifigiúil, cáipéisí cúirte, fógraí, foirmeacha agus comhthoraí ina measc, ar fáil i bhFraincis agus i mBéarla. Níos gaire do bhaile, ní miste a rá gur fhoillsigh an Bord Seirbhíse Cúirte, ar a bhfuil dualgas reachtúil áird a thabhairt ar an bpolassí dhá-theangach maidir le Seirbhíse Cúirte, (féach ar an Acht Seirbhisí Cúirte 1998, Roinn 7) a chéad mhór phlean reachtúil straitéaiseach le fíor ghairid. Foillsíodh an phlean sin go comhuaineach i nGaeilge agus i mBéarla.

36. Ins na h-imeachta seo tá sé soiléir nach bhfuil an Stát sásta na h-achmhainní a sholáthar le n dulagas soiléir bunreachtúil a chomhlíonadh. Deireann an tUasal Gaffney nach ar a chlianta seisean ach ar Chléireach Dáil Éireann a thiteann an dualgas aistriúcháin na Reachta a sholáthar. Ní ar an Bunreacht ná ar aon údarás reachtúil a bhunaíonn sé an t-éileamh seo, ach ar Bhuan Ordaithe Dáil Éireann. Ní léir gur cuireadh an argúint seo ós comhair na hÁrd Chúirte. Im thuairim-se tá Buan Ordaithe na Dála ar chean de roint slíte chun na h-aistriúcháin riachtanacha a sholáthar. Má chuirtear na h-achmhainní atá riachtanach ar fáil, sin slí amháin; bheadh moladh an Aire Dlí, Cothramais angus Athchóiriú Dlí ina chomhfhreagras ins an gcás seo go mbeadh freagracht ar gach Roinn Stáit maidir le haistriúchán reachtú a tionsnaíodh san Roinn sin chomh sásúil céanna. Ach is ar an Stát féin, an ceathrú Freagróir ins na h-imeachta seo, atá an dualgas bunreachtúil. ,

37. Tá leagan Gaeilge de na Reachta cuí tugtha anois don Iarratasóir agus dá bhrí sin níl gá leis na h-ordaithe a h-iarradh in altanna (c) agus (d) de Fhógra Foriarratais an Iarratasóra.

38. Bé barúil Laffoy B. ó tharla dualgas an Stáit a bheith cheana féin leagtha amach ins an mBunreacht gur saothar gan údar a bheadh ann an dearbhú a dhéanamh a h-iarradh in alt (e) de Fógra foriarratais an Iarratasóra. Deirim-se go bhfuil an Stát thar thréimhse fada ama ag sárú an dualgais bhunreachtúil seo go scannalach neamh-náireach agus go mbeadh ceart ag an Chúirt seo áird a dhíriú go poiblí ar nádúr sain ordaitheach a dualgais atá leagtha síos in Airteagal 25.4.4. Deonaím an faoiseamh a d’iarr an tIarratasóir in alt (e) den Fógra Foriarratais. Agus mé ag tabhairt an fhaoiseamh dhearbhaithe seo, táim ag glacadh leis go gcuirfidh an Stát chuige leis an fhaillí láithreach a leigheas taobh istigh de achar gearr.

(b) Rialacha na Cúirte Dúiche
39. Tá sé soiléar nach ionan ar chor ar bith ceist Rialacha na Cúirte Dúiche agus ceist na Reachtaí. Glacann an tUasal Ó Tuathail leis nach bhfuil aon dualgas ar leith leagtha amach ag an mBunreacht ar sholáthar aistriúchán Gaeilge de Rialacha na Cúirtí. Bhunaigh sé a argúint go h-áirithe ar údarás chás Dela p agus ar dhúirt Ó hAnluain B. ina bhreithiúnais sa chás sin agus i gcásanna eile. Ina breithiúnas d’aontaigh Laffoy B. le leagan amach Ó hAnluain B. maidir le Rialacha na nUaschúirteanna is gcásanna Delap agus Ni Cheallaigh v an tAire Comhshaoil . Bhraith sí go h-áirithe ar na píosaí as breithiúnais Ó hAnluain B. atá thuasluaite agam. Dar liom, bhí an ceart ag an mbreitheamh léannta Árd Chúirte. Is ionann na cúinsí a bhain le soláthar aistriúchán Ghaeilge de Rialacha na nUaschúirteanna 1986 agus le soláthar aistriúchán Ghaeilge de Rialacha na Cúirte Dúiche 1997 ins an gcás seo. Is ceist í seo faoi cheart dul chun cúirteanna daoine a labhrann ceachtar den dá theanga oifigiúil atá ainmnithe in Airteagal 8 den Bhunreacht.

40. Diúltaím do aighneacht Abhcóide na bhFreagróirí go bhféadfadh an tIarratasóir a aistriúcháin féin de na foirmeacha riachtanacha a sholáthar. Phléigh Ó hAnluain B. go coimsitheach leis an gceist seo ina bhreithiúnas in Ó Murchú v Cláraitheoir na gCuideachta ar thagraíos dó cheana. Tá cuínse den chineál céanna, nó níos láidre, i gceist sa chás seo mar a bhfuil an tIarratasóir dá chosaint féin i gcoinne liamnúintí coiriúla.

41. Ní dhearna Laffoy B. órdú dearbhaithe maidir le soláthar aistriúcháin Gaeilge ar Rialacha na Cúirte Dúiche 1997 mar gur mheas sí gur chóir tréimhse réasúnach ama a cheadú chun cáipéis chomh fada sin a aistriú. Bhí a leagan amach iontuigthe agus ní chuirfinn ina aghaidh. Ach tá bliain goite thart idir an éisteacht Árd Chúirte agus éisteacht an achomharc seo; chomh fada agus is féidir a fháil amach, níl a dhath in aon chor déanta chun comhfhreagairt le cinneadh na hÁrd Chúirte.

42. Dá réir sin, im’ thuairim-sa, ba chór don Chúirt seo an t-órdú dearbhaithe a h-iarradh in alt (f) de fhógra foriarratais an Iarratasóra a dhéanamh. Ar a laghad ar bith, bheinn ag súil go n-eiseadh na n-údaráis chuí ar an toirt teastas a déarfadh gur ábhar práinneach é aistriúchán an Ionstraim Reachtúil seo agus gur cheart tús a chur ar an bpointe leis an aistriúchán, agus go gcríochnófaí an obair aistrithe chomh luath ar fad agus is féidir sin.

43. Ní miste dom a rá go mbaineann an t-órdú dearbhaithe seo seo le Ionstraim Reachtúil Uimhir 93/1997 amháin. Ná glactar leis go bhfuilim ag rá gur gá gach Ionstraim Reachtúil a aistriú. Is cás ar leith Rialacha na Cúirteanna de bharr a dtábhacht don saoránach atá ar lorg a chearta nó a ceartú dul chun na Cúirteanna.

(c) Toirmeasc ar Thriáil an Iarratasóra
44. Tá an tIarratasóir ar lorg órdú ag stopadh aon leanúnachas ar a thriáil sa Chúirt Dúiche nó go mbeidh an t-aistriúchán riachtanach de Rialacha na Cúirte Dúiche ar fáil. Deireann an tUasal Gaffney gur ceist tosaíocht a thabhairt do cheart an phobail coireanna a ionchúisiú thar cheart an Iarratasóra leagan Gaeilge de Rialacha na Cúirte Dúiche a bheith ar fáil dó. Tá ceist ceart tosaíochta an phobail chun coireanna a ionchúisiú meáite ag Denham B. i sliocht ina breithiúnas in D. v Stiúrthóir na nIonchúisiú Poiblí [1994] 2 IR 465 (ag l. 474) ar a mbíonn trácht go minic:

“The Applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a heirarchy of constitutional rights it is a superior right.

The Court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the Applicant’s right to fair procedures is superior to the community’s right to prosecute.

If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”

45. I sliocht roimhe sin ar leathanach 473 deireann an breitheamh léannta:

“I agree with the Chief Justice and EganJ. that the test is whether there is a real risk that the Applicant . . . . could not obtain a fair trial.”
46. Dá mba rud é mar sin sa chás seo go raibh contúirt in dáiríre ann nach bhfuigheadh an t-Iarratasóir triáil chothrom, bheadh tosaíocht ar a cheart chun triáil chothrom thar cheart an phobail coireanna a ionchúisiú. Mar sin féin, is ceart tábhachtach ceart an phobail coireanna a ionchúisiú. Ba chóir don Chúirt seo machnamh cúramach a dhéanamh sul a ndéanfaí aon chinneadh arbh é a thoradh ní amháin toirmeasg a chur ar ionchúisiú na coireanna atá curtha i leith an Iarratasóra, ach, b’fhéidir, aoráid a chruthú ina mbainfí leas as cearta cinte tábhachtach fáil a bheith ar cháipéisí ins an teanga Ghaeilge le toirmeasc ollmhór a chur ar ionchúisiú coireanna.

47. Tá sé soiléir gur san teanga Ghaeilge a bhí na cáipéisí éagsúla a seirbheáladh ar an Iarratasóir go dtí seo ins an gCúirt Dúiche. Ní léir gur cuireadh aon bhac air ná go raibh aon deacracht aige ag plé leis na baill chuí den Ghárda Síochána i nGaeilge. Tá na Reachtaí cuí i nGaeilge curtha ar fáil dó anois agus is cosúil go bhfuiltear le na cheistiú gur cainteoir Gaeilge a bhéas ins an mbreitheamh a thriáilfear é. Má bhíonn sin de dhíth uair ar bith, beidh sé de cheart aige teangaire a bheith ar fáil don triáil. In ainneoin go bhféadfadh easpa Rialacha na Cúirte Dúiche roint deacrachta a chur ina bhealach féin agus i mbealach a chomhairleoirí dlí, ní é mo bharúil go mbeadh sin chomh mór le “a real risk that the Applicant will not get a fair trial” mar a bhí i gceist ag Denham B.

48. Dá bhrí sin, dhiúltóinn an faoiseamh a h-iarradh in alt (b) de fhógra foriarratais an Iarratasóra. Níl gá a thuilleadh leis an bhfaoiseamh a h-iarradh in alt (a).

THE SUPREME COURT

(JUDICIAL REVIEW)

230/99

McGuinness, J.
Hardiman, J.
Geoghegan, J.

BETWEEN

SEAMUS O BEOLÁIN

APPLICANT/APPELLANT

AND

DISTRICT JUDGE MARY FAHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM. IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of McGuinness J. delivered the 4th day of April 2001

49. This an appeal from the judgment and order of the High Court (Laffoy J.) whereby the learned judge refused the application of the Applicant/Appellant for Orders of Prohibition and Declaratory Orders by way of judicial review. I have had the advantage of reading the judgments of both Hardiman J. and Geoghegan J. prior to writing this judgment.

Background
50. The facts of the matter and the history of the proceedings are comprehensively set out in the judgment of Hardiman J. and it is unnecessary for me to repeat them in detail here.

51. In summary, the Applicant/Appellant appeared before the District Court on the 18th September 1997 charged with offences contrary to Section 49(3) and (6)(a) of the Road Traffic Act 1961 as inserted by Section 10 of the Road Traffic Act 1994. The Applicant, an

52. Irish speaker who had been served with a summons in the Irish language and had dealt with the Gardai in regard to the matter in the Irish language throughout, informed the Court that he wished to conduct his defence in Irish and that he wished the relevant documents be served on him in Irish. In particular he sought Irish versions of the Road Traffic Act 1994, of the Road Traffic Act 1995, and of the Rules of the District Court 1997. Neither the two Acts of the Oireachtas nor the Rules were available in the Irish language.

53. As a result the proceedings in the District Court were adjourned from time to time, both to allow the State authorities to produce the documents and in order to ensure that an Irish speaking judge would be available to hear the case. The matter was listed before the first named Respondent on 13th February 1998. By that time the Applicant had been provided with a “draft” or unofficial translation of the Road Traffic Acts 1994 and 1995, but no translation of the Rules of the District Court had been produced.

54. On 13th February 1998 the Applicant through his Counsel applied to the first named Respondent to make an order directing the second named Respondent to produce the relevant materials. This application was refused by the learned District Judge.

55. The Applicants then issued the present judicial review proceedings. On 19th March 1998 the Applicant was granted leave by the High Court (Smyth J.) to issue judicial review proceedings seeking the following reliefs:

(a) An Order of Prohibition prohibiting the first and second named Respondents in these proceedings from continuing, hearing or giving judgment in the proceedings No. 03942296 until an official translation of the Road Traffic Act 1994 and the Road Traffic Act 1995 had been made available to the Applicant
(b) An Order of Prohibition prohibiting the first and second named Respondents in these proceedings from continuing, hearing or giving judgment in the matter No. 03942297 until an official translation of the Rules of the District Court (Statutory Instrument No. 93/1997) has been made available to the Applicant.
(c) A declaration that the third and fourth named Respondents in these proceedings have a constitutional duty to make available an official translation of the Road Traffic Act 1994 in the first official language to the public in general, including the Applicant.
(d) A declaration that the third and fourth named Respondents in these proceedings have a constitutional duty to make available an official translation of the Road Traffic Act 1995 in the first official language to the public in general including the Applicant.
(e) A declaration that the third and fourth named Respondents in these proceedings have a constitutional duty to make available an official translation of the Acts of the Oireachtas in the first official language to the public in general when the President signs the text of a Bill in the second official language and
(f) A declaration that the third and fourth named Respondents in these proceedings have a constitutional duty to provide an official translation of Statutory Instrument No. 93/1997 available to the public at large including the Applicant.”

56. The grounding affidavits filed in the proceedings demonstrate the efforts made by the Applicant’s solicitor to obtain the requested documents in the Irish language, together with the responses received from the various agencies of the State. It is clear from the correspondence exhibited that the practice of automatically providing an official Irish translation of all Acts of the Oireachtas ceased in or about 1980. The 1980 volume of the Statutes is the last to be published in both Irish and English. The present practice appears to be governed by a circular dated 23rd February 1998 which is referred to by the Applicant’s solicitor in his affidavit sworn the 18th day of March 1999. The circular was sent by the principal translator of Rannóg an Aistriúcháin of the Houses of the Oireachtas to all Government Departments. The purport of the circular is that due to shortage of staff and pressure of work no Statutory Instruments will be translated into Irish unless a specific certificate signed by an officer not lower in rank than an Assistant Secretary is provided stating that there is a grave need or true urgency for an Irish translation of the specific Statutory Instrument. This circular was not exhibited with the affidavit but in argument before this Court it was not denied that this was in fact the state of affairs. No evidence was produced either before the High Court or this Court to suggest that any such certificate had as yet issued in respect of the Rules of the District Court 1997. In a replying affidavit on behalf of the Respondents Superintendent William Collins of the Traffic Department, Dublin Castle, avers that he is advised by Tony Fagan of the Office of the Chief State Solicitor

“that he had made enquiries as to when an official translation will be available of the District Court Rules 1997. I am informed by him that his researches to date indicate that it is the intention of the Department of Justice, Equality and Law Reform to provide such a translation however there is at present no date fixed for the production of same. I understand that there is a considerable body of both primary legislation and Statutory Instruments which has not yet been translated. I am advised that it is the intention of the Secretariat of the Houses of the Oireachtas and indeed the Minister for Justice Equality and Law Reform, that Acts of the Oireachtas and Statutory Instruments be available in both the language in which they were enacted (in the case of District Court Rules, English) and in Irish or English as the case may be, as soon as circumstances permit.”

57. If, as it appears, no certificate of urgency has as yet been issued it seems unlikely that circumstances will permit the provision of a translation of the District Court Rules in the foreseeable future.

The Decision of the High Court
58. The Applicant’s judicial review proceedings came on for hearing before the High Court (Laffoy J.). The learned judge reserved her judgment which she delivered on 17th June 1999. On that date she made an order refusing the relief sought by the Applicant. In her judgment Laffoy J. noted that the Respondents “accept that the State has an obligation to supply an official translation of every Act of the Oireachtas” (page 4 of judgment). She also pointed out that it was not clear whether or not the Respondents admitted that they had the same obligation in regard to the Rules of the District Court 1997. The Respondents did, however, inform the learned High Court judge that they intended to make an official translation of the 1997 Rules available “at soon as possible” . In her judgment Laffoy J. referred to the judgment of O’Hanlon J. in the case of Delap v Minister for Justice and Others [1980-1998] IR (Special Reports) 46 . In that case the Applicant, who was a solicitor who used the Irish language in his practice had complained that there was no official translation of the 1986 Rules of the Superior Courts. In his judgment O’Hanlon J. surveyed the provisions of the Constitution which dealt with the Irish language, and concluded (at page 50 of the report):-

“In this case, however, I do not think that it is necessary for the Applicant to invoke the provisions of Article 8 of the Constitution. I accept that the committee appointed under the provisions of the Courts of Justice Act had power, in conjunction with the Minister for Justice, to make the rules under the Acts in the English language only (as in fact happened) and that there was no violation of Article 8 of the Constitution when the committee and the Minister chose one only of the official languages to make the rules (and forms accompanying them), without at the same time providing them in the other official language…..

…..Every citizen has a constitutional right to come before the Courts established by law under the Constitution in order to assert or defend their rights under the Constitution and when a citizen is so minded he is obliged according to law to comply with the provisions of the Rules of the Superior Courts in everything concerning proceedings in the High Court and in the Supreme Court. He must make use of the forms which are to be found in the appendices accompanying the rules or the forms varied or modified as circumstances require (Order 125 Rule 3) and to comply with the requirements of the rules from the beginning of the proceedings to the end.

He has the right under the Constitution to conduct his side of the proceedings entirely in the Irish language if he desires to choose the first official language. I am of the opinion that there is a great obstacle in his path if he desires to use the Irish language but if at the same time there is no official version available of the law found in the rules concerning the regulation of such proceedings or of the forms which accompany them and that he is not being accorded equal treatment in that case by comparison to that section of the public which is fully satisfied to use the English language version at all times….

Accordingly I consider that there was an obligation on the State in this case to make available a translation of the rules within a reasonable period after the Committee and the Minister accepted the rules in the English language version and that the State failed to fulfil that obligation.”

59. Laffoy J. also pointed out (at page 6 of her judgment) that O’Hanlon J. had commented further on the principles which governed the Delap case in a later judgment in the case of Ní Cheallaigh v An tAire Comhshaoil [1980-1998] IR Special Reports 122 as follows:-

“Certainly, an official purpose of the State was in question, but in addition to that what was in question was the right which every citizen has under the Constitution to have access to the Courts in order to assert and defend his rights. For that reason, I was of the opinion that that right would be violated unless the Rules of the Superior Courts were provided in both official languages.”

60. The learned High Court judge was in agreement with O’Hanlon J. in the two cases cited above. She approached the matter in essence as an equality issue, as had O’Hanlon J. in the Delap case. She stated:-

“My opinion is that the State is obliged, under the accurate interpretation of Article 34.3.1 in conjunction with article 40.3.1, in the context of Article 8, to make the official translation of the 1997 rules available within a reasonable length of time after the third named Respondent had accepted them in the English version, and that the citizen under Article 40.3.1, has a personal right that this publication be fulfilled.”

61. However, Laffoy J. considered that at the time when the matter came before the High Court, the State had not yet failed to fulfil its obligation in regard to the District Court Rules. The Minister had signed the rules on the 24th February 1997 and the document was a very lengthy one consisting of some one thousand one hundred and ninety nine pages. It had been sent to the chief translator on the 25th March 1997. The Applicant’s proceedings had been issued on the 19th March 1998 and judgment in the High Court was given on 17th June 1999.

62. Accordingly the State should be given some further time to complete a translation of the rules. The learned judge did, however, add that it was imperative that the work be undertaken and finished as soon as possible.

63. With regard to the actual trial of the Applicant before the District Court, Laffoy J. held that until such time as an official translation of the 1997 rules would be available the Courts would have to make every effort to reduce and eliminate whatever difficulties might be encountered by those litigants who wish to conduct their business through Irish. She was satisfied that no obstacles would be placed in the way of the Applicant and that his constitutional rights would not be violated as a result of an official translation of the 1997 rules being unavailable. Accordingly the learned trial judge refused the relief sought by the Applicant.

64. The Applicant has appealed against this judgment and order. His grounds of appeal are set out in the Notice of Appeal as follows:-

“(1). That the learned judge erred in law
(i) when she decided that it was to be understood from Article 25 of the Constitution that a reasonable time should be allowed to the State before it was required to provide an official translation;
(ii) when she agreed that the State was under a duty to provide Statutory Instruments in the first official language only on condition that there would be a reasonable time allowed to fulfil this duty;
(iii) when she heard that the State was under a duty to provide Statutory Instruments in the first official language on condition that the Instrument in question was not too long;
(iv) when she held that it would be a remedy for the absence of an Irish version of the Rules of the District Courts if the judges and officers of the District Court made every effort to remove every difficulty that the Applicant/Appellant would face and every obstacle that would be in his way on account of the lack of the aforesaid Irish version.
(2) That the learned judge erred in fact:
(i) when she held that the State had not had a reasonable time available when in fact two years had elapsed;
(ii) when she held that Statutory Instrument 93/1997 was too long to translate within two years;
(iii) when she held that there was and there would not be any obstacle in the way of the Applicant/Appellant and that his constitutional rights would not be violated on account of the lack of an official translation of the Rules of the District Court.”

Submissions of Counsel

65. Senior Counsel for the Applicant/Appellant Mr O Tuathail, referred to the Articles of the Constitution which dealt directly with the Irish language. Article 8 dealt with the status of the language in general. Its effect so far as Court proceedings were concerned had been clarified by the Supreme Court in the case of O Monacháin v An Toiseach [1986] ILRM 660. In that case it was held that the principle that a litigant had a right to have a case heard in Irish was confined to a right to conduct the litigant’s own side of the case in Irish. There was no right to compel others to use the Irish language. Mr O Tuathail accepted that, while the Applicant had the right to conduct his court proceedings in Irish, and to issue all court documents in Irish, he did not have the right to insist that others involved in the proceedings used the Irish language; if necessary an interpreter must be provided. However, he submitted that in order to conduct a full defence in the District Court, including such matters as summoning witnesses, filing notices of appeal, and so on it was essential for him to have an Irish version of the Rules of the District Court together with the forms that are annexed to them.

66. As far as the Acts of the Oireachtas were concerned, Mr O Tuathail referred to Article 25.4.4 of the Constitution which provides that:-

“Where the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language.”

67. Since 1980, he said, the State had notoriously and blatantly failed to fulfil its constitutional duty in this respect. In the High Court Laffoy J. had held that a reasonable time must be allowed for translating both Acts of the Oireachtas and the District Court Rules. As far as the Statutes were concerned, Article 25.4.4 made no reference whatever to “within a reasonable time” or any comparable phrase. The duty was direct and immediate. The words of the Article were clear and should be interpreted literally. He referred to the judgment of O’Higgins C.J. in the People .v. (O’Shea) [1982} IR 384 where the learned Chief Justice stated (at page 397 of the report):-

“The Constitution, as the fundamental law of a State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning……Plain words must….be given their plain meaning unless qualified or restricted by the Constitution itself.”

68. Mr O Tuathail submitted that it was clear that what was intended in Article 25.4.4 was that the Statutes should be available in English and in Irish to members of the public. They were thus available until 1978. In the period from 1937 to 1978, it appeared that the Irish version was prepared while the English text was being considered, amended and passed by the Houses of the Oireachtas. In the past twenty years however no translation was provided unless somebody protested vigorously about the lack of such a translation of a particular Act. He argued that the neglect of twenty years could not be excused by producing at the last moment hasty translations of the Statutes required in this particular case or in any other individual case. The Court should make it clear that the State had a duty to produce the required translations as laid down in the Constitution.

69. Counsel for the Applicant accepted that Article 25.4.4 did not apply to Statutory Instruments. While he maintained the position that all Statutory Instruments should be published in both official languages, he acknowledged that there might be practical difficulties in the production of translations of such a large number of documents. For the purpose of the instant case, however, he stressed the urgent necessity for both the Applicant and his legal advisers to have available an Irish language version of the modern rules of the District Court. He noted that that the District Court Rules of 1948 were published both in English and in Irish. Any citizen had the right to conduct his or her case in the Irish language. The right of access to the Courts and the right to a fair trial were strongly established constitutional rights – rights which had been held to have a high priority among constitutional rights. The availability of the Rules of Court in the language of a person accused of an offence was an essential element in his access to the Courts and in his right to a fair trial. In this context Mr O Tuathail referred to the rights set out in Article 6 of the European Convention on Human Rights.

70. Counsel for the Applicant relied on the judgment of O’Hanlon J. in Delap

v An tAire Dlí agus Cirt [1980-1998] IR Tuairiscí Speisialta 46 and also the judgment of the same judge in Stáit (MacFhearraigh) v An Breitheamh Dúiche Neilan [1980-1998] IR Tuairiscí Speisialta 38 and referred to the passages from these judgments quoted by Laffoy J. in her judgment. He also pointed out that O’Hanlon J. had taken a similar stance with regard to statutory forms under the Companies Acts in the case of O Murchú v Cláraitheoir na gCuideachtaí [1980-1998] IR Tuairiscí Speisialta 42. In that case the Applicant was seeking to incorporate and register an organisation having the name Comhair na Múinteoirí Gaeilge as a company with limited liability and to that end applied to the company’s office to obtain the appropriate forms in the Irish language version. They were not available to her and following delay and difficulty in making the forms available to her, she commenced proceedings in the High Court to compel the Registrar of Companies to provide her with the appropriate forms. It was suggested by the Respondent in that case (as indeed it was in the instant case) that the Applicant could provide her own translations of the forms. O’Hanlon J. rejected this suggestion, stating:
“Had the Applicant taken that advice she would have to undertake the inconvenience and the difficulty which would accompany the work of translation – or perhaps pay a fee to someone more qualified than herself in matters of law and language and at the end of the day she would not know if the Registrar would be satisfied that the version presented to him would be of ‘like effect’ to the official version which is to be found in the schedule and which is available without difficulties to the person willing to use the English language version of the form. It is clear that State funds were spent in the provision of the forms in the English language version and I do not consider that equal treatment is being afforded to that section of the public who wish to do their business through the medium of the first official language if the same facilities are not made available to them also.”

71. Finally, Mr O’Tuathail submitted that even if this Court accepted Laffoy J’s decision that a reasonable time ought to be allowed for the translation of the rules and that such time had not yet elapsed at the date of her judgment, the situation now was that over a year had passed since Laffoy J’s judgment. There was no indication from the State that the work of translation had even begun, let alone being completed. It was clear that if the Applicant was not granted the relief which he sought no action whatever would be taken by the Respondents.

72. Senior Counsel for the Respondents, Mr Gaffney, dealt firstly with the issue of the translation of the Road Traffic Acts. He acknowledged that arising from Article 25.4.4 of the Constitution the State had a duty to provide an official translation of any Bill which the President had signed in one only of the official languages. He agreed that no time limit for the provision for such a translation was provided in the Constitution but he submitted that this should be taken to mean that a reasonable time should be allowed for the translation to be made. Such matters as shortage of translators or lack of resources should be taken into account.

73. Mr Gaffney also submitted that the provision of translations of Statutes was not a duty of the Respondents in the instant case, but was a duty of the Houses of the Oireachtas, and in particular a duty which lay on the Clerk of the Dail. In making this submission he relied on Order 17(3) of the Standing Orders of Dail Eireann which stated:

“The Clerk shall cause to be made an official translation into English of every law enacted by the Oireachtas in Irish and an official translation into Irish of every law enacted by the Oireachtas in English.”

74. Mr Gaffney pointed out that historically Rannóg an Aistriúcháin, the section which had throughout the years translated the Statutes, had been a section of the administrative staff of the Houses of the Oireachtas.

75. In any event, Mr Gaffney submitted, the Applicant’s claim for the provision of official translations of the relevant Road Traffic Acts which now a moot, since translations of both Acts had now been provided. There was therefore no need for the Court to make any order on this aspect of the proceedings.

76. As regards the Rules of the District Court, it was not entirely clear from Mr Gaffney’s submissions whether the Respondents in reality acknowledged that the State had a definite duty to provide a translation of the rules. However given that the learned High Court judge had made a finding that there was such a duty and that the Respondents had not appealed against this finding, this Court must, in my view assume that the Respondents agree that the State is under an obligation to provide a translation. However, it was clear that no effort was being made to provide this translation as a matter of urgency, or to provide it in time for the trial of the Applicant. The Respondents’ view of the “reasonable period” to which Laffoy J. referred is clearly an elastic one.

77. Mr Gaffney also distinguished the Delap case from the instant case on the ground that Mr Delap was a solicitor and would therefore have a regular and perhaps daily need of an Irish version of the Rules of the Superior Courts in the course of his practice. The present applicant was an ordinary member of the public who, on this particular occasion, was facing a charge in the District Court. He had already been provided with documents in the Irish language throughout his dealings with the Garda authorities; he had been provided with Irish versions of the relevant Statutes; if he required, for example, to summon witnesses he and his legal advisers were no doubt capable of providing their own translations of the forms provided in the rules.

78. Finally, Mr Gaffney submitted that the Applicant’s claim for an Order of Prohibition was not well founded. The Applicant’s right to an Irish version of the Rules of the District Court did not have priority over the community’s right to have crimes prosecuted. There was no real evidence that the Applicant would not receive a fair trial on account of the unavailability of an Irish version of the rules. The learned High Court judge had held that the constitutional rights of the Applicant would not be violated and that no obstacle would be put in his way at his trial in the District Court. Mr Gaffney submitted that this Court should uphold that finding of the High Court.

Conclusions
(a) The Statutes
79. Article 25 of the Constitution provides as follows:

“1. As soon as any Bill, other than a Bill expressed to be a Bill containing a proposal for the amendment of this Constitution, shall have been passed or deemed to have been passed by both Houses of the Oireachtas, the Taoiseach shall present it to the President for his signature and for promulgation by him as a law in accordance with the provisions of this article.
2.1 Save as otherwise provided by this constitution, every Bill so presented to the President for his signature and for promulgation by him as a law shall be signed by the President not earlier than the 5th and not later than the 7th day after the date on which the Bill shall have been presented to him.
2.2. At the request of the Government, with prior concurrence of Seanad Eireann the President may sign any Bill the subject of such request on a date which is earlier than the 5th day after such date as aforesaid.
3. Every Bill at the time for consideration of which by Seanad Eireann shall have been abridged under Article 24 of this Constitution shall be signed by the President on the date on which such Bill is presented to him for signature and promulgation as a law.
4.1 Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution, and shall, unless the contrary intention appears, come into operation on that day.
4.2 Every Bill signed by the President under this Constitution shall be promulgated by him as a law by the publication by his direction of a notice in the Iris Oifigiúil stating that the Bill has become law.
4.3 Every Bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both Houses of the Oireachtas. And if a Bill is so passed or deemed to have been passed in both the official languages, the President shall sign the text of the Bill in each of those languages.
4.4 Where the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language.
4.5 As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the President or, where the President has signed the text of such law in each of the official languages, both the signed texts shall be enrolled for record in the office of the Registrar of the Supreme Court, and the text, or both the texts so enrolled, shall be conclusive evidence of the provisions of such law.
4.6 In case of conflict between the texts of the law enrolled under this section in both the official languages, the text in the national language shall prevail.”
80. The remainder of the Article is irrelevant to the present proceedings.

81. Article 24.4.4, as was pointed out by counsel on both sides, does not provide any time frame within which an official translation of each Bill/Act is to be provided. However, the article as a whole seems to envisage a fairly rapid procedure – where time limits are provided they are short, and the former pre-1980 system of providing a translation virtually simultaneously with the enactment of the Statute seems considerably more in accordance with the general tenor of the article than the present system which, as far as the Court can ascertain, provides a translation only when a special or urgent demand is made for it. The Respondents argument for a reasonable time to be allowed for translation would ring more sincerely were it not for the fact that virtually no official translations of Statutes have been provided for the past twenty years. This could not be described as a “reasonable time” . Indeed it seems probable that the Statutes in question in this case – Statutes which are used daily in the District Court – would never have been translated were it not for the efforts of the Applicant and his legal advisers.

82. The making of translations is not a matter of insuperable difficulty; it is a task regularly and frequently carried out throughout the world. In the European Union all documents are translated into multiple languages – a number of languages likely to grow in the future as the community enlarges. In Canada, despite the fact that only a minority of Canadians are Francophone, all official documents, including Court documents, notices, forms and signs are provided in both French and English. Nearer home one might point to the fact that the Courts Service Board, which is under a statutory duty to have regard to the policy of bilingualism in relation to Courts Services (see the Courts Service Act 1998 Section 7), has very recently published its first major statutory strategic plan. This plan has been published simultaneously in Irish and English.

83. In the present situation it is clear that the State is simply unwilling to provide the resources to fulfil its clear constitutional duty. Mr Gaffney submits that the duty to provide translations of the Statutes falls, not on his clients, but on the Clerk of the Dail. He grounds this claim not on the Constitution or on any statutory authority, but on the Standing Orders of the Dail. It does not appear that this argument was made in the High Court.

84. In my view, the Standing Orders of the Dail provide for one of a number of possible means of providing the necessary translations. If the necessary resources are provided it is an acceptable means; equally acceptable would be the means suggested by the Minister for Justice Equality and Law Reform in his correspondence in this case – that each department is responsible for the translation of legislation initiated by that Department. The constitutional duty, however, is that of the State itself, the fourth named Respondent in the present proceedings.

85. The Applicant has now been provided with an Irish version of the relevant Statutes and there is therefore no requirement for the making of the orders sought at paragraphs (c) and (d) of the Applicant’s Notice of Motion.

86. Laffoy J. considered that, as the duty of the State was already set out in the Constitution, no purpose was served by making the declaration sought at paragraph (e) of the Appellant’s Notice of Motion. It seems to me that the State has been flagrantly and over a long period of time in breach of this constitutional duty and it would be desirable for this Court publicly to stress the mandatory nature of the duty set out in Article 25.4.4. I would grant the relief sought by the Applicant at paragraph (e) of the Notice of Motion. In providing for this declaratory relief I would assume that the State will take steps to remedy the present situation of neglect within a short time frame.

 

(b) The District Court Rules
87. The question of the District Court Rules is clearly separate from that of the Statutes. Mr O Tuathail acknowledges that there is no specific duty laid down by the Constitution to provide an Irish translation of the Rules of Court. He relies in particular on the authority of the Delap case and the dicta of O’Hanlon J. in his judgments in that and other cases. Laffoy J. in her judgment agreed with the approach taken to the question of the Rules of the Superior Courts by O’Hanlon J. both in the Delap case and in the Ní Cheallaigh v Minister for the Environment case. She specifically relied on the passages from O’Hanlon J’s judgments which I have quoted above. It seems to me that the learned High Court judge was correct. The considerations which applied to the provision of an Irish translation of the Rules of the Superior Courts 1986 apply equally to the provision of an Irish translation of the District Court Rules 1997 in the instant case. The issue is one of the right of access to the Courts by persons who speak either of the two official languages named in Article 8 of the Constitution.

88. I reject the submission of Counsel for the Respondents that the Applicant could provide his own translations of the necessary forms. This question was comprehensively dealt with by O’Hanlon J. in his judgment in O’Murchú v Cláraitheoir na gCuideachtaí to which I have already referred. Similar, if not stronger, considerations apply in the instant case where the Applicant is defending himself against criminal charges.

89. Laffoy J. did not make a declaratory order as to the provision of an Irish translation of the 1997 Rules of the District Court because she considered that a reasonable time should be allowed for the translation of such a lengthy document. Her approach was understandable and I would not disapprove of it. However, over a year has elapsed between the High Court hearing and the hearing of this appeal; as far as can be ascertained no step whatever has been taken to conform with the findings of the High Court.

90. Accordingly in my view this Court should make the declaratory order sought at paragraph (f) of the Applicant’s notice of motion. At the very least I would expect that the relevant authorities should forthwith issue a certificate stating that the translation of this particular Statutory Instrument is an urgent matter and that an immediate start should be made on its translation, leading to completion of the translation at the earliest possible date.

91. I should point out that this declaratory order applies solely to Statutory Instrument No. 93/1997. I am not to be taken as holding that all Statutory Instruments require to be translated. The Rules of Court are a special case due to their importance to the citizen who seeks his or her constitutional right of access to the Courts.

(c) Prohibition of the Applicant’s Trial
92. The Applicant seeks an order prohibiting any further continuance of his trial in the District Court unless and until the required translation of the Rules of the District Court is provided. Mr Gaffney submits that this is a question of the priority of rights, and that the right of the community to prosecute offences should be given priority over the Applicant’s right to be provided with an Irish version of the Rules of the District Court.

93. The question of the priority of the community’s right to prosecute offences is considered by Denham J. in a much quoted passage in her judgment v D v Director of Public Prosecutions [1994] 2 IR 465 at 474 as follows:

“The Applicant’s right to fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.

The Court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the Applicant’s right to fair procedures is superior to the community’s right to prosecute.

If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”

94. In an earlier passage on page 473 the learned judge states:

“I agree with the Chief Justice and Egan J. that the test is whether there is a real risk that the Applicant….could not obtain a fair trial.”

95. If, therefore, in the instant case, there was a real risk that the Applicant would not receive a fair trial, his right to a fair trial would have priority over the right of the community to prosecute offences. The community’s right to prosecute offences is nonetheless an important right, and this Court should give careful consideration to any step which could have the effect not merely of preventing the prosecution of the offences with which this Applicant is charged but conceivably of creating a situation where the undoubtedly important right to be provided with documentation in the Irish language could be used for the purpose of wholesale prohibition of prosecution of offences.

96. In the course of the present Applicant’s trial to date in the District Court it is become clear that the various documents served on him to date have been in the Irish language. He appears to have encountered no difficulty in dealing with the relevant members of the Garda Siochana through the medium of the Irish language. He is now being provided with the relevant Statutes in Irish and it appears that steps are being taken to ensure that the trial judge is an Irish speaker. If at any stage it becomes necessary he will have the right to an interpreter to be provided for the purpose of his trial. While the lack of an Irish version of the District Court Rules may well create a degree of difficulty for him and for his legal advisers, I do not consider that this will amount to what is described by Denham J. as “a real risk that the Applicant will not get a fair trial”.

97. I would therefore refuse the relief sought at paragraph (b) of the Applicant’s Notice of Motion. The relief sought at paragraph (a) is no longer necessary.

 

THE SUPREME COURT

(JUDICIAL REVIEW)

100/98 JR

McGuinness, J.
Hardiman, J.
Geoghegan, J.

BETWEEN

SEAMUS O’BEOLÁIN

APPLICANT

AND

DISTRICT JUDGE MARY FAHY, THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

DRAFT JUDGMENT OF Hardiman J. delivered the 4th day of April, 2001.

BACKGROUND

98. The Applicant was summoned to appear before the District Court on the 18th of September 1997 to answer an allegation that he had committed an offence contrary to Section 49(3) and (6)(a) of the Road Traffic Act 1961 as inserted by Section 10 of the Road Traffic Act 1994. He stated, through his solicitor, that he wished to conduct the case in Irish and that he wished all relevant documents to be furnished to him in Irish. It appears that he had conducted in Irish all his dealings with the Gardai during the investigation which led to the preferring of the above mentioned allegation against him, that he had been served with a summons in that language and that the result of an analysis conducted by the Medical Bureau of Road Safety on which the prosecution intend to rely had been communicated to him in Irish. This Court has not, however, seen the two last mentioned documents.

99. It appears that the judge presiding in the District Court on the return date of the summons ordered each side to prepare written submissions on the question of whether the Applicant was indeed entitled to the relevant materials in the Irish language. These materials were identified as The Road Traffic Act 1994, the Road Traffic Act 1995 and the Rules of the District Court. The Applicant prepared these submissions which are exhibited in the present proceedings. The State did not make written submissions either in the District Court or in this Court.

100. The case was then adjourned over a period of four months in the District Court in order to give the Director of Public Prosecutions or other State authorities an opportunity to produce the materials in question. The proceedings were eventually adjourned until 12th January 1998. This was a Monday. On the last working day before the adjourned date, Friday the 9th January, the Applicant received a document which was alleged by him to be a partial or draft translation of the Road Traffic Act 1994. This was admittedly not an official translation.

101. The case was then adjourned on a number of occasions and specifically at least twice on the basis that there was no Irish speaking judge available to hear it. On the 13th February 1998 the Applicant through his Counsel requested the first named Respondent to make an Order directing the Director Public Prosecutions to make the relevant materials available. The learned District Judge declined to make such an Order. On the 19th March 1998 the Applicant was given leave to apply for relief by way of judicial review. The terms of this Order will appear below.

102. Further information in relation to the Applicant’s attempts to procure copies of the relevant material in Irish appears from the affidavits filed in these proceedings and the documents exhibited therein. In an undated letter from the Government Publications Office, which is apparently a division of the Office of Public Works, the Applicant’s solicitor was told that the relevant materials:

“……are not available in the Irish language and that, to-date, there are no bilingual versions available of the Road Traffic Acts and that only the 1948 District Court Rules are available in Irish.

As regards printing of publications in Irish, it is entirely up to the Department which issues the publication in the first place, and I therefore suggest you try the relevant Government Departments to find out if these publications are to be printed in an Irish version.”

103. In an affidavit of the 11th February 1999, shortly before the High Court hearing, Superintendent William Collins of the Garda Traffic Department, Dublin Castle, stated that official translations into the Irish language of the Road Traffic Act 1994 and the Road Traffic Act 1995 were available as of that date and that the Chief State Solicitor’s Office intended to provide copies to the Applicant’s solicitor. He stated that enquiries had been made as to when an official translation would be available of the District Court Rules and he was informed that:

“……….it is the intention of the Department of Justice Equality and Law Reform to provide such a translation, however there is at present no date fixed for the production of same.”

104. He went on to say that there was a considerable body of primary legislation and Statutory Instruments which had not yet been translated; that it was the intention of the Secretariat of the Houses of the Oireachtas and of the Minister for Justice Equality and Law Reform that the Rules would be available in Irish “as soon as circumstances permit”.

105. In a replying affidavit Mr Synnott, the Applicant’s solicitor, referred to a circular dated the 23rd February 1998 which he said went to each Government Department from the principal translator of the Houses of the Oireachtas. This document was not produced to the Court but its contents were not denied. The document is quoted in Irish and it appears to state that it will not be possible, by reason of shortage of staff and the increase which has occurred in work in connection with primary legislation to attend further to requests from Government Departments to translate Statutory Instruments into Irish. A certificate signed by an officer not lower in rank than Assistant Secretary, stating that there is a grave need or true urgency for an Irish version is required before such work can be done. Mr Synnott says without contradiction that he believes that no certificate of that sort has been issued in relation to the Rules of the District Court.

106. In a further letter dated the 31st March 1998 the Private Secretary to the Minister for Justice Equality and Law Reform stated, in Irish, that he wished to convey that the Rules of the District Court had been signed by the Minister and had been sent to the chief translator on the 25th March 1997 for translation into Irish. He stated that there were more than 1,200 pages in the Rules and that it was not known as yet when the Irish version would be ready. He added that the question of Irish versions of the Road Traffic Acts 1994 and 1995 was a matter for the Minister for the Environment. This is a matter of some significance in view of one of the State’s submissions discussed below.

 

THE PRESENT POSITION
107. The present position in relation to the availability of the relevant materials in Irish appears to be as follows. A copy of the Road Traffic Act 1961 has always been available in the Irish language. It was printed together with the English version and in the bound volumes of the Statutes the English and Irish texts appear on facing pages. The Irish text is described as an “official translation” , which term is a reference to a constitutional provision discussed below. It appears that the production of bound volumes of the Statutes in this form ceased with the Statutes for the year 1979. Some Statutes have been produced in Irish since that time, although there is no evidence to show how many or on what basis Statutes are selected for translation. No translation, official or otherwise, of the Road Traffic Act 1994 or the Road Traffic Act 1995 was available (and apparently none was produced) at the time of the signing of these Acts into law by the President pursuant to the Constitution. No copy of the 1994 or 1995 Acts was available at the time of the issue of a summons against the Applicant. An unofficial or incomplete translation of the 1994 Act was provided to the Applicant having apparently been specially produced by virtue of his request, in January 1998. Official translations of that Act and the 1995 Act were produced at some stage shortly before the 11th February 1999. No version in Irish of the District Court Rules 1997 has been produced to date and it would appear that no work on such a copy can be commenced by the Chief Translators Office in the absence of a certificate from an official not lower in rank that Assistant Secretary of a Government Department. This is by reason of pressure of work and shortage of staff in the office of the chief translator in the Houses of the Oireachtas.

 

SIGNIFICANCE OF THE RELEVANT MATERIALS
108. It was not seriously disputed that all of the relevant materials are of importance to a person defending an allegation that he contravened Section 49 of the Road Traffic Act 1961 as amended in the District Court. While section 49 of the Act of 1961 prohibited the offence colloquially described as drunken driving it made no provision for the investigation of suspected offences, and the proof of charges under that Section, with reference to breath tests and a blood or urine analysis. These matters were provided for in various statutory provisions from 1969 onwards: these provisions have been much repealed and amended. The present statutory form of the offence of driving with excess alcohol in the body, as established by proof of analysis of blood or urine, is provided in the 1994 and 1995 Acts.

109. The District Court Rules make numerous provisions affecting the conduct of summary trials in the District Court. They also provide numerous official forms for use by those in business before the District Court, including the forms for the summoning of witnesses and the giving of notices of appeal. It is a practical impossibility properly and effectively to conduct litigation in the District Court without a knowledge of and access to the rules and forms. The former (1948) Rules of the District Court were available in both languages.

110. It is both fair and relevant to remark that there is no question of a refusal to provide the Applicant with the Rules of the District Court: the Respondent’s case is that an Irish version will be provided, but none is now available and it is not possible to say when that position will change. Copies of all relevant materials are, of course, freely available in the English language.

 

 

THE IRISH LANGUAGE IN THE CONSTITUTION AND IN THE COURTS

111. The Constitution accords a special and unique position to the Irish language, as did its predecessor of 1922. In view of the continuity and consistency of judicial opinion over the period since 1922, it is relevant to set out both provisions.

112. Article 4 of the Constitution of Saorstát Eireann provided:

“The national language of the Irish Free State (Saorstát Eireann) is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament of the Irish Free State (otherwise called and herein generally referred to as the Oireachtas) for districts or areas in which only one language is in general use.”

113. Article 8 of the Constitution provides:-

“1. The Irish language as the national language is the first official language.
2. The English language is recognised as a second official language.
3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes either throughout the State or in any part thereof.”

114. No such law as was envisaged in the last sentence of each article has ever been enacted. Scholarly opinion on these provisions for exclusive use of one language is to the effect that they were enacted “to provide for the contingency of the entry of Northern Ireland into (the State)” : See for example Kohn: The Constitution of the Irish Free State (London 1932) page 123 .

115. In relation to legislation, the constitutional scheme set out in Articles 20 and 25 of the Constitution envisages that a bill (other than a bill expressed to be a bill containing a proposal for the amendment of the Constitution), passed or deemed to have been passed by both Houses of the Oireachtas shall be presented by the Taoiseach to the President for signature and promulgation as a law. Article 25.4. 3 and 4 provide as follows:

“3. Every Bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both Houses of the Oireachtas, and if a bill is so passed or deemed to have been passed both the official languages the President shall sign the text of the Bill in each of those languages.
4. Where the President signs the text of a bill in one only of the official languages, an official translation shall be issued in the other official language”

116. In relation to Article 8, I believe that the words of Kennedy CJ in

Ó’Foghludha -v- McClean (1934) IR 469, concerning the construction of Article 4 of the 1922 Constitution, are also applicable to this Article. The learned Chief Justice said:

“One of the distinguishing marks of a nation, in the sense of a distinct people(though not a necessary or universal mark) is the possession of a common national language. This nation of ours possessed that distinguishing characteristic in the Irish language. It was the common speech of every Irish man down to comparatively recent times, when it yielded before immense pressure, compulsion in the schools, social political and commercial forces. For some years before the Treaty of 1921 there was an active but slow and difficult struggle to recover the lost ground. The language position at the date of the enactment to the Constitution is so fresh in our memories as to need no statement but the importance of it here is for the interpretation of Article 4. The declaration by the Constitution that the National Language of the Saorstát is the Irish language does not mean that the Irish language is, or was at that historical moment, universally spoken by the people of the Saorstát, which would be untrue in fact, but it did mean that it is the historic distinctive speech of the Irish people, that it is to rank as such in the nation, and by implication that the State is bound to do everything within its sphere of action (as for instance in State provided education) to establish and maintain it in its status as the national language and to recognise it for all official purposes as the national language. There is no doubt in my mind but that the term ‘national’ in the Article is wider than, but includes, ‘official’ in which respect only the English language is accorded Constitutional equality. None of the organs of the State, legislative, executive, or judicial, may derogate from the pre-eminent status of the Irish language as the national language of the State without offending against the Constitutional provisions of Article 4.”

117. I consider that the learned former Chief Justice’s construction of the term “national” as being wider than, but including, the term “official” is applicable equally to Article 8. Indeed, in the dominant (Irish) text of the Constitution it is clear that the Irish languages status as the first official language arises from its status as the national language. This follows from the use of the causative word “ós” in the dominant text.

118. I believe that Kennedy CJ’s implication into the text of the 1922 Constitution of a binding obligation on the State in relation to the language, in the terms which he sets out, is appropriate also to the construction of Article 8. I believe that Article 8 gives rise, apart from any other effect it may have, to a Constitutional imperative requiring to be considered by the Courts in dealing with a case of this kind. I agree with the Judgment of O’Hanlon J in Ó’Murchú -v- Registrar of Companies and The Minister for Industry and Commerce [1988] I.R. S.R. (1980-1998) 42 when he said:

“ I am of the opinion that the provisions of Article 8 of Bunreacht na hEireann are stronger still in terms of giving recognition to the Irish language than was Article 4 of the Free State Constitution”

119. This Judgment was delivered in Irish: the translation is that of Professor Thomas O’ Malley.

120. It is of interest to note that when, on the 25th of May 1937, Article 8 of the draft Constitution was discussed by Dail Eireann in Committee, a proposal to confer equal national and official status on the English language was rejected. Speaking in explanation of the term “national” in this context, Mr. De Valera said:

“It (the Irish language) is the language most associated with this nation; the language that is in accordance with the traditions of our people. We are a separate people and out language was spoken until a little over one hundred years ago generally by our people” (Dail Eireann 25th May 1937, column 987).
121. Accordingly, the present version of Art 8 was approved for submission to the people.

122. The status of the language has also been obliquely considered by the Court of Justice of the European Communities in Groener -v- Minister for Education and City of Dublin VEC (case 379/87, Judgment 28th November, 1989). Ms. Groener, who was a Dutch person, challenged the Minister’s refusal to appoint her as a permanent lecturer in painting at a VEC College on the basis that she had failed the Irish language test. She said that the requirement that a test in the language be passed was contrary to the provisions of European Community Law relating to the free movement of workers. The case was referred to the European Court under Article 177 of the Treaty of Rome on a number of points one of which was “……is regard to be had to a policy of the Irish State that persons holding the post should have a competent knowledge of the Irish language, where such knowledge is not required to discharge the duties attached to the post?” The Court held:

“A permanent full time post of lecturer in public vocational education is a post of such a nature as to justify the requirement of linguistic knowledge within the meaning of ………. regulation 1612/68…………. provided that the linguistic requirement is imposed as part of a policy for the promotion of the national language which is, at the same time, the first official language and provided that that requirement is applied in a proportionate and non discriminatory manner”

123. In my view the Irish language which is the national language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in so doing in any national or official context.

COURT PROCEEDINGS
124. The administration of justice solely in Courts established by law, by Judges appointed under the Constitution, generally sitting in public, is envisaged and required by Article 34 of the Constitution. The powers of such Judges are part of the powers derived from the people under Article 6 of the Constitution. The judicial power is part of the power of Government, together with the legislative and executive powers.

125. Accordingly, the institution by a statutory official, and subsequent adjudication by a Judge, of a criminal charge whether minor or otherwise is part of what I have called the public discourse of the nation and the official business of the State.

126. A citizen summoned under compulsory process (issued in Irish though this point is not essential) to answer a charge in Court, is plainly entitled to make such answer in Irish if he so wishes. Nor can he be disadvantaged in so doing, by reason of his lawful linguistic preference. Furthermore, he is entitled to make his answer in Irish regardless of whether or not he also understands English. See An Stát (MacFhearraigh) -v- MacGamhna [1984] I.R. S.R. (1980-1998) 38.

127. This result indeed had been anticipated in the much earlier decision of Attorney General -v- Joyce and Walsh (1929) IR 526 where, speaking of individuals who gave evidence in Irish at a criminal trial the Court of Criminal Appeal said:

“The Irish language however, is not merely the vernacular language of most if not all of the witnesses in question in the present case, but holds a special position by virtue of the Constitution of the Saorstát , in which its status is recognised and established as the national language of the Saorstát, from which it follows that, whether it be the vernacular language of a particular citizen or not , if he is competent to use the language he is entitled to do so. Therefore, it may be said that all those who gave their evidence in the Irish language in the present case had as it were a double right to do so: first on general principles of Natural Justice as their vernacular language and secondly, as a matter of Constitutional right” (emphasis added)

128. It is also clear from the MacFhearraigh case that a litigant wishing to conduct his case in Irish cannot be ordered or constrained to do so in English on grounds of convenience, or because of the additional time taken by the necessity to translate his questions or submissions for the benefit of those without competence in Irish.

129. Two further cases deal specifically with the right to have legal materials provided in Irish. In Ó’Murchú -v- Registrar of Companies and the Minister for Industry and Commerce I.R., S.R. (1980-1998) 42 , the Applicant wished to incorporate a company in the Irish language. The necessary statutory forms were not, however, available in Irish and she sought an Order of Mandamus compelling the Respondents to provide them. The forms were subsequently provided and the sole issue in the case was that of costs. The authorities claimed that she was not entitled to costs on the basis that the State was not under an obligation to provide the documents in Irish and that she could, in any event, have made her own translation of the relevant forms. O’Hanlon J awarded the Applicant her costs and said:

“It is clear that State money was spent on providing the English version of the forms and it appears to me that fairness is not being accorded to those members of the public wishing to conduct business through the medium of Irish unless similar facilities are made available to them”
(Professor O’Malley’s translation).
130. I entirely agree with that view.

131. Of great relevance to the present case is Delap -v- The Minister for Justice Ireland and the Attorney General [1990] I.R. S.R. (1980-1998) 46. Mr. Delap, who is a Solicitor, wished to have available to him an official translation of the Rules of the Superior Courts and sought Mandamus and declaratory relief. In fact, the Court was eventually informed that a translation was in the course of preparation. A declaration of the constitutional obligation of the State to provide an Irish version of the relevant rules was granted. O’Hanlon J. also held that a citizen had under the Constitution a right to conduct his own side of any case entirely through Irish but, compared with those who are content to conduct their cases through English, such a citizen is at a disadvantage if the appropriate rules are not available in Irish.

132. I agree with the judgment of O’Hanlon J. in Delap and would respectfully follow it. In particular I agree with his description of the position of a citizen who wishes to conduct litigation in the High or Supreme Courts in Irish:-

“Under the Constitution he is entitled to conduct his side of the proceedings entirely through Irish, if he wishes to choose the first official language. I am of the opinion that he faces a great obstacle if he wishes to use Irish and it happens that there is no official translation of the law found in the rules regarding the administration of the proceedings or of the respective forms available, and that he is not being treated in an equal manner to those members of the population who are content to continue using the English versions.” (Professor O’Malley’s translation).

133. I also agree with the judgment of the learned High Court judge in this case, Laffoy J., when she says:

“I agree with O’Hanlon J. on the effect of the constitutional provisions in regard to the facts of this case. My opinion is that the State is obliged, under the accurate interpretation of paragraph 34.3.1. in conjunction with paragraph 40.3.1., in the context of Article 8, to make the official translation of the 1997 Rules available within a reasonable length of time after the
(Minister) has accepted them in the English version, and that the citizen, under paragraph 40.3.1. has a personal right that this obligation be fulfilled.”

134. It will be noted that in the two last mentioned cases, and in MacFhearraigh, heavy emphasis was placed on the right of those wishing to conduct their legal business in Irish to equality of treatment with those wishing to do so in English. Having regard to the status of the Irish language it seems to me that persons wishing to use it are absolutely entitled to do so and to be afforded every necessary facility in doing so at least to the extent that such facilities are available to those using the second official language. In the course of the hearing of the present appeal, Counsel on behalf of the State declined to express a view one way or the other on the question of whether the Applicant was entitled as a matter of law to an official translation of the District Court Rules. It will be observed that in the Ó’Murchú case the State positively denied that Mrs. Ó’Murchú was entitled to an Irish version of the forms under the Companies Act. In my view this negative or ambiguous attitude on the part of the State is inconsistent with the constitutional status of the national language, with the long-standing policy of the State itself and with the citizens right to equality before the law.

135. It remains to consider the judgments of the Supreme Court (O’Dáilaigh C.J. Kingsmill Moore and Walsh J.) in Attorney General v. Coyne and Wallace [1967] 101 ILTR 17. There, Kingsmill Moore J., with whom Walsh J. expressly agreed on this point, construed Article 8 of the Constitution, in the context of a notice of intention to prosecute under the Road Traffic Acts which had been served in Irish only, as follows:-

“It was argued for the Attorney General that the true meaning of the Article was that either languages (sic) might be used unless provision had been made by law that one language only was to be used for some one or more official purposes. On consideration I consider this construction to be correct”.

136. It appears to me that the effect of this finding is to confer on a person, whether an official or not, a right to choose which of the official languages he will use for any particular official transaction. This choice relates to his side of the transaction: no-one can dictate another’s choice of language. In Coyne and Wallace , the evidence was that in a particular part of the country it was usual to serve notices of intention to prosecute and summonses in Irish. This, however, could not exclude the right of a Defendant to conduct his case in English if he wished. Similarly a Defendant may conduct his defence in Irish, although proceedings might have been commenced against him in English. In view of the terms of Article 8, and the official policy of bilingualism to which the State is committed, the State must facilitate the use of either language without discrimination. The production of laws in one language only is totally inconsistent with bilingualism, and is not paralleled to my knowledge in any other bilingual country.

137. On the specific topic of the rules, I have no doubt that an Irish version of the Rules of every Court is an absolute essential for the conduct of litigation as effectively in Irish as in English. It would be the grossest negligence for any practitioner to approach a Court without a competent knowledge of the rules. If the equal right to litigate, whether as Plaintiff or Defendant, in Irish as in English is to be more than a shibboleth, this material must be provided. Nearly seventy years ago, in the case of Ó’Foghludha -v- McClean , cited above, Kennedy CJ addressed the need for a full set of the Rules of the Superior Courts separate and distinct from those inherited from the British administration. He said:

“It is manifest that there must be a complete and self contained code of Rules of Court governing the whole procedure and practice of the High Court and the Supreme Court, made as soon as circumstances will allow. That code, whenever it comes, must be made in the Irish language as it will also be made in the English language , and it must set out all the common forms in both languages. Until this has been done we shall not have a vocabulary of the ordinary legal technical terms in the Irish language established and recognised in general use. At present, owing to the Rules of Court having been made only in English, anyone who wishes to use the Irish language in legal proceedings must make a vocabulary of his own for the technical terms used in English, a highly inconvenient state of affairs, as his choice of equivalence may not be recognised by his opponents or by the officers of the Court.” (emphasis added)

138. I am of the opinion that the same reasoning applies to the Rules of the District Court. These rules, as noted above, are extremely important for the conduct of litigation in that Court. In relation to the trial of summary offences, they contain provisions for such vital matters as service, powers of adjournment, powers of amendment, and the effect of variations between the offence alleged in the summons and the evidence actually given in Court. Furthermore, the rules provide the appropriate forms to be used for such basic purposes as the summoning of a witness and the giving of notice of appeal. In the absence of an official version of these forms in Irish an unwilling witness served with a summons in Irish might omit to attend and, if it were sought to compel him, object that the summons was not in the prescribed form. A party served with notice of appeal might take a similar point. Again, the document containing the result of the analysis conducted by the medical bureau of road safety must, if it is to be admissible in evidence, be in the statutorily prescribed form and a non-statutory translation might be the subject of objection. I express no opinion on the validity of any such objection as envisaged above: they are mentioned to illustrate the additional difficulties which may beset either party seeking, in the absence of official translations of Acts and orders, to conduct his or its legal business in the national language.

139. It is noteworthy that an Irish translation was provided for the former Rules of the District Court, made in 1948. It would appear that in this regard, as with the Statutes, there has been a grave shortfall in the provision of legal materials in Irish since about the year 1980. This can only be described as a failure to observe the constitutional imperative contained in Article 8, and a failure for which apparent lack of staff in the office of the Chief Translator in the Houses of the Oireachtas is no sort of excuse.

140. Apart from the constitutional imperative referred to, and the need to treat persons who wish to use the Irish language in official business on a footing of equality with those using English, the present state of affairs is at variance with the legally enshrined policy of the State over many years. The Legal Practitioners (Qualification) Act 1929 and the relevant portion of subsequent Solicitors Acts are designed to ensure that legal practitioners, whether Solicitors or Barristers, will be competent in the use of Irish. The judiciary is exclusively recruited from the legal professions. The Irish Legal Terms Act 1945 was, according to its long title “an Act to authorise the provision, for the purpose of law, of standard equivalence in the Irish language for certain terms and to provide for the publication of legal forms and precedents in the Irish language. ” Introducing the Bill, the Minister for Justice Mr. Boland said:

“At present there is a difficulty in the way of any extensive use of the Irish language for legal purposes. The whole of the law, with the exception of the Constitution, is contained in the English language only and numerous words and phrases used in the law have been given technical meanings, as distinct from the ordinary meaning, by statutes and judicial decisions. It is necessary to have corresponding technical terms in Irish, in order that Irish may be used for legal purposes.”

141. Pursuant to the terms of the Act, ten “Irish Legal Terms Orders” were made between 1947 and 1956 covering areas of the law ranging from criminal law to company law and probate and administration. These are now collected in the dictionary type publication “Téarmaí Dlí” . More recently, official encouragement, through the medium of Bord na Gaeilge was given to the researches of Fasach, a group of Irish speaking lawyers, in the compilation of their report “An Gaeilge agus an Dlí” in 1986. Order 120 of the Rules of the Superior Court (1986) provides for interpreters to be attached to the Superior Courts and for the translation of Affidavits filed in either official language into the other at the request of any party who does not understand the original language. Most recently, in the Courts Service Act 1998, the Courts Services Board is specifically obliged to have regard to the policy of bilingualism in relation to Courts Services.

S.7 of the Act requires the new Service to prepare regular “strategic plans” which shall:

“…………………(d)
have regard to the Government policy on bilingualism and in particular, to the need to ensure that an adequate number of staff are competent in the Irish language so as to be able to provide service through Irish as well as English.” (Emphasis added)

E FACTS DISCLOSED BY THIS CASE
142. Despite the Constitution provisions considered above and the consistent statutory policy illustrated by the various enactments referred to, spanning a period of almost seventy years, the present case unfortunately reveals a failure to provide the most basic materials mentioned above. This failure is at its grossest in the most recent times. Anyone with access to the printed statutes will be aware that since 1980 there has been a departure from the previous policy of preparing official translations of the great majority of bills which are passed in English as they progress through the constitutional stages ending with their promulgation as law. Only an uncertain but apparently small, number of statutes have been so translated, since 1980. On the evidence in this case, this state of affairs is due to a shortage of staff and pressure of work in the office of the Chief Translator of the Houses of the Oireachtas. The Road Traffic Acts must be amongst the most frequently invoked of the entire corpus of statutes, with, probably hundreds of thousands of prosecutions under them annually. Yet no attempt appears to have been made to translate the modern Road Traffic Code and the Acts of 1994 and 1995 were eventually translated only after the present Applicant instituted his proceedings.

143. It must be stressed that this policy of inertia is in clear and obvious breach of the express Constitutional requirement contained in Article 25.4.4: “where the President signs the text of a bill in one only of the official languages, an official translation shall be issued in the other language.”

144. To this accusation, when made in argument during the hearing of this Appeal Counsel for the State made two answers, both of them in my view unworthy. The first was that, while it is conceded that there is an obligation to provide a translation of Acts, the Constitution does not say when it is to be provided. According to this line of argument, years may elapse, during which the Statute in question is in daily use without any translation being provided, without the State being in breach of its obligation, just so long as the authorities sincerely intend to provide the translation at some future date. It must be obvious that this line of argument is utterly inconsistent with the constitutional status of the national language and with the long standing policy of bilingualism in relation to the business of the Courts, repeated in statutory form as recently as 1998. In my view, there must be implied into the terms of Article 25.4.4. at the very least a requirement that the official translation shall be provided as soon as practicable and there is clearly scope for the contention (not made in this case) that it must be available before the Act is sought to be enforced on a person competent and wishing to conduct his official affairs in Irish.

145. If Article 25.4.4. is construed in its constitutional context and in a purposive manner, this conclusion is still clearer. Article 25 relates to the steps whereby a bill which is passed or deemed to be passed by both Houses of the Oireachtas is promulgated as a law. The procedure laid down is a rapid one. In general, Bills presented to the President for signature and promulgation are to be signed between the fifth and the seventh day after such presentation. This period can be reduced in the circumstances envisaged by Article 25. Immediately after the provisions of Article 25.4. 2 and 3 and before the provision in Article 25.4.5., providing for the enrolment of the text of a law “as soon as may be” after signature and promulgation, there occurs the measure most directly in question here providing for an official translation.

146. Moreover, the only conceivable reason for requiring the issuing of an official translation is so that it can be used by those who are lawfully desirous of conducting their legal business in that one of the official languages which was not the language in which the Bill was passed. Since they are entitled to do this it is plainly unreasonable, in both the ordinary and the legal senses of that term, to withhold the translation from them for any period of time, and certainly for years and indeed decades as has unfortunately occurred in the case of many statutes.

147. There are many statutory provisions obliging the citizen to do particular things on request by a designated person. One of the commonest of these things is the obligation to give one’s name and address to a member of the Garda Síochána in certain circumstances. See for example Section 107 of the Road Traffic Act 1961, subsections (1) and (4) which permit a Garda to demand information and provide no specific time for compliance with the oral request. One can easily imagine the argument which would be made on behalf of the State if a citizen maintained that he was entitled to allow a period of hours, much less months or years, to elapse before complying. On precisely the same basis, that one must construe statutory or constitutional words with regard to their sense and manifest purpose, I would reject the proposition that the State can delay indefinitely providing official translations of Acts of the Oireachtas.

148. The second answer made by Counsel for the State was that, while there was an undoubted obligation to provide an official translation of Acts, this obligation rested exclusively on the Houses of the Oireachtas. The Houses of the Oireachtas, it was said, were not amenable to answer for their action or inaction in the Courts. Therefore, though there is an obligation to provide an official translation of all statutes, it rests upon a constitutional entity which cannot be impleaded in the Courts. Therefore, the right to an official translation is not one which can be enforced at law.

149. I can only describe this line of argument as gravely unworthy of State Authorities operating under the Constitution. It is also an argument which, even in its own terms, is wholly devoid of merit. Nowhere does the Constitution impose the obligation to provide an official translation on the Houses of the Oireachtas and I am not aware of any statutory provision which does so. The very correspondence exhibited in this case makes it perfectly clear that the view of the organ of the State to which the Applicant had resort in his efforts to obtain an official translation (The Department of Justice) was that the translation of Acts was a matter for the Department which had sponsored the legislation, in this case the Department of the Environment.

150. It is true that, in both texts of the Constitution, the obligation to issue an official translation is stated without indicating the name of any person or entity on whom this obligation lies. It is, however, an “official” translation which is to be issued. This suggests that the obligation devolves on the holder of some office and seems to me quite consistent with the view expressed by the Department of Justice that the office in question is the office of the Minister who introduced the Bill. If this is so, it does not of course imply that the translation need of necessity be prepared in that office or even by a civil or public servant: the wording is quite consistent with the translation being prepared by some other person acting under contract or otherwise, so long as the translation is officially approved.

151. Counsel for the State relied, in support of his submissions, on the terms of the standing orders of Dail Eireann (1986). This submission was not made in the High Court. Order 17 is entitled “Language” and provides as follows:

“17(1) All proceedings in the Dail shall be conducted through the medium of the Irish or the English language.
(2) The order paper, the journal of proceedings of the Dail and all other appropriate documents shall be issued in the Irish and English languages.
(3) The clerk shall cause to be made an official translation into English of every law enacted by the Oireachtas in Irish, and an official translation into Irish of every law enacted by the Oireachtas in English.”

152. The imposition of this duty on the clerk, by standing orders adopted by the House, does not appear to me to excuse the non-compliance by the State, or any of its organs, with Article 25.4.4. The State, itself, under its constitutional name, Ireland, is impleaded in this action and no objection has been taken to this. The standing orders of the Dail, made pursuant to Article 15.10 of the Constitution are of course entirely a matter for the Dail and no attempt has been made in these proceedings to enforce them in the Courts. I do not accept that the imposition by the standing orders of the Dail of a duty on an officer the House which is not imposed upon him by the Constitution has the effect of precluding enforcement, as against the State itself, of a manifest obligation. The Dail and its members possess, and are entitled to possess, adequate powers and immunities for the discharge of their functions which are central to the form of Government required by the Constitution. But the rules and standing orders of either House do not appear to me to be capable of excluding the State’s liability to legal process at the suit of a citizen on whom events have conferred locus standi to complain of the breach of a constitutional obligation. To hold otherwise would be to hold that the Standing Orders of the Dáil have precluded a remedy for breach of the Constitution.

EFFECTIVE OFFICIAL NEGLECT
153. This case, taken in conjunction with the others cited, appears to establish that a situation has developed over a period of twenty years or so in which important legal materials have been provided in Irish only haphazardly and in many cases in response to litigation or threats of litigation. This applies not only to the materials for use in contentious matters, such as a criminal prosecution, but to statutory forms in common use such as those under the Companies Acts. The Fasach Report of 1986 states that “….. it has been almost impossible to obtain even the basic documents necessary to enable a simple commercial transaction to be completed in the first official language ”. It also states that:

“Successive Governments have to a greater or lesser extent ignored the existence of the Irish language (precinding from any reference to its pre-eminent status) in the official and daily use of the legal and associated administrative systems. This is evidenced by the almost exclusive use of the English language by the State in all matters relating to Court procedure, land and property transactions and the functioning of State Departments and agencies.”
154. I have to say that these strictures appear amply borne out by the history of the present case. Equally correct, I believe, is the observation that:

“It is difficult to reconcile Article 8 of the Constitution with the ever increasing practice of ‘narrowcase’ servicing of the Irish language speakers through services being provided on request only against the convenience of the system, such service not being proffered as a matter of right ab initio”.

155. In my view, this has led to a situation which only a person of unusual independence of mind and pertinacity will attempt to conduct his or her legal business through the medium of Irish. If such a person seeks a Statute in Irish from the official Government outlet he or she is more than likely to be told it is not available. There is no Irish version of the forms required to institute a simple claim in Irish in the District Court, nor of the forms to enable a person, for example, to summon a witness or commence an appeal. The practical experience of the cases cited in this judgment indicates that, very frequently, only litigation or the threat of litigation will produce these documents. This state of affairs is a constant, officially tolerated, discouragement or actual preclusion from the conduct of legal business in the national language. In these circumstances it is no wonder that the Irish language and Irish speakers have made little progress in the routine use of the national language in the Courts. There have, it is true, been magnificent exceptions to this de facto policy of neglect, such as the production last year, under the aegis of the All Party Oireachtas Committee on the Constitution, of a thorough and scholarly study of the Irish text of Bunreacht na hEireann. There is also the shining example of lawyers such as those engaged on both sides of the present case and of judges, pre-eminent amongst them Mr. Justice O’Hanlon, former judge of the High Court, who have demonstrated that elaborate and subtle argument and distinguished judgments are perfectly possible in the national language. One must also welcome the production by the Incorporated Council for Law Reporting of a special reports volume of the Irish Reports covering cases heard and decided in Irish between 1980 and 1998. But these are exceptions owing much to the inspiration and labours of dedicated individuals. They cannot at all contend with the stark reality that an individual who seeks basic legal materials in Irish will more than likely be conscious of causing embarrassment to the officials from whom he seeks them and will certainly become conscious that his business will be much more rapidly and efficaciously dealt with if he resorts to English. I can only say that this situation is an offence to the letter and spirit of the Constitution. I am sure that it has not arisen by reason of any deliberate decision by any official person or body. But it has arisen and must be remedied if the law is to be administered as the Constitution intended that it should be.

156. Bilingualism, or multi-lingualism is a living reality in many countries and of course the European Union daily produces complex documents, many of them of a legal nature, in all official languages. I have no doubt that it is quite possible to produce all relevant legal materials in Irish. I have no doubt that the Applicant of this case is entitled to have an Irish version of the Rules of the District Court if he so wishes as it is clear that he does. What is lacking is a system which existed for many years: one which routinely produced legal materials in both official languages, as appears to happen in other countries with a policy of bilingualism or multi-lingualism and the continued failure to provide such a system is inconsistent with the Constitution. In this context the lip service paid to the national language can only be regarded, in the inimitable phrase of the late Professor John M. Kelly, as “focal scoir don Gaeilge” .

OTHER POINTS RAISED

157. It is clear that the Delap case is a powerful precedent in favour of the Applicant in these proceedings. No attempt was made to distinguish it on the basis that different considerations apply to the rules of the District Court, as opposed to those in the Superior Courts. In my view the Defendants were correct to refrain from making any point of this nature since there is no sustainable distinction to be drawn. It was, however, submitted that the Delap case could be distinguished on the basis that Mr Delap was (and is) a solicitor engaged actually or potentially in a wide variety of cases before the courts and therefore had an interest, actual or potential in the rules as a whole whereas the present Applicant is simply a citizen with an interest in one case only. Perhaps, it was submitted, he or his solicitor could translate the relevant rules themselves.

158. In my view this point is manifestly unsustainable. The rules are the work of the District Court Rules Committee, consisting of representatives of the judiciary and both branches of the legal profession and aided by the professional services of a draughtsman and assistant draughtsman. Their work is painstaking, precise and specialised. It is not reasonable to presume that the Applicant or his solicitor either possesses the necessary skills to make a legally acceptable translation or has the resources to employ the specialised legal skills necessary to do so. In any event, why should this duty be imposed on him since it is not imposed on a citizen who is content to conduct his legal business in the second official language? Furthermore, in relation to a “home made” translation of a witness summons the State concede that such a document might be ineffective but submit that “the witness might come anyway” . This is plainly both an unsatisfactory situation and one perfectly illustrative of the position of inequality affecting a person who wishes to conduct his legal business in the national language. This possibility of the citizen making his own translation was unsuccessfully relied upon by the State in the Ó’Murchú case, in relation to Companies Act forms. I agree with the judgment of the High Court in that case and would for the same reasons reject the submission here.

159. It was further submitted that, even if the Applicant had a right to a copy of the Rules in Irish, he was not entitled to relief by reason of the absence of an Irish version unless he could demonstrate prejudice (dochair nó constaic). It seems to me that this point amounts, in practice, to a submission that it is incumbent on the Applicant to demonstrate that he is unable to understand the Rules in English. In MacFhearraigh the Employment Appeals Tribunal sought to compel the Applicant to conduct his case in English having established that he understood that language and so would not be prejudiced. I agree with the judgment of the High Court in that case rejecting the Tribunal’s view. I consider that a person in the position of the Applicant here is entitled to the materials in question in the national language whether or not he is conversant with, or comfortable in, the second official language as a matter of constitutional right.

160. The most fundamental of the points raised by Mr Gaffney S.C. with great suavity, is this: which is more important: the right of the public that the law should be enforced or the right of the citizen to use Irish? It is necessary, he submits, that one of these rights should yield to the other ( “is gá ceann acú geilladh don ceart eile” ).

161. I am firmly of the view that there is no such necessity that one of these rights should yield to the other. In a State in which Irish is the national and first official language, and which is committed to a statutorily mandated policy of bilingualism, it is necessary that the laws should be issued and, where requisite, enforced in each of the official languages. In a case such as the present, where there is no question as to the competence and bona fide desire of a citizen to use the national language it is in my view extraordinary to attempt to set up an antithesis between his right to do so and the public right that the law should be enforced. Furthermore, there is no insuperable difficulty in enforcing the law through the medium of the national and first official language and whatever difficulty there may be in this regard arises directly from the inaction of the State over a period of decades in relation to the national language. If these difficulties fall to be addressed in a haphazard and ad-hoc fashion, that is because the State has been unwilling to address them in any more coherent way.

162. The modern State necessarily imposes many onerous duties on citizens in relation to various aspects of life from tax compliance to planning law. Many of these duties are irksome, time consuming and expensive to comply with, but compliance is properly required. Equally the State itself must comply with its obligations, particularly those enshrined in the Constitution and can no more be heard to complain that such compliance is irksome and onerous than can the individual citizen. In particular, the State cannot be heard to complain that its non-compliance over a period of decades have now rendered present compliance even more difficult.

RELIEFS
163. Despite the findings of the High Court in relation to the State’s obligations, with which I agree, the Applicant was afforded no relief for a variety of reasons. He was refused the declaration which he sought “that the Respondents named in the third and fourth paragraph of these proceedings have a constitutional obligation to supply the official translation of the Acts of the Oireachtas in the first official language when the President signs a bill in the second official language” on the basis that “the text of the Constitution confirms, in paragraph 25.4., the contents of (the declaration sought). It is my opinion that it would serve no useful purpose for this Court to confirm the same matter” .

164. No doubt it would normally be otiose for a Court to make a declaration confirming the plain purport of a constitutional article. But I think this Court should do so here because of the undeniable failure to comply with this mandatory constitutional provision, and in the hope that by so declaring this duty will at last be taken seriously. If this does not occur, it may be that some Applicant will eventually be driven to seek mandatory relief in this regard. It is, of course, to be assumed that the State, the fourth named Respondent, will not by continued inaction allow such a situation to develop.

165. In framing the declaration which he claims, the Applicant did so in general words, without limiting the Statutes to which the declaration would relate to those in question in his Road Traffic case. In my view he has the locus standi to do this, as a citizen able to and desirous of perusing the laws of his country in its national and first official language. Accordingly, I do not consider the fact that the Statutes with which he is most immediately concerned have in fact been translated to exhaust his standing to seek this relief.

166. The Applicant was likewise refused a declaration “that the Respondents named in the third and fourth paragraphs of these proceedings have a constitutional obligation to supply the official translation of (the Rules of the District Court) in the first official language” on the basis that although the State was obliged to make the official translation of the 1997 Rules available within a reasonable length of time, and the Applicant had a personal right to this obligation be fulfilled, the State had not yet failed to fulfil it. This was on the basis that the rules were lengthy, the chief translator had an enormous volume of work, and a reasonable period for the provision of an unofficial translation of the rules had not yet elapsed.

167. The High Court judgment was given on the 17th June 1999. Some one thousand two hundred and fifty days had elapsed between the adoption of the rules and the hearing of this appeal on the 10th July 2000. Even at that date, no indication could be given of when the official translation would be available. Moreover, it was not disputed that the official translator would not begin work on the translation in the absence of a certificate of the kind described earlier in this judgment, or that no such certificate had been issued. Accordingly, on the evidence, the work of translation is no further forward to day than on the date on which the Rules were approved, nearly four years ago. I believe that this is an unreasonable state of affairs, and one in which in all probability will continue, in clear and obvious defiance of the State’s obligation and of the personal right of the Applicant, unless this Court does something more than simply deplore the State’s inaction. I would accordingly make this declaration also and express the hope that further legal action will not be necessary to ensure compliance with it.

168. The final relief claimed by the Applicant was an Order of Prohibition restraining the continuance of the proceedings against him until the relevant materials were provided in translation. With considerable hesitation I have concluded that the Applicant should not be granted this relief. An Order of Prohibition is a discretionary remedy. The general rights of the Applicant as an Irish speaker have already been fully recognised by the declaratory reliefs granted. It is not obvious to me that his rights as an Irish speaker who is also a litigant will necessarily be denied in the pending District Court proceedings. The learned District Judge who hears the case will have wide powers to secure these rights and will if necessary be empowered to strike out the proceedings if that cannot be done. The burden of any irremediable difficulty arising from the failure to translate the relevant materials as Statutes rules, and any statutory forms which are/or become relevant – must fall on the prosecution rather than the defence. But it does not appear appropriate to assume in advance that any such difficulty will arise.

169. It would be gravely mistaken for the second to fifth-named Respondents to assume that the considerations which lead to the refusal of an Order of Prohibition in this case would apply to any similar case in the future. In limiting itself to declaratory relief the Court is making the assumption that the declarations will be acted upon both in the particular case and in general. In omitting, in this particular case, to confront the authorities with an emergency or embarrassment, subject to the powers of the learned District judge mentioned above, the Court is giving the fullest measure of respect to the arguments advanced in relation to the communities right to prosecute. If, most improbably, no action was taken on foot of the declarations made the balance of these rights affecting the exercise of discretion would be significantly altered. And this might arise in a case more urgent or sensitive than the present one. It is hoped that by making these declarations in a case where, for the reasons given, it is inappropriate to take further action in the way of prohibition, such an emergency may be avoided in the future.

170. The routine District Court prosecution in this case has been deferred for a period of almost four years. This has occurred for one reason only: the Applicant has been minded to assert his constitutional rights as an Irish speaker. The State has not denied these rights but it has been absolutely unwilling to take any positive step about according them except at the last possible moment and under the threat, or when faced with the reality, of legal proceedings. And in the proceedings themselves, the State has taken up some positions which are narrow, legalistic, petty fogging and reductionist. Ironically, legal submissions with these attributes are often described in shorthand as “drunk driving points” . It is disedifying to seem them taken by the State.

171. I would grant the two declarations set out above and refuse an order of prohibition.

McGuinness J.
Hardiman J.
Geoghegan J.
230/99

AN CHÚIRT UACHTARACH

(ATHBHREITHIÚ BREITHIÚNACH)

IDIR/

SÉAMUS Ó BEOLÁIN

IARRATASÓIR/ACHOMHARCÓIR

agus

BREITHEAMH NA CÚIRTE DÚICHE
MARY FAHY STIÚRTHÓIR NA nIONCHÚISEAMH
POIBLÍ, AN tAIRE DLÍ CIRT, COMHIONANNAIS
AGUS ATHCHÓIRITHE DLÍ, ÉIRE AGUS
AN tARD-AIGHNE

FREAGRÓIRÍ

 

Judgment of Mr. Justice Geoghegan delivered the 4th day of April 2001

 

172. Notwithstanding that this case including the appeal to the Supreme Court was heard in Irish I prefer to deliver my judgment in English as it is my vernacular and I can express myself clearly in that language. I am satisfied that there is nothing to preclude me from so doing as no legislative provision pursuant to Article 8(3) of the Constitution has been made requiring the exclusive use of any one of the two official languages for the purposes of a judgment in court. This does not mean, however, that a litigant conducting a case in Irish would not be entitled in some circumstances to require a translation into Irish of a judgment delivered in English if he or she was unable to understand English. This requirement could arise under the principles of natural justice. As a matter of courtesy, I hope to be able to provide an Irish translation of this judgment.

173. In her judgment in the High Court, delivered on the 17th of June 1999, Laffoy J. sets out the nature of the reliefs sought by the applicant in this judicial review. But by the time the case came on for hearing before her, two of the reliefs had become redundant in that they referred to an alleged failure on the part of the State to perform a constitutional obligation to supply an official translation of the Road Traffic Act, 1994 and the Road Traffic Act, 1995, which Acts were relevant to the charges against the applicant in the District Court. These charges related to allegedly having an excess of alcohol in the blood when driving a mechanically propelled vehicle in a public place. Before the case came to be determined by Laffoy J., however, official translations of the two Acts were in fact made available. That meant that for all practical purposes there were two reliefs being sought by the applicant. One was a declaration that the third and fourth-named respondents have a constitutional obligation to supply an official translation of the District Court Rules 1997 into Irish and the other is an order of prohibition against the first and second-named respondents from proceeding with the prosecution until such official translation is made available. It would appear, from the judgment of Laffoy J., that she accepted the principle that the State was obliged to make available within a reasonable time an official translation of the 1997 Rules but she took the view that such reasonable period of time had not yet passed. It can be reasonably inferred from her decision that she took the view that if a reasonable period had in fact passed, the applicant would have a constitutional right to an official translation of the rules but she refused the application for judicial review on the grounds that no violation of that right had been established given that the reasonable period of time had not elapsed.

174. The applicant has appealed the decision of Laffoy J. and is requesting this Court to make the declaration and the order of prohibition sought. I am of the view that the appeal should be dismissed but on grounds somewhat different than those on which the decision of Laffoy J. was based.

175. Before there can be any consideration as to whether a constitutional right has been violated it is essential to establish the constitutional right itself. I intend, therefore, to review the relevant provisions in the Constitution and the relevant case law in relation to this question. Any such review must necessarily commence with a consideration of Article 8 of the Constitution. That Article reads as follows.

“ 1. The Irish language as the national language is the first official language.

2. The English language is recognised as a second official language.

3. Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.”

176. I interpret paragraphs 1 and 2 of Article 8 as meaning that for all legal and official purposes the Irish language and the English language are in an equal position. A constitution is not simply a piece of legislation. It embodies the aspirations and emotional feelings of the people who have enacted it. Not everything in a constitution therefore is intended to have legal implications. Long before the relevant Article was abolished by Referendum the provision as to the special position of the Roman Catholic Church was not considered by constitutional lawyers to have any legal implications. It was merely reflecting what was perceived to be a fact on the ground at the time of the enactment of the Constitution. I think that the reference to the Irish language as “ the national language” albeit aspirational rather than factual in Article 8 paragraph 1 is similar. The whole purpose of paragraph 2 of Article 8 is to make clear that for official and legal purposes English and Irish are in an identical position. That being so, I turn now to paragraph 3. This paragraph was interpreted by the Supreme Court in Attorney General v. Coyne and Wallace (1967) 101 I.L.T.R. 17. The Court consisted of Ó Dálaigh C.J., Kingsmill Moore J. and Walsh J. Kingsmill Moore J. in referring to paragraph 3 said the following:

“I was at first inclined to the view that 8(3) meant that an official document to be operative must be both in Irish and English, unless provision had been made by law sanctioning the use of only one of the languages. It was argued for the Attorney General that the true meaning of the Article was that either languages (sic) might be used unless provision had been made by law that one language only was to be used for some one or more official purposes. On consideration I consider this construction to be correct. Accordingly, I am of opinion that the decision of the District Justice was not correct and the case should be sent back to him to enter continuances.”

177. Walsh J. expressly agreed with the construction placed upon Article 8(3) of the Constitution by Kingsmill Moore J. From that construction of paragraph 3 it would seem to follow that unless there is a statutory provision saying otherwise, official business may always be conducted either in English or Irish in so far as any reliance is being placed upon Article 8. Of course natural justice requirements may, in any given instance, impose an obligation to provide a document or a translation in one particular language.

178. The second decision of this Court which is of some importance is Ó Monacháin v. An Taoiseach [1986] ILRM 660. In that case partly in reliance on Article 8 and partly in reliance on section 71 of the Courts of Justice Act, 1924, which required that so far as might be practicable, having regard to all relevant circumstances the Justice of the District Court assigned to a district which included a Gaeltacht area should possess a sufficient knowledge of Irish to enable him to dispense with an interpreter argued that the judge was not entitled to hear the case with an interpreter. The applicant failed but the facts are not really relevant to this case. What is material however is that the case seems to re-enforce the principle enunciated in some High Court decisions that the right to have a case heard in Irish is confined to a right to conduct one’s own side of the case in Irish. There is no right to compel others to use the Irish language. Griffin J. put it this way:-

“Because of the desire of the solicitor to open and conduct the case in English and because the second witness did not have Irish the judge would not be right in hearing the case in the absence of assistance from an interpreter. It was the right of the plaintiff to give his evidence in Irish but he had neither licence nor right to demand that the entire case be conducted in Irish when it was the desire of the solicitor to conduct the case in English and when one of the witnesses did not have Irish.”

In An Stát (MacFhearraigh) v. MacGamhnia until recently an unreported judgment of O’Hanlon J. in the High Court 1st of June 1983 but now reported in the Tuariscí Speisialta 1980-1998, at p. 29 O’Hanlon J. made the following observation which when translated into English reads:

“Whenever any party wishes to put his side of a case to a court or tribunal, whether by argument, the giving of evidence, or the examination or cross-examination of witnesses, I am of opinion that he has a constitutional right to do all of this through Irish if he wishes.”

179. The nature and extent of the right to conduct a case in Irish has never been fully considered by the Supreme Court and it is not necessary or desirable that this Court, being a court of three judges only, should embark on such an analysis. There have been obiter dicta from Supreme Court judges which clearly recognised the right of a litigant to conduct a case in Irish and it has always been generally accepted that such a right exists. However, a final determination on this matter must await a fully argued out case in the Supreme Court. For the purposes of this judgment I am assuming that such a right exists and that its extent is as set out above by O’Hanlon J. Although it is not necessary to decide it in this case, it may well be that the right to conduct a case in Irish is not an absolute one and that circumstances can arise where a court or a tribunal is entitled to insist on a case being conducted in English. This could arise for instance if there were insuperable difficulties about obtaining an interpreter within a reasonable time-scale.

180. If I am correct in the view which I have taken as to the extent of the right to litigate in Irish then it must follow that in a prosecution such as this, the State is entitled to prosecute in English even if the defendant wants to conduct his or her defence in Irish. Furthermore even if out of courtesy or for other reasons the Director of Public Prosecutions or other prosecuting authority in such circumstances decides orally to conduct the prosecution in Irish it does not mean that a document to be relied upon by the prosecution must itself be in Irish. By document I am including anything put in in evidence which would normally be described as a document, and also any statutory instrument including Rules of Court which are being relied on. For this purpose I am not including statutes as there is a separate constitutional provision relating to them and I will return to it later in the judgment. In expressing this view I am conscious that I may be in conflict with the views expressed by O’Hanlon J. in Delap v. An tAire Dlí agus Cirt , until recently unreported judgment in the High Court of 13th July 1990, but now reported in the Tuariscí Speisialta 1980-1998 at p. 116. In that case the applicant was a Dublin solicitor engaging in legal transactions in the Irish language on behalf of clients and he applied for a declaration and an order of mandamus compelling the State to provide a translation into Irish of the Rules of the Superior Courts. He argued that the non-availability of the rules presented a big obstacle to him and to his clients. It was held by O’Hanlon J. that he was entitled to the declaration but the making of an order of mandamus was postponed the Court having been informed that a translation of the rules was being prepared. O’Hanlon J. acknowledged that he was bound by the interpretation of Article 8(3) of the Constitution laid down by the Supreme Court in Attorney General v. Coyne and Wallace cited above, but the learned judge went on to hold that it was not necessary for the applicant to invoke the provisions of Article 8 of the Constitution. He accepted that the rules-making committee had power, in conjunction with the Minister for Justice, to make the rules in the English language only and that there was no violation of Article 8 merely because the rules were made in one official language only without at the same time their being made in the other official language. He also accepted that Article 25, s. 4, sub-s. 4 of the Constitution applied only to Acts and not to statutory instruments. But he held nevertheless that the applicant was entitled to the declaration on the grounds that

“ every citizen has a constitutional right to come before the courts established by law under the Constitution in order to assert or defend their rights under the Constitution, and when a citizen is so minded he is obliged according to law to comply with the provisions of the Rules of the Superior Courts in everything concerning proceedings in the High Court and in the Supreme Court. He must make use of the forms which are found in the appendices accompanying the rules or the forms varied or modified as the circumstances require and to comply with the requirements of the rules from the beginning of proceedings to the end. He has a right under the Constitution to conduct his side of the proceedings entirely in the Irish language if he desires to choose the first official language. I am of opinion that there is a great obstacle in his path if he desires to use the Irish language but that if at the same time there is no official version available of the law found in the rules concerning the regulation of such proceedings or of the forms which accompany them and that he is not being accorded equal treatment in that case by comparison to that section of the public which is fully satisfied to use the English language version at all times.”

181. I am assuming, as I think that I am entitled to assume, that the applicant being a defendant in a Dublin prosecution is able to speak and understand English and that, therefore, in so far as he is insisting on rules and forms to be in Irish he is not making any natural justice point. The judgment of O’Hanlon J. was not, of course, based on a natural justice point but on an equality point. I am afraid that if it is relevant to this case (which I rather doubt) I cannot agree with it. Once the interpretation of Kingsmill Moore J. on paragraph 3 of Article 8 is accepted then (apart from natural justice considerations) there can be no obligation on the State to ensure that statutory instruments and forms contained therein, whether they are to be availed of by a particular party or not, must be in both official languages. I find the equality argument quite unconvincing. If there is a prescribed form which has to be filled up by a litigant or party and the requirements of the form are in one of the official languages and it is a language which the party fully understands there is no inequality or injustice. Furthermore, in so far as a litigant or party wants to rely in argument on a provision in a statutory instrument or in the Rules of Court he should properly be referring to the form in which the instrument or rules were originally made at any rate irrespective of whether he had a translation or not. The Court cannot be expected to interpret a rule of the District Court made in English by reference to a translation into Irish.

182. It seems clear that the views of the Supreme Court in Attorney General v. Coyne and Wallace , cited above first came to the attention of O’Hanlon J. in the Delap case. The learned editors of Kelly on the Irish Constitution 3rd edition at p. 59 referred to two earlier decisions of O’Hanlon J. in which he had enunciated a broad obligation on the State pursuant to Article 8 and they comment as follows.

“However, the imposition of such a broad obligation on the State appeared to be at variance with Article 8.3 as that provision was construed by Kingsmill Moore J. in Attorney General v. Coyne and Wallace and when this was brought to the attention of O’Hanlon J. in Delap v. An tAire Dlí agus Cirt Éire agus an tÁrd-Aighne he resiled from his earlier position.”

183. The editors go on to point out that the same judge again rejected one of those earlier decisions in a more recent case of Ní Cheallaigh v. An tAire Comhshaoil formerly an unreported judgment of the 4th of June 1992 but now reported in Tuariscí Speisialta at

p. 122. The applicant in that case had contended that the relevant Road Vehicles Regulations were unconstitutional because they oblige car owners to affix registration plates to their cars but only provided for the use of the English language version of such plates. O’Hanlon J. distinguished the case from Delap on the grounds that it did not involve the right of citizens to have access to the courts in order to vindicate and defend their rights and he held that he was bound by Attorney General v. Coyne and Wallace .

184. For the reasons, which I have indicated, I am of the view that the applicant/appellant has no right to have the 1997 District Court Rules translated before the prosecution can proceed. It follows obviously that a prohibition order should not issue. But I would add two further grounds on which in my view the appeal should be dismissed. Even if I am wrong in taking the view that there cannot be such a right then I am in agreement with

185. Laffoy J. that an infringement of that right has not been sufficiently established. There must be a reasonable time span allowed for making official translations. But even more importantly there is a third reason why I would refuse the reliefs. Article 34 of the Constitution contemplates that there be courts of law and that justice should be administered in those courts. Such justice includes criminal justice and the right of the public via the Director of Public Prosecutions to take all necessary steps to prosecute a person who appears to him to be guilty of the serious offence of drunken driving or its equivalent, that is to say, having an excess of alcohol in the blood or urine. Unless obviously there was some natural justice issue involved a court, in those circumstances, ought not to grant prohibition such an order being discretionary. In this connection I think it helpful to quote in full the first three paragraphs of the statement of grounds of opposition filed by the respondents. They read as follows:

“I. The applicant has failed to place before the Court any or any admissible evidence such as would substantiate a claim that counsel, in his conduct of the defence of the proceedings the subject matter of the within judicial review, has been in any way inhibited or compromised by virtue of their not yet being available an official translation of the Road Traffic Acts of 1994 and 1995 or the District Court Rules of 1997.

II. It is denied that either the applicant or his legal advisors have been in any way hindered or disadvantaged in conduct of the proceedings in the District Court.

III. Whereas the applicant is entitled to give evidence in the national language and furthermore is entitled to pose questions to witnesses and make submissions in the national language he is not entitled to require the evidence against him to be given in the language of his choice nor is he entitled to require the trial judge to conduct the proceedings entirely in accordance with the applicant’s wishes regarding the use of the national language.”

186. I think that those pleas are well-founded and that they are in themselves a complete reply to the applicant’s claim, even if contrary to my view he was right about his theoretical entitlements. The due administration of justice is itself a constitutional requirement and must, I think, take precedence over an alleged constitutional right to procure an Irish translation of a statutory instrument in circumstances where the person seeking it can be presumed to be proficient in English. Under the well established principle that judges are entitled to take judicial notice of and assume facts of everyday obviousness, any judge trying a case in Dublin, in my view, is entitled to assume unless informed otherwise that a litigant is able to speak English. If it were the case, of course, that Mr. Ó Beoláin was not able to speak English the situation would be entirely different. He would be entitled to translations all along the line but not necessarily to something described as “ an official translation” .

187. Although the reliefs sought based on the non-furnishing of official translations of the Road Traffic Acts, 1994 and 1995 have become redundant, as I indicated, I think it important nevertheless to make some reference to Article 25.4(4) of the Constitution. That paragraph reads as follows:

“Where the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language.”

188. Although apparently some official translations have been made of Acts passed from 1981 onwards the last bound volume containing Acts with the English and Irish versions is 1980. It would appear that official translations have not been “ issued” since then. On the face of it this would seem to be a gross breach by the State of a direct constitutional obligation. Indeed on one interpretation of Article 25.4(4) an official translation of the Bill, as passed by both Houses, might have to be available at the time the President signs the text. But for all I know at this stage there may be a complete answer to the apparent breach by the State of its constitutional obligation. First of all, of course, it has been suggested that it is under the Standing Orders of the Dáil that the legislation is translated. If that is so there might be “ separation of powers” issues involved in any court interference. But there is nothing in the text of the Constitution to suggest that the translation is a Parliamentary function. On the face of it it would appear to be an executive function and, indeed, in a later part of the same Article there is a provision for the Taoiseach from time to time as occasion appear to him to require to cause to be prepared under his supervision a text of the Constitution itself embodying amendments. But even if the State has been in breach of its obligations I do not think that it necessarily follows from that that there is some corresponding constitutional right conferred on a litigant in a civil or criminal case involving an Act of the Oireachtas not yet officially translated. A constitutional obligation placed on some organ of the State does not necessarily give rise to some corresponding constitutional right vested in an individual. But (without so deciding) I would be of the view that any citizen, irrespective of whether he is before the courts or not or whether he has need to use a particular Act or not would have locus standi to seek an order of mandamus directing the relevant authority to take all necessary steps to have official translation of Acts issued It does not, however, necessarily follow that the Court would automatically grant such a mandamus. If for instance there were reasons of cost involved in the delaying of the translations the Court would have to carefully consider whether it should order the State to incur expenditure in relation to one particular obligation albeit an express constitutional one when the State would be under numerous other obligations, some constitutional, in relation to health, education etc. that would also involve expenditure. At any rate such a mandamus proceeding would obviously have to involve the Attorney General and the matter would be fully debated probably before a court of five judges. Even if the translations had not been provided in this case, I am extremely doubtful that the applicant could have successfully invoked Article 25 to obtain an order of prohibition. If he could, it means that defendants facing serious firearms or drugs charges under post 1980 statutes or perhaps serious revenue offences under the Taxes Consolidation Act, 1997 could have their trials postponed pending the issue of official translation of those Acts. I cannot accept that any such constitutional right exists. For the reasons indicated I would dismiss the appeal.

[2002]
4 I.R.

 

Mac Carthaigh v. Minister for Justice

 

[2002] 4 IR 1
Finnegan P. 9

 

Finnegan P.
14th May, 2002

The applicant was charged with another person and it was alleged:-
(1) that he did on the 28th May, 1990, at Swords Road, Corballis within the Dublin Metropolitan District rob one John Nelson of assorted chocolates, sweets and confectionery to the total value of £11,252.50 contrary to s. 23 of the Larceny Act, 1916, as amended by the Criminal Law (Jurisdiction) Act, 1976;
(2) that he did on the 28th May, 1990, at Swords Road, Corballis within the Dublin Metropolitan District by threat or force unlawfully seize a vehicle to wit motor vehicle 89 D 29349 contrary to s. 10 of the Criminal Law (Jurisdiction) Act, 1976;
(3) that he did on the 28th May, 1990, at 5 Henrietta Lane, Dublin in the Dublin Metropolitan District receive assorted chocolates, sweets and confectionery to the total value of £11,252.50 property of John Nelson knowing the same to have been stolen contrary to s. 33(1) of the Larceny Act, 1916.
The trial of the applicant was delayed pending determination of an application by him for judicial review in which he sought the following reliefs namely:-
(1) an order of prohibition preventing the second respondent from proceeding with any trial of the applicant except before a jury having the capacity to understand the Irish language without the assistance of an interpreter;
(2) an order of mandamus requiring the second respondent to empanel a representative jury to ensure that the applicant will have a trial according with the requirements of justice;

(3) a declaration that the applicant is entitled to a jury excluding from its make-up incapable members as referred to in the Jurys Act, 1976.
The application was refused by the High Court (O’Hanlon J.) and in the Supreme Court.
Thereafter when the trial came on before the Circuit Court the same was again stayed pending the present application for judicial review.
On this application the applicant seeks the following reliefs:-
(1) an order of certiorari quashing the order of the Circuit Court Judge in which he held that an accused person did not have the right to have a transcription taken of proceedings at his trial as spoken;
(2) an order of mandamus directed to the first and second respondents-
(a) directing the provision of a satisfactory recording system for the trial of the applicant and/or
(b) directing the provision of an effective simultaneous translation system which would not interfere with the speeches and submissions of counsel and would facilitate the conduct of the trial;
(3) an order of prohibition restraining the trial of the applicant before the Dublin Circuit Criminal Court on Bill No. 333/92 until there is provided:-
(a) a satisfactory recording system and/or
(b) a simultaneous translation service.
Insofar as the reliefs sought at (1), (2)(a) and (3)(a) above are concerned, there is now available for use in the Circuit Criminal Court and there will be available at the trial of the applicant, a Lanier system which complies with s. 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, which substituted a new s. 33 for that in the Courts of Justice Act, 1924. Section 33 of the Courts of Justice Act, 1924, now reads as follows:-
“(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal (the court) on:-
(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and
(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains,with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.

(2) Where the court is of opinion that either the record or the transcript thereof is defective in any material particular, it may determine the appeal in such manner as it considers, in all the circumstances, appropriate.
(3) In this section, ‘record’ includes, in addition to a record in writing-
(a) shorthand notes, or a disc, tape, soundtrack or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,
(b) a film, tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and
(c) a photograph”
In addition, the Lanier system is in compliance with the Rules of the Superior Courts, 1986, O. 86, r. 14. I am satisfied that the provision of a transcript by means of the Lanier system and the official stenographer’s transcription thereof satisfies the requirement of the applicant that a transcript of the proceedings in the Circuit Court as spoken will be available for the purposes of any appeal. Accordingly, I refuse to grant to the applicant the relief which he seeks at paras. (1), (2)(a) and (3)(a) of his statement grounding his application for judicial review, set out above. However, I accept that the system made available to the applicant at his trial on the 24th January, 2000, was inappropriate and inadequate and did not adequately safeguard his rights. The stenographer provided was unable to take a shorthand note of evidence given in Irish but proposed taking the note in English and the effect of this is that the transcript would reflect the translation of the evidence, speeches and submissions as opposed to the evidence given and speeches and submissions made in Irish. Such a system fails to recognise the provisions of Article 8 of the Constitution and the special status of Irish as the first official language and the entitlement of the applicant to conduct his defence in the Irish language, that being his preference: similar considerations arose in Canada in the case of Mercure v. Attorney General Saskatchewan (1988) 1 S.C.R. (Can.) 234 at p. 237:-
“Finally, when proceedings are required by law to be recorded, a person using one or the other official language has the right to have his remarks recorded in that language.”
See also The State (MacFhearraigh) v. MacGamhnia (1980) I.R. (S.R.) 99.
The applicant’s second complaint is that the system adopted by the Circuit Criminal Court (as indeed by all other courts in this jurisdiction),
whereby an interpreter is sworn who translates for the benefit of the parties, counsel, the trial judge and other persons interested who do not understand Irish, is a contravention of his rights. In short, this system entails a question being asked and translated either in its entirety or in several separate stages and likewise the answer to that question. Speeches of counsel and submissions are dealt with in a similar manner.
In MacCarthaigh v. Ireland [1999] I.R. 200 at p. 206, O’Hanlon J. accepted that Mercure v. Attorney General Saskatchewan [1988] 1 (Can.) S.C.R. 234 corresponded with his decision in The State (MacFhearraigh) v. MacGamhnia (1980) I.R. (S.R.) 99 as to the status of the Irish language. In The State (MacFhearraigh) v. MacGamhnia , O’Hanlon J. considered the provisions of Article 8 of the Constitution and the relevant jurisprudence and derived the following three principles from the same at p. 106:-
“(1) When a case has to be heard before the courts or before any tribunal having power according to law to make orders affecting the personal or the property rights of the parties coming before it, it is the right of each party coming before the court or the tribunal to put its side of the case in the Irish language, if it so desires, and to present evidence through the Irish language to the court or the tribunal. If it happens that the other party has not sufficient knowledge to understand the evidence, then an interpreter ought to be appointed to translate whatever is said or written in the Irish language.
(2) It is not the function of the court or of the tribunal to enquire if the person wishing to make use of the Irish language has knowledge of the English language – he has a right under the Constitution to choose the first official language if he so wishes until the opposite is provided by law respecting one or more official purposes throughout the State or in any part thereof. This means that a person who is fluent in the English language has the same right as the person born and reared in the Gaeltacht and who has no knowledge at all, or inaccurate knowledge of the English language. Frequently it could happen that the proceedings of the court or of the tribunal would be delayed where it required that the case in whole or in part be heard through the medium of the Irish language and that this would add to the costs of the proceedings were it necessary to appoint an interpreter, but those difficulties must be endured in order to act in a constitutional manner. The Oireachtas may make a different arrangement according to law should it so decide regarding any official purposes throughout the State or in any part of it.(3) At any time that a party wishes to argue its case to the court or the tribunal, whether by way of advocacy, through the giving of evidence, through the questioning or cross examination of witnesses, I am of opinion that it is the right of that party under the Constitution to do all of that in the Irish language should he so desire.”

The system of translation adopted by the courts where evidence in Irish requires to be translated creates a difficulty. In MacCarthaigh v. Ireland [1999] 1 I.R. 200, Hamilton C.J., referring to these difficulties at p. 212, quotes from Vanderbilt Law Review (1993) Vol. 46 p.175 at p. 177 where Michael Shulman deals with the difficulties as follows:-
“When a defendant testifies in a criminal case his testimony is critically important to the jury’s determination of his guilt or innocence. The first noticeable difficulty in the present system of court interpretation is that non-English speaking defendants are not judged on their own words. The words attributed to the defendant are those of the interpreter. No matter how accurate the interpretation is, the words are not the defendant’s, nor is the style, syntax or the emotion. Furthermore, some words are culturally specific and, therefore, are incapable of being translated. Perfect interpretations do not exist, as no interpretation will convey precisely the same meaning as the original testimony. While juries should not attribute to the defendant the exact wording of the interpretation and the emotion expressed by the interpreter they typically do just that …
Given that juries often determine the defendant’s guilt or innocence based on small nuances of language or slight variations in emotion, how can it be fair for the defendant to be judged on the words chosen and the emotion expressed by the interpreter?”
Hamilton C.J. went on at p. 212 to say of that quotation:-
“That is true enough, but it must be said in today’s Ireland there is no better solution available.”
The applicant here says that there is a better solution available which was not considered by the Supreme Court in MacCarthaigh v. Ireland [1999]1 I.R. 200 – namely simultaneous translation. Simultaneous translation is a solution widely availed of at conferences where more than one language is in use and in international courts – for example the International Criminal Tribunal of Yugoslavia and the International Criminal Tribunal of Rwanda, the European Patent Court, the International Tribunal for the Law of the Sea, the International Court of Justice, the European Court of Human Rights and the European Court of Justice. In general these bodies, however, in their proceedings, and procedures are more akin to our civil rather than our criminal courts.The International Criminal Tribunal of Yugoslavia on occasions requires that witnesses be protected and initially this was achieved by screening them from all eyes. However, it was quickly realised that facial expression and body language are an essential part of the evidence and so a means was found to ensure that protected witnesses are visible to the interpreters at all times: this court recognised, as did Michael Shulman, that facial expression and body language are an essential part of the evidence and ensured that it was available to the interpreter. Clearly, simultaneous translation saves court time but this must not be a primary concern. Simultaneous translation also has defects. Assuming a highly experienced, well-prepared interpreter, a translation will be delivered almost simultaneously. However, there will be inevitably some delay between a witness’s spoken words and the translation and a jury or indeed a judge because of this delay may associate the facial expression or body language displayed by a witness with the evidence then being translated rather than the evidence being given at that time which will be translated very shortly afterwards. It seems to me that this problem does not arise where, as is the present practice, evidence is translated sentence by sentence or in short passages. Again, a simultaneous translation requires the interpreter to respond in real time and does not afford the opportunity of going back over past words in order to revise them, which opportunity is available at the more measured pace of sequential translation. This difficulty is recognised by the International Criminal Tribunal of Yugoslavia where there is in place a procedure for checking interpreted evidence before it is relied on. Further, the reliability of simultaneous translation is greatly enhanced if the interpreters have made available to them in advance of the hearing the relevant papers in sufficient time to allow for preparation. A defendant in criminal proceedings might well prefer not to provide information to an interpreter to enable him to prepare appropriately.

Interpretation has become increasingly important in international courts but also in domestic tribunals throughout Europe. In 1999, the Council of Europe carried out a monitoring exercise of interpretation in courts of member states: the report is confidential and is not being published. The European Court of Human Rights considered interpretation in Kamasinski v. Austria [1991] 13 E.C.H.R. 36. There have been a number of international conferences since 1998. Fair Trials Abroad Trust was funded by the European Union to research the issue in individual national legal systems and that research has been published. The emphasis throughout has been on the need for accuracy and hence the proper training and preparation of interpreters rather than on the method of interpretation, whether simultaneous or sequential.

Insofar as counsel’s arguments and submissions are concerned, the disadvantages which I perceive as attending the interpretation of evidence do not apply. However, if an interpreter is to furnish an accurate, simultaneous translation of arguments and submissions, it appears to be widely recognised that the interpreter should be furnished with the relevant papers and if possible skeleton arguments. It seems to me that this is not appropriate to a criminal trial, insofar as the defendant is entitled to reserve his position. Again, a judge not familiar with the Irish language and so requiring a partial or indeed a complete translation will not be disadvantaged in his ability to understand arguments and submissions whichever method of translation is used. If in doubt at any point he can ask that an argument be repeated. Jurors are unlikely to do so.
Having carefully considered the matter, I am not satisfied that the interests of justice can be better served by a simultaneous translation than they are served by the sequential translation which is at present utilised. In these circumstances, I refuse the applicant the relief which he seeks in this regard.

 

Ó Gribín v An Comhairle Mhúinteoireachta

[2007] I.E.H.C. 454

Breithiúnas Breitheamh Murphy tugtha ar 21ú lá de Mí na Nollag, 2007.

1. Cúlra
1.1 Ag am idir deireadh mhí Márta agus tús mhí Aibreáin, 2005 fógraíodh folúntas mar oifigeach cumarsáide/oideachais leis an gComhairle Mhúinteoireachta sna nuachtáin náisiunta. Bhí an folúntas seo mar a leanas:-
Is iad na rudaí seo a leanas a bheidh mar eochairfhreagrachtaí: cruinnithe a eagrú; tuariscí a scríobh; ábhar eolais a chur ar fáil do bhaill na Comhairle; ábhar eolais a chur a fáil do mhúinteoirí agus don phobal; taighde a chur ar bun agus leabharlann d’achmhainní a chur le chéile. Go hidéalach, beidh na cáiliochtaí seo a leanas ag an iarrthóir rathúil:
o Cáiliocht chuí agus taithí in obair atá comhchosúil
o Eolas agus taithí ar fhorbairt leanúnach phroifisiúnta
o Taithí ar fhorbairt córas agus nósanna imeachta agus a bheith i dtaithí ar thacaíocht a thabhairt do choistí

o Sárscileanna cumarsáide o bhéal agus scríobha maraon le cruinneas i dTeicneolaíocht an Eolais.
Bheadh sé ina bhuntáiste a bheith in ann na gnóithe idir scríobha agus ó bhéal a dhéanamh trí mhéan na Gaeilge.
Dúradh inter alia san fhógra go raibh
an fógra seo, forimeacha iarratais agus tuilleadh eolais ar fáil ar an suíomh idirlín www.education.gov.ie nó trí iad a iarraidh ar Clodagh O’Connor, Oifig na Comhairle Múinteoireachta, Na Roinne Oideachais agus Eolaíochta, Corr na Madadh, Baile Átha Luain, Co. na hIarmhí, ríomhphost clodagh_oconnor@education.gov.ie, Fón 090-6484020.
Is é an data deiridh le haghaidh foirmeacha iarratais a chur isteach ná an Luain 25ú Aibreán ag 12.00 méanlae.
1.2 De réir a mionnscribhinn agus na fograí agus litreacha sna foilséanaí a leanann, theastaigh ón iarratasóir iarratas a dhéanamh ar an bhfoluntas reamhráite agus chun an chríoch sin a bhaint amach chuir sé glaoch ar an bhfreagóir dara ainmhithe chun foirm iarratais agus tuilleadh eolais a fháil. Labhair an iarratasóir i nGaeilge agus d’iarr sé ar an mbean a d’fhreagair an fón go raibh sé ag iarraidh caint le Clodagh O’Connor, an duine teagmhála don fholúntas. Dúradh leis nach raibh sí ar fáil. Dúirt an bhean nach raibh a ndóthain Gaeilge aici ach go nglaofadh duine eile ar ais air. Tamall ina dhiadh sin, fuair an iarratasóir glaoch ó oifigeach den fhreagóir dara-ainmnithe a raibh labhairt Gaeilge aici agus d’iarr sé na cáipéisi réamhráite uaithi.
1.3 Ar an 14ú Aibreáin, 2005, fuair an iarratasóir litir arna dátú an 12ú Aibreáin, ón bhfreagóir dara ainmhithe. Faoi iamh leis an litir sin bhí an fhoirm iarratais. Ba í an mBéarla amháin a bhí an fhoirm agus ní raibh an cháipéisiocht riachtanach eile in éineacht leis an bhfoirm. Sheol an t-iarratasóir litir tríd ríomhphoist chuig Clodagh O’Connor ag lorg na cáipéisiochta riachtanaí i nGaeilge ach ní bhfuair sé aon freagra ar an ríomhphoist sin.
1.4 Ag eascairt as na fiorais sin, d’fhéach an t-iarratasóir ar an idirlíon ag súil go mbeadh an cháipéisíocht riachtanach ar fáil i nGaeilge ansin. Mar a thárla bhí an fhoirm iarratais féin ar fáil i nGaeilge ach ní raibh sonraíocht ar an bhfolúntas ar fáil trí mhéan na Gaeilge. Níos measa fós b’fhacthas don t-iarratasóir go raibh mion eolais agus tuiscint ar an tAcht 2001 agus an Tuarisc riachtanach chun an fhoirm a líonadh.
1.5 Deireann an t-iarratasóir go raibh sé soiléir ón foirm go mbeadh eolas ar a laghad faoin Acht ag taisteail chun na ceisteanna a fhreagairt i gceart. Mar shampla, d’iarr ceisteanna a 6, 10 agus 18 an meid seo a leanas:-
(6) Do dhearcadh ar an bpost agus an baint atá ag an bpost le feidhmeanna na Comhairle Mhúinteoireachta de réir mar atá siad leaghta amach in Acht na Comhairle Múinteoireachta, 2001?
(10) Dar leat, conas is féidir leis an gComhairle Mhúinteoireachta proifisiúin na múinteoireachta a thacú agus a fhorbairt agus cén tionchar a bheadh agatsa ina Leith sin sap hoist ar a bhfuil iarratas á chur isteach?
(18) Fís – léirigh led’ thoil d’fhís don phoist ar a bhfuil iarratas á chur isteach agat agus d’fhís don Chomhairle Mhúinteoireachta.
1.6 Deireann an t-iarratasóir go mbeadh eolas, ní amháin ar an Acht, ach ar an Tuarisc de dhíth chun na ceisteanna thuas a fhreagairt ar bhonn chumasach agus ghairmiúil. Bheadh buntáiste suntasach ag aon iarratasóir go raibh an tuairisc léite aige nó aici i gcomparáid leis an té nach raibh an tuarisc léite aige nó aici.

Chuir an iarratasóir glaoch ar an Roinn Oideachais arís chun leagan den Acht agus den Tuarisc agus sonraíocht mar gheall ar an fholuntas a fháil.
1.7 Rinne an t-iarratasóir teagmháil le Clodagh O’Connor ar an sprioc-dáta, 25ú Aibrean, 2005. Mhínigh sí dó nach raibh aon Gaeilge aici agus dá bhrí sin labhradar le chéile i mBéarla. Dúirt an t-iarratasóir léi go raibh suim aige fós san fholúntas agus gur mhaith leis an seans iarratas a dhéanamh air. Mhol sí dó teagmháil a dhéanamh le Áine Lawlor, stiurthóir na Comhairle Múinteoireachta. Fuair an t-iarratasóir uimhir gutháin soghluaiste Áine Lawlor. Chuir sé glaoch ar an uimhir ach ó tharla nach raibh sí ar fáil d’fhág sé teachtaireacht ag rá gur theastaigh uaidh teagmháil a dhéanamh léi.
1.8 Chuir an t-iarratasóir litir ar an 26ú Aibreáin, 2005, lá tar eis an sprioc-dáta, tríd an ríomhphoist chuig Áine Lawlor, ag an seloadh ríomhphoist a bhí ar an bhfógra sna nuachtán: clodaghoconnor@education.gov.ie. Scríobh an t-iarratasóir freisin ag lorg leagan Gaeilge den fhógra nó ar a laghad leagan dátheangach. Chuir Áine Lawlor glaoch ar theach an iarratasóra ach ní raibh sé sa bhaile ag an am. Lá nó dhó ina dhiaidh sin chuir an tiarratasóir glaoch ar ais uirthi agus d’éirigh leis labhairt léi. Mhínigh sé di go raibh suim aige fós san fholúntas agus bhí an cháipéisiacht de dhíth air. Ar an 13ú Bealtaine, 2005, fuair an tiarratasóir litir arna dátú 11ú Bealtaine ó Áine Lawlor. Dúirt sí ina litir narbh féidir an sprioc-dáta a chur siar chun iarratas a ghlacadh ón iarratasóir.
1.9 Deireann an t-iarratasóir go bhfuil ceart bunreachtúil aige iarratas a dhéanamh ar an bpost trí mhéan na Gaeilge gan chonstaic and gan mhíbhuntaiste i gcomparáid leis an té a bhíonn sásta an cúram sin a dhéanamh as Béarla. Ag eascairt as na cúrsaí réamhráite, is léir go raibh an tiarratasóir go mór faoi mhíbhuntáiste agus is mó constaic a cuireadh roimhe mar chainteoir Gaeilge ar an aon chúis amháin: gur fhéach sé lena chuid ghnó oifigiúil a dhéanamh leis an Stát as Gaeilge.
2. Mionnscribhinn an tIarratasóir
2.1 Is saoránach Éireanach agus cainteoir Gaeilge an t-iarratasóir agus deanann sé a chuid ghnó oifigiúil as a teanga duachais. Theastaigh air iarratas a dhéanamh ar an bhfolúntas fograithe ag tús Aibrean, 2005 le aghaidh ‘oifigeach cumarsáide.’ Mionnainn sé na gníomhanna atá raite thuas san cúlra. Fuair sé litir arna dátú an 12ú Aibreáin, ar an 14ú Aibrean, leis an fhoirm iarratais i mBéarla. Ní raibh an chaipeisíocht riachtanach eile in éineacht leis an bhfoirm. Ní bhfuair sé freagra ar an litir ag lorg na caipeisíochta riachtanach i nGaeilge. Ní raibh a leithead ar fáil tríd an idirlíon.
2.2 Bhí an foirm iarratais i nGaeilge. Is léir go raibh eolais agus tuiscint ag teastáil chun an foirm a líonadh ón Acht 2001 agus ón Tuarisc. Ní raibh éinne in ann déiléail leis san Roinn Oideachais. Rinne an iarratasóir teagmháil le Clodagh O’Connor, ní raibh Gaeilge aici, ar an sprioc-dáta. Dúirt sé léi go raibh suim aige san fholúntas agus gur mhaith leis an seans iarratas a dhéanamh air. Cuireadh in iúl dó gur raibh Gaeilge ag Áine Lawlor agus chuir sé teachtaireacht gutháin agus sheol sé litir ríomhphoist léi.
2.3 Bhí leagan Gaeilge den foirmeacha ag teastáil uaidh. Fuair sé litir ag an 13ú Bealtaine. Deireann sé gur sheol sé an litir ríomhphoist ar an 26ú Aibreain, agus go raibh an data 6ú Meitheamh, mícheart os rud é go cuireann pácaiste bog-earraí an data reatha isteach san litir gach uair a n-osclaítear é. Scríobh aturnae an t-iarratasóir litir chuig Áine Lawlor ag lorg gealltanas uaithi agus ag lorg leagan nó tiontú oifigiúla den Acht agus den Tuarisc.
2.4 Tugann an Chúirt seo áird ar na haighneachtaí seo a leanas a bhaineann leis an chás seo.

3. Aighneachtaí na bPáirtí
Aighneachtaí an t-Iarratasóir
3.1 Ceann dena argóintí a bhí ag abhcóide an t-iarratasóir ná go bhfuil na forlacha ar fad faoi Airteagail 25 le comhlíonadh. Muna bhfuil nadúr sainordaitheach faoi airteagail 25 comhlíontar deireann abhcóide le haghaidh an t-iarratasóir nach bhfuil Bille achtaithe ina dhlí – símithe and fógraithe de réir Airteagal 25.1. Bunreacht na hÉireann. Cuireann an abhcóide beim áirithe ar Airteagal 25.4.4°:
Ní foláir tiontú oifigiúil a chur amach sa teanga oifigiúil eile i gcás an tUachtarán do chur a láimhe le téacs Bille i dteanga amháin de na teangacha oifigiúla.
Phléigh an Chúirt Uachtarach le nádúr sainordaitheach Airteagal 25.4.4° in Ó’Beoláin v. Fahy [2001] 2 IR 279. Dúirt McGuinness Brmh., ar lch. 294, (aibhsiú curtha leis):-
“Deirimse go bhfuil an Stát thar thréimhse fada ama ag sárú an dualgais bhunreachtúil seo go scannalach neamhnáireach agus go mba cheart don Chúirt seo aird a dhíriú go poiblí ar nadúr sainordaitheach an dualgais atá leagtha síos in Airteagal 25.4.4°.”
3.2 Maidir le scaradh na gcumhachtaí, tógann abhcóide an t-iarratasóir pasáiste ó na heagathóirí léannta Kelly, The Irish Constitution (3rd ed., 2003), ar lch. 383, a phléann le sáru dualgais faoi Airteagal 25 agus a mbeadh athbhreithiúnach breithiúnach ar fáil sa chás sin:
“As the language of Article 25.1.1° is mandatory, and as there could be no question here of interference with the processes of either House of the Oireachtas, both of which would, on this hypothesis, have completed their function, there can be no reason to think that the Taoiseach [or in the present case the State] might not be amenable to judicial compulsion.”
Ar ndóigh bhí an Chúirt Uachtarach ar an bport céanna in Ó’Beoláin nuair a dheonaigh an Chúirt an dearbhú go raibh dualgas bunreachtúil ar an Stát tiontú oifigiúil ar Achtanna an Oireachtais a chur ar fáil don phobail sa phríomhtheanga oifigiúil nuair a chuir an tUachtarán a lámh le téacs Bille sa dara teanga oifigiúil. Deonaíodh an dearbhú sin i gcomhthéacs athbhreithnithe bhreithiúnaigh as éirí as teip an Stáit a dhualgas faoi Airteagal 25, go sonrach Airteagal 25.4.4° a chomhlíonadh. Ní cheadaítear faoi réir Airteagal 25.4.4° agus faoi Airteagal 40 ag imoibriú le hAirteagal 8 den Bhunreacht dlíthe idir Achtanna agus ionstraimí reachtúla a chur amach agus a chur ar fáil go haonteangach (c.f., Delap v. An tAire Dlí and Cirt (1980-1998) T.É. 46, O’Beoláin).
3.3 Tráchtanna an Stáit, áfach, ar “thréimhse réasúnach” nó nach gá an tiontú oifigiúil a chur amach agus a chur ar fáil “chomh luath agus is féidir”. Usáidtear an leagan cainte “laistigh de thréimhse réasúnach” i mbreithiúnais na hArdchúirte i gcúis Delap. Sa chás sin bhí an Chúirt ag plé le riaráistí. Bhí an leagan Béarla amuigh le fada ach bhí dualgas bunreachtúil á shárú ag an Stát agus cearta an iarratasóra á shárú ag an Stát dá réir faoi airtegal 40 ag imoibriú le hAirteagal 8. Dá bhrí sin ordaíodh don Stát nó treoraíodh dó an sárú seo a leigheas agus an tiontú a chur amach agus a chur af fáil “laistigh de thréimhse réasúnach” nó “chomh luath agus ab fhéidir”. Ó tharla sa chás sin an leagan Béarla a bheith amuigh le fada an lá, ní fhéadfadh an Chúirt a ordú go gcuirfí an dá leagan ar fáil go comhuaineach. Bhí an deis sin caite agus ní dhéanann an Chúirt orduithe gan bhrí.
3.4 Deireann abhcóide an t-iarratasóir gur dhiúltaigh an Chúirt Uachtarach don “tréimhse réasúnach” agus do “chomh luath agus is féidir” agus gur cháin an Chúirt an Stáit as moill, cipiléireacht agus sínteoireacht aimsire. D’fhreagair an Chúirt, déanann abhcóide an argóint, an cheist “Cathain ar choir an tiontú oifigiúil a chur amach?” leis an dearbhú: nuair a chuireann an tUachtarán a lámh le téacs Bille”: Is é sin le rá nuair a dhéantar dlí de: an dá leagan a chur amach agus a chur ar fáil go comhuaineach. Sin mar a bhí ó 1922 go dtí c.1980.
3.5 Chuir abhcóide an t-iarratasóir chun suntais chomh maith alt 7 de Acht na dTeangacha Oifigiúla 2003: “a luaithe is féidir tar éis aon Acht den Oireachtas a achtú, déanfar an téacs den chéanna a chló agus a fhoilsiú go comhuaineach i ngach ceann de na teangacha oifigiúla.” Is é bharúil abhcóide le haghaidh an Stáit go dtugann Airteagal 25 den Bhunreacht rogha billí a rith go haonteangach nó go dátheangach. Tá ceachtar acu bunreachtúil. Le halt 7 de Acht 2003, áfach, roghnaidh an tOireachtas, mar is ceadmhach dó, billí a rith go comhuaineach.
3.6 Is é argóint abhcóide an t-iarratasóir gurbh údaráis iad na cásanna Ó Murchú v. Cláraitheoir na gCuideachtaí (1980-1988) T.É. 42, Delap agus in Ó Beoláin le haghaidh an tairiscint go bhfuil ceart ag an t-iarratasóir le leagan oifigiúil Gaeilge den fhoirmeacha iarratais do phostanna leis an gcéad freagóir agus an sonraíocht a ghabhann leis na postanna sin agus an Tuarisc a bheith ar fáil i nGaeilge. Maidir le tabhacht an chás seo, luaigh abhcóide an t-iarratasóir Hardiman Brmh. in Ó’Beoláin ar lch. 320:
“Ag cuimhneamh ar stádas na Gaeilge feictear domsa go bhfuil siad siúd ar mian leo í a usáid i dteideal iomlán é sin a dhéanamh agus i dteideal gach áis atá riachtanach chun é a dhéanamh ar a laghad sa mhéid is atá áiseanna dá leithéid ar fáil dóibh siúd a úsáideann an dara teanga oifigiúil.”

Sin atá ón iarratasóir sa chás seo. Is féidir an dá leagan a chur amach agus a chur ar fáil ag an gcéanna. Sin mar a bhí anuas go dtí c.1980. Sin is brí dáiríre le chomh luath agus is féidir. Is féidir an dá leagan a chur amach go chomhuaineach.
Aighneachtaí an Stáit
3.7 Is é an cás atá an Stáit ná nach bhfuil an t-iarratasóir i dteideal faoiseamh ar bith de bharr go bhfuil an dualgas comhlíonta ag an Stáit ag an bpointe seo. Séanann an Stáit nach bhfuil an t-iarratasóir i dteideal faoiseamh ar bith dá bharr nar chur sé isteach ar an bpost. Glacann an Stáit go raibh sé fíor nach raibh an cáipéisíocht iomlán ón Chomhairle Mhúinteoireachta ar fáil trí Ghaeilge ach is cás an Stáit é ná nach bhfuil dualgas bunreacht air é sin a dhéanamh.
3.8 Deireann abhcóide an Stáit go bhfuil difríocht an-mhór idir an cás seo agus na firicí a bhí gceist i gcás Ó Beoláin. Sa chás sin, bhí an t-iarratasóir le dul ós chomhair cúirte toisc go raibh sé curtha ina leith go raibh sé ciontach faoi Alt 49 d’Acht um Thrácht ar Bhóithre mar atá an t-Acht sin leasaithe. Ní raibh aon rogha aige ach dul faoi bhráid na cúirte agus an cás a chosaint nó pléadáil ciontach de réir mar bha mhian leis. Bhí sé intuigthe go raibh sé riachtanach go mbeadh an reachtaíocht agus Rialacha Chúirte agus ar eile ag taisteáil uaidh chun na críche sin. Is féidir an méid céanna a rá faoi chásanna eile cosúil le Delap in a raibh imeachtaí cúirte i gceist. Ní thugann abhcóide an Stáit aon aird ar cás Ó’Murchú.
3.9 In éineacht leis an argóint sin, deireann abhcóide an Stáit nach bhfuil aon seasamh ag an t-iarratasóir ar na pointí seo a leanas. Níl aon seasamh ag an t-iarratasóir mar gheall (1) nár chur an t-iarratasóir isteach ar an bpost agus tá an sprioc lá thart le fada an lá; (2) ní féidir leis an iarratasóir a chrúthú go raibh aon cháilliúnt substaintiúil aige toisc nach raibh cáipéisí áirithe le fáil ag an am (3) nach raibh aon dualgas ar an iarratasóir chur isteach ar an bpost a bhí fógraithe agus (4) nach bhfuil sé cruthaithe ag an t-iarratasóir go raibh na cáiliochtaí cui aige don phost a bhí i gceist.
3.10 Maidir leis an dara argóint, deireann abhcóide an Stáit go bhfuil sé ráite maidir leis na faoisimh atá le fáil trid an gcóras athbhreithniú bhreithiúnach ná: [They] are designed to remedy real and substantial injustice rather than give satisfaction, however legitimate,” mar a dúirt Donaldson J. ar lch.551 in Reg v. Aston University Senate ex p. Roffey [1969] 2 Q.B. 538. Tá an rud chéanna ráite ag an cúirteanna sa tír seo. Feach, mar shampla, ar Byrne v Grey [1988] I.R. 31; Berkeley v Edwards [1988] I.R. 217; Farrell v Farrelly [1988] I.R. 201.
3.11 Freisin, is é cás an Stáit go gcaithfear go bhfuil teoranta praicticiúla leis an réimse dualgaisí atá ar an Stát nuair nach bhfuil reachtaíocht i gceist agus nuair nach bhfuil aon bhac a chur ar dhuine cás cúirte a thógail nó é féin a chosaint i gcás choiriúl.
4.Conclúidí
4.1 Ní chuireann Airteagal 8 den Bhunreacht cearta ar fáil maidir le stadas an teanga Ghaeilge agus cuirtear é i bhfoirm dearbhaithe. Cuireann an dearbhú seo den Ghaeilge mar an chead teanga oifigiúil, afách, dualgais intuigthe ar an Stáit. Mar a dúirt Kennedy C.J. in Ó’Foghludha v. McClean [1934] I.R. 469, ar lch.483, mar a bhí mheasta in Ó’Beoláin v. Fahy [2001] 2 IR 279, ar lch.343, maidir le Airteagal 4 de Bhunreacht Shaorstát Éireann 1922:
There is no doubt in my mind but that the term “National” in the Article is wider than, but includes,”official” … None of the organs of the State, legislative, executive or judicial, may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provisions of Art. 4.

4.2 Luaigh Ó hAnluain Brmh. ar an ráiteas seo in Ó’Murchú v. Cláraitheoir na gCuideachtaí [1980 – 1998] I.R. T.É. 42, maidir le Airteagal 4 de Bhunreacht Shaorstát Éireann 1922 agus ansin dúirt Ó hAnluain Brmh., maidir le airtegal 8 de Bhunreacht nh hÉireann 1937:
Táim den bharúil go bhfuil forálacha Airteagal 8 de Bhunreacht na hÉireann níos treise maidir leis an aitheantas a tugtar don Ghaeilge mar phríomhtheanga oifigiúil an Stáit, ná mar abhí Airteagal 4 de Bunreacht an tSaorstáit.
4.3 Dhiúltaíonn an Chúirt seo argóint abhcóide an Stáit i dtaca le seasamh an t-iarratasóir mar tá an Stát ag sárú a chuid dualgais bunreachtúil agus gan dabht is é seo “a real and substantial injustice.” Mar a dúirt Henchy Brmh. i gcás Cahill v. Sutton [1980] I.R. 269 san Chúirt Uachtarach ar lch.283 maidir le himeachtaí a bhaineann le fórlacha reachtúil áirithe a bheith dearbhaithe míbhunreachtúil:
Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack the force and urgency of reality.
4.4 Ceapann an Chúirt go bhfuil “concrete personal circumstances pointing to a wrong suffered” cruthaithe ag an t-iarratasóir maidir le sárú an Stáit tiontú Gaeilge den tAcht 2001 a chur ar fáil mar atá á iarraidh faoi Airteagal 25.4.4° agus sárú dena chuid dualgaisí faoi Airteagal 8 maidir le stadas an chéad teanga oifigiúil.
4.5 In éineacht le cis a chur ar phróiséis iarratas an t-iarratasóir bhí a chuid ceartanna bunreachtúil agus reachtúil sáraithe. Chomhlaíonn sárú dualgaisí an Stáit caighdéan níos cruinne i gcásanna áthbhreithniú breithiúnach, a bhaineann le seasamh an t-iarratasóir, nuair atá ar an t-iarratasóir taispéaint go raibh dul i bhfeidhm, nó go raibh bagairt, ar ceart reachtúil nó leas údarásach. Féach mar shampla ar Gregory v. Camden L.B.C. [1966] 1 W.L.R. 899; Gouriet v. U.P.O.W. [1978] AC 435, agus léirmheasa Keane Brmh., mar a bhí sé ansin, in Irish Permanent Building Society Ltd. v. Caldwell [1979] I.L.R.M. 273.
4.6 Freisin in Ó’Murchú nuair a bhí costaisí á lorg ag t-iarratasóir mar gheall gur theip an Stáit tiontú Gaeilge dena doiciméid riachtanach a dhéanamh, thug Ó’hAnluain Brmh. aird ar réasúntacht seasamh an t-iarratasóir ar lch.45:
Táim den bharúil gur sáraíodh cearta dlí abhi aici fen Bhunreacht, agus go raibh sé réasúnta na himeachta seo do chur ar bun d’fhonn faoiseamh a lorg on Ard Chuirt.
4.7 San Ard-Chúirt in Ó’Murchú fuair an t-iarratasóir ordú mandamus agus bhí ar na bhfreagróirí tiontú Gaeilge dena chaipeisíocht riachtanach le haghaidh ionchorpú agus clárú ‘Comhair na Múinteoirí Gaeilge’. Bhí costaisí á lorg ag an t-iarratasóir le aghaidh an chead cás. Níor íoc an Stáit ar an argóint nach raibh dualgas air na chaipéisíocht seo a chur ar fáil i nGaeilge agus go mbeadh an t-iarratasóir ábalta tiontú a dhéanamh í féin.
Dheonaigh Ó hAnluain Brmh. costais agus dúirt sé ar lch.44:
Tá sé soiléir gur gan dua don té atá toilteanach an leagan Béarla d’usáid. Tá sé soiléir gur caitheadh airgead Stáit ar na foirmeacha sa leagan Béarla do chur ar fáil ar an gcuma san agus ní fheictear dhom go bhfuil cothrom na Féinne le fáil ag an gcuid sin den phobal gur mian leo an gnó a dhéanamh tré mheán an phrímh-theanga oifigiúil muna gcuirtear na háiseanna céanna ar fáil dóibh-sin freisin.
Droimscríobhtar Ó hAnluain Brmh. ansin pasaiste den bhreithiúnas, mar a rinne Hardiman Brmh. in Ó Beoláin ar lch.339, de Kennedy C.J. in O’Foghludha maidir le Airteagal 4 de Bhunreacht Shaorstát Éireann ar lch.483:
The declaration by the Constitution that the national language of the Saorstát is the Irish language … did mean … by implication that the State is bound to do everything within it’s sphere of action … to establish and maintain it in it’s status as the national language … None of the organs of the state, legislative, executive or judicial, may derogate from the pre-eminent status of the Irish language as the national language of the State without offending against the constitutional provisions of Article 4.
4.8 Dúirt Ó hAnluain Brmh. freisin in Ó’Murchú ar lch.45 go bhfuil fóralacha Airteagal 8 de Bhunreacht na Éireann níos tréanach ná mar atá in Airteagal 4 de Bhunreacht Shaorstát Éireann maidir le stadas an Ghaeilge mar an chead teanga oifigiúil den Stáit. Fuair an Ard Chúirt in Ó’Murchú go raibh cearta bunreachtúil an t-iarratasóir sáraithe nuair a dhiúltaigh an Stáit na foirmeacha le haghaidh ionchorprú riachtanach a chur ar fáil. Bhí foirm iarratas an t-iarratasóir le fáil i nGaeilge. Seard atá i gceist sa chás seo ná doiciméid eile.
4.9 Tugtar forrán don cheart go mbeadh abhair reachtúil le fáil i nGaeilge in Delap v. An tAire Dlí agus Cirt [1990] I.R. T.É. 48. Dúirt Ó hAnluain Brmh. ar lch.51 go raibh dualgas ar an Stáit tiontú a chur ar fáil dena Rialacha na nUaschúirteanna in am tréimhsé reasúnach i gcomparáid leis na Rialacha san tiontú Béarla agus gur theip ar an Stáit a dualgais a chomhlíonadh sa chaoi sin.
4.10 Faoi dualgaisí bunreachtúil, reachtúil, faoi an tAcht na dTeangacha Oifigiúla 2003, agus fasach an t-Ard Chúirt, tá ceart ag an t-iarratasóir a chuid ghnó a dheanamh leis an Stáit trí Ghaeilge gan constaic mar atá le fáil ag duine a dhéanann a chuid ghnó trí Bhéarla.

4.11 Is údaráisí na cásanna Ó Murchú agus Delap le haghaidh an tairiscint nach cheart trioblóid ná costas breise a chur ar dhaoine ar mian leo gnó oifigiúil a dhéanamh as Gaeilge leis an Stáit. Nuair a chuirtear doiciméid oifigiúla atá riachtánach do sheoladh gnó oifigiúil agus dlíthiúil ar fáil i dteanga amháin, is cóir leagan sa teanga eile a chur ar fáil a luaithe agus is féidir dá éis sin.
4.12 Maidir leis na cúiseanna a bhaineann le seasamh an t-iarratasóir a chur abhcóide an Stáit i láthair na Cúirte, seo h-iad cinneadh an Chúirt:
1. Níl aon éifecht déanta ar seasamh an t-iarratasóir as ucht nár chur an t-iarratasóir isteach ar an bpost agus tá an sprioc lá thart le fada an lá mar gheall gur bhain an t-iaratasóir usáid as a cheart doiciméid áirithe riachtanach don iarratas a fháil i nGaeilge agus ní raibh sé ráite fiú ann dó in am nach mbeadh na doiciméid seo le fáil;
2. Bhí cháilliúnt substaintiúil ag an t-iarratasóir de bharr sárú a chuid ceartanna bunreachtúil agus reachtúil faoi Airteagal 8 agus Airteagal 25.4.4° den Bhunreacht agus alt 7 den tAcht 2003 nach raibh an tAcht 2001 le fáil san chéad teanga oifigiúil;
3. Ní bhaineann an firic nach raibh aon dualgas ar an iarratasóir chur isteach ar an bpost a bhí fógraithe leis san chás láithreach. Seard atá i gceist anseo ná go raibh an t-iarratasóir saor iarratas a dhéanamh le haghaidh an phost seo agus go raibh ceart aige nach mbeadh sé faoi aithne as ucht a rogha an ghnó seo a dhéanamh trí Ghaeilge;
4. Ní bhaineann cáilíochtaí an t-iarratasóir leis na himeachtaí seo mar gheall go bhfuil focas an chás seo le próiséis iarratais le haghaidh an phost ní le coras roghnú na h-iarrthóirí nach theip orthu dul trí an phróiséis iarratais.

4.13 Tá argóintí abhcóide an Stáit an chosúil le spiorad den phrionsabal a leag Geoghegan Brhm. síos in Ó’Beoláin. Níl prionsabal Geoghegan Brmh. freagrach, áfach, le tromlacht an Chúirt Uachtarach. Feach, mar shampla ar Hardiman Brmh., ar lch. 318, a dúirt nach cheart go mbeadh duine in imeachtaí cúirte faoi míbhuntáist “de bharr a rogha dlíthiúla teanga.”
4.14 Dheonaíonn an Chúirt seo an chéad agus an dara faoiseamh don t-iarratasóir go dtí an shlí atá le fáil faoi alt 9(2) den tAcht na dTeangacha Oifigiúla 2003:
I gcás ina ndéanfaidh comhlacht poiblí cumarsáid i dteanga oifigiúil le comhlacht poiblí, i scríbhinn nó leis an bpost leictreonach, freagróidh an comhlact poiblí sa teanga chéanna.
Níl sé mar áit an Chúirt, áfach, roghanna a dhéanamh in iarratas athbhreithniú bhreithiúnach maidir le deiseanna phoist leis an chead bhfreagróir. Mar a dúirt Brightman L.J in R. v. Chief Constable of North Wales Police, ex parte Evans [1982] 1 WLR 1155 ar lch. 1173 (mar a thug Kelly Brmh. in Flood v. Garda Síochána Complaints Board [1997] 3 IR 321 ar lch. 345): “Judicial review is concerned, not with the decision, but with the decision-making process.”
4.15 Maidir leis an triú faoiseamh, tiontú an tAcht um Chomhairle Mhúinteoireachta 2001, deireann Airteagal 25.4.4° den Bhunreacht seo a leanas:
I gcás an tUachtarán do chur a láimhe le téacs Bille i dteanga de na teangacha oifigiúla agus sa teanga sin amháin, ní foláir tiontú oifigiúil a chur amach sa teanga oifigiúil eile.
4.16 Fiú nach bhfuil aon rud ráite faoi fráma am faoin fóralacha seo, dúirt McGuinness J. san Chúirt Uachtarach in Ó’Beoláin, ar lch. 293, mar a leanas:
Mar a chuir abhcóidí ar an dá thaobh ar shúile na cúirte seo, ní leagann Airteagal 25.4.4° aon fhráma ama síos maidir le soláthar aistriúcháin ar gach bille/achta. Ach is cosúil ón Airteagal ar fad gur nós imeachta sách scioptha a bhí i gceist. In aon áit a bhfuil teorainneacha ama i gceist is teorainneacha gearra iad. Tá an modh oibre réamh-1980 trína gcuirtí aistriúcháin ar fáil nach mór go comhuaineach le hachtú an reachta, níos cosúla go mór le tiúin ghinearálta an Airteagail ná an bealach atá ann anois nach gcuirtear aistriúchán ar fáil ach amháin nuair atá gá speisialta nó práinneach leis, chomh fada agus is féidir leis an gcúirt a dheimhniú.
4.17 Dhiúltaigh an Chúirt Uachtarach argóint an Stáit go raibh tréimhse am reasúnta ag taisteáil le tiontú a dhéanamh mar gheall nach raibh aon tiontú oifigiúil le fáil dena Rialacha Cúirt Duiche le aghaidh 20 bliain. Aontaíonn an Chúirt seo le abhcóide an t-iarratasóir nach bhfuil righneas 4 bliain reasúnta agus go mba cheart go raibh an tAcht seo le fáil trí Ghaeilge maidir leis dualgaisí bunreachtúil atá leagtar amach faoi Airteagal 25.4.4°. Cuireann an tAcht na dTeangacha Oifigiúla 2003 dualgais reachtúil chomh maith ar an Stáit. Mar a deireann alt 7:
A luaithe is féidir tar éis aon Acht den Oireachtas a achtú, déanfar an téacs den chéanna a chló agus a fhoilsiú go comhuaineach i ngach ceann de na teangacha oifigiúla.
4.18 Ag labhairt go géar, ní féidir a rá go bhfuil righneas 4 bliain idir foilsiú an tiontú Béarla den Acht agus an chead teanga oifigiúil mar phroiséis ‘comhuaineach’. Deonaíonn an Chúirt seo an triú faoiseamh mar go raibh a ndotháin am ag an Stáit tiontú Gaeilge den Acht a bheith le fáil i 2005. Tugann an Chúirt faoi deara go bhfuil tiontú den Acht le fáil anois i rith am na h-imeachtaí seo ach beidh an faoiseamh fós deonaithe le aird a thabhairt ar an Stáit agus a chuid dualgaisí bunreachtúil agus reachtúil sáraithe.
4.19 Bhí an t-iarratasóir á lorg dearbhú go mba cheart an Tuarisc a bheith le fáil i nGaeilge dó as ucht gurbh doiciméad riachtanach é le don fhoirm iarratais a chomlíonadh i gceart. Dár leis an t-iarratasóir, bhí constaic cuirtear ina bhealach de bhrí nach raibh an Tuarisc le fáil i nGaeilge le haghaidh an gnó oifigiuil a bhí le déanamh aige leis an Roinn Oideachais agus Eolaíochta. Ceapann an Chúirt seo, bunaithe ar na cúiseanna léirithe thuas nach bhfuil ceart ag an t-iarratasóir an faoiseamh seo a bheith aige.
4.20 Ní dheonaíonn an Chúirt an faoiseamh deireannach don t-iarratasóir. Ní thiteann tuarisc i nGaeilge le haghaidh usáid an phobal i réimsé na fórlacha bunreachtúil atá léirithe suas nó faoin caipéisíocht oifigiúil ina bhfuil tiontú comhuaineach ag taisteáil faoi alt 10 den tAcht na dTeangacha Oifigiúla 2003. Ní féidir aon sainmhíniu a fháil le haghaidh tuarisc as na sonraí seo a leanas faoi alt 10:
(a) aon doiciméad ina leagtar amach tograí beartais phoiblí;
(b) aon tuarascáil bhliantúil;
(c) aon chuntas iniúchta nó ráiteas airgeadais;
(d) aon ráiteas staitéise a cheanglaítear a ullmhú faoi alt 5 den Acht um Bainistíocht na Seirbhíse Poiblí 1997; agus
(e) aon doiciméad de thuairisc nó d’aicme a bheidh forordaithe de thuras na huaire, le toiliú an Aire Airgeadais agus cibé aire eile (más ann) den Rialtas is cuí leis an Aire ag féachaint d’fheidhmeanna an Aire eile den Rialtas, agus is doiciméad de thuarisc nó d’aicme a bhfuil, i dtuairim an Aire, tábhacht mhór phoiblí ag baint leis.
4.21 Tarlaíodh cúrsaí cosúil i gcás Delap nuair a thug an t-iarratasóir imeachtaí á lorg dearbhú a rá go mba cheart go mbeadh Rialacha na hUascúirteanna le fáil. I rith am na himeachtaí chuir an Stáit tús le tiontú na Rialacha sin mar an gcéanna sa chás láithreach agus an tAcht 2001. Tugann an Chúirt seo faoi deara an tagairt a thug Ó’hAnluain Brmh. ar an gníomh seo in Delap ar lch.51:
Táim den bharúil, afách, gurbh’ eigean don Iarratasóir na himeachta seo do bhunú d’fhonn faoiseamh fé mar bhí dlite dó d’fháil i dtaca leis an ábhar a bhí i gceist.

Ó Mhurchú v An Taoiseach

[2010] IESC 26

Judgment delivered on the 6th day of May, 2010 by Macken J.

By Order made as long ago as October 2000, the High Court (O’Neill, J.) granted liberty to the respondent, as applicant, to commence judicial review proceedings in respect of several reliefs, which can be summarised as follows:

1. A declaration that the appellants have, together, a constitutional duty to issue and provide to the general public, including the applicant, an official version or an official translation in the first official language of all Acts of the Oireachtas, of all Statutory Instruments and of all Rules of Court, including (in the case of Rules of Court) all amendments, appendices and indices;
2. A declaration that the appellants have a constitutional obligation to issue and make available to the general public, including the applicant, an official version or an official translation in the first official language of all the foregoing Acts of the Oireachtas, Statutory Instruments and Rules of Court on terms no less advantageous than the terms under which the second official English language version or translations are issued and made available, including that both versions or translations be issued and made available simultaneously.

3. An Order of Mandamus directing the appellants to issue and provide the aforesaid Acts for the period between 1981 and 2000 where none is yet available, without further delay.

4. An Order of Mandamus directing that Rules of Court not yet issued in the first official language or in a translation thereof, be made available by the appellants without further delay.

5. An Order of Mandamus directing the appellants, for the future, to issue and provide an official version in the first official language or an official translation thereof of all Acts of the Oireachtas and Statutory Instruments, including Rules of Court, as described above, on terms which are no less advantageous than the terms under which the official English version or the official English translation is issued and provided, or that the same be made available simultaneously therewith.

The above Order was made pursuant to application based on a Statement to ground the Notice of Application in turn grounded on an affidavit sworn by the applicant on the 31st July, 2000.
By a Statement of Opposition, dated the 22nd January, 2001, the appellants pleaded that any obligation placed on the then first respondent, the Clerk of the Dail, in relation to the provision in Irish of the legislation in question was part of the internal responsibility of the Oireachtas, in respect of which that party was not responsible to the applicant in any way. He was removed as a party to the proceedings on the first day of the oral hearing of the matter before the High Court in 2001, and is not a party to this appeal.

Further the appellants, as respondents to the applicant, pleaded the following in opposition to the application:

1. The obligation arising under Article 25.4 of the Constitution is a State obligation, which falls on the Government to fulfil under the State’s executive power;
2. None of the respondents failed to issue or provide an official version or an official translation of the Acts in question;

3. Appropriate arrangements have been put in place by the Government to provide an official translation of all Acts of the Oireachtas from the English language version into Irish, such arrangements being comprehensive and ordered prior to the issuing of the application for judicial review;

4. There is no constitutional obligation to provide official translations of Acts of the Oireachtas simultaneously;

5. There is no constitutional obligation to translate each Statutory Instrument issued in one official language into the other official language. If such an obligation exists, a reasonable period would have to be given to fulfil this obligation. Only the Government has the discretion to measure the rationality of that period, but any such obligation will be fulfilled;

6. The Government accepts the need to provide an Irish version of all Court Rules in addition to an English version, and since both versions are not currently available every effort shall be made, from then on, to resolve the deficiency as soon as possible.

Apart from further denials of the pleas, the appellants did not accept the correctness or accuracy of the facts averred to in the respondent’s affidavit and put him on proof of the same.
Background to the Claim
To put the appeal in context it is necessary to say something about the basis for the claim. The respondent is a practising solicitor, having a practice in Arran Quay, Dublin. He has, among his clients, many people who either wish to conduct transactions of a legal nature in Irish, or have a better ability for doing so in Irish. The respondent himself speaks Irish fluently and this may be one of the reasons why many such people are his clients. Essentially he says that, as a matter of fact, he and his clients are extremely disadvantaged by the absence of legislation in the Irish language. That, in a nutshell, is his claimed difficulty. The legislation in question includes Acts of the Oireachtas and Statutory Instruments, including Rules of Court. He averred in his above affidavit that it had become more difficult for him with the passage of time to serve the above clients in the same way as he serves clients willing to use English in respect of legal matters. In particular he claimed that it is a great obstacle for him that there is frequently no Irish language version/translation available of what he terms the “substantive law and/or of the law concerning the administration of proceedings”. He also averred that in the case of Rules of Court, because of the absence of their availability in Irish, including the accompanying Forms to the Rules, it was often necessary for him, acting on behalf of those clients who wish to conduct their legal affairs through Irish, to go to the trouble and expense of providing an Irish language translation of the Forms, or of paying some other person to do this work. This caused delay and he could not be certain that the version he produced would be accepted in court matters. In relation, moreover, to Acts of the Oireachtas, he pointed in his affidavit to the need for him regularly to use these in relation to his clients and cites, for example, two statutes, the Criminal Justice (Miscellaneous Provisions) Act, 1997 of which he averred no translation into Irish was then available, as was also the case in relation to the Bail Act, 1997.

He attached to his affidavit, in considerable detail, the voluminous exchange of correspondence with the several appellants in the proceedings, as well as with others.
The Legal Bases Contended For
The respondent, as applicant in the High Court, argued that the constitutional obligation to provide a simultaneous translation of Statutes in the official language other than that in which it is passed by the Oireachtas or a version on terms no less favourable than that passed and signed into law by the President in English, in the present case, into Irish, is based on the following:

(1) Article 25.4.4 of the Constitution, read alone, on a correct interpretation of its wording, so obliges the appellants;
(2) Article 25 when read together with Article 8 of the Constitution reinforces the obligation, because Article 25 must be read as being subject to the provisions of Article 8 concerning the designation of Irish as the first official language; and

(3) Article 40 imposes an implied duty to translate, simultaneously with the signing of an Act into law, a version in the first official language so as to ensure that the citizen’s personal rights to equality are guaranteed, and without which such personal rights are neither respected, defended nor vindicated.

The above claimed bases are invoked mutatis mutandis in respect of all Statutory Instruments (including Rules of Court, their Forms and Appendices).
The appellants did not accept the above contentions. They contended that:

(a) The government had not failed to translate all Acts of the Oireachtas into Irish, but that, on the contrary, had set about doing so prior to the issue of these proceedings;
(b) While accepting the necessity to translate the Rules of Court from the current English versions into Irish, insofar as such translations were at that time not available, the government intended to resolve that deficiency as soon as possible;

(c) There is no constitutional obligation to translate Statutory Instruments into Irish; and no duty imposed by the Constitution, whether under Article 25.4.4 read alone, or when read with any other Article, including Article 8, to translate simultaneously with the English version, either Acts of the Oireachtas or Statutory Instruments (including Rules of Court).

Each party invoked both Irish and foreign case law as supporting their respective arguments.
High Court Judgment: Grounds of Appeal
The case came on for hearing over a three day period in October, 2001 and judgment was reserved. In July, 2004 the learned High Court judge (Smyth, J.) notified the parties that, other than on the question of costs, it appeared to him that the issues in the case were moot in light of two Acts of the Oireachtas which had come into force since the date of the hearing, namely the Statute Law (Restatement) Act, 2002 and the Official Languages Act, 2003 (“the Act of 2003”). On the 30th July, 2004 the parties addressed the Court further. Both parties indicated that they considered the matter was not moot, in particular because the Act of 2003 did not impose any obligation in relation to Statutory Instruments (including Rules of Court) and did not, other than in respect of Acts of the Oireachtas, impose any obligations as to the time or manner of publication or the issuing of any translation of the same into Irish. It appears to be the position that the Act of 2002 was not considered by the parties to be relevant to the issues to be determined, and it does not feature in this appeal.

At that time, the appellants took the view that the Court, prior to delivering judgment or making any orders, should also be aware of certain developments which had taken place subsequent to the hearing in 2001, including the following:

(1) The enactment of the Official Languages Act, 2003, certain of whose provisions had come into force,
(2) The allocation of additional resources by the government towards furthering the translations of Acts of the Oireachtas where these did not already exist,

(3) The Houses of the Oireachtas Commission Act 2003,

(4) The Supreme Court judgment in TD v. The Minister for Education [2001] 4 IR 259, which dealt specifically with circumstances in which courts might grant mandatory orders directed to the executive arm of government.

The appellants considered that these matters should be drawn to the attention of the learned High Court judge having regard, inter alia, to the nature of the reliefs being sought by the respondent, in particular the Orders of Mandamus. A Notice of Motion and grounding affidavit for liberty to make further submissions prior to the court delivering judgment issued. The Motion was returnable for the 7th December, 2004 the day on which the matter was again before the High Court for mention. According to the appellants, the learned High Court judge declined to hear the motion, and delivered judgment forthwith. The respondent says the motion was heard and was dismissed. I will return to this later in the judgment.
The learned High Court judge did, however, indicate in his ex tempore judgment delivered in English on that day, that since the hearing of the case, the Oireachtas had enacted the Statute Law (Restatement) Act, 2002 and the Act of 2003, which he considered had “addressed a great deal of the plaintiff’s concerns”. He referred in particular to s.7 of the Act of 2003 which provides as follows:

“As soon as may be after the enactment of any Act of the Oireachtas, the text thereof shall be printed and published in each of the official languages simultaneously.”

Invoking the decision in O’Beolain v. Fahy [2001] 2 IR 279 he stated that in that case the Court had granted certain declaratory reliefs (but had refused prohibition), and cited the following extracts:
“1. That the applicant had a constitutional right to conduct his side of the proceedings entirely in Irish without obstacle nor disadvantage in comparison with the person who was content to use English, regardless of whatever his facility in English, and that he could not be compelled to do so in English.
2. That the third and fourth respondents had a constitutional obligation to provide an official translation of the Rules of the District Court 1997 in the first official language to the public so that the applicant could conduct his side of the proceedings entirely in Irish without obstacle or disadvantage.

3. That the State had a constitutional obligation to make available an official translation of Acts of the Oireachtas in the first official language to the public in general when the President signed the text of a Bill in the second official language.

4. That there was not, taking into account the right of the people to prosecute crimes, a real danger that the applicant would not receive a fair trial given the wide powers of the District Court to secure the rights of the applicant as an Irish speaker, including the power to strike out the prosecution if that could not be done.”

Drawing attention again to the fact that the Act of 2003 was in place, the learned High Court judge then found as follows:

“I ought not give Orders of Certiorari, Mandamus or Declarations when the granting of them by the Court would supplant the Oireachtas’s discretion in that regard.
Essentially the plaintiff has won his action. The Act itself is a sufficient embodiment, on an undertaking that the work will be done in terms that the Acts are to be available within three years as provided for, and priority given to Statutory Instruments referred to (the Rules of Court). I accept that a concession is not a basis for an order in a constitutional action. I am not prepared to make draconian orders.

…

While the Statutory Instruments are not spelt out in the Act of 2003, and as O’Beolain held in favour of an obligation to translate Acts (and Rules of Court) it would seem to me to be an impediment (inhibition?) on the Plaintiff if the Statutory Instruments were not translated”.

By Order dated the 7th December, 2004, following on from the judgment, the High Court, while making no order of mandamus, nevertheless declared that the appellants (a) have a constitutional obligation to issue and make available to the entire public, which includes the applicant (respondent), an official version/translation in Irish of all Acts of the Oireachtas and all Statutory Instruments on terms no less advantageous than the terms under which the official English versions are issued, including issuing the same simultaneously; and (b) have a constitutional duty to issue and make available to the entire community, which includes the applicant (respondent), an official version/translation in the first official language of all Court Rules, including Superior Court Rules, Circuit Court Rules and District Court Rules, as well as amendments, appendices and indices thereto, on terms no less advantageous than the terms under which the official English versions/translations are issued, and that both versions be made available simultaneously. These declarations were to be enforced effectively on the appropriate date when the provisions of the Official Languages Act 2003 would come into force, that is to say, no later than three years from the 14th July 2003.
By a Notice of Appeal dated the 4th March, 2005 the appellants appealed from the judgment in substance as follows:

1. The [learned High Court] judge was wrong to refuse the appellants’ request to make further submissions pursuant to the Notice of Motion issued in that regard, and such refusal was contrary to reason and disregarded the obligation of the court in constitutional matters, in particular where there had been a long period between the hearing of the case and the mention of the delivery of a judgment.
2. The learned High Court judge was wrong in law when he held that there is a constitutional duty to make available to the public an official version or translation in the Irish language of all Statutory Instruments and further was wrong in law in finding that there is a constitutional duty to provide an official translation or version of Acts of the Oireachtas, Statutory Instruments (including Court Rules) either on terms not less advantageous to terms under which the English version is issued and/or to make both versions available simultaneously.

3. The learned High Court judge failed to recognise the rights of the appellant (or the Government more correctly) to choose their preferred method of fulfilling any such constitutional obligation, to have regard for major public expenditure, to deal with functional difficulties, to make a distinction between Acts, Statutory Instruments and/or Court Rules on a reasonable basis, to estimate the demand for the translations, to estimate the level of importance of any one legal text in particular, to estimate the requirements for the translation, and to exercise a proper discussion in relation to choosing the appropriate policies and actions for promotion of the Irish language.

4. The learned High Court judge failed to give recognition to the actions of the State in support of the Irish language and of the status of Irish under Article 8 of the Constitution, in particular by choosing the order or importance of language actions, when the same is a matter for language policy, apart from the recognition of the obligation found in Article 25.4.

5. The judge exercised his discretion wrongly when he made declarations in relation to the constitutional duty to provide an official translation of Acts of the Oireachtas and/or Court Rules when the appellants were not contesting any obligation to do so.

6. The learned High Court judge was wrong in law when he amalgamated the effect of enforcement of the constitutional declaration with the provisions of the Official Languages Act, 2003.

7. That the learned High Court judge had failed to give any reasoned grounds in relation to the decisions, declarations and orders made in the matter.

8. That the learned High Court judge failed to have appropriate regard for the insurmountable difficulties resulting from the declarations made, in particular given the lack of professional translators to undertake work on the backlog involved within any reasonable period of time.

It will be seen that in the Grounds of Appeal the appellants include leave to have submissions and the affidavits grounding the motion dated 30th November, 2004 admitted in the appeal, pursuant to the provisions of Rule 58, Order 8 of the Rules of the Superior Courts.
No cross appeal was filed to any part of the judgment or to the form of Order made. In his written submissions to this Court, the respondent confirms, however, that he does not seek any order of mandamus (none was made), but only that this Court should uphold the several declarations made by the learned High Court judge in his Order. The respondent contends that the learned High Court judge did not fail to deal with the appellants’ motion to adduce further evidence. Rather, he says, the learned High Court judge did do so but dismissed the motion. It is sufficient to say in that regard that the Order of the 7th December, 2004, from which Order this appeal is made, recites, inter alia, as follows:

“And having cited today the Notice of Motion on behalf of the respondents 2-17 dated the 30th November, 2004 seeking permission to make further submissions
And having heard aforementioned counsel,

Such permission is refused”

The phrase “and having heard aforementioned counsel” is used only once in relation to matters occurring on the 7th December 2004 in the Order, and there is no mention whatsoever of any affidavit grounding the motion to adduce further evidence. It is not at all clear to me that the motion was fully opened, considered by the learned High Court judge and dismissed, as contended for by the respondent. Rather what appears from the Order to have occurred is that counsel for the appellants indicated the nature of the motion, the court heard comment from counsel for the respondent, and the motion was dismissed in limine. It seems to me, however, that any review by this Court of the additional information which the appellants wish to have admitted, pursuant to Order 58, Rule 8, is something that may be of relevance only after I reach my conclusions on the findings of the learned High Court judge and in relation to the making of any consequential order on those findings.
Both parties furnished detailed written submissions to this Court outlining the bases and the legal reasoning supporting their respective positions on appeal.
Appellants’ General Argument on the Judgment
According to the argument of the appellants, the Order made by the learned High Court judge is in such extremely broad terms that it places an unduly heavy burden on the State, both in terms of resources and also in terms of a reasonable capacity to discharge the obligations imposed by the Order, especially having regard to the extremely wide terms of the declarations made. The appellants contend moreover, that the learned High Court judge, having regard to the type of order which he proposed to make, ought to have considered the additional evidence which the appellants sought to bring to his attention before making any such Order. Further they argue that in the absence of detailed reasoning in the judgment, it is difficult to ascertain the precise basis upon which the learned High Court judge reached his decision to include the simultaneous translation of all Acts, Statutory Instruments, and Rules of Court within the ambit of the constitutional obligations he found to exist. They point out also that the learned High Court judge made no reference in his judgment to any finding based on Article 40 of the Constitution.

In substance, however, the appellants – as is clear from their written submissions – limit their appeal to two quite narrow grounds. They do not deny that there is a duty imposed on them by the terms of Article 25.4.4 of the Constitution to provide translations of an Act of the Oireachtas, in the official language other than that in which it is signed into law by the President. Nor, the appellants say, did they contest the Order of Laffoy, J. in O’Beolain v. Fahy, supra., as to the Rules of the District Court, but submit, on the contrary, that, on the basis of their acceptance to translate them within a reasonable period of time, they did not challenge the High Court Order made in that case, and as affirmed by this Court,. What the appellants do challenge in this appeal is firstly, that part of the judgment and Order of the High Court which declared them to be under a constitutional obligation to translate into Irish, or to make available in an Irish version, Acts of the Oireachtas and Statutory Instruments (including Rules of Court) simultaneously with the published version of the texts of these in English. Secondly, they challenge that part of the judgment and Order of the High Court as declared them to be under a constitutional obligation to translate into Irish any or all Statutory Instruments (including Rules of Court): they argue that there is no such obligation found in the Constitution. They further submit that, having stated that he should not make draconian orders, including declarations, in light of the provisions of the Act of 2003, and the discretion vesting in the Oireachtas, and of the inappropriateness of supplanting that discretion, the learned High Court judge should not have made orders going against those findings.
Respondent’s General Argument on the Judgment
According to the respondent, the findings of the learned High Court judge were correct in law, following, he contends, the findings of this Court in the case of O’Beolain v. Fahy, supra., which the respondent says are findings on the same subject matter. The respondent argues that this appeal should be dismissed, which would have as its result that the appellants would be obliged to take action along the following lines:

(a) Both versions of all Acts of the Oireachtas will have to be made available as soon as the President signs and promulgates a Bill as Law, pursuant to Article 25.4.1;
(b) The custom which did exist in the past will resume so that, in consequence, versions of all Statutory Instruments in Irish and in English will be made available at the same time as, or simultaneously with, the original version for signing by the Minister, regardless of the language in which the original text was prepared;

(c) All Court Rules will be available in both official languages simultaneously, together with all amendments, forms and indices thereto.

In consequence, it is submitted by the respondent, the “Irish Body of Law” would be thereby fully observed, as it should be, in both official languages, in accordance with the provisions of Articles 8, 25, 40 and other Articles of the Constitution. This, it is submitted, would have as its legal result the grant of joint observance and status to both official languages and to their speakers, in line with European and International Conventions, so as to avoid giving either party (that is to say a party who wishes to conduct his legal affairs in one language as opposed to the other) any cause for grievance.
Conclusion on the issue of an obligation of simultaneous translation of Acts of the Oireachtas:
Article 25.4.4 of the Constitution reads, in the Irish version, as follows:

“I gcás an tUachtarán do chur a láimhe le téacs Bille í dteanga de na teangacha oifigiúla agus sa teanga sin amháin, ní fólair tiontú oifigiúil a chur amach sa teanga oifigiúil eile.”

In the English version this appears as follows:

“Where the President signs the text of a Bill in one only of the official languages, an official translation shall be issued in the other official language.”

I am satisfied that neither on its face, nor on a correct interpretation of this Article, is there a constitutional obligation to enact legislation in both official languages. It is clear that, either the first official language, Irish, or the second official language, English, may be used for the purposes of enacting legislation. Bills, when signed by the President, do not have to be signed in both languages. This is also clear from the wording of the Article itself which envisages the presentation of a Bill for signature and promulgation in one official language only, since otherwise there would be no necessity to refer to a version in the “other official language”. As soon as a Bill is signed, in one language, by the President, it becomes, by virtue of the provisions of Article 25.4.1 of the Constitution, an Act. That Article reads as follows:

“Every Bill shall become and be law as on and from the day on which it is signed by the President under this Constitution, and shall, unless the contrary intention appears, come into operation on that day.”

While therefore Article 25.4.4 speaks of a version being available in the other official language where “a Bill” is signed in one version only, it seems to me that the correct interpretation of this Article is that what is to be made available is an official translation of a Bill once signed, that is, an Act of the Oireachtas. This is accepted by the respondent, because no argument is made to the effect that Article 25.4.4 is to be read as meaning that a version of a Bill is to be made available simultaneously, the respondent referring always to an obligation in respect of Acts of the Oireachtas. Although the respondent also makes some considerable play of the distinction between “signing” and “promulgation”, I do not think that this can alter the true meaning of Article 25.4.4.
Article 25.4.4 is silent on the issue of timing, as was recognised by this Court in O’Beolain v. Fahy, supra., that is to say, on the issue of when a version of a Bill in the language other than that in which it is signed, is to be made available. Nowhere in either language version of this Article is there any temporal word or phrase used by the drafters of the Constitution which might support the respondent’s contention that there is an obligation arising from the wording used, to provide or make available, with the signing by the President of a Bill in one official language, its simultaneous translation in the other official language. In the Irish version of the Article, it speaks only of “I gcás an tUachtarán do chur a láimhe … ní fólair tiontú oifigiúil a chur amach …”, whereas in the English version it speaks of “Where the President signs the text of a Bill … an official translation shall be issued …”. Neither the word “I gcás” in Irish, meaning “Where” or “In the case of”, nor the phrase “Where the President signs”, in English, gives any sense of timing, let alone imposes a requirement that there must be the simultaneous availability to the public of a Bill as signed in one language, in the second language. The obligation, represented by “ní fólair tiontu a chuir amach” in Irish and by “an official translation shall be issued”, in English, does not affect the question of the timing of the same.

On the other hand, if the framers of the Constitution had intended that when a Bill is signed by the President in one official language only, a translation of that version into the other official language should be available simultaneously, as the respondent contends, this would have been a particularly simple obligation to impose, and by the use of equally simple and straightforward language. It could have been provided, for example, that where the President signs the text of a Bill presented in one language, the President should sign at the same time, or immediately thereafter, a version of the Bill in the other official language. Or it could have been provided simply that where a Bill is signed by the President in one official language an official translation thereof must be published simultaneously in the other official language.

None of these very simple solutions was, however, adopted. Moreover, I am satisfied that, within Article 25.4 itself, there is support for the view that what has to be translated is a version of a Bill as signed by the President without any time limit for its translation. Article 25.4.5 reads:

“As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the President, or where the President has signed the text of such law in each of the official languages, both the signed texts, shall be enrolled for record in the office of the Registrar of the Supreme Court, and the text, or both the texts, so enrolled shall be conclusive evidence of the provisions of such law.” (emphasis added)

If the respondent’s argument were correct, the provisions of Article 25 .4.5 would have little merit, for once both versions were to be available simultaneously, upon signing by the President, it would surely have been the case that the framers of the Constitution would not have provided for the two different situations in Article 25.4.5 where the President is presented with, alternatively, one language version of a Bill, or a Bill to be signed in both official languages.
Before finally disposing of this aspect of the appeal, I should make reference to the detailed and learned judgments of McGuinness and Hardiman, J.J. in the case of O’Beolain v. Fahy, supra. I propose to deal with that case also under the next heading, but there is one particular aspect of the judgments which I wish to remark upon at this time, as the respondent invokes this decision in support of his argument on Article 25.4.4. Both judges granted declarations in accordance with the terms of the Notice of Motion as originally presented by the applicant in the judicial review proceedings in the High Court. The declaration, as therein sought, was in terms of a claimed constitutional obligation or duty to make available to the public, including the applicant in that case, Acts of the Oireachtas “when the President signs the text of a Bill in the second official language”. In the Irish version of the declaration sought, the “when” in that context is found, perfectly properly, as “nuair a gcuireann an tUachtarán a lámh …”. Mr. O’Tuathail, senior counsel for the respondent in this appeal, contends in oral argument that the description of the obligation found in Article 25.4.4. is reflected by the use of this “when/nuair” term in the English and Irish versions. Article 25.4.4 does not, however, use either of the words “when” or “nuair”, and their use runs, I believe, the risk of giving a different connotation to the Article, since these words may well, in certain contexts, have a temporal meaning. I do not agree therefore, with the respondent’s argument that the obligation is correctly so styled. Neither the judgment of McGuinness, J., nor of Hardiman, J., found that there is a constitutional requirement for simultaneous translation under Article 25.4.4. I have found that the Article does not contain any such temporal words of limitation which the respondent invokes in this case to support a constitutional obligation of simultaneous translation.

I am satisfied that on a proper reading of Article 25.4.4., the contended for constitutional obligation to provide a simultaneous translation into the first official language, of a Bill signed into law in the other language, that is to say, an Act of the Oireachtas, does not exist.
The Article 8 Argument:
The respondent relies, however, on Article 25.4.4., when read in conjunction with Article 8 of the Constitution, in support of his argument that the Constitution nevertheless obliges such simultaneous provision of a translation or version of an Act of the Oireachtas once signed by the President. Article 8 of the Constitution reads as follows:

“1. The Irish language as the National language is the first official language.
2. The English language is recognised as the second official language.

3. Provision may however be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof”.

The respondent’s argument is made on the grounds that, in order to give the appropriate and proper recognition to the constitutional status of Irish as the first official language, the Irish versions of Acts of the Oireachtas must be available simultaneously with the English version to those who might wish to use Irish in respect of, for example, their legal affairs. This argument depends to some extent on the contention that a constitutional obligation exists pursuant to which such Acts be available on “terms no less favourable than the Act in English”, a phrase taken apparently from certain Canadian case law invoked in O’Beolain v. Fahy, supra. In his judgment in the present case, however, the learned High Court judge did not make any reference at all to Article 8 of the Constitution.
The appellants contend that it is not appropriate to look to the constitutions of countries, such as Canada, or to case law on such constitutions, when considering Article 8, because, contrary to the position in Ireland at the time of the passing of the Constitution, the State was not segregated or divided into two separate and distinct language communities, as was the position in Canada, giving rise to different considerations. While there existed within the State areas of Gaeltacht, these were not areas where English was not generally taught, understood, heard or spoken. And further there existed throughout the State, many persons who professed a proficiency in both Irish and English. It is not therefore the position that Article 8 was adopted, as the respondent suggests, with a view to facilitating two mono-lingual communities within a single State, as was the position in Canada. Quite the contrary, they say. In adopting the Constitution, only one mandatory requirement as to the official translation of legal texts, and only then of Acts of the Oireachtas, was provided for, and that is the obligation found in Article 25.4.4. They argue that Article 8 cannot avail the respondent in his argument on the obligations arising under Article 25.

Further the appellants contend that the respondent cannot seek to suggest, as he does, that the “Irish body of law” must be translated into Irish, pursuant to the provisions of Article 25.4.4. when read with Article 8. They point to the fact that the Constitution contains no provision whatsoever requiring the translation of pre-1922 Statutes, nor indeed of pre-1922 Statutory Instruments or Orders. Nor is there any obligation found in the Constitution to translate texts of the common law or of judgments of the courts of Ireland. The Constitution, as adopted in 1937, contains no transitional provision requiring that existing laws be translated within any period of time. There is, therefore, according to the argument, no reason to construe Article 25.4.4., in a manner which is contrary to the words chosen to express the obligation contained in it, when read naturally. No alteration to that position can be legally or constitutionally justified by the attempt on the part of the respondent to invoke the provisions of Article 8 of the Constitution. The respondent counters this latter argument by saying that they seek only to stand over the declarations granted in the High Court as to Acts of the Oireachtas, Statutory Instruments and Rules of Court. They rely on the judgments of McGuinness, J. and of Hardiman, J. in O’Beolain, supra. In the first of these, it was said:

“This issue relates to the right of people who speak either of the two official languages named in Article 8 of the Constitution to go to court.”

In the second, it was said:

“With the status of the Irish language in mind it seems to me that those who wish to use the language are completely entitled to do so and are entitled to use every facility necessary to do so as far as such facilities are available to those who use the second official language.”

Conclusion on Article 8
I do not find that either of these last two statements, taken alone, and in particular having regard to the context in which they were used in the above case, in fact support the contended for obligation, namely, that when read with Article 8 of the Constitution, Article 25.4.4 must be interpreted as meaning that there is an obligation on the appellants to make available, upon the signing by the President of a Bill presented to her for signature in English, a simultaneous version or translation of the Act in Irish. The above judgment, and several others, also referred to in that judgment, undoubtedly support the contention that such translations must be made available within a reasonable period of time, or even within a very short period of time, a matter I will deal with later in this judgment.
Further, although Article 8.3 is invoked, on the face of it this does not really aid the respondent. The status of both languages is clearly set out at Articles 8.1 and 8.2. Article 8.3 is rather an enabling provision permitting, but not obliging, the adoption of legal provisions, by Act or otherwise, for the use of either of the languages for one or more official purposes and in a particular part, or the entire, of the State. Being an enabling provision, according to the argument of the appellants, the intention or aspiration of the framers of the Constitution, reflected in Article 8.3 is, and was, to facilitate the preservation and extension of the use of the Irish language, and I agree. The meaning of Article 8.3 was raised and determined by this Court (O’Dalaigh, C.J., Kingsmill Moore J and Walsh, J.), in Attorney-General v. Coyne and Wallace [1967] 101 ILTR 17, and in which Kingsmill Moore stated:

“I was at first inclined to the view that 8(3) meant that an official document to be operative must be both in Irish and English, unless provision had been made by law sanctioning the use of only one of the languages. It was argued for the Attorney General that the true meaning of the Article was that either languages (sic) might be used unless provision had been made by law that one language only was to be used for some one or more official purposes. On consideration I consider this construction to be correct. Accordingly, I am of opinion that the decision of the District Justice was not correct and the case should be sent back to him to enter continuances.”

Walsh J. expressly agreed with the construction placed upon Article 8(3) of the Constitution by Kingsmill Moore J. Moreover, in Delap v. Minister for Justice, [1980-1998] IR (Special Reports) 46, O’Hanlon accepted that he was bound by the above interpretation of Article 8.3 of the Constitution.
As to Articles 8.1 and 8.2, the judgments in O’Beolain v. Fahy, supra., were delivered in a particular context. This requires to be set out. The applicant had been charged with offences contrary to certain provisions of the Road Traffic Act, 1961, as amended. He was an Irish speaker who had been served with the summons in Irish and had dealt with the gardai, throughout the entire investigation, through Irish. He had informed the court that he wished to conduct his defence in Irish and that he wished to have the relevant documents served on him in Irish and, in particular, he wished to have Irish versions of the Road Traffic Act, 1994 (which amended the Act of 1961), the Road Traffic Act, 1995 and the Rules of the District Court 1997, so that he could conduct his defence in court in Irish. These were not available. As a result, the proceedings in the District Court were adjourned from time to time to allow the State authorities to produce the documents sought, and to ensure that an Irish speaking judge was available to hear the case. Draft or unofficial translations of the Road Traffic Acts 1994 and 1995 were made available but no translation of the Rules of the District Court had been furnished, and the applicant, through his counsel, sought an order directing the Director of Public Prosecutions to produce them. That application was refused by the District judge and the applicant sought judicial review, including an Order of Prohibition, as well as declarations. The declarations sought against the Minister for Justice, Equality & Law Reform, and Ireland were, firstly, that these parties had a constitutional duty to make available to the applicant translations into Irish of the Road Traffic Acts 1994 and 1995; secondly, that those defendants had a constitutional duty to make available to the public, including the applicant, Acts of the Oireachtas “when the President signs the text of a Bill in the second official language”; and a final declaration that the same defendants had a constitutional duty to provide an official translation of Statutory Instrument No. 93/1997 (the District Court Rules 1997) to the public, including the applicant.

The reliefs sought were refused in the High Court. The applicant appealed to this Court. Judgments were delivered by all three judges in this Court. The appellants in this appeal say it is important to appreciate the different bases on which the three judges cast their judgments. Two judges found in favour of the appellant, and one found against him.

Insofar as the judgment of McGuinness, J., who found in his favour, is concerned, she stated, in the material portion of her judgment, as follows:

“Article 25.4.4, as was pointed out by counsel on both sides, does not provide any time frame within which an official translation of each Bill/Act is to be provided. However, the article as a whole seems to envisage a fairly rapid procedure – where time limits are provided, they are short, and the former pre-1980 system of providing a translation virtually simultaneously with the enactment of the Statute seems considerably more in accordance with the general tenor of the article than the present system which, as far as the Court can ascertain, provides a translation only when a special or urgent demand is made for it. The Respondents argument for a reasonable time to be allowed for translation would ring more sincerely were it not for the fact that virtually no official translations of Statutes have been provided for the past twenty years. This could not be described as a “reasonable time”. Indeed it seems probable that the Statutes in question in this case – Statutes which are used daily in the District Court – would never have been translated were it not for the efforts of the Applicant and his legal advisers.”

McGuinness, J., further found as follows:

“It seems to me that the State has been flagrantly and over a long period of time in breach of this constitutional duty and it would be desirable for this Court publicly to stress the mandatory nature of the duty set out in Article 25.4.4. I would grant the relief sought by the Applicant at paragraph (e) of the Notice of Motion. In providing for this declaratory relief I would assume that the State will take steps to remedy the present situation of neglect within a short time frame.”

Hardiman, J., in his judgment took a different approach, in also finding for the appellant. Having traced the development of the provisions concerning Irish in the Constitution of Saorstat Eireann, and having adopted the findings of Kennedy, C.J., in O’Foghludha v. McClean [1934] I.R. 469, he then referred to the judgment of O’Hanlon, J., in O’Murchu v. Registrar of Companies & the Minister for Industry & Commerce [1988] I.R.S.R. 42 which stressed the importance of the provisions of Article 8 of the Constitution in giving recognition to the Irish language of greater strength than that given in Article 4 of the earlier Constitution. Hardiman, J. found as follows:

“In my view the Irish language, which is the national language and, at the same time the first official language of the State, cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in so doing in any national or official context.”

Applying that finding, he concluded that the appellant in that case could not be disadvantaged in the context of defending a criminal charge in District Court proceedings, and that there was an obligation to make available to that party the two Acts sought and the applicable Rules of the District Court, in Irish.

He found that on the specific issue of the constitutional requirement to provide an Irish version of a Bill presented to and signed by the President, the twofold argument presented on behalf of the State was not meritorious. The first argument concerned the absence of any specific temporal obligation in the Constitution and the second concerned the obligation resting, not with the respondents but with the Houses of the Oireachtas. It is not necessary for me to consider the latter matter in the context of this appeal. However, in relation to the issue as to when the obligation to provide a translation arises, Hardiman, J. stated:

“According to this line of argument, years may elapse, during which the Statute in question is in daily use without any translation being provided, without the State being in breach of its obligation, just so long as the authorities sincerely intend to provide the translation at some future date. It must be obvious that this line of argument is utterly inconsistent with the constitutional status of the national language and with the long standing policy of bilingualism in relation to the business of the Courts, repeated in statutory form as recently as 1998. In my view, there must be implied into the terms of Article 25.4.4. at the very least a requirement that the official translation shall be provided as soon as practicable and there is clearly scope for the contention (not made in this case) that it must be available before the Act is sought to be enforced on a person competent and wishing to conduct his official affairs in Irish.”
“… Moreover, the only conceivable reason for requiring the issuing of an official translation is so that it can be used by those who are lawfully desirous of conducting their legal business in that one of the official languages which was not the language in which the Bill was passed. Since they are entitled to do this it is plainly unreasonable, in both the ordinary and the legal senses of that term, to withhold the translation from them for any period of time, and certainly for years and indeed decades as has unfortunately occurred in the case of many statutes.”

I consider that the judgments of McGuinness, J. and Hardiman, J. in the case of O’Beolain v. Fahy, supra., fully support the conclusions that the appellants are not entitled to withhold translations of Acts of the Oireachtas for periods of time which are unreasonable, and/or which fly in the face of the status of Irish as the first official language pursuant to Article 8 of the Constitution. Both judgments make it clear that the obligation to make available Irish versions of Acts of the Oireachtas must be fulfilled within a reasonable period of time, or as soon as may be practicable.
No finding, however, is made in either judgment of an obligation to provide a version of an Act “simultaneously” or “at the same time”. If it were the intention to do so, I consider it likely this would have been expressly stated. If, on the other hand, having regard to any ambiguity flowing from use of the words “when/nuair” in the relief sought and granted in the O’Beolain case, it could be understood that this was intended to reflect such a simultaneous obligation, I would disagree with such an interpretation, which does not flow from the plain language of Article 25, nor from the judgments. In the O’Beolain case it is clear that neither of the majority judgments considered that the constitutional obligation arising from Article 25.4.4 had been met for a very considerable period of time. It is useful to repeat again the provisions of the Act of 2003, s.7 of which provides that “as soon as may be after the enactment of any Act of the Oireachtas, the text thereof shall be printed and published in each of the official languages simultaneously”. (emphasis added). This provision appears to me to follow closely upon the finding of Hardiman J. in O’Beolain v. Fahy, supra., that the translations must be made available “as soon as practicable”. It also seems to me to be sufficient and appropriate compliance with the obligation of translation found in Article 25.4.4., of the Constitution.

The respondent has contended in these proceedings for an alternative obligation, namely, an obligation on the appellants that when a Bill is signed in English by the President, the Irish version of that Act must be made available “on terms no less favourable” than the English version. From a constitutional point of view, it seems to me, that the provisions of Article 25 fully provide for such an event. If a Bill is signed by the President and is presented in one language, a translation thereof must be available in the other language. Where, therefore, a Bill is presented in Irish, an English version of the Bill as signed must be made available to meet the constitutional requirement. Similarly, if the Bill is presented in English, a version or translation of it must be made available in Irish. It seems to me, however, that the phrase “on terms no less favourable” is used, in reality, as being the same as, or not in any way materially different from, “simultaneously” as that word is used by the respondent. The phrase appears to be taken from Canadian case law. On many occasions, this Court finds it of assistance to consider the case law of other jurisdictions as being of use in cases concerning the interpretation of the Constitution, especially where such case law involves closely similar provisions. This is a very useful tool and a review of the case law of this Court makes it evident that this approach may be adopted in relevant cases. Some considerable reference is made, in particular, in the written submissions of the respondent, to the case law of Canada, and to the manner in which it has approached the constitutional obligations imposed there in respect of language, having regard of course to its particular political context and its Charter of Rights. While accepting that this may be an appropriate approach in many cases, I am nevertheless not entirely convinced that the invocation of such case law from other jurisdictions, such as Canada (or indeed from other analogous countries, – as, for example, Belgium or South Africa) is particularly helpful in reaching a view as to the correct interpretation of the particular language requirements or obligations flowing from Article 25.4.4 or Article 8 of the Constitution in this case. It is axiomatic that, in the case of language, perhaps more so than in respect of any other cultural issue, the particular social, political and/or historical contexts may be, and often are, quite different, depending on the particular circumstances arising at any given time when constitutions are adopted, and indeed depending on the language of the constitutional instruments themselves. Further, it is rare indeed for Constitutions to be drafted in precisely the same language in different jurisdictions, and it is, after all, the language used in the Constitution which is of prime importance and which must be read in its particular context. I do not consider that use of the term “on terms no less favourable” alters in any way the conclusions which I have reached in relation to the constitutional obligations arising. Having found that no requirement exists under the Constitution for the simultaneous translation of a Bill presented in one language in the other official language, the provisions of the Act of 2003 constitute, in my view, sufficient compliance with any contended for constitutional obligation based on the phrase “on terms no less favourable”

The findings in O’Beolain v. Fahy supra. do not support the respondent’s argument that Article 25.4.4 when read together with Article 8 of the Constitution obliges the simultaneous translation of an Act of the Oireachtas in Irish where it is signed into law by the President in an English language version. I am satisfied that, so far as Acts of the Oireachtas are concerned, the contended for obligation of simultaneous translation is not found by a combined reading of Article 8 with Article 25.4.4 of the Constitution.
Statutory Instruments
I propose to deal with Statutory Instruments in general, and later, with Rules of Court, which also fall under the rubric of Statutory Instruments but which, for the reasons I state below, require to be dealt with separately in the context of these proceedings.

In his judgment on the question of Statutory Instruments, the learned High Court judge stated:

“While the Statutory Instruments are not spelt out in the Act of 2003, and as O’Beolain v Fahy held in favour of an obligation to translate Acts and Rules of Court, it would seem to me to be an impediment (inhibition?) on the Plaintiff if the S.I.s were not translated”.

According to the written submissions of the respondent, it is contended that on the first day of the hearing of the matter before the learned High Court judge, counsel for the appellants accepted that they had a duty to issue or make available Acts of the Oireachtas and Statutory Instruments in both official languages, but did not agree with the respondent as to when this should be done. It is further contended on his behalf that since the learned High Court judge had concluded that Acts and Statutory Instruments are intertwined and cannot be separated from each other, and that it is therefore illogical to translate Acts without translating the Statutory Instruments made under Acts, this is clearly the basis for the above finding in the judgment. The respondent submits that the decision of the learned High Court judge was correctly made, based on this Court’s judgment in O’Beolain v. Fahy, supra., and contends that, having regard to the extent of the law which is available by means of Statutory Instruments, including those which amend Acts of the Oireachtas, no distinction can lawfully be drawn between what the respondent calls “a person’s right” to have available all Statutory Instruments, as well as all Acts, in Irish, and any attempt to draw any such distinction is absurd.
The appellants, in their written submissions, commence by denying that they conceded any obligation to translate Statutory Instruments during the High Court hearing or that the hearing was limited to argument as to when that obligation should be discharged. They point out that the Notice of Opposition, the affidavits filed and the written submissions made in the High Court, all contested the existence of any such obligation, and say that on the 7th December 2004 senior counsel on behalf of the appellant said he could not agree that he had made any such concession, and had instructions to confirm and assert to the court the appellant’s position which was that they did not accept there was any constitutional obligation to translate any or all Statutory Instruments. They contend that the transcript of the High Court hearing does not support the existence of any such concession, and they draw this Court’s attention to the fact that the judgment nowhere recites any such concession, nor was the judgment based on any such alleged concession.

Further, the appellants argue that it is not possible from the judgment to say on what basis the finding of the learned High Court judge on Statutory Instruments was made, since he had accepted that there was no mention of them in the Act of 2003. They say that such a contended for constitutional obligation simply does not exist and that the learned High Court judge was wrong in law in finding otherwise. They point, inter alia, to the range of authorities or undertakings, including statutory undertakings, entitled in law to make such Statutory Instruments, as supporting the absence of any constitutional obligation on them, or on the Government, to provide a simultaneous translation into Irish of all and every Statutory Instrument made. The appellants state that the Government is committed to extending, as part of its executive function, and on an administrative basis, the range of Statutory Instruments to be translated and contends that this is a policy decision of the Government. They point out however that contrary to the respondent’s submissions, the Rules and Orders made under the Constitution of Saor Stat Eireann were not always issued in both languages simultaneously, and they give examples of these.

They also argue that since there is no constitutional obligation to translate every Act of the Oireachtas simultaneously with the version signed by the President, it would be wholly inappropriate in law for this Court to find that such an obligation nevertheless exists in the case of Statutory Instruments.
Conclusion on Statutory Instruments
I do not think that the differences arising as to the precise basis for the judgment can resolve the issue which is before this court, which concerns the ambit of any constitutional obligation on the appellants to translate into or make available to the entire public, including the respondent, an Irish version of Statutory Instruments, simultaneously with the versions made or signed in English. That is the primary issue, and it is the High Court declaration to that effect which is challenged by the appellants, who also challenge the existence of any general constitutional obligation to translate all or any Statutory Instruments.

I am not persuaded that the respondent is correct that the basis for the finding of the learned High Court judge is that Acts of the Oireachtas and Statutory Instruments are so intertwined that they fall within any constitutional obligation to be translated into Irish, simultaneously, or otherwise, with the making of a Statutory Instrument in English. There is nothing in the judgment which would support that conclusion as a reasonable interpretation of the findings made. Nor is there anything in the Constitution itself to support a conclusion that, even if Statutory Instruments and Acts of the Oireachtas are intertwined, a Statutory Instrument, which has a particular definition and status as subsidiary legislation, could ever be construed as if it were an Act of the Oireachtas, for the purposes of Article 25.4.4, or as being in any way akin to an Act of the Oireachtas so as to permit them to be considered within the ambit of any constitutional obligation arising from that Article. Article 25 is drafted to deal with a particular context. It is the scheme or process by which Bills, passed by both Houses of the Oireachtas, are presented for the signature of the President, the times limits for the same, and the mechanism by which Acts of the Oireachtas are promulgated into law. It is not therefore surprising that delegated legislation in the form of Statutory Instruments is not included within its scope. That is so whatever the strength to be attached to Article 8 of the Constitution concerning the national language.

The Constitution does not deal expressly with the question of the translation into one or other language, or the provision of a version in one or other language, of every or any Statutory Instrument which is made, and certainly nothing which suggests that this must be done on a simultaneous basis with a version made and signed in the other language. If it be the case that the appellants are under such an obligation however, to make available a version in the Irish language of Statutory Instruments published in English, then the fact that these can be or are made by undertakings or institutions or bodies other than, for example, a Minister, could not, in law, stand in the way of the obligation being that of the appellants.

I have already found that there is no constitutional obligation to translate, simultaneously into Irish, Acts of the Oireachtas presented for signature by the President in English, whether under Article 25.4.4.of the Constitution or when that Article is read with Article 8. On the strength of the arguments on appeal, and the case law, I can find no legal basis upon which it could be said that there is any constitutional obligation on the appellants to provide to the general public, including the respondent, a translation of all Statutory Instruments, by whomsoever made, simultaneously with the availability or the making and publishing of those Statutory Instruments in English.

While it is clear that there is no such obligation as to the simultaneous translation of Statutory Instruments, and while it is equally evident from the case law, including O’Beolain v. Fahy, supra., and Delap v. Minister for Justice supra. that an obligation to provide specific Statutory Instruments to facilitate proper access to Court to those wishing to deal with proceedings in Irish, may exist in a particular case – although no such argument on Statutory Instruments has been presented in this appeal – I do not find any general constitutional obligation to translate and make available to the entire public, including the respondent, translations of all and every Statutory Instrument made pursuant to an Act of the Oireachtas. The respondent’s argument that this must follow from the combination of Articles 8 and 25.4.4., and/or Articles 34 and 40 of the Constitution is not supported by the case law.

I am satisfied that the appellants are correct in law in their argument that no such general constitutional obligation exists. This was recognised by McGuinness, J., in O’Beolain v. Fahy, supra. in dealing with Statutory Instruments (in that case specific Rules of Court) where, although granting declaratory relief, she stated:

“I should point out that this declaratory order applies solely to Statutory Instrument No. 93/1997. I am not to be taken as holding that all Statutory Instruments require to be translated. The Rules of Court are a special case due to their importance to the citizen who seeks his or her constitutional right of access to the Courts.”

I am in agreement with this limitation on the right which may exist in respect of particular Statutory Instruments, and I deal with Rules of Court next.
There being no such general obligation of translation, I cannot find any support for the learned High Court judge’s finding that there exists an obligation to make available to the general public, including the respondent, an Irish version of any and all Statutory Instruments simultaneously with their publication in English, and the provisions of Article 25.4.4 whether read alone, or in conjunction with Article 8 of the Constitution or with any other article of the Constitution, do not lend themselves to being interpreted as creating any such general obligation.
Rules of Court
In his judgment the learned High Court judge, citing O’Beolain v. Fahy, supra. stated:

“…
2. That the third and fourth respondents had a constitutional obligation to provide an official translation of the Rules of the District Court, 1997, in the first official language to the public so that the applicant could conduct his side of the proceedings entirely in Irish without obstacle or disadvantage.

…”

As concerns his finding on this issue in the present case, he stated:

“Essentially the plaintiff has won his action. The Act itself is a sufficient embodiment on an undertaking that the work will be done in terms that the Act are to be available within three years as provided for, and priority given to S.I.’s referred to [The Rules of Court]. I accept that a concession is not a basis for an order in a constitutional action. I am not prepared to make draconian orders.”

Although the appellants correctly include Rules of Court under the general category of Statutory Instruments, they seek to draw a distinction in relation to Rules of Court based on the specific context in which statements have been made in the jurisprudence of this Court, or of the High Court, on such Rules, for the purposes of contending that there is no constitutional obligation on the appellants or indeed on the Government to make available to the public in general, (including the respondent), a translation into Irish of all Rules of Court (and of all levels of Court), or to do so simultaneously with the publication of their English versions.

In support of this approach they refer, firstly, to the decision in Delap v. Minister for Justice supra., in which O’Hanlon J., expressly ruled out any bare obligation to translate Rules of Court arising out of Article 8 of the Constitution. Rather he found an obligation arising from a combination of the right of access to the courts, the right of a party to court proceedings to conduct his side of those proceedings in Irish, and the “great obstacle” in his path posed by the complexity of Rules of Court together with the prescribed forms and the obligation to comply with the Rules arising in such circumstances, to ground a right to such Rules in Irish in that case.

Counsel for the appellants point also to the treatment of the obligation to translate Rules of Court into Irish considered by this Court in O’Beolain v. Fahy, supra., but suggests that the observations in the judgments in that case should be approached with some caution when considering the issues in the present appeal. In their written submissions the appellants refer to the “self-evident failure to comply with the express terms of Article 25.4.4.” as a basis for appreciating the judgments in O’Beolain as having been expressed in “trenchant terms”. They submit, however, that since Article 25.4.4. contains an explicit obligation of translation of Acts of the Oireachtas, this Article should be understood as indicating that the framers of the Constitution did not envisage any broader obligation being imposed upon organs of the State, and, in particular, any broader principle to be derived from Article 8, read alone or in combination with Article 25.4.4., including any broader principle affecting any obligation as to the translation of all Rules of Court.

Secondly, the appellants contend that if the argument made by the respondent is made on the basis that because he is a solicitor he thereby has the right to access to “all legal materials in Ireland”, pursuant either to Article 8, or to a combination of Article 25.4.4. and Article 8, then such an obligation would logically extend to the text of judgments delivered by the courts, administrative circulars and other materials, in particular having regard to the fact that there are many decisions of the Superior Courts where authoritative interpretations of relevant statutes or of Statutory Instruments are found. It is submitted, however, that there cannot be found any obligation in the Constitution which supports such an obligation. This, it is argued, is a further indicator that the constitutional obligation of translation is one which arises exclusively or solely within the ambit of Article 25.4.4.

In oral submissions to the Court, the appellants say that while they accept that Rules of Court should be made available in both languages, and where not available in an Irish version, the Government is committed, on an administrative basis, to ensuring that they are available within a reasonable period of time after publication of the English version of the Rules, nevertheless the learned High Court judge had failed to permit the appellants to present to the Court evidence concerning the steps taken by the Government to do so. They submit that if that evidence had been taken into account by the learned High Court judge, as it ought to have been, the steps actually taken would be seen to have been reasonable and appropriate.

The respondent takes a diametrically opposite view of the position concerning the availability of Rules of Court, and says that, as of the date when he filed his written submissions to this Court in late 2008, the following was the position: an official version or translation of the District Court Rules was not available until January, 2005, and amendments of this had not yet been translated into Irish, notwithstanding the judgment of this Court in O’Beolain v. Fahy, supra; Rules of the Circuit Court exist only in English since 2001, but no version or translation of these Rules, or of the amendments to them, existed; the position was the same in respect of the Rules of the Superior Court which came into effect on the 1st October, 1986, where an official translation into Irish became available in July, 1990 but only as a result of the decision of the High Court in Delap v. The Minister for Justice, supra; the various amendments made to the Rules of the Superior Court since their introduction in the English language in 1986 were not available in Irish, and further neither the forms nor the indices attaching to the Rules had been made available. He relies on O’Beolain v. Fahy, supra. in support of a requirement of simultaneously translation, including reliance on Articles 8, 25.4.4, 34 and 40.
Conclusion on the Rules of Court
Before dealing with the specific issues on Rules of Court, I should recall that the appellants point to the fact that no finding was made by the learned High Court judge in his judgment that Article 40 of the Constitution, either alone or when read with any other Article, obliges the provision of such simultaneous translation/version in Irish to the general public (including the respondent), and I agree. The appellants also say they do not themselves make any argument in this appeal on Articles 34 and 40, on the basis that these did not form the basis for the judgment of the learned High Court judge. The learned High Court judge in O’Beolain v. Fahy, supra., which, according to his judgment, influenced to some very considerable extent the learned High Court judge in the present case, based her decision on a combination of Articles 34 and 40 of the Constitution for the findings which she made on the constitutional obligation, and which O’Beolain appealed. Nevertheless, a consideration of the two judgments of this Court finding in favour of O’Beolain in that appeal makes it clear they were based more on a combination of Article 8 and Article 25.4.4. Although in the judgment of Hardiman, J. he agreed with the learned High Court judge on the issue of equality of access to Court arising from Articles 34 and 40, his judgment I believe is best understood as depending very substantially on the importance attaching to the Irish language under Article 8 of the Constitution.

There being no reference whatsoever in the judgment of the learned High Court judge to Article 40 of the Constitution, I conclude that his findings, based as they are on the decision of this Court in O’Beolain v Fahy, are also based on Articles 25 and 8 of the Constitution. Having regard to the grounds of appeal, and subject to what I say below, I do not consider that there is any issue before this Court arising from the judgment of the learned High Court judge which requires me to consider the general effect, if any, of Articles 34 or 40 of the Constitution on the obligation contended for in respect of Rules of Court, although the respondent in his written submissions invokes Article 40.

I have already held that there is no constitutional obligation on the appellants to provide simultaneous or other translations of all Statutory Instruments to the general public, including the respondent. Rules of Court, being Statutory Instruments, fall generally within the same rubric. I have held, however, that, as concerns Statutory Instruments, an individual may be entitled to claim that the absence of a particular Statutory Instrument or of even more than one, in Irish, may constitute, in a particular case, an inhibition or an impediment on such an individual seeking to vindicate his right to use the first official language in court proceedings, or at least in respect of his or her side of court proceedings. The same position applies in the case of Rules of Court. As mentioned above, this appears clear from the case law, including O’Beolain v. Fahy, supra. and Delap v. Minister for Justice, supra., although I refer again to the above extract from the judgment of McGuiness, J., as to the limits on such right. No such individual, even as a client of the respondent, is however, joined in these proceedings. Rather the claim is made that there is a constitutional obligation on the appellants to the general public, which includes the respondent, to make available, simultaneously with the availability of the English version of every Statutory Instrument, including Rules of Court, an Irish version or translation of the same.

It is correct to say, as the appellants contend, that O’Hanlon, J. was careful in the case of Delap v. Minister for Justice, supra. not to find such an obligation in Article 8 of the Constitution, but rather to base his judgment on the combination of rights set out above, flowing from Articles 34 and 40.

The question which arises therefore is the extent, if any, to which the appellants are under a constitutional obligation to the respondent, as a member of the general public, to make available all Rules of Court in Irish. I am satisfied that there is no constitutional obligation to do so simultaneously with the making or publication of the Rules of Court in English. It does not follow either from the case law that there is a general constitutional obligation to publish all such Rules in Irish to the general public, including the respondent, qua member of that general public. In relation to Rules of Court, the appellants only go so far as to say that the Government, while accepting the “necessity” to translate these, is committed, on an administrative basis, to do so within a reasonable time. This stance seems to me to be not entirely inconsistent with the appellants stated position on this appeal. In their Notice of Opposition the appellants pleaded the Government “accepted the necessity” to translate the Rules of Court. In their written submissions they include the following, as concerns Rules of Court:

“The appellants have not at any time challenged the Order made in O’Beolain by Laffoy, J. and confirmed by the Supreme Court”.

Their argument is based on the contention that the case law to date is limited, as concerns Rules of Court, in the same way as with Statutory Instruments, to an obligation deriving from the Constitution, towards those seeking specific Rules of Court in Irish so as to permit them to have proper access to court to defend their rights in court proceedings.
While I am satisfied that there is no general constitutional obligation to issue to the general public, including the respondent, Rules of Court in Irish when published in English, whether simultaneously or otherwise, it is, however, unreal to ignore the specific position of the respondent vis a vis Rules of Court. Where a respondent, as in the present case, is not disadvantaged simply by the absence of particular Rules of Court, in this case in the Irish language, arising peculiarly or coincidentally, out of the bringing or defending of specific court proceedings such as was the case of the applicant in O’Beolain v. Fahy, supra., but rather, as a solicitor having a range of clients wishing to have their legal affairs conducted in Irish or wishing to secure advice in Irish in respect of them, he is in a singularly different but equally disadvantaged position. Indeed, the position of a person such as the respondent appears to have been recognised by those of the appellants in this appeal who were also named as State parties in O’Beolain v. Fahy, supra. This is clear from the judgment of Hardiman, J. in that case. He referred to the State’s argument that the case of Delap v. The Minister for Justice supra. could be distinguished from the position arising in O’Beolain, on the basis that Mr. Delap was a solicitor engaged, actually or potentially, in a wide variety of cases before the courts and therefore “had an interest, actual or potential, in the Rules as a whole”, whereas the applicant (O’Beolain) is “simply a citizen with an interest in one case only”. While Hardiman, J. rejected that distinction, his judgment acknowledged, correctly I believe, a factual and legal distinction between the general public (including the respondent) on the one hand, and this respondent, who is affected in a significant and material way by the absence of Rules of Court, their forms and indices, in his capacity as a solicitor having a wide court practice who is also, of course, an officer of the Court. In the present case the respondent has averred to the fact that he is obliged to undertake himself, or to find another party to undertake, to translate what are, in effect, prescribed forms or appendices to the Rules of Court because they do not exist in Irish, a situation which is wholly unsustainable.

It cannot be gainsaid that the absence of such Rules, their amendments, forms and indices, whether of the Superior Courts, the Circuit Court or the District Court, constitute an impediment on a solicitor, such as the respondent, having a significant clientele wishing to undertake their legal affairs in Irish, and adversely affects proper access to court and/or to the giving of advices arising from, or in relation to, matters covered by the Rules of Court. These extend not only to criminal matters and civil applications, but also to issues which might not be so readily apparent, such as probate matters or those concerning wardship, or other less immediately obvious involvements in procedures governed by Rules of Court. In O’Beolain, by way of example, having adopted the findings of Kennedy, C.J. in O’Foghludha v. McClean, supra., in relation to the availability of Superior Court Rules, Hardiman, J. stated:

“I am of the opinion that the same reasoning applies to the Rules of the District Court. These Rules, as noted above, are extremely important for the conduct of litigation in that court. In relation to the trial of summary offences, they contain provisions for such vital matters as service, powers of adjournment, powers of amendment, and the effect of variations between the offences alleged in the summons and the evidence actually given in court. Furthermore the Rules provide the appropriate forms to be used for such basic purposes as the summoning of a witness and the giving of notice of appeal.”

These examples constitute a small range of the forms essential to comply with procedures governed by Rules of Court, which, absent such compliance, may have significant adverse consequences for clients of a solicitor engaged in such matters, or for the solicitor himself, such as the respondent. The provision of such Rules must be ensured within a reasonable period of time, and preferably as soon as practicable after their publication in English, so as to respond to the obligation to ensure compliance with Rules relating to access to court or with procedures governed by the Rules of Court.
In light of the foregoing, it might therefore be considered appropriate, in light of the findings in O’Beolain v. Fahy, and the acceptance on the part of the appellants in the present case, of a commitment to provide Rules of Court in Irish, to determine whether these have, at this point in time, been provided within a reasonable period. Nevertheless, I do not find it necessary to view the additional material which the appellants sought to have considered by the learned High Court judge, before any Order should be made in the present proceedings. Firstly, it is the case that after approximately 40 years, the Rules of the Superior Courts, their amendments, forms and appendices had not been made available in Irish by late 2008. Secondly, it appears clear that the position concerning the Circuit and District Court Rules had not been ameliorated to the extent that Irish versions thereof were yet available, at the date upon which written submissions were filed in this Court by the respondent in late 2008, notwithstanding the order made in O’Beolain v. Fahy, supra. in 2001. No details were furnished by the appellants in response. It is, it seems to me, axiomatic that this cannot constitute compliance with any commitment which the appellants acknowledge themselves bound by, or with the commitment to do so, within a reasonable time, or with the constitutional obligation to ensure appropriate access to court or to court procedures to those wishing to conduct the same through Irish, through an instructing solicitor who seeks to comply with his client’s language requirements in so doing. However, this judgment necessarily extends the obligation from that specified in O’Beolain v. Fahy, supra. to cover the particular position of a solicitor such as the respondent. This means that the appellants must proceed forthwith to take all necessary steps to provide all translations necessary to comply with that requirement. On the assumption that the appellants will remedy the position relating to Rules of Court within a reasonable period of time of this judgment, it is not in my view necessary to make any Order beyond the declaration next provided for.
Decision
Having regard to the foregoing findings, I would make an Order setting aside the judgment and Orders of the High Court. I would make a declaration that there is a constitutional obligation to provide to the respondent, in his capacity as a solicitor, all Rules of Court, including all amendments, forms and indices thereto, in an Irish language version of the same, so soon as may be practicable after they are published in English.

Ó Maicín v Ireland

[2014] IESC 12

Judgment of Mr. Justice Clarke delivered the 27th February, 2014.
1. Introduction
1.1 The special status of the Irish language under the Constitution is clear. Irish is recognised as the national language and it is in that capacity that Irish is specified, in Article 8.1 of the Constitution, to be the “first official language”. That some significant obligations lie on the State deriving from that special status accorded to Irish cannot be doubted. That those who wish to conduct their business, particularly with the State, in Irish enjoy certain language rights equally cannot be doubted. However, the precise extent of the State’s obligations and individuals’ rights in this area is a matter which requires more careful analysis.

1.2 The requirement that persons are to be tried on criminal charges with a jury is also expressly specified in Article 38.5 of the Constitution. That provision is, in its terms, subject to exceptions in the case of minor offences, special courts and military tribunals. That there is an obligation on the State to provide, save in those cases exempted, for jury trials cannot be doubted. There are, however, questions concerning the extent to which the constitutional provision for trial by jury is a right enjoyed by accused persons, an obligation on the State independent of the position of the accused or, indeed, both of these. There are also questions as to the extent to which the Oireachtas may, consistent with the Constitution, enact laws limiting the composition of a jury.

1.3 This appeal raises questions concerning the rights of persons who wish to have a criminal trial, in which they are the accused, tried with a jury who would be in a position to hear the evidence in Irish without translation. This appeal, therefore, raises questions concerning the extent of the entitlement of such a person to have a criminal trial conducted in Irish without translation so far, at least, as their own participation in the trial is concerned. Likewise the possible practical difficulties of empanelling a jury who would be competent to conduct such a trial without the benefit of translation raises questions about the extent of the limitations which can legitimately be placed on the jury empanelment and selection process.

1.4 Thus, important issues arise as to the extent of the language and other rights enjoyed by persons seeking a jury competent in Irish, the extent to which it is permissible to limit the composition of a jury in a manner which is consistent with the use of the term jury in the Constitution and the balancing of any language and jury trial rights and obligations which derive from the Constitution.

1.5 In the High Court, the plaintiff/appellant (“Mr Ó Maicín”) sought orders designed to establish his entitlement to be tried before a jury which could understand both Irish and English. His claim failed for reasons set out in a judgment of Murphy J. (Ó Maicín v. Eire & ors [2010] IEHC 179). Mr. Ó Maicín has appealed to this Court against the judgment and order of Murphy J.
2. Some general observations
2.1 I find myself in disagreement with the judgment of the President of the Court, Hardiman J. However, his judgment sets out a full account of the factual backdrop to these proceedings, the unsuccessful application made by Mr. Ó Maicín in the court of trial (the Circuit Court, presided over by the fourth named respondent) seeking trial before a jury who could understand both Irish and English without translation and much of the general factual background concerning the expert evidence tendered in the High Court relating to the prevalence of Irish speaking, particularly in the Gaeltacht area of Connemara close to where Mr. Ó Maicín resides and where the offence of which he is charged is alleged to have taken place. It is, therefore, unnecessary to repeat that background here.

2.2 However, in addition, there are a number of aspects of the judgment of Hardiman J. with which I am fully agreed. First, I agree that, as he puts it, this is “fundamentally” a language rights case in the sense that the argument put forward by Mr. Ó Maicín derives from his asserted language rights. While Mr. Ó Maicín also puts his case in terms of his undoubted right to a trial in due course of law pursuant to Article 38 of the Constitution, and in terms of a right to equality before the law with an English speaker under Article 40.3.3 of the Constitution, each of those assertions have, as their ultimate foundation, a language right.

2.3 Some persons have no option but to be tried before a jury which does not speak their native tongue. In modern Ireland there are many “new Irish” or others who happen to be in the jurisdiction exercising rights such as the right to work under the European Treaties. Such persons may be able to speak English (or, perhaps, Irish) to a greater or lesser extent but many are not sufficiently fluent that they would wish to give evidence in an important case involving a serious criminal accusation against them other than in their native language. If a person could not ever have a fair trial, as such, unless the decision maker could speak their native language then it would, in practical terms, be impossible to put many such persons on trial. The conduct of a trial in a language other than that of the accused is not, therefore, of itself and without more a breach of any constitutional entitlement. That does not, of course, mean that such persons do not have significant constitutional entitlements to translation and assistance so as to minimise any disadvantage to which they may be put.

2.4 Likewise, an equality argument raised by such a person based on the assertion that he or she was at an impermissible disadvantage compared with an English speaker, who would be tried with a jury capable of understanding their evidence without translation, could not succeed. The fundamental point made on behalf of Mr. Ó Maicín in respect of his entitlement to a trial in due course of law and to his entitlement to equality before the law stems directly from the fact that he is a speaker of the national and first official language.

2.5 I also agree with the treatment of the State (Sheehan) v The Government of Ireland [1987] I.R. 550 in the judgment of Hardiman J. If it were to be established that Mr. Ó Maicín had a constitutional right which could be met by the exercise of a statutory discretion by a Minister of Government, then it seems to me that different issues would arise to those which were at play in Sheehan. In Sheehan the Oireachtas had, as Hardiman J. points out, enacted legislation which, if commenced, would have extended the liability of local authorities to nonfeasance in addition to the existing liability in respect of misfeasance. The relevant provision had, however, never been commenced. The issue in Sheehan was as to whether there was an implied obligation to commence within a reasonable period of time. This court, in Sheehan, reversing Costello J. in the High Court, held that there was not. However, as Hardiman J. points out, there were no constitutional rights involved. The State has, of course, a duty to vindicate any established constitutional entitlements. If a constitutional entitlement can be established and if there is a means by which it can be vindicated by the exercise of a power vested, even on a discretionary basis, in the State or an organ of the State, then there will always be a strong case for the court declaring an obligation on the part of the State to exercise any discretion in a manner which would vindicate the constitutional right established. The real issue, it seems to me, is as to whether the constitutional right asserted in this case can be said to be established and to apply in the circumstances of this case in the first place. If it is so established and applicable, then clearly the court is obliged to take whatever measures may be appropriate to seek to ensure that such a right is vindicated.

2.6 For those reasons it seems to me that the three questions which fall for consideration are those identified in the introduction to this judgment. First, what is the extent of any language rights enjoyed by Mr. Ó Maicín? Second, what limitations can or must be placed on the composition of a jury so as to meet the constitutional requirement for trial with a jury in non-minor cases? Third, to the extent that there may be a conflict between any rights and obligations arising under the first two questions, how is such a conflict to be resolved? On that basis I turn first to the extent of any language rights involved.
3. Mr. Ó Maicín’s language rights
3.1 The starting point has to be an analysis of the status of the Irish language in the Constitution. In that regard I agree with much of the judgment of Hardiman J. in his analysis of the case law from O’Foghludha v McClean [1934] I.R. 469 to his own judgment in Ó Beoláin v Fahy [2001] 2 IR 279. Hardiman J. mentions that Article 8.3 of the Constitution permits provision to be made by law “for the exclusive use of either of the said languages, for any one or more official purposes, either throughout the State or in any part thereof”. It may well be, as was suggested by Kohn, The Constitution of the Irish Free State (London, 1932) that Article 8.3 (and its predecessor in the Constitution of the Free State) was designed with a view to the possible reintegration of the national territory. Be that as it may, the provision seems more general in its application and is by no means confined to matters which might be said to be connected with Northern Ireland.

3.2 It is, of course, correct that, as Kennedy C.J. pointed out in O’Foghludha, the status accorded to Irish in the Constitution does not derive from the fact that Irish was (or indeed is) the language universally spoken by the people or even the majority of the people. Rather that status derives from Irish being “the historic distinctive speech of the Irish people”. It also follows, as Kennedy C.J. pointed out, that the State is obliged to do everything within its sphere of influence to maintain Irish in its status as the national language such that no organ of the State may derogate from the pre-eminent status of the Irish language as the national language.

3.3 While the State, and each of its organs, has an obligation to promote and respect the high status of the Irish language there may, nonetheless, be limitations on an entitlement to have Irish used which derive from the limited use of Irish in ordinary everyday life at least so far as many parts of the country is concerned. Other citizens are entitled to use English as an official language if they wish and their rights so to do must also be respected. As the point was not argued it is not appropriate to consider whether Art. 8.3 may provide an express constitutional recognition of such difficulties. I would, therefore, leave to a case in which the point was argued, the extent (if any) to which Art. 8.3 might be said to influence the proper interpretation of the rights conferred by Art. 8 as a whole.

3.4 It seems to me, however, to follow from MacCarthaigh v. Eire [1999] I.R. 200, (a case to which I will return) that there are limitations on the rights which those who may wish to use Irish can enjoy. That is not to say that the State can in any way ignore the position of those who wish to conduct their business with the State in Irish. Leaving aside the legislative provisions which have been analysed in the judgment of Hardiman J., there is a clear constitutional obligation on the State to encourage the use of Irish for official business for to do otherwise would be to derogate from the constitutional status accorded to the Irish language.

3.5 The obligation on the State to encourage the use of Irish applies, of course, independent of the language wishes of those with whom the State is dealing. To place the general obligation of the State above the level of “encouraging” would imply that there was a constitutional imperative to implement the sort of quasi compulsion applied in the past which, it is at least arguable, led to less rather than more commitment to Irish among the general public. It does not seem to me that the general obligation of the State can, therefore, be put any higher than an obligation to “encourage”. However, the specific obligation of the State which arises when a citizen wishes to conduct business with the State in Irish is different. That the State has a constitutional obligation to respect the language wishes of a citizen, who wishes to use Irish in their communications with the State or its agencies, cannot be doubted.

3.6 The fact that the State has such a constitutional obligation does not, however, mean that, at a constitutional level, there is an absolute obligation on the State to ensure that persons wishing to so do can conduct all official business through Irish without translation. An assessment of whether, in any particular circumstance, the State has complied with its obligations in respect of the Irish language, will, therefore, necessarily involve an analysis of the rights of those who wish to conduct their affairs through Irish but also the language rights of those wishing to use English and, where appropriate, any competing interests or constitutional obligation that may arise.

3.7 It follows that those wishing to conduct official business in Irish do have a right, derived from the constitutional status of the Irish language, to have their business conducted in Irish. However, it equally follows that that right is not absolute and must be balanced against all the circumstances of the case (not least the fact that the great majority of the Irish people do not use Irish as their ordinary means of communication) particularly the fact that other citizens are entitled to conduct their business in English as an official language, and also any other competing constitutional interests which may arise.

3.8 It is important to note that this case does not involve the consideration of an argument put forward on behalf of the State that a particular level of commitment to Irish would involve a disproportionate demand on the State’s resources. In such a case it would be necessary to decide, with some precision, the precise standard against which any such argument would need to be measured. I would, therefore, leave to a case in which the issue specifically arose, the question of whether a conflict between Irish language rights, on the one hand, and the State’s allocation of scarce national resources, on the other, ought to be judged by a standard of reasonableness, practicability, or, as O’Neill J. suggests in his judgment in this case, one of feasibility. In my view this case turns on the necessity to balance the undoubted language rights of Mr. Ó Maicín with other non-resource constitutional issues, most particularly the language rights of others including the rights of persons, who cannot speak Irish to a sufficient standard to be able to follow a case without translation, to serve on juries and the constitutional obligation to ensure representative juries to which I now turn.
4. The constitutional status of a jury trial
4.1 As the authors of J M Kelly – The Irish Constitution (3rd Edition) point out (at p. 657) the term jury is used in Article 38.5 of the Constitution but that term is not defined. The authors also suggest, correctly in my view, that it is more appropriate to regard the provisions of Article 38.5 as providing for a constitutional obligation that there be a trial by jury save in those cases where the Constitution itself permits otherwise (minor cases, special courts and military tribunals). While the “right to a trial by jury” is often spoken of, the way in which Article 38.5 addresses trial with a jury suggests that there is a constitutional requirement for such a trial independent of any entitlement which an accused may have to be tried with a jury. Article 38.5 requires that, save for the exceptions just noted, “no person shall be tried … without a jury”. While a person might be said to have a right to jury trial derived from that provision, it seems to me that the Constitution goes further and requires jury trial independent of the views of either prosecuting authorities or the accused.

4.2 Indeed, there is a reflection of the constitutional imperative for jury trial in non-minor cases in the fact that there must be a judicial determination by a District Judge that an offence is, properly speaking, a minor offence before that District Judge can accept jurisdiction to try in a summary fashion a case where there is an option for trial on indictment with a jury. Likewise the creation of a purely summary offence, in which no option for trial by jury is available, can be subject to challenge on the basis that the offence thereby created is not, or at least is not always, a minor offence. Those measures are recognition of the fact that trial by jury goes beyond the rights of the parties and involves a constitutional imperative. Given that imperative and the absence of any definition of what a trial with a jury might mean, there has, understandably, been debate over the extent to which it is open to the Oireachtas to regulate both the composition of a jury and the manner in which a jury trial can properly be conducted in accordance with the constitutional imperative. For the purposes of this case, it is the potential composition of a constitutionally compliant jury that needs to be considered. In that context, the leading case is de Búrca v Attorney General [1976] I.R. 38 while some assistance can also be obtained from the State (Byrne) v Frawley [1978] I.R. 326.

4.3 De Búrca was concerned with the provisions of the Juries Act 1927 which imposed a minimum rating qualification and also exempted women from the general obligation to serve on juries subject to the entitlement of a woman to apply. Those provisions were found to be inconsistent with the Constitution. In addressing the fundamental principle, Henchy J. said the following at p. 75:-

“Of course, the jury must be drawn from a pool broadly representative of the community so that its verdict will be stamped with the fairness and acceptability of a genuinely diffused community decision. The particular breath of choice necessary to satisfy this requirement cannot be laid down in advance. It is left to the discretion of the legislature to formulate a system for the compilation of jury lists and panels from which will be recruited juries which will be competent, impartial and representative.”
4.4 Thereafter, Henchy J. went on, at p. 76, to suggest a test in the following terms:-
“Where a system of jury recruitment is assailed for being exclusionary to the point of unconstitutionality, the test is whether, by intent or operation, there is an exclusion of any class or group of citizens (other than those excluded for reasons based on capacity or social function) who, if included, might be expected to carry out their duties as jurors according to beliefs, standards or attitudes not represented by those included. If such a class or group is excluded it cannot be said that such a resulting jury will be representative of the community. The exclusion will leave untapped a reservoir of potential jurors without whom the jurors lists will lack constitutional completeness”.
4.6 Griffin J., while identifying that the purpose of a jury was to interpose between the State and an accused person an impartial body of the accused’s fellow citizens which is “truly representative and a fair cross-section of the community”, went on to make clear that an accused was not entitled to a jury which was tailored to the circumstances of the particular case.
4.7 The State (Byrne) v Frawley was concerned with the fall out from de Búrca but some of the dicta in that case cast light on the general principle. At p. 340, O’Higgins C.J. noted that any citizen qualified to serve as a juror “had a legal and constitutional right to serve if called”.

4.8 Henchy J. also quoted with approval from the judgment of the United States Supreme Court in Taylor v Louisiana (1975) 419 U.S. 522 which accepted “the fair-cross-section requirement as fundamental to the jury trial” guaranteed under the sixth amendment of the US Constitution. The real issue in State (Byrne) v Frawley was as to whether an accused who had allowed a jury trial to proceed after the decision of the Supreme Court in de Búrca could seek to rely on the finding of unconstitutionality made in de Búrca to invalidate his conviction. This Court held he could not.

4.9 What seems to follow from an analysis of those authorities is that the requirement that non-minor offences be tried with a jury, as found in Article 38.5 of the Constitution, carries with it an obligation that the jury be broadly representative or represent a fair cross-section of the community. It seems also to follow that it may be possible to exclude persons provided that the jury remains, in the words of Henchy J. in de Búrca, “competent, impartial and representative”. In deciding how to define the parameters of a jury panel, the Oireachtas is afforded a discretion in deciding who may be excluded but if the exclusion is such as renders the jury panel unrepresentative or such as would fail the fair cross-section test, then the restrictions imposed by the Oireachtas will fall into unconstitutionality.

4.10 It follows, therefore, that Mr Ó Maicín not only has a right to a trial with a jury in the sense in which that term is used in the Constitution but that there is an obligation on the State, assuming that the offence alleged against him is not a minor offence which can be tried summarily, to ensure that he is tried by such a jury and that the jury is, in accordance with the jurisprudence, broadly representative and represents a fair cross-section of the community. Against that background, it is necessary to turn to the question of how such language rights as Mr Ó Maicín may have, can and should be balanced with the jury imperative which I have sought to analyse. In that context it is necessary to analyse MacCárthaigh which is, by far, the case which most closely resembles this one.
5. MacCárthaigh
5.1 In MacCárthaigh the applicant sought, in a manner not dissimilar to that adopted by Mr. Ó Maicín in these proceedings, orders designed to ensure that he could only be tried “before a jury having the capacity to understand the Irish language without the assistance of an interpreter” together with ancillary orders directed to the same end. Insofar as there is any distinction between the relief sought by Mr. Ó Maicín and that sought in MacCárthaigh, it is that Mr. Ó Maicín seeks a jury who can understand both Irish and English whereas Mr. MacCárthaigh sought only a jury capable of understanding Irish without the assistance of a translator. However, given the very small number of persons who can speak and understand Irish but not speak and understand English there is, at a level of practicality, little difference between what was sought in MacCárthaigh and that which is sought in this case.

5.2 MacCárthaigh came before O’Hanlon J. in the High Court who analysed, (at p. 204 – 205) the judgments of this court in de Búrca and State (Byrne) v Frawley. O’Hanlon J. also engaged in an analysis of the evidence concerning the census figures then available. O’Hanlon J. also noted that, irrespective of the language competence of the decider of fact, the services of an interpreter would be unlikely to be able to be dispensed with “since his assistance would be required on behalf of other people who would be participating in the proceedings and who would not have a perfect knowledge of the Irish language”. O’Hanlon J. went on to state the following at p. 207:-

“It should be capable of being said of any jury in every criminal case that they represent every category of the public in the area in which the action is heard. As the Supreme Court of the United States said in the above mentioned case, Taylor v Louisiana [1975] 419 US 522 at p. 530:-

‘Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial’.”
5.3 When the matter came before this Court on appeal the unanimous judgment of the court was given by Hamilton C.J. who noted the difficulties in translation referred to by Michael Shulman in Vanderbilt Law Review (as cited in the judgment of Hardiman J. in this case) but went on to say as follows, at p. 212:-
“That is true enough, but it must be said in today’s Ireland there is no better solution available. If every member of the jury had to be able to understand legal matters in the Irish language without the assistance of an interpreter, most of the people of Ireland would be excluded. That would amount to a violation of Article 38.5 of the Constitution, as the Supreme Court explained it in the case of de Búrca v Attorney General [1976] I.R. 38 and the State (Byrne) v Frawley [1978] I.R. 326.”
On that basis the appeal was dismissed.
5.3 What is absolutely clear, therefore, is that, on the basis of the circumstances pertaining in Mr. MacCárthaigh’s case and on the facts concerning knowledge of Irish as they were in the late 1990s, this Court held that Mr. MacCárthaigh was not entitled to a trial by a jury who could understand Irish without the assistance of translation. The central question which this Court now has to decide is as to whether this case is different either because of a change in circumstances generally or because of the connection between this case and the Gaeltacht which was not present in Mr. MacCárthaigh’s case given that the circumstances of the latter case arose in Dublin. I, therefore, turn to that question.
6. Does the decision in MacCárthaigh apply here?
6.1 No real case was made which suggested that the general use of Irish or competence in Irish throughout the country as a whole had changed in any material respect between the decision in MacCárthaigh and today. It may be that conditions will change in the future but for the purposes of this case it does not seem to me that there is any legitimate basis for reviewing the overall conclusions reached in MacCárthaigh. It follows that it remains the case today that, as Hamilton C.J. put it in a passage already cited, “if every member of the jury had to be able to understand legal matters in the Irish language without the assistance of an interpreter, most of the people of Ireland would be excluded”. The real question which must be addressed, therefore, in my view, concerns the fact that the offence alleged against Mr. Ó Maicín occurred in the Gaeltacht and involved, at least as its principal protagonists, Irish speakers. In those circumstances is it possible to distinguish MacCárthaigh and reach a different conclusion? Put another way, Hamilton C.J. said that “In today’s Ireland there is no better solution available”. The question which must be asked is as to whether there is a better solution at least in relation to cases having a close connection with the Gaeltacht?

6.2 It is important to note the reference made by Hardiman J. to the contents of the Law Reform Commission paper on juries which draws attention to the fact that an informal process seems to exist for the exclusion from jury service of persons who are not competent in English. This, as Hardiman J. points out, does not derive from any express statutory requirement or obligation.

6.3 The second point to note are the figures for Irish speaking in Gaeltacht areas as revealed in the most recent census which were placed in evidence before the High Court in this case. That evidence is summarised in the judgment of Hardiman J. and is also analysed in the judgment of O’Neill J. so that it is unnecessary to repeat it here. In summary, it may be said that the evidence suggests that, in a broad Gaeltacht area, approximately two-thirds of the community speak Irish on a daily basis with the figure reaching up towards 90% in some more narrowly drawn areas by reference to those district electoral divisions (the basic unit) with the highest level of recorded Irish speaking. However, the precise figure applicable to the jury panel is not, as O’Neill J. points out, clear and is likely to be quite a bit below 90%.

6.4 It does, however, seem to me to be also important to have regard to the comment of O’Hanlon J. in the High Court in MacCárthaigh to the effect that not all of those recorded as being capable of speaking Irish (or, indeed, given the evidence in this court, using Irish on a daily basis) may be able to do so to a sufficient level as would enable them to conduct the difficult task of following evidence and argument in Irish without assistance. It may well be true that the gap between recorded competence in Irish and the ability to fully deal with a case in Irish without assistance may be materially smaller in Gaeltacht areas than, for example, in Dublin, where there may be many who are recorded as having a competence in Irish but where that competence derives from having learned Irish in school with that competence having faded to a greater or lesser extent in succeeding years. Regular use will, of course, ensure that competence does not decline.

6.5 In that context it is also striking to note the results of a study and report prepared, in the 1970s, by Lord Justice Edmond Davies for the then Lord Chancellor of Britain, Lord Hailsham. It would appear that the full report was never published (see paper by Mr. Justice Roderick Evans, “Bilingual Juries?”, (2007) 38 Cambrian Law Review 145) but some of its features were made public in a statement by Lord Hailsham in the House of Lords on the 12th June, 1973 outlining a summary of the recommendations of the report. The relevant passage reads as follows:-

“An illustration of the inherent difficulty is afforded by a trial conducted last year before a jury, each member of which expressed preference for taking the oath in Welsh. During the hearing, the Welsh evidence was translated into English. It was later learnt that, while all the jurors said that they understood Welsh, eight of their number considered that such translation had been necessary, four that it had not. One juror who had even passed the School Certificate with oral proficiency in Welsh said that his understanding of the evidence given in Welsh was improved by its translation into English, as those participating had spoken Welsh of such a high standard.”
It is clear, therefore, that the report noted that a material number of jurors, though competent and enthusiastic in general terms in and about Welsh, nonetheless found assistance in, and comfort from, a translator to ensure that they had not misunderstood some important piece of evidence. It would be surprising if a similar position was not likely to obtain in Ireland, even in Gaeltacht areas.
6.6 Criticism of the quality of translation may well, on occasion, be justified. The risk of mistranslation cannot be ruled out. But likewise, the risk of misunderstanding by many of those who have a reasonable competence in Irish but who do not speak Irish as their mother tongue, seems to me to be equally significant. It is likely that there may be many who would feel competent to conduct an ordinary conversation in Irish and would, for example, have little difficulty in following the news in Irish but who would, nonetheless, not feel entirely confident in being able to avoid the risk of misunderstanding evidence or submissions.

6.7 It is also necessary, in this context, to have regard to the point noted by O’Hanlon J. in MacCárthaigh. A translator will be required to translate any evidence, or submissions or directions, given or made in Irish into English provided that there are some persons sufficiently involved with a trial which is predominantly being conducted in Irish who do not have a sufficient proficiency in Irish to be able to understand the proceedings fully. While there might be some cases where the need for such translation into English would be limited (assuming that the jury were all sufficiently competent to understand the proceedings in Irish) there will be many cases where a translation into English of all or much of a trial would be necessary in any event.

6.8 That does not, of course, fully take away from the point made by Mr. Ó Maicín which suggests that he is entitled to have a jury which understands his evidence, given in Irish, and any other aspect of the case conducted in Irish, without the benefit of translation. It does, however, follow that it may well be that there would be a significant need for translation into English in any event. The report on the conduct of jury trials in Welsh to which I have referred does emphasise that there may well be persons who have a professed competence to understand a language which is not their native tongue who may, nonetheless, require some comfort from translation in order to be fully happy that they could deal with an important issue such as determining guilt or innocence in a significant criminal trial. In addition, so far as the risk of mistranslation in this case is concerned, there is the added comfort that it has been determined that the trial judge in this case should be competent in Irish so that any material mistranslation would be likely to be identified and corrected.

6.9 Be all that as it may, there was, in reality, no evidence available as to the level of competence, so far as ability in Irish to the extent necessary to fully understand legal proceedings is concerned, of any particular percentage of persons in Gaeltacht areas. Just how many of the two-thirds of the population in the wider Gaeltacht area, identified in the evidence, who are recorded as speaking Irish on a daily basis, might have sufficient competence that one could be confident that they would not encounter any material difficulty in understanding all aspects of the case in Irish, is, therefore, impossible to tell. I would, however, like O’Hanlon J. in MacCárthaigh, have to infer that it is unlikely that there would not be some material number of persons who would not have sufficient competence even though they are quite properly recorded as speaking Irish on a daily basis.

6.10 Finally, it is important to note that there is a legitimate basis for ensuring that jury areas are not too narrowly drawn from the perspective of their size and population. First, if a jury area is overly narrowly drawn it runs the risk of creating a jury panel which is not, in reality, representative. Second, and perhaps of equal importance, an overly narrow jury area runs the very real risk that a high proportion of persons from it may be excluded from any particular jury because of a connection with the events giving rise to the trial or parties or witnesses likely to be involved. It seems to me to follow that a constitutionally compliant jury panel must be based on a sufficiently large geographical area containing a sufficiently wide population so as to ensure that any panel selected from that area is both reasonably representative and unlikely to suffer significant exclusion on the basis of a connection with the case. There will always be persons who, if selected for a jury panel, would be excluded from any individual case on the basis of such a connection. On average the number of persons so excluded will, taking one case with the next, be much the same. However, if the jury area is drawn over-narrowly, then the percentage of persons so excluded will represent a much greater infringement on the broad representative character of the jury panel as a whole. One hundred people excluded by connection from an overall potential jury panel of (say) 30,000 is neither here nor there. A similar group excluded from a potential jury panel of 500 or even 1,000 would be a different thing altogether. It follows that a constitutionally compliant jury must be drawn from a sufficiently large area and population to avoid the risk of excessive exclusion by connection. It seems to me to follow that the Oireachtas must have some reasonable discretion in determining (or authorising the Minister to determine) the minimum size of area which would not be likely to give rise to problems of that type.

6.11 On that basis I am not persuaded that it has been established that it would be possible to provide for a jury area based only on those district electoral divisions which have the highest level of competence in Irish. At the wider level the maximum number of persons who seem to speak Irish on a daily basis appears to be of the order of two-thirds, but there is every reason to believe, for the reasons already analysed, that the number who would be competent to deal with a jury trial in all its facets without any assistance might well be somewhat lower and possibly materially lower.

6.12 It, therefore, must be concluded that any jury area which could realistically be created, even if based on the Gaeltacht, would be likely to include quite a significant number of persons (certainly one-third and possibly quite a bit more) who would not be competent to sit on a jury which was required to hear evidence in Irish without the assistance of a translator. It follows that, in order to afford Mr. Ó Maicín the jury which he asserts is his entitlement, it would be necessary to adopt a mechanism designed to exclude the significant number of persons who would not have such competence. The net question seems to me to come down to whether such an exclusion is constitutionally permissible. It might be suggested that, if the ad hoc method designed to exclude persons who are insufficiently competent in English from sitting on juries in English speaking areas is acceptable, a similar ad hoc basis for excluding those without sufficient competence in Irish would likewise be acceptable. On that basis it might be suggested that this case can be distinguished from MacCárthaigh by reason of the availability of a potential Gaeltacht area with a relatively high number of Irish speakers capable of understanding and conducting a jury trial in Irish without assistance and the exclusion, on a similar ad hoc basis to that operating elsewhere in the country in respect of those who cannot speak English, of those not so competent.

6.13 It seems clear that such a course of action could be carried out. A broad Gaeltacht jury district could be created. Practical measures could be put in place to ensure that those not sufficiently competent in Irish would not be actually selected to sit on a jury. But the real question is as to whether a jury so selected would be constitutionally compliant and whether, in balancing Mr. Ó Maicín’s language rights with the constitutional imperative for representative juries, such a course of action is constitutionally mandated. I have come to the view that it is not.

6.14 The test is, as Henchy J. pointed out in de Búrca, as to whether any exclusion “will leave untapped a reservoir of potential jurors without whom the jurors’ lists will lack constitutional completeness”. It seems unlikely that the exclusion of a very small number of persons who are otherwise qualified to sit on a jury but who lack competence in English would breach that test. A time may come when there is such widespread use and understanding of Irish in a sufficiently wide geographical area that it could be said that the exclusion of a very small number of persons who did not share that competence in Irish would, likewise, fail to meet that test. However, it does not seem to me that the evidence establishes that that time has yet come. What is proposed must, for the reasons which I have sought to analyse, involve the exclusion of a significant class or group (those without sufficient high competence in Irish) such as would leave any jury selected unrepresentative. That situation stems from the fact that Irish is not, at present, a language which is used on the sort of wide basis so that the sort of exclusion that would be required to empanel a sufficiently competent jury would be marginal and could not be said to lead to a breach of the important constitutional imperative that the jury be representative. If the underlying factual situation were to change then the result might well be different, for in those circumstances the constitutional obligation on the part of the State to do all within its power to promote Irish might well require measures to be put in place to ensure a jury trial in Irish without translation in circumstances where that could be achieved without significant interference with the constitutional imperative for truly representative juries. However, as pointed out earlier, that time has not yet come.

6.15 I would make one final point of distinction which is between Mr. Ó Maicin and a person whose native language is neither Irish or English and who does not have sufficient competence in either of those languages. Such a latter person has, as an incidence of their right to a fair trial, an entitlement to such translation services as may be necessary to allow them to fully participate in a trial. However were such a person to be sufficiently competent in the language of the trial no right to translation would exist for the person concerned would have a fair trial without translation. However Mr. Ó Maicin’s position is different. His right to conduct his case in Irish is not dependent on whether he could also conduct the case in English.
7. Conclusions
7.1 For those reasons, I am satisfied that Mr. Ó Maicín enjoys a constitutional right to conduct official business fully in Irish. However, that right is not absolute and may have, in some circumstances, to give way to considerations, deriving from the significant number of persons (even in Gaeltacht areas) who would not have sufficient competence in Irish, to the need to respect the rights of others to use English as an official language and to the competing constitutional imperative that juries be truly representative.

7.2 In current conditions, and even in Gaeltacht areas, it does not seem to me that it has been established that it would be possible to empanel a jury with sufficient competence in Irish to conduct an important criminal trial without the assistance of a translator without, at the same time, excluding quite a significant number of persons, otherwise qualified, from the entitlement to sit on the jury in question. For as long as those conditions continue to exist it follows that conferring on Mr. Ó Maicín the rights which he asserts would necessarily result in a constitutionally impermissible exclusion of a significant number of persons from the jury panel so as to render a jury thus empanelled in breach of the constitutional requirement of representativeness. If the underlying conditions were to change then, of course, the balance between Mr. Ó Maicín’s language rights and that constitutional imperative might also change. However, for the present I am not satisfied that Mr. Ó Maicín is entitled to the type of jury which he seeks.

7.3 It follows that in my view the trial judge was correct and that the appeal must, therefore, be dismissed.

JUDGMENT of O’Neill J. delivered on the 27th day of February 2014

1. The appellant in this case has since infancy been a native speaker of the Irish language and although currently, according to his affidavit, resident in Salthill, Galway, much of his life was spent and lived in the Gaeltacht area in Co. Galway. He is charged with two offences which are to be tried before the Galway Circuit Criminal Court, as follows:-

(i) On 28th May, 2008 at Beal an Daingean, Leitir Moir in the District area of Doire an Fheich, District No. 7, he assaulted Martin Whelan causing him harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.
(ii) On 28th May, 2008, at Beal an Daingean, Leitir Moir, Galway within the District area of Doire an Fheidh, District No. 7, he did while committing an assault on Martin Whelan in the course of a fight produced in a manner likely unlawfully to intimidate another person, an article capable of inflicting serious injury, to it, a broken whiskey bottle, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990.

2. The victim of these alleged offences is also a native Irish speaker from the Connemara Fior Gaeltacht area of Co. Galway.
3. The appellant contends in these proceedings that he is entitled by virtue of his rights under Article 8 of the Constitution to present his defence to these charges in Irish and to have his case heard by a jury, all of whose members are sufficiently competent in the Irish language and indeed also English (a bilingual jury) to be able to hear and fully understand the evidence, the submissions and presumably the judges’ charge all given in the Irish language without the assistance of a translator.

4. The relevant facts and background to the case are fully set out in the judgments of my learned colleagues especially in the judgment of Hardiman J. and it is unnecessary for me to repeat all of that material here.

5. This case is the latest in what is now a long and voluminous line of cases concerning the rights of persons who wish to use the Irish language in the transaction of their business with the State and who demand that the State respond to them in the Irish language. These rights derive from Article 8 of the Constitution which is in broadly similar terms to a similar provision in Article 4 of the Constitution of Saorstát Éireann. Article 8 reads as follows:-

“(1) The Irish language as the national language is the first official language.
(2) The English language is recognised as a second official language.

(3) Provision may, however, be made by law for the exclusive use of either of the said languages for any one or more official purposes, either throughout the State or in any part thereof.”

6. Whilst two official languages are designated, the Irish language is given a position of primacy as the “national” language and the “first” official language.
7. There has been much judicial consideration of the extent of the duty or obligation imposed upon the State in respect of the Irish language and the corresponding rights of the citizen who wish to use the Irish language. The leading judicial statements in this regard are those of Kennedy C.J. in O’Foghludha v. McClean [1934] I.R. 469; and Hardiman J. in Ó Beoláin v. Fahy [2001] 2 IR 279. In the former of these cases, the following passage from the judgment of Kennedy C.J. describes in surprisingly strong language, the extent of the obligation and duty resting on the State, at p. 483:-

“…The declaration by the Constitution that the National language of the Saorstát is the Irish language does not mean that the Irish language is, or was at that historical moment, universally spoken by the people of the Saorstát, which would be untrue in fact, but it did mean that it is the historic distinctive speech of the Irish people, that it is to rank as such in the nation, and, by implication, that the State is bound to do everything within its sphere of action (as for instance in State-provided education) to establish and maintain it in its status as the National language and to recognise it for all official purposes as the National language. There is no doubt in my mind but that the term ‘National’ in the Article is wider than, but includes, ‘official,’ in which respect only the English language is accorded constitutional equality. None of the organs of the State, legislative, executive or judicial, may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provisions of Art. 4…”
8. Article 4 of the Constitution of Saorstát Éireann of which Kennedy C.J. spoke is as follows:-
“The National language of the Irish Free State is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provisions being made by the Parliament of the Irish Free State for districts or areas in which only one language is in general use.”
9. It is to be noted that the primary position of the Irish language is, if anything, enhanced in the language used in Article 8 of Bunreacht na hÉireann where the Irish language is not only described as the “national” language but as the “first” official language of the State, whereas in Article 4 of the Constitution of Saorstát Éireann, it is not given that additional designation as the “first” official language.
10. Thus, it can be said that the imperative force of the obligation of the State described by Kennedy C.J. as emanating from Article 4 of the Constitution of Saorstát Éireann is repeated with added emphasis in the language used in Bunreacht na hÉireann.

11. In Ó Beoláin v. Fahy, Hardiman J. said the following:-

“…the Irish language which is the national language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in so doing in any national or official context.”
12. It would seem to me beyond doubt but that in the fulfilment of its obligations in respect of the use of the Irish language, the State, as said by Kennedy C.J. is “bound to do everything” within its range of competence to establish the use of Irish for all official purposes including in the sphere of the administration of justice.
13. Impediments which might justify the State in not providing for the use of Irish cannot be mere impracticalities. A choice by the State to withhold provision for the use of Irish on the grounds of administrative difficulty or impracticality would not suffice and would be in breach of the obligation of the State under Article 8 of the Constitution and would correspondingly risk breaching the rights of a citizen who chose to use the Irish language in his or her dealings with the State. I am of opinion that the standard or test to be applied where the State seeks to avoid provision for the use of Irish is one of non-feasibility or in other words that it is simply not possible in the given circumstances to make provision for the use of Irish as sought by a citizen.

14. It was submitted by the respondents that if the appellant’s proposed solution, namely the creation of a jury district to correspond with the selected electoral divisions west of Spiddal in Connemara were to be implemented, that would create the anomalous situation whereby rights derived from Article 8 of the Constitution would have a materially or substantially different effect or application depending upon what part of the country a citizen sought to exercise those rights. Thus, in Dublin or indeed many other parts of the country pursuant to the authority of MacCárthaigh v. Éire [1999] I.R. 200, a person charged with criminal offences triable by jury would not be entitled to a jury, all of whose members were competent in Irish, but a person charged with the same offences, where the jury was to be selected from the appellant’s proposed jury district, would have a right to an all Irish speaking jury.

15. As a general proposition it can safely be said that rights derived from the Constitution, unless the Constitution itself expressly provides to the contrary, are the same throughout the jurisdiction in which the Constitution and the law have effect. Article 8.3 does make provision for the exclusive use of either official language in different parts of the country or for different purposes or both. A law enacted under the aegis of this provision could have the effect of limiting or indeed denying in the circumstances provided for, the right under Article 8(1) or (2) to the use of either official language in the part of the country prescribed or for the purposes as set out in any such legislation. No such legislation has ever been enacted and therefore Article 8.3 has no application to this case. Indeed, it could be observed that the demand by the appellant in this case for a bilingual jury is fundamentally different to what is envisaged in Article 8.3, namely providing for the exclusive use of either official language.

16. I do not see that what is sought by the appellant postulates a difference in the nature and content of the rights which the citizen enjoys under Article 8. Rather, it seems to me that any difference of treatment in different parts of the country is to be seen as deriving from the obligation of the State as described by Kennedy C.J. in the O’Foghludha case, “to do everything within its sphere of action” to make provision for the use of the national and first official language. Having regard to the fact that the usage of the Irish language, in the life of the community is quite different in different parts of the country, it necessarily follows that what the State may be expected to do in the discharge of its duty will vary according to the circumstances prevailing in different parts of the country. The setting up of Gaeltacht areas as provided for by statute, where Irish was to a greater or lesser extent the spoken language of the community is an example of the discharge of that duty. It was to be expected that in the provision of the myriad services by the State in areas, particularly Gaeltacht areas, where a very large part of the community use Irish as their daily language, that the personnel providing the services on behalf of the State would do so through the medium of Irish, as is in fact the case. Could it reasonably be suggested that the lanquage requirements of citizens of the Fior- Gaeltacht in Connemara, were to be dealt with on the same basis as the citizens of South Co. Dublin. In my view, it is beyond argument, that in the discharge of its duty under Article 8, the State is obliged to respond to the linguistic requirements to of its citizens, in different parts of the country, in different ways, and where a substantial part of the community use Irish as their daily language it necessarily follows that the State must respond accordingly and is obliged to provide services in those areas through the medium of Irish. In other parts of the country where there is very little use of the Irish language, it would be pointless and indeed artificial for there to be a similar obligation or duty.

17. If it were to be the case that the obligation of the State under Article 8 and the corresponding rights of the citizen were to be the same throughout the jurisdiction of the State, that would have the wholly unintended consequence of reducing the obligation of the State and correspondingly the rights of the citizen to a standard commensurate with the lowest level of use of Irish in any part of the State. This clearly would have the effect of emptying Article 8 of all of its meaning and substance and manifestly would be the direct opposite of the description of the duties and obligation of the State as contained in the crystal clear words of Kennedy C.J. in the O’Foghludha case.

18. On this aspect of the case, namely the extent of the obligation or duty resting upon the State to make provision for the use of Irish where a citizen demands this, I am essentially in agreement with the judgment of Hardiman J.

19. The appellant’s case is that a jury, all of whose members are sufficiently competent in the Irish language can be provided in this case, if that jury is selected from a jury district, the boundaries of which are redrawn so as to confine that jury district to a portion of the Gaeltacht stretching from west of the village of Spiddal, Co. Galway into Connemara. Such a jury district, confined to a selected number of electoral divisions in which the use of Irish as the daily language of the community is very high, namely in excess of 85% of the population, would, the appellant contends yield a jury, randomly selected, which would be broadly or fairly representative of the community as a whole and would be in accordance with the principles as set out by the Supreme Court in the cases of de Búrca v. Attorney General [1976] I.R. 38 and the State (Byrne) v. Frawley [1978] I.R. 326, as the necessary basis for a jury which is a fair representation of the community as a whole, as required by Article 38 of the Constitution.

20. The respondents resist the relief claimed by the plaintiff on the basis that it would be an impermissible interference by the courts in the exercise of a discretion by the third named respondent, I would reject that submission on the basis that what is at stake here is the vindication of a constitutional right and if the redrawing of a jury district boundary was the only means of vindicating that right, I would have no hesitation in concluding that the Minister’s discretion would have to be exercised so as to vindicate the constitutional right otherwise in jeopardy.

21. In support of their submission in this regard, the respondents rely upon the case of the State (Sheehan) v. Government of Ireland [1987] I.R. 550. In my view, this case is to be distinguished for two reasons. Firstly, the question for determination in the Sheehan case turned on an issue of statutory interpretation and in that respect, the court construed the relevant section of the Civil Liability Act 1961, as giving the Minister in that case an unfettered discretion as to when to commence the provision of the Civil Liability Act, abolishing the exclusion of liability of local authorities on the basis of the nonfeasance rule. There is no issue of statutory interpretation involved in this case. Secondly, in the Sheehan case there were no constitutional rights involved, which the State had a duty to vindicate, unlike this case. I am in agreement with the judgments of Hardiman J., Clarke J. and MacMenamin J. on this aspect of the case.

22. The appellant’s case in this regard is based upon the evidence on affidavit of Conchúr Ó Giollagáin, a university lecturer who holds a doctorate in modern Irish from University College Dublin and is an expert and lecturer in Sociolinguistics and in language planning in NUI Galway.

23. The affidavit is a short one and as it succinctly expresses the evidential basis of the appellant’s case, I quote it in full:-

“2. I have published a lot of research on the use of the Irish language in the Gaeltacht. I was joint author of the comprehensive linguistic study of the use of Irish in the Gaeltacht: principal findings and recommendations (Ó Giollagáin and McDonnacha, National University of Ireland, Galway, and National University of Ireland, Maynooth, 2007)…commissioned by the Department of Community, Rural and Gaeltacht Affairs and which is marked COG and which I signed before making this oath.
3. As is clear from that study there are communities in Co. Galway in which there are a high number of people, of both genders in every class, who speak Irish on a daily basis in district A and this is the case for more than 67% of the community. In the case of Co. Galway, District A stretches from east of the village of An Spidéal to An Caiseal in western Connemara in some of the electoral divisions where more than 90% of the community are daily speakers of Irish. District A has a population of 13,444.

4. From an ability prospective (rather an usage) the percentage of Irish speakers in District A is even higher i.e. more than 85% and more than 90% in some parts.

5. The district in question includes two villages, i.e. An Spidéal and An Cheathrua along with rural areas. A diverse, multi-class, multi-prospective community live there, including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fisherman, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and unemployed people.

6. If twelve people were chosen randomly from the district, from the list of voters for example, more than 85% of them would be able to understand evidence given in Irish or in English during a trial without the assistance of an interpreter and I believe that twelve people chosen as such would be as representative of the district in question as twelve people chosen randomly from the votes of any district in the country who would understand evidence in English.”

24. In the study referred to by Mr. Ó Giollagáin at Chapter 3 under the heading Language Communities in Contemporary Gaeltacht and under the subheading Category A Gaeltacht Districts, the following is said:-
“Category A Gaeltacht Districts
refer to electoral divisions where more than 67% of the total population (3 years+) are daily speakers of Irish. These electoral divisions evidence the broadest spectrum of Irish language use and exhibit stable levels of Irish language use except in the language behaviour patterns of the younger age groups.”

25. Further on in this study there is a table under the heading 3.3.1 The Reclassified A, B and C Gaeltacht Category Districts. This table sets out a list of electoral divisions in which a very high proportion of the population over the age of three are daily Irish speakers. The percentage of the population who are daily Irish speakers in these electoral divisions in Co. Galway range from a high of 92.29% to a low of 52.632%. If one adds up the total population over three years of age in these electoral divisions, it comes to 12,683. The number of daily speakers of Irish in the same electoral divisions amount to 10,613. This means that in the selected electoral divisions with the highest use of Irish on a daily basis, 83% of the population in these districts had the necessary competence to use Irish as their daily language and by necessary inference 17% do not. It must be further borne in mind that the populations considered in these studies include persons over the age of 70 who, of course, are ineligible for jury service and also persons between the ages of three and eighteen likewise ineligible. It would seem to me to be probable that the population over the age of 70 in these electoral divisions contribute disproportionately to the pool of daily Irish speakers and if it were possible to extract the over 70s from the study, it is likely that the percentage of daily Irish speakers would drop significantly.
26. This leads me to infer that as a matter of probability in these selected electoral divisions, the pool of Irish speakers that would be available for jury service would be less than 80% of the full community available for jury service.

27. Certain consequence inevitably flows from this. Firstly, a jury randomly selected from these electoral divisions would, as a matter of high probability, have at least one member who is not competent in the use of the Irish language and would therefore require the assistance of a translator. This of itself would defeat the objective sought to be achieved by creating a jury district confined to the electoral divisions mentioned. Thus the remedy proposed by the appellant would be ineffective in achieving the desired result.

28. In order to get twelve jurors out of this pool, who are fully bilingual or at the very least fully competent in Irish, it would be necessary to adopt some kind of procedure to exclude those who lack competence in Irish. The Juries Act 1976, makes no express provision for such an exclusionary procedure. In his judgment, Hardiman J. refers to the consultation paper on juries service prepared by the Law Reform Commission (LRC CP61-2010) where the following passage appears at pp. 112 – 113:-

“…while there is no express English language requirement in order to be eligible for jury service, Courts Service staff dealing with jurors and county registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language.”
29. The suggestion which inevitably arises from this, is that if there is a practice or procedure whereby persons who are not competent in English, are excluded from jury service would it not be appropriate that there should be such a procedure to exclude persons who are not competent in the Irish language from service on the jury which will try the appellant.
30. It is apparent that there is no express provision for such a procedure in the Juries Act 1976. It would seem to me that a s. 9(2) of the Juries Act would provide an adequate legal basis for such a practice, assuming that its terms were complied with. It reads as follows:-

“(2) A county registrar may excuse any person whom he has summoned as a juror from attendance during the whole or any part of the sittings in question if that person shows to the registrar’s satisfaction that there is good reason why he should be so excused.”
31. With the entry into Ireland in recent years of very large numbers of immigrants and as these persons become embedded in the community and in due course registered as electors, it is not surprising that some of these would be summoned as jurors and no doubt in response to these summonses, be likely to bring to the attention, of county registrars and their staff, the fact that they lack competence in the English language. In my view, the inability to understand the language in which a case is likely to be tried would undoubtedly be a “good reason” for the excusing of that person from service as a juror.
32. If such a practice can operate lawfully to exclude persons who lack competence in English from serving on a jury could it not also be lawfully used to excuse persons who lack competence in Irish in the appellant’s case, to ensure that all twelve jurors were competent in Irish? In the case of the exclusion of persons who lack competence in English it would be extremely unlikely that the numbers of such exclusions in the context of the overall jury pool, would significantly or at all, affect the cross community character of the jury pool. It is very likely that notwithstanding such exclusions the jury pool would still be a fair representation of the entire community and therefore there would be no breach of the representational standard required by Article 38 of the Constitution.

33. On the other hand, the exclusion of 20% approximately, of the potential jury pool on the basis of inability to speak or understand Irish would indeed involve the exclusion of a large segment of the community i.e. those who did not speak Irish and would, in my opinion, be a breach of the cross community representation principle enjoined by Article 38. Thus, it would not, in my opinion, to be lawful to use s. 9(2) of the Juries Act for that purpose.

34. In passing I should say that the necessity for the Tribunal of Fact to be competent in the language used in the trial, is not just a “language rights” requirement but is a necessary incident of a fair trial demanded by Article 38 and an essential ingredient of the right of an accused person to a fair trial. It follows, in my view, that the Juries Act 1976, must be construed consistent with the foregoing and the absence of any express provision in the Act providing for exclusion on the basis of an linguistic inability, does not prevent other provisions of the Act where appropriate, for example, s. 9(2), being used for that purpose.

35. Perhaps, because of the homogeneity of the Irish community in 1976, it was unnecessary to make express provision for this kind of exclusion. It may also have been considered so axiomatic, that exclusions on the basis of inability to speak the language of the trial were so obviously necessary and appropriate as perhaps to require no express statutory provision.

36. In short, therefore, I am of opinion that the remedy of creating a jury district as contended for by the appellant would be either ineffective to provide twelve Irish speaking jurors without the exclusion of non-Irish speaking jurors, and such exclusion having regard to the large portion of the jury pool to be excluded, would breach the constitutional requirement for a jury representative of the community. Therefore, it is not feasible in this instance for the State to provide the appellant with a jury all of whose members are sufficiently competent in the Irish language as to be able to try the case without the assistance of a translator.

37. It is to be noted and in this respect I agree with what is said by Clarke J. in his judgment, in that if one reduces the jury pool to the size contended for by the appellant, it is inevitable that within this very small jury district many people would have personal connections to either the appellant or the victim of the alleged assault or with witnesses in the case and could not serve as jurors. In all jury trials, in the jury selection process, it is commonplace for persons to be excused because of their personal connections to people involved in the case. Where you have all of the electors in a county available to draw from, the problem of personal connections has little or no significance in the process of jury selection. However, in the jury district as contended for by the appellant, these problems would undoubtedly loom large and could pose a very serious practical problem in assembling a jury. In this respect, I agree with what is said by Clarke J. in his judgment. It is a further factor weighing against the relief claimed by the appellant.

38. For all of the reasons set out above, I have come to the conclusion that the appellant has failed to demonstrate that it is feasible for the State in the circumstances of this case to make provision for a jury all of whose members are competent in the use of Irish. Accordingly, I am satisfied that this case, cannot be distinguished from McCarthy v. Éire and therefore I would disallow the appeal.

JUDGMENT of Mr. Justice Hardiman delivered the 27th day of February, 2014.

This is the plaintiff’s appeal against the judgment and order of the High Court (Murphy J.) delivered 14th May 2010, whereby his claim to be entitled to a trial before an Irish speaking jury was dismissed. Irish is the national and first official language of the State. The plaintiff lives in Galway and the offences charged are said to have been committed in the adjacent Connemara Gaeltacht.

Overview.
Peadar Ó Maicín, the appellant in this case, is a citizen of Ireland who lives in Galway. He is a native speaker of the Irish language, that is Irish is his first language and he has spoken it continuously since he was able to speak at all. He subsequently learned English. He was reared and educated in Rosmuc in the Connemara Gaeltacht. The special status of a Gaeltacht in Irish law is discussed below.

This case concerns Mr. Ó Maicín’s entitlement to use the Irish language in an important interaction with the State. Mr. Ó Maicín has been charged with two offences in the nature of assault. They are not offences of the highest level of gravity, but they are not minor offences either. They each carry a sentence of up to five years imprisonment. Mr. Ó Maicín is pleading not guilty to these offences. On the motion of the Public Prosecutor, the Director of Public Prosecutions, he has been returned for trial to the Circuit Criminal Court for the Western Circuit. His trial will take place before a judge, who will arbitrate all questions of law which may arise, and a jury which will decide all questions of fact which will arise.

Pursuant to Article 38.5 of the Constitution of Ireland, a trial of any offence other than a minor offence must take place before a jury. There are certain exceptions to this, but none of them arise in the present case.

Mr. Ó Maicín has said that he will defend the case brought against him and will do so in the Irish language. It is not disputed that he is entitled to do this. He further asserts a right that the trial should take place before a judge and jury capable of understanding him directly in the Irish language.

On the face of it, and having regard to provisions of Irish law in relation to official languages, this appears a reasonable request. But the State object to it on two grounds. These are:

(a) It is impossible to provide a jury capable of understanding the case directly (i.e. without an interpreter) in the Irish language.
(b) The provision of a jury capable of understanding the case in the Irish language, even if otherwise possible, would require the imposition of some sort of test of competence in the Irish language. The State say that this in itself is a legal impossibility in Ireland because of the need for a jury to be selected by a random process, which requirements according to the State renders it impossible to impose any test or qualification, whether a language test or otherwise.

This latter point was the basis on which Mr. Ó Maicín lost his case in the High Court.
The status of the Irish language (1).

Ireland became a State independent of Great Britain in 1922. Immediately upon the achievement of independence, in the first Constitution adopted in the same year, the new State adopted the Irish language as its principal official language. This was expressed in the following words:

“The National language of the Irish Free State is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this Article shall prevent special provision being made by the Parliament of the Irish Free State for districts or areas in which only one language is in general use”.
Fifteen years later, in 1937, a new Constitution was adopted. This had a number of provisions of great relevance to the present case:
Article 4
“The name of the State is Éire, or, in the English language, Ireland.”

Article 5

“Ireland is a sovereign independent democratic State”.

The National language and the official languages.
“8(1) The Irish language as the National language is the First Official Language.
8(2) “The English language is recognised as a Second Official Language.

8(3) Provision may, however, be made by law for the exclusive use of either of the said language for any one or more official purposes, either throughout the State or in any part thereof”.

No such law as is permitted by Article 8.3 has ever been enacted. That sub-article was not relied upon in the argument on the hearing of this appeal.
The question of Irish in European Law and of Public Policy on Irish in Ireland and Europe are dealt with in Appendix II.

A number of very important aspects of this Action are, as lawyers say, “common case”. That is, they are agreed by both sides. It will help in understanding what follows to set out some of these agreed features now, even though it will be necessary to return later to explore the full legal and constitutional significance of them.

(1) The factual evidence of the appellant and of his expert witness, Dr. Ó Giollagáin, which was put before the Court on affidavit, is entirely uncontradicted. The contents of these affidavits must therefore be taken to be true.
(2) By Article 8 of the Constitution, Irish is the national and first official language of Ireland. English is recognised as “a second official language”.

(3) Certain areas of the country are designated as “Gaeltacht”. This word derives from the Irish word Gaeilge, the Irish language. A Gaeltacht is an area especially designated for the use and preservation of the Irish language. The legal nature of a Gaeltacht in statute law is extensively discussed below.

(4) The offences with which Mr. Ó Maicín, the appellant in the present case, is charged were allegedly committed by him in the Connemara Gaeltacht, an extensive area west of the City of Galway which is the largest and most populous Gaeltacht area in the State. Mr. Ó Maicín was reared and educated in that area. He is a native Irish speaker, that is a person who has spoken Irish since he has been able to speak at all, and who mastered English only much later in life. The offences are in the nature of assaults and the alleged victim is also a gaelgóir.

(5) In terms of Irish law, the offences charged are “non-minor” ones. As the defendant is pleading not guilty to these charges, they require to be tried before a judge sitting with a jury. See Article 38 of the Constitution.

(6) This latter point provides the basis of the State’s defence in the present case. It is not disputed that the Connemara Gaeltacht could be made into a jury district by ministerial order under the Juries Act 1976, or that such a district could produce a properly representative jury able to understand an Irish speaker directly, without an interpreter.

(7) It is equally undisputed, however, that no such ministerial order has been made. Amongst the reliefs sought by the appellant is an order directing the Minister to bring such a jury district into being. The State say, however, that this is beyond the power of the Court.

(8) The indictable offences with which the appellant is charged will be tried in the Circuit Criminal Court for the relevant Circuit, here the Western Circuit. The case has already been before the Circuit Criminal Court, consisting of a judge alone, for preliminary applications. An elaborate application as to the language of the case has already been heard in that Court, and this is described in some detail below. On that occasion, the prosecution expressed itself in English and the defence in Irish. There was an interpreter who translated what was said in Irish into English. It is un-contradicted that there were many deficiencies in the interpretation on that occasion. An interpreter was thought necessary for the hearing of that application, even in the absence of a jury.

(9) It transpired on the hearing of this appeal that there are no legislative provisions requiring a person summoned to serve as a juror to have, or to demonstrate, competence in either of the official languages of the State. That is, there is no express statutory requirement that a juror in, for example, Dublin, summoned to hear a case where all the evidence and argument will be in English, should be competent to understand English. Likewise, there is no express statutory requirement that a juror in a case where one or both parties intend to express themselves in Irish, should be able to speak or understand Irish.

This is an extraordinary state of affairs and one which requires urgent legislative attention.
But its relevance to the present case is that it has been stated by the Law Reform Commission that potential jurors in English speaking areas who, it is suspected, cannot understand sufficient English to do their duty properly are identified and filtered out by County Registrars and Court Service staff. This is done informally, without a specific legal mandate.

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The significance of this last point is that, as will be seen, the appellant was refused relief in the High Court (Murphy J.) on the ground that it was legally impossible to impose a linguistic test on jurors. But it is manifest that this very thing is done in the interest of producing a jury all of whose members can understand English. On the hearing of this appeal the State made no comment whatever on this state of affairs. They did not, however, contradict what the Law Reform Commission had said.
I wish to make it quite clear that I do not accept that a jury can lawfully include, or be composed of, persons unable to understand the lawful language of the case which the jury is to try. In Ireland, such lawful language can only be Irish or English.

The guarantee contained in Article 38.5 of the Constitution is that:

“… no person shall be tried on any criminal charge without a jury”.
The jury in a criminal case is not a mere decorative appendage or an assemblage of persons merely to witness a trial. The defendant is tried by the jury. The jury, of course, is bound to accept the Judge’s direction on all issues of law but the facts are entirely within the jury’s sphere and neither the Judge nor anybody else can override them. That is the meaning of trial by jury. The jury are the Judges of the facts of the case.
It would be ludicrous to imagine a judge presiding over and giving judgment in a trial conducted in a language which he could not understand. Equally, it is ludicrous to imagine a jury trying the factual issues, which are established by the evidence of witnesses, in a language which they cannot understand.

The following aspects of trial by jury in Ireland appear to me to be self evident:

(1) A trial in Ireland must be conducted in one or other of the languages recognised in the Constitution as being “the national and first official language” (Irish) or the language “recognised as a second official language” (English).
(2) The Judge at any such trial must be able to understand the language of the case, being one or other of the two languages mentioned at the preceding paragraph.

(3) The jury, which is to try all issues of fact in the case and resolve conflicts in the evidence of witnesses, must be able to understand the language of the case as defined above.

(4) A trial conducted before a judge, a panel of judges, or a jury, as the case may be, all or some of whom do not understand the language of the case, cannot be described as a trial “in due course of law” as required by Article 38.1 of the Constitution.

(5) Where the defendant in a criminal trial is incapable of understanding and expressing himself in either of the official languages of the State the proceedings must of necessity be translated to him by a duly qualified interpreter. But, for the reasons set out later in this judgment and relating to the standing of the two official languages of the State, a person charged before a court by the statutory public prosecutor is entitled to have the proceedings held in whichever of the official languages he chooses.

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Bilingualism.
For the reasons set out below, the effect of Article 8 of the Constitution is to establish Ireland as a bilingual State in terms of the Constitution and the laws. It is a historical truism that official Ireland has always been reluctant to behave as if the State were indeed, in law and in practice as well as in constitutional theory, a bilingual State. But that does not take from the fact that Ireland is, by its Constitution, a bilingual State. The Judges, of course, are bound to uphold the Constitution.
Canada is the prime example of a country, whose majority language is English, and which is in terms of its Constitution and laws a bilingual State. Unlike Ireland, however, the bilingual status of Canada has been treated seriously, not merely in law but in practice as well. Particularly since the adoption of the Canadian Charter of Rights in 1982, Canada is a country very comparable to Ireland in legal terms and the decisions of its courts are increasingly cited to us by litigants including the Irish State itself. See, for example, C.C. v. Ireland [2008] 4 LRI.

It is, therefore, more than interesting to consider the remarkable efforts of the Canadian State to be bilingual in practice as well as in theory even in parts of the country where there are very few, or virtually no, French speakers. Because, of course, this case must be decided in terms of the Irish Constitution and Laws, the Canadian citations are not directly relevant, and could not be more than persuasive. For these reasons I have, in the main, relegated the general account of legally and constitutionally mandated bilingualism in Canada to an Appendix. If nothing else, it gives the lie to any suggestion that the convening of an Irish speaking judge would be “impossible”.

Although the plaintiff/appellant’s case has been put in a number of independent ways, set out below, it is fundamentally a case about his language rights.

The plaintiff is an Irish citizen, a native speaker of the Irish language and a person who was reared and educated in a Gaeltacht. He is presently charged with two serious criminal offences, committed, it is alleged, in the Gaeltacht and against another Irish speaking resident of that area.

The question is, whether the plaintiff entitled to defend himself in those criminal proceedings in his native language and before a tribunal which will understand him directly, without the interposition of an interpreter.

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Ireland, like most Western countries, has in recent decades become a great deal more diverse, less homogenous than it used to be. It is less homogenous in language terms, as well as in other ways, than our parents’ generation could possibly have imagined. In 2011, the Courts Service had to provide for interpretation in 6,800 separate court proceedings from and into sixty-five languages, at no little expense. These languages include, prominently, Polish, Lithuanian, Romanian and several dialects of Chinese, some of which are not mutually comprehensible with other dialects of the same language. The figures quoted are taken from the Court Services Annual Report, 2011, Chapter 2 under the heading “Our Achievements” p.15.
The question raised by this case is as to whether a native speaker of Irish, who has been charged by the Public Prosecutor with serious criminal offences allegedly committed in the Gaeltacht where he was raised, is entitled only to the same language rights before the Irish Courts as are granted to a speaker of Chinese or a Nigerian language, to instance some languages at random. Or is he, as he maintains, entitled to use his native tongue, which is the national and first official language in defending himself before a tribunal who will understand him directly in that language, in a trial in an Irish Court established under the Constitution of Ireland? The incomer, of course, has well-entrenched rights to fair procedure and to equal treatment, guaranteed in both Irish and European law. But the appellant has, in addition, the language rights flowing from Article 8. This case is about whether these rights have any real meaning.
The Irish language in the Constitution.
The answer to this question does not depend on the private opinion of the Judges asked to decide it about the desirability or the feasibility of the widespread use of the Irish language for official purposes. It depends, rather, on the interpretation of the Constitution and the laws of Ireland which the judges, like the legislature, the executive, and the citizens, must take as they find them. If a government no longer wishes to be bound by the words of the Constitution as it is, that government is in a uniquely strong position to promote a change in those words. But, until then, the government must abide by the terms of the Constitution, just as it expects the ordinary citizen to obey the law. The Constitution is binding law, which binds the Government and the Legislature as much as the humblest citizen.

This Constitution provides at Article 4 that:

“The name of the State is Éire, or in the English language, Ireland”.
The character of the State is set out in the following article:
“Ireland is a sovereign, independent, democratic State”.
The position of “The National Language and the Official Languages” is set out at Article 8 of the Constitution, on which the plaintiff in this case particularly relies. It provides:
“(1) The Irish language as the National language is the First Official Language.
(2) The English language is recognised as a second official language.

(3) Provision may, however, be made by law for the exclusive use of either of the said languages, for any one or more official purposes, either throughout the State or in any part thereof”.

Jurisprudence.
This Article, and its very similar predecessor, Article 4 of the 1922 Constitution which is set out above, has been the subject of judicial interpretation now for more than eighty years. It is sufficient for present purposes to quote two extracts from that large body of jurisprudence, one from a case towards the beginning, and one for a case towards the end, of that period.
In Ó Foghludha v. McLean [1934] IR 469, Kennedy C.J. said:

“… the State is bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language”.
And a little later:
“None of the organs of the State legislative, executive or judicial may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provision of Article 4”.
In Ó Beoláin v. Fahy [2001] 2 IR 279, the constitutional status of the Irish language was summarised as follows:
“… the Irish language which is a National language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the Nation or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in doing so in any national or official context”.
It is of great significance in this case that the State defendants have not challenged or sought to depart from, this jurisprudence. On the contrary, in their written submissions, they specifically accept authorities.
Ireland has thus been constituted as a country with two official languages, the national and first official language and a second official language. It is thus legally constituted as a bilingual country. This was done, firstly in 1922 and secondly in 1937. In each case, the language provisions of the successive Constitutions of an independent Ireland represented an enormous change from the position which obtained under British Rule, prior to 1922. In an important language case under the old regime the proposition that Ireland was a bilingual country was absolutely negatived in strong terms by the Irish courts. I consider that it is important for the understanding of the constitutional provision to consider its historical background, and it may be instructive in other ways as well. This important background to the Constitution is set out in Appendix III.

Factual background.
The appellant, Peadar Ó Maicín, is a native Irish speaker who has spoken Irish since he has been able to speak at all. Though born in Dublin he was raised from infancy Ros Muc in the Connemara Gaeltacht, educated there and did not master English until his teens.
Mr. Ó Maicín is now before the Galway Circuit Criminal Court charged as follows:

(1) “That on the 28th May 2008 at Beal An Daingean, Liter Móir, in the District Court area of Doire An Fhéich, District No. 7, he assaulted Martin Whelan causing him harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997
and

(2) on the 28th May, 2008 at Beal An Daingean, Liter Móir, Galway within the said District Court area of Doire An Fhéich, District No. 7 he did while committing an assault on Martin Whelan in the course of a fight produce in a manner likely unlawfully to intimidate another person an article capable of inflicting serious injury, towit, a broken whiskey bottle, contrary to s.11 Firearms and Offensive Weapons Act, 1990.”

Each of these offences carries a maximum sentence of five years imprisonment.
The place where the prosecution alleges these offences took place is in the heart of the Connemara Gaeltacht and is in the County of Galway. There is no dispute that it is a “Fíor Gaeltacht” (true or real Gaeltacht).
The plaintiff’s case.
The thrust of the plaintiff/appellant’s case is evident from the extracts from the Constitution cited above: he relies upon them in their ordinary and natural meaning. The State respondents do not deny the ordinary and natural meaning of these constitutional provisions. Instead, they say that those provisions cannot be interpreted as entitling the plaintiff to a Tribunal of Fact (a jury) that will understand him directly because it would be impossible in practice to procure such a jury. That is the solemn submission of the State after ninety years – three or four entire generations – of State education with the Irish language as a mandatory subject, throughout every child’s primary and secondary education, and for admission to the State’s National University system.

The Authorities also, quite independently, say that the decided cases on trial by jury have established that a jury must be selected by a random process and the legislation governing this process does not permit of the application of any test, whether based on the possession of property, or the attainment of any particular educational standard, or linguistic competence, whether in English or in any other language.

The State concede that it would be possible, under the existing statutory provisions, to constitute a jury district, in the large Gaeltacht area where this offence allegedly took place, which would be as capable of providing a jury competent in the Irish language as the present jury districts are to produce juries competent in the English language. But, they say, the power to do so is vested in the absolute discretion of the Minister for Justice and he has not thought fit to do so. He cannot, or should not, be compelled to exercise this power in any particular way, say the State defendants.

That is the case of the Authorities as it was argued in the written and oral submissions on this Appeal. It is important, having regard to subsequent developments, to note that there was no attempt by the State authorities to argue that the Court should depart from the interpretation of Article 8 of the Constitution to be found in the decided cases from Ó Foghluadha to Ó Beoláin. Specifically there was no attempt to argue that that Article merely required to state to “seek to encourage the use of the Irish language” or to argue for any other such vague and purely aspirational reading.
The Gaeltacht in Law.
Murdoch’s Dictionary of Irish Law (on-line) defines a “Gaeltacht” in Irish law as:

“[Irish speaking district] an area designated as an area for the preservation and usage of the Irish language as the vernacular language.”
By s.2 of the Ministers and Secretaries (Amendment) Act 1956, provision was made for the creation of Gaeltacht areas, details of which are to be contained in statutory orders made under the Act.
Section 2 stated as follows:

“2(1) For the purposes of this Act the Gaeltacht shall comprise the areas for the time being determined to be Gaeltacht areas by order under this section.
(2) The government may from time to time by order determine to be Gaeltacht specified areas, being substantially Irish-speaking areas and areas contiguous thereto which, in the opinion of the Government, ought to be included in the Gaeltacht with a view to preserving and extending the use of Irish as vernacular language.”

The Gaeltacht Areas Order 1956 (S.I. 245 of 1956) sets out the Gaeltacht area in County Galway, defining it by electoral divisions or parts of electoral divisions which, together, compose the Gaeltacht. In the case of any Gaeltacht, there are an enormous number of such divisions; those relating to the relevant one are set out below. It is clear that the place where the offences alleged above are said to have occurred is within the Gaeltacht as legally defined in the Statute Law of the State.
The electoral divisions which constitute the Connemara Gaeltacht are set out in Appendix V. The list is taken from the Schedule to the Statutory Instrument referred to above.

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The Gaeltacht Act 2012 continues the previous boundaries, providing at s.6:
“‘Gaeltacht area’ means an area that was before the passing of this Act determined to be a Gaeltacht area by order made under section 2 of the Ministers and Secretaries (Amendment) Act 1956 and continued to be such an area by section 7(1)”.
The Act of 2012 is, indeed, an example of the very curious policy sometimes followed in statutory draftmanship in Ireland. Section 5 of the Act of 2012 repeals s.2 of the Ministers and Secretaries (Amendment) Act, 1956 and also repeals, along with other Gaeltacht area orders, the Gaeltacht Areas Order 1956, cited above. But these repeals are effected by Sections in Part I of the Act and it appears that no Commencement Order has been made in respect of that part, or any of the Sections which compose it.
Even when these Sections are commenced, the status quo ante will be preserved by s.7 of the 2012 Act which provides as follows:

“7(1) An area that was, before the commencement of this Section, determined by order made under s.2 of the Ministers and Secretaries (Amendment) Act 1956 to be a Gaeltacht area shall, notwithstanding the repeal of that Section by s.5(1) continue to be a Gaeltacht area.”
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The appellant says that he is innocent of the offences charged and that he intends to plead not guilty and to defend the case. He intends and wishes to “prepare, arrange, administer and conduct his defence” in Irish. He says he believes that this is his constitutional right and that he wishes to do so on this basis and on the basis that Irish is the National language and the first official language of the State and that it is his own native language, which he would naturally use in a matter of great importance to him. He wishes to be directly understood in that language by the tribunal which tries him, being a Court constituted under Bunreacht na h-Eireann, which also constitutes Irish as the national and first official language.
Over and above that, he says that he will be at a disadvantage if he has to make his case through an interpreter for the benefit of the members of a jury who would or might not understand Irish, instead of talking to jury directly in his native language. The appellant agrees that he will permitted to make his case in his own language but says that, by reason of the refusal to him of a jury who can understand Irish he will not merely be at an actual disadvantage but will be “treated as a foreigner in his own country rather than as a person who speaks the first official language of the State”.

The prosecutor, the Director of Public Prosecutions, has not said in which of the official languages the prosecution case will be conducted. The applicant says, however, that on all occasions to date when the prosecution were represented before the trial Court their representatives spoke in English.

On the hearing of the application in the trial Court in relation to the applicant’s language rights, which is about to be described, the prosecution case was conducted in English and the defence case in Irish. The application was heard by His Honour Judge Groarke (as he then was; now The Honourable Mr. Justice Groarke, President of the Circuit Court), with the assistance of an interpreter. The applicant says, without contradiction, that the standard of interpretation on that occasion was very poor and that defence counsel (who is bilingual) frequently had to assist the interpreter. He says that if this standard of interpretation is replicated at the trial his case will be poorly interpreted to the jury and that he will be greatly disadvantaged and will not be treated fairly.
Application to the Circuit Court.
On the 23rd March, 2009, the appellant’s solicitor wrote to the D.P.P. seeking an official Irish version of the Book of Evidence. This letter was written just before the first listing of the case in the Galway Circuit Criminal Court. That letter also said:

“We note the custom of the prosecutor to prosecute in English [anyone] who chooses to undertake his or her defence through English.
For our client to receive a fair and just trial in comparison to those who are satisfied with using English for this purpose, it is necessary, in all cases, that the prosecutor has a knowledge of the Irish language and that the prosecution is conducted against him in Irish with, of course, permission granted to each witness to give evidence in whatever language they wish: in Irish or in English or in another language should they not have sufficient Irish or English.”

The diction of this letter as quoted above is in places rather odd, apparently because it is a direct translation of an original in Irish.
The Director of Public Prosecutions stated in the Circuit Criminal Court on the 29th May 2009 that he was prepared to supply the defendant with a Book of Evidence in the Irish language.

The applicant then proceeded to apply to the Circuit Court for:

(1) An order that the trial proceed with a bi-lingual jury i.e. a jury who can understand questions, submissions and evidence in Irish without the need for an interpreter and
(2) An official translation of the Rules of Court.

This was an application made to the Circuit Court in an elaborate way, with extensive written submissions. The applicant also sought an order to record the evidence in the language in which it is given, as opposed to in translation.
After the hearing of this application the learned Circuit Court Judge stated that the trial would be heard before a bi-lingual judge and that the evidence would be recorded in the language in which it was given, but he refused the application for a bi-lingual jury. He did so on the basis that in order to provide such a jury it would be necessary to launch an investigation to ascertain that individual members of the jury panel were in fact bi-lingual and that such investigation was not permitted.

In ordering that the judge who would preside at the trial would be able to speak Irish Judge Groarke said he did so because interpretation “can be weak” and in order that the rights of the accused were vindicated, in that “every idiom and expression can be understood”. The learned Circuit judge also said that there was no danger that the applicant would not receive a fair trial and went on to say that since all the evidence in court is recorded electronically the evidence would be recorded in whatever language it was given.

It appears that the complainant in this case, the alleged injured party, is also a person from the Gaeltacht and an Irish speaker.
Judicial Review.
Subsequent to the application described above in the Circuit Court in Galway the applicant applied to the High Court for liberty to seek judicial review. This occurred on the 13th July, 2009. The appellant was given liberty to seek the following reliefs:

(1) A declaration that a bilingual jury i.e. a jury who would understand evidence given in Irish and in English without the assistance of an interpreter, from County Galway, would be a constitutional jury.
(2) A declaration that the appellant is entitled to be tried before a bilingual jury who would understand evidence given in Irish and in English without the assistance of an interpreter.

(3) An order of certiorari quashing the decision of His Honour Judge Groarke [whose contents is set out above].

(4) An order directing the Minister to take all necessary and/or convenient steps to ensure and facilitate a trial before a bilingual jury for the applicant, including specifying a new jury area in County Galway pursuant to s.5 of the Juries Act, 1976 and/or creating a new jury summons pursuant to s.12 of that Act.

(5) A declaration that the first second and third respondents have a constitutional obligation to provide an official translation in the first official language of the current Circuit Court Rules (S.I. No. 510 of 2001) along with their amendments, together with the amendments to order 86 of the Rules of the Superior Courts; the Rules of the Court of Criminal Appeal and are obliged to issue and provide each one of these for the general public including the applicant on terms no less advantageous than the terms under which the official English language was and is issued and provided.

(6) An Order of Mandamus directing the first and second respondents and/or the third respondent to issue and provide an official translation in the first official language of the current Circuit Court Rules along with their amendments [and the other documents mentioned above].

(7) A stay preventing the Director from proceeding with the case against the appellant until the conclusion of the judicial review proceedings.

Status of the Irish language (2).
Article 8 of the Constitution provides as follows:
“(1) The Irish language as the National language is the first official language.
(2) The English language is recognised as a second official language.

(3) Provision may however be made by law for the exclusive use of either of the said languages, for any one or more official purposes, either throughout the State or in any part thereof.”

It can be seen, therefore, that the Constitution affords a special, unique and paramount position to the Irish language, as did the Constitution of the Irish Free State of 1922.
Prior to the adoption of the present Constitution, Article 4 of the Saorstát Constitution provided:

“The National language of the Irish Free State is the Irish language, but the English language shall be equally recognised as an official language. Nothing in this article shall prevent special provisions being made by the Parliament of the Irish Free State for districts or areas in which only one language is in general use”.
It is noteworthy that no such law as is envisaged in the last sentence of Article 8, and in the last sentence of the predecessor Article, has ever been enacted. Scholarly opinion on these provisions for exclusive use of one language is to the effect that they were enacted “to provide for the contingency of the entry of Northern Ireland into the State. See e.g. Kohn: The Constitution of the Irish Free State (London, 1932) at 124.
But whatever the reason for the inclusion of these provisions may be, it is clear that it is open to Dáil Eireann to enact, and the Government to propose, that one only of the official languages be used either throughout the State or in any part of the State. This has never been done. It appears to me, however, that only by a law of the kind envisaged in Article 8.3. can a person be debarred from the use of the Irish language, as a language in which he can speak and be understood, in a procedure as solemn, as quintessentially official, and as central to the nature of the State itself, as a trial before a jury in a court established under the Constitution, in respect of an offence alleged against a Gaelgóir in the Gaeltacht. That is all this case is about. This narrow focus is central to the case.

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In relation to legislation, the constitutional scheme set out in Articles 20 and 25 envisages that a Bill (other than a Bill expressed to be a Bill containing a proposal for the amendment of the Constitution) which is passed or deemed to have been passed by both Houses of the Oireachtas shall be presented by the Taoiseach to the President for signature and for promulgation as a law. Article 25.4.3 and 4 provide as follows:
“(3) Every bill shall be signed by the President in the text in which it was passed or deemed to have been passed by both Houses of the Oireachtas, and if a bill is so passed or deemed to have been passed in both the official languages, the President shall sign the text of the Bill in each of those languages.
(4) Where the President signs the text of a bill in one only of the official languages, an official translation shall be issued in the other official language”.

It appears from the foregoing that it is the intention of the Constitution that the statute law of the State shall be equally available in each language. The most obvious reason for this is to allow for the ascertainment of what is, and what is not, lawful and to facilitate submissions in Irish in the Courts of Ireland.
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The first significant judicial treatment of the constitutional status of the Irish language in general is that of Kennedy C.J. in Ó Foghludha v. McLean [1934] IR 469. At the time this judgment was delivered the relevant constitutional provision was that of the Saorstát Constitution, quoted above. In Ó Beoláin v. Fahy [2001] 2 IR 279, I held at page 338 that the words of Kennedy C.J. are also applicable to Article 8 of the present Constitution. On that page, I set out a lengthy extract from the judgment of Chief Justice Kennedy with respectful approval. I re-iterate that approval here, without thinking it necessary to repeat the same material in this judgment.
This judgment of Kennedy C.J. appears particularly relevant in what it has to say about the significance of the designation of the Irish language as a National language:

“The declaration by the Constitution that the National language of the Saorstát is the Irish language does not mean the Irish language, is or was at that historical moment, universally spoken by the People of the Saorstát, which would be untrue in fact, but it did mean that it is the historic distinctive speech of the Irish people, that it is to rank as such in the Nation, and, by implication, that the State is bound to do everything within its sphere of action… to establish and maintain it in its status as the National language. There is no doubt in my mind, but that the term ‘National’ in the Article is wider than, but includes, ‘official’, in which respect only the English language is accorded constitutional equality. None of the organs of the State legislative executive or judicial may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provision of Article 4.” (Emphasis added)
In the seventy-nine years since Kennedy C.J. spoke these words, they have never been reversed or doubted. The Court was not asked to depart from them in this case. This, too, is an essential feature.
I agree with what was said by Kennedy C.J. and consider portions of it, in particular, to have a direct relevance to the present case. In particular, I believe that the former Chief Justice was correct in stating that the Irish language is the National language not because its use is in fact universal but because it was freely deliberately and expressly adopted as such National Language by the People in two successive Constitutions. No doubt this adoption was made for the reasons summarised by Kennedy C.J. in the passage cited, but it is beyond dispute that Irish was in fact adopted as the National language. Its status as the first official language arises from its status as the National language. This is made perfectly clear in Article 8 of the Constitution by the use of the word “Ós”. This explanatory or reason-giving word indicates that the Irish language is the first official language since, or because, it is the National language.

It appears to me to be significant that the language is constitutionally established both as the National and the “First Official Language”. It might have been constituted merely as the “National Language” while providing (as in India) that the business of the National Parliament, and of the Courts of Law, would be conducted in English. But this was not done: the Irish language was constituted as both the National Language and as the First Official Language.

At the same time, the English language which was and is the vernacular language of the great majority of the People, was recognised “as a second official language”. The plaintiff appellant in these proceedings is not concerned to restrict the right of English speaking citizens to conduct their business with the State in that language, for instance to defend themselves in court proceedings in English and to be understood directly by the Tribunal of Fact in doing so. Indeed, he proclaims that right. But he equally asserts his right to do those very things in the Irish language and relies in that regard on what was said by this Court in Ó Beoláin v. Fahy to the effect that the Irish language “cannot… be excluded from any part of the public discourse of the Nation or the official business of the State or any of its emanations”.

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A significant divergence.
In this case I have the great misfortune to differ from my colleague Mr. Justice Clarke. A decent regard for the intellect and for the opinions of readers of these judgments makes it necessary to identify the precise basis of the difference.
The divergence between my approach and that of Mr. Justice Clarke is only partly to do with the constitutional and legal status of the Irish language.

Quite apart from that, and perhaps more fundamentally, it is to do with the techniques and principles applying to the interpretation of the Constitution itself, and of the resolution of constitutional litigation by adjudicating between the contentions of the parties, rather than by imposing a solution for which neither party was concerned to argue. Such resolution must also, of course, take account of the established jurisprudence of this Court, and not proceed as if the matter were res integra. There is in fact a well established body of case law which is clear, positive and specific on the subject of the duties of the State flowing from Article 8 of the Constitution. Neither party has asked this Court to depart from it.

It is important to note that the State defendants have met this case in a carefully restricted and confined way. They have not asked for the existing jurisprudence to be set aside; on the contrary, they have adopted it. At para. 25 of their written submissions they say:

“We accept of course what is contained in Article 8 of the Constitution of Ireland, where it states that the Irish language as the national language is the first official language. We also accept the definition given by the Superior Courts of that Article and therefore rights of people to carry out their official business (including court proceedings) through Irish if they so wish.”
It is trite law to observe that “a point not argued is a point not decided”.

Since, however, I consider this maxim to have a particular importance in the present case where one at least of the judgments goes far beyond what any party argued for, I propose to cite authority for a proposition so basic that, in the ordinary course of events, it scarcely needs such citation. In The State (Quinn) v. Ryan [1965] IR 70, at p.120, Ó Dálaigh C.J. said:
“It requires to be said that a point not argued is a point not decided; and this doctrine goes for constitutional cases (other than Bills referred under Article 26 of the Constitution and then by reason only of a specific provision) as well as for non-constitutional cases.”
I am most concerned that certain of the findings to which I am about to draw attention were not argued for or in any way supported by the State defendants. I am concerned that the effect of my colleague’s conclusions is drastically to dilute, to “write down”, the well established legal and constitutional status of the Irish language, and the rights of Irish speakers in general, in a case where neither party has requested this. And this is done without explicit dissent from the cases about to be cited, as well as without request or argument.
I am further and separately concerned that the effect of my colleague’s judgment is to undermine the constitutional and legal bilingualism of the Irish State.

I welcome, of course, certain dicta of Mr. Justice Clarke such as his declaration, in para. 3.5 of his judgment:

“That the State has a constitutional obligation to respect the language wished of a citizen who wishes to use Irish in their communications with the State or its agencies, cannot be doubted”.
Similarly, at para. 3.7, my learned colleague says:
“It follows that those wishing to conduct official business in Irish do have a right, derived from the constitutional status of the Irish language, to have their business conducted in Irish”.
The dicta quoted above are not alarming in themselves, even though the first of them is entirely vague and the second is immediately followed by “However…”. But they are immediately qualified out of existence. These qualifications appear to me quite inconsistent with the principal dicta of the established jurisprudence, quoted above. For example, consider the seventy-nine year old dictum of Chief Justice Kennedy in Ó Foghludha v. McLean [1934] IR 469:
“None of the organs of the State, legislative, executive or judicial, may derogate from the pre-eminent status of the Irish language as the national language of the State without offending against the [Constitution].”
Chief Justice Kennedy also declared:
“… that the State is bound to do everything within its sphere of action… to establish and maintain (the Irish language) in its status as the national language and to recognise it for all official purposes as the national language.”
This naturally leads to the conclusion, as it was expressed in O Beoláin v. Fahy, cited above:
“… the Irish language which is the national language… cannot… be excluded from any part of the public discourse of the Nation, or the official business of the State or any of its emanations. Nor can it be treated less favourably in these contexts than the second official language.”
I cannot find that the language and the conclusions of these cases is in any way reflected in the judgment of my learned colleague. On the contrary, once the strong statements cited above are made, they are immediately qualified, almost out of existence. Thus, at the very start of the judgment, at para. 1.1, it is declared that:
“Some significant obligations lie on the State deriving from the special status accorded to Irish” and:
“That those who wish to conduct their business, particularly with the State, in Irish enjoy certain language rights equally cannot be doubted.”

This passage, it seems to me with the most genuine respect, introduces a vagueness and lack of precision in the precise status of the Irish language and the precise rights of those who wish to use it which:
(a) is an enormous dilution and a marked writing down of that status and those rights as they have been established in the existing jurisprudence epitomised in the two cases mentioned above.
(b) is done without the Court having been asked to do it by the State respondents and for that reason, I must very diffidently suggest, does it improperly, and

(c) is done with insufficient regard to the fact that Article 8.3 expressly permits the legislature to provide “by law” for the exclusive use of one or other of the official languages for any official purposes, either generally or in some part of the State.

It follows that that any alteration in the state of bilingualism mandated by Articles 8.1 and 8.2 of the Constitution must be effected “by law” and not by a judicial decision, particularly one which has not been sought by any of the parties. To provide that something may be done “by law” (“le dlí”) means that it must be done by the Oireachtas because “the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas…” (Article 15.2), and that it cannot be done otherwise.
The vagueness and imprecision of the passage cited above, which refers to “some obligations on the State and certain language rights, is continued in the most substantive portion of Mr. Justice Clarke’s judgment, at para. 3.5:

“There is a clear constitutional obligation on the State to encourage the use of Irish for official business…”.
Clarke J. continues, with admirable frankness:
“It does not seem to me that the general obligation of the State can, therefore, be put any higher than an obligation to ‘encourage’.”
This, indeed, is the nub of the matter as far as the status of the Irish language and the rights of Irish speakers is concerned. I will in a moment discuss the reasons which have led my learned colleague to the conclusion just quoted but it must be apparent that his proposal to put the general obligations of the State in relation to the Irish language no higher than an obligation merely “to encourage”, is a major departure from the existing jurisprudence, epitomised above. It is also a departure which the Court was not invited to make.
The reason given by Mr. Justice Clarke’s conclusion quoted above is also stated with very frankly and clearly in the same paragraph:

“To place the general obligation of the State above the level of encouraging would imply that there was a constitutional imperative to implement the sort of quasi compulsion applied in the past which, it is at least arguable, led to less rather than more commitment to Irish amongst the general population.”
There is nothing expressed, either in the submissions of the appellant, or in this judgment, to suggest that there is the slightest obligation on the part of the State towards any form of compulsion, “quasi” or otherwise. But Mr. Justice Clarke says that once the obligation on the State is put at a higher level than an obligation merely to “encourage” the use of Irish, there is an implication that there is a constitutional imperative to quasi compulsion.
The implication which Mr. Justice Clarke discovers in the existence of any duty to Irish speakers above the level of “encouragement” of something which would lead to what he terms quasi compulsion is, I suppose, the pons assinorum of his reasoning. I have to confess immediately that it is not a bridge that I can cross. I do not believe for a moment that, in the finding that Mr. Ó Maicín is entitled to be judged by a Tribunal of Fact which can understand him directly in his native language, which is also the national and first official language of his country, there is even the slightest suggestion or implication of a constitutional imperative to quasi compulsion, or any kind of compulsion whatsoever.

I must make unambiguously clear my view that this is simply not true in law, in logic, or in the terms of the pleadings and arguments in this case. As I have observed earlier in this judgment:

“At the same time [the time of the adoption of Article 8 of the Constitution], the English language which was and is the vernacular language of the great majority of the People, was recognised ‘as a second official language’. The plaintiff appellant in these proceedings is not concerned to restrict the rights of English speaking citizens to conduct their business with the State in that language, for instance to defend themselves in court proceedings in English, and to be understood directly by the Tribunal of Fact in doing so. Indeed, he proclaims that right. But he equally asserts his right to do those very things in the Irish language and relies in that regard of what was said by this Court in Ó Beoláin to the effect that the Irish language ‘cannot be excluded from any part of the public discourse of the nation or the official business of the State of its emanations.”
That is wholly and entirely different from anything in the nature of compulsion, quasi or otherwise. Mr. Ó Maicín seeks mere equality with English speakers and, I would have thought, he makes this unmistakably clear.
I have the greatest difficulty in understanding how a right to be heard directly by a constitutional court in the constitutionally recognised national and first official language in any way constitutes, or could be thought to constitute, or imply however remotely, “quasi compulsion”.

I repeat, this approach, whereby the State’s obligations are written down to an obligation merely “to encourage” was not contended for or suggested in the submissions of the respondent in this case. Nor did any party suggest that Mr. Ó Maicín claims implied quasi compulsion of any other citizen.
A false antithesis.
The passage quoted above, it seems to me, introduces what I consider to be a radically false antithesis between the rights of a person like Mr. Ó Beoláin, and the rights of English speakers. For example, at para. 3.8 Mr. Justice Clarke says:

“In my view this case turns on the necessity to balance the undoubted language rights of Mr. Ó Maicín other non-resourced constitutional issues, most particularly the language rights of others including the rights of persons who cannot speak Irish to a sufficient standard to be able to follow a case without translation, to serve on juries, and the constitutional obligation to ensure representative juries…”.
There have, in the last fifteen years, been precisely two attempts, as far as I am aware, to secure a jury trial for an Irish speaking Irish citizen before an Irish speaking jury. There is, therefore, no question of an intrusion upon the rights of people who cannot speak Irish “to serve on juries”. In the Canadian case of Beaulac, discussed in the Appendix to this judgment, the commitment of the whole of Canada to a constitutionally grounded policy of bilingualism applied in the province of British Columbia even though only one jury trial per year in that Province in the French language was required. I do not, therefore, consider that Mr. Ó Maicín’s claim impinges on the rights of citizens who cannot speak Irish, and it is not intended so to impinge.
But despite the statistical insignificance of the point, it seems to me to raise a matter of principle.

In my view, in this constitutionally bilingual State, no-one has a right to serve as a judge, or as a member of a panel of judges (as in the Special Criminal Court) or as a juror, in any case the official language of which he or she cannot understand.

The need for a judge to be able to understand the language of the case has been dealt with above. That need is no less pronounced in the case of a juror. The oath of a juror requires him or her to swear that:

“I will well and truly try the issue whether the defendant is guilty or not guilty of the charges set out in the Indictment preferred against him, and a true verdict give according to the evidence”.
Many criminal cases depend, as it seems this one does, almost completely on what view the Tribunal of Fact takes of the evidence. The evidence must necessarily be given in some language. In Ireland, in a court established under the Constitution, it must be given in one or other of the languages recognised as official languages. These are Irish or English. A juror who must “a true verdict give according to the evidence”, has to be able to understand that evidence.
That is part of what is implied by the constitution of this State as a bilingual State, by Article 8 of the Constitution. If that is impractical, or really cannot be done for reasons of resources, or for any other reason, then the position may be addressed by the Oireachtas, pursuant to Article 8.3. But, absent such action by the Oireachtas, the bilingual nature of the State requires that the Tribunal of Fact understand the evidence as it is given. I believe that in any other State that proposition would be regarded as axiomatic, as it clearly is in Canada, on the basis of the information summarised elsewhere in this judgment.

I have already quoted with respectful approval Clarke J.’s statement that:

“It follows that those wishing to conduct official business in Irish do have a right, derived from the constitutional status of the Irish language, to have their business conducted in Irish.”
If that statement was unqualified then there would be no difference of opinion in this case. But it is immediately qualified as follows:
“However it equally follows that that right is not absolute and must be balanced against all the circumstances of the case (not least the fact that the great majority of the Irish people do not use Irish as their ordinary means of communication) particularly the fact that other citizens are entitled to conduct their business in English as an official language, and also any other competing constitutional interest which may arise.”
As we have seen, this is not the first time where the rights of an Irish speaker are diluted by reference to alleged competition with the rights of English speakers.
This formulation and approach appears to me to ignore the fact that the effect of Article 8 is to render Ireland a bilingual country. This means that there must be parity of respect for each language and its users. Mr. Ó Maicín’s right to use the Irish language is in no way affected if the defendant tried before him, or the defendant after him, opts to take his trial in English. Equally, the rights of those English speakers are in no way affected by Mr. Ó Maicín’s opting to take his trial in Irish.

As we have seen, both the constitutional composition of the State, and the current policy of the State, is one of bilingualism or as the current policy document calls it “functional bilingualism”.

We have represented to the European Union that Irish is in use as a vernacular language in the State. I simply cannot understand how such a representation could be made if it is impossible for a citizen to have a trial in this “vernacular” language in the Courts established by the very Constitution which constitutes the State a bilingual polity.

Ireland became a bilingual State not because, as in some countries (Belgium, Canada, India), there were severe conflicts threatening the very existence of the State on the topic of language use, but as a deliberate choice. It was enshrined in the Constitution also as an act of deliberate choice. Once enshrined in the Constitution, the language provisions became part of what the Judges promise “to uphold”. That promise is to “uphold the Constitution”, not to “uphold it as far as may be reasonable in present day conditions, as perceived by them”.

If it is thought that it is now simply too difficult to uphold the Constitution in the manner identified by the various cases cited in this judgment, it would be more honest to amend the Constitution or to legislate in the manner permitted by Article 8.3. But neither of these are for the judges to do: action on them must be initiated by one or other of the political organs of government.
Stare decisis.
As is well known, this Court ceased to be bound by a rigid rule of stare decisis in 1964. As O’Higgins C.J. put it in Mogul of Ireland Ltd. v. Tipperary (North Riding) County Council [1976] IR 260, at 267:

“In Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642, this Court decided that it is not rigidly bound by the rule of stare decisis and is at liberty to refuse to follow previous decisions of its own, or of the Courts of ultimate jurisdiction which preceded it, if it is satisfied that such decisions were clearly wrong.”
Mogul laid down the restrictive criteria on which at previous cases or a line of previous cases can be departed from. It is sufficient to say, in the present case, that no attempt was made to address the Mogul criteria simply because no request was made to depart from the line of previous cases, cited in this judgment.
As it happens, Mogul is also authority for the proposition that if an existing case made a particular finding without the point being argued, it is not a binding authority on that point and so does not need to be distinguished or formally departed from:

“Faced with the hypothesis that a case might have been decided in ignorance of some relevant statutory provision or in reliance on some statutory provision subsequently discovered to have been repealed he [Lord Halsbury] suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if a decision were given in ignorance of an earlier authority or of compelling validity. Where a point has been entirely overlooked, or conceded without argument, the authority of a decision may be weakened vanishing point.”
I have not been able to trace any case where a long established line authority was departed from without request, and without addressing the Mogul criteria. Quite apart from issues to do with the Irish language in official usage, I must express concern that any constitutional guarantee would be deprived of any useful meaning by a procedure analogous to that used to suck all real meaning out of the provisions of Articles 8.1 and 8.2 in the present case.
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I think it follows from the passage cited from Kennedy C.J. that the State has binding obligations in relation to the Irish language, and not only the negative ones set out in the passage just quoted. A little earlier in his consideration of the former Article 4 he says:
“… by implication, that the State is bound to do everything within it sphere of action… to establish and maintain it in its status as the National language and to recognise it for all official purposes as the National language.” (Emphasis added)
I believe that this applies, a fortiori, to Article 8 and in this respect I would follow what was said by O’Hanlon J. in Ó Murchú v. Cláraitheoir na gCuideachtaí [1988] IR 112, at 115:
“I am of the opinion that the provisions of Article 8 of Bunreacht na hÉireann are stronger in terms of the recognition given to the Irish language as the first official language of the State than was Article 4 of the Free State Constitution”.
The foregoing quotation is my translation: the judgment was delivered in Irish.
I wish to reiterate the conclusion of my consideration of the constitutional status of the Irish language in Ó Beoláin v. Fahy, above. At p.340 of the Report it is said:

“In my view the Irish language which is the National language and, at the same time, the first official language of the State cannot (at least in the absence of a law of the sort envisaged by Article 8.3) be excluded from any part of the public discourse of the Nation or the official business of the State or any of its emanations. Nor cannot it be treated less favourably in these contexts than the second official language. Nor can those who are competent and desirous of using it as a means of expression or communication be precluded from or disadvantaged in doing so in any national or official context”.

The South Connemara Gaeltacht.
Dr. Conchúr Ó Giollagáin has sworn an affidavit in support of the appellant’s application which, like the appellant’s own affidavit, is uncontradicted. He is a lecturer in socio-linguistics and language planning in Acadamh na hOllscolaíochta Gaeilge, in National University of Ireland, Galway (NUIG). He holds a doctorate and has published a good deal of research on the use of the Irish language in the Gaeltacht. He was joint author of the Comprehensive Linguistic Study in the use of Irish in the Gaeltacht, which was commissioned by the Department of Community Rural and Gaeltacht Affairs. It appears to me that Dr. Ó Giollagáin is entitled to be regarded as an expert witness.
He exhibits the text of his study, and a map attached to it, in his affidavit. The South Connemara Gaeltacht, west of the City of Galway, is the largest of the Gaeltacht areas in the country, being far larger than those in Donegal, Mayo, Kerry, West Cork, West Waterford and Meath. It is in category “A” of his study, meaning that there are “a large number of people, of both genders and every class, who speak Irish on a daily basis”. In areas in category “A”, this exceeds 67% of the community. He says of the category “A” Gaeltacht of County Galway that its geographical extent is from a point east of the village of An Spidéal westward to An Caiseal in West Connemara. In some of the electoral divisions more than 90% are daily speakers of Irish. The figures for competence in Irish are even higher. Between 85 and 90% of the entire community are competent to speak Irish. The district composes both villages and rural areas and, according to Dr. Ó Giollagáin “a diverse, multi-class, multi-perspective community live there including doctors, solicitors, university lecturers, gardaí, teachers, nurses, farmers, fishermen, television and radio staff, journalists, carpenters, electricians, builders, hotel and accommodation staff, shop assistants and factory workers, housewives, students and un-employed people”.

The relevance of this evidence arises from the way in which the case has been met by the State Respondents, as set out below.
Summary of foregoing.
Since there is no challenge to the evidence adduced by the appellant, is possible to say that the distinguishing features of the present case are, firstly the constitutional status of the Irish language, secondly the legal provisions relating to the Gaeltacht and the evidence about the South Connemara Gaeltacht in particular, and thirdly, the fact that the appellant, the defendant in the criminal proceedings is indisputably a native Irish speaker, as is the alleged injured party, and the offences are alleged to have taken place in the heart of the Connemara Gaeltacht.

These features are of central relevance both to the appellant’s claim and to the respondents’ answer. They appear to me to distinguish the case very radically on its facts from that of MacCártaigh v. Eire [1999] 1 IR 186, a case considered in more detail below.
Nature of appellant’s claim.
The appellant puts his case in three separate ways:

(1) He asserts a language right. This is a right grounded on Article 8 of the Constitution and in particular the recognition of the Irish language as the National language and, accordingly, as the first official language of the State.
As is made clear in the judgment of Chief Justice Kennedy, cited above, the Irish language is not the National language because it is considered to be universally, or even widely, in use throughout the State. On the contrary, it has been designated as the National language, and therefore as the first official language, by a free and deliberate act of election or choice by the People, first in adopting the Saorstát Constitution and secondly, in adopting Bunreacht na hÉireann. This was done in full knowledge of the fact that English was the main spoken language of the State as a whole by a large margin.
The Constitution does not purport to make Irish the exclusive language of the State. On the contrary it positively recognises the status and use of the English language. But, as between the two it confers a primacy on the Irish language which is the first official language. The Irish word “príomh”, used with another word, has the connotation of conferring on the person or thing of whom it is used a primacy amongst things of the kind, connoted by the other word, thus príomh oide, head teacher, príomh breitheamh, Chief Justice.

Article 8 of the Constitution therefore enshrines a policy of bi-lingualism in which the right to use either the National and first official language or the second official language, in any official context is constitutionally enshrined.

In that context it is (to use an entirely non-legal term) an oddity that an Irish speaking citizen who has been reared and educated in a part of the country legally recognised as an Irish speaking area should, when haled into court by a compulsory process, by the State itself, be compelled to make his defence of his liberty and his reputation to the Tribunal of Fact through an interpreter, precisely as if he were speaking Romanian, Hungarian or Chinese or Polish, all languages from which the Courts have had to arrange translation in recent times.
Significance of Article 8.
The explicit adoption by the People as the national and first official language, of a language which was not at any time in the 20th century the vernacular language of more than a small section of the population, was clearly a momentous step.

Firstly, the wording of Article 8 obliges Courts to treat the Irish language as the national and first official language in law and in fact. It is not simply an aspiration, along the lines of the “firm will” to unite the whole population of the island of Ireland, expressed in Article 3. Article 8 is a statement of the existing position in law. This is not a choice made by the Courts: it is imposed by the Constitution.

Secondly, Article 8 accords a primacy to the Irish language which is

(a) “the national language” and
(b) “the first official language”.

The English language, by contrast is “recognised as a second official language.
Thirdly, Article 8 imposes obligations on the State and the Government. The former, in the words of Chief Justice Kennedy “is bound to do everything within its sphere of action … to establish and maintain [the Irish language] in its status as the National Language”.

Equally “None of the organs of State, legislative executive or judicial, may derogate from the pre-eminent status of the Irish language as the National Language of the State without offending against the constitutional provision…”.

The prosecution, in courts established under the Constitution, of those accused of crime is one of the quintessential duties of a State as such. Therefore, it must be conducted in one of the official languages and, at least if demanded, in the first official language. For the State to refuse this is for it to derogate from the constitutional status of the Irish language.

To establish, by a free and voluntary act of democratic choice, as the national and first official language, a language which is not the vernacular is to impose a positive duty, which is at the same time a burden and an expense, on the State. The State must discharge this duty, just as it expects citizens to observe the law, even when that is difficult, burdensome, or expensive. If it is thought too onerous, a government may invite the People to alter Article 8, or the Oireachtas may legislate as permitted by Article 8.3.

The conclusion from all of the material set out so far in this judgment appears to me to be obvious. The Irish People, at the invitation of the Government, have constituted the Irish language the national and first official language of the State.

The State and the organs of Government have honoured this only insofar as they have cast the entire burden of promoting the use of the Irish language on successive generations of school children. Apart from that the actions of the State in relation to the Irish language have been uniformly minimalist and grudging. They have opposed in the Courts citizens who attempted to get statutes and statutory instruments which affected them directly in the Irish language. They have struggled against applications by citizens for official forms in the Irish language. They have (to come closer to the facts of this case) instituted an informal screening system to make sure that jurors in Dublin have an adequate command of English, but have solemnly pleaded in the very case that it would be unlawful to operate such a screening system in the interests of producing a jury with an adequate understanding of Irish. This is a radical contradiction in the State case. But, says the State confidently, there is nothing the Court can do about this.

(2) The appellant also puts his case in terms of his right to a trial in due course of law pursuant to Article 38 of the Constitution. It is not, of course, denied that he has such a right. He says that this includes a right to make his case in the National and first official language to a tribunal which understands that language. He points to his uncontroverted assertions with regard to the deficiencies of the interpreting service provided when he was last before the Circuit Court and to the learned Circuit Judge’s acknowledgment that translation could be “weak”. The defence of a criminal charge is obviously a matter touching on the appellant’s interests, since he would be exposed to a substantial custodial sentence if convicted, and he says he is entitled on that account to defend himself in his native language, the National and first official language, and to be understood directly by the Tribunal of Fact in doing so, a tribunal before whom “every idiom and expression” must be understood, to use the words attributed to the learned Circuit Judge.
Academic support for that point of view is not lacking. Shulman in the Vanderbilt Law Review (1993) Vol 46, at p.177 says:
“Where a defendant testifies in a criminal case, his testimony is critically important to the jury’s determination of his guilt or innocence. The first noticeable difficulty in the present system of court interpretation is that non-English speaking defendants are not judged by their own words. The words attributed to the defendant are those of the interpreter. No matter how accurate the interpretation is, the words are not the defendants, nor is the style, the syntax or the emotion. Furthermore, some words are culturally specific and, therefore are incapable of being translated. Perfect interpretations do not exist as no interpretation will convey precisely the same meaning as the original testimony. While a jury should not attribute to the defendant the exact wording of the interpretation and the emotion expressed by the interpreter, they typically do just that. Given that juries often determine the defendant’s guilt or innocence based on small nuances of language or slight variations in a motion, how can it be fair for a defendant to be judged on the words chosen and the emotion expressed by the interpreter?”
That article concerned persons who spoke foreign languages. Its insights must surely apply a fortiori to a defendant who wishes to use a State’s own National and first official language.
There is a judicial decision to the same effect, R. v. Pooran (2011) ABPC 77. The citation is from the judgment of Brown J. in the Provincial Court of Alberta. Judge Brown had before her a case where applicants were charged with offences under the Traffic Safety Act of Alberta and they wanted their trial conducted in French. That included a French speaking prosecutor, a French speaking judge and entitlement to communicate with a court entirely through French. The prosecutor said that an interpreter would be sufficient to vindicate the defendants’ language rights.

Brown J. held:

“If litigants are entitled to use either English or French in oral representations before the courts, yet are not entitled to be understood except through an interpreter, their language rights are hollow indeed. Such a narrow interpretation of the right to use either English or French is illogical, akin to the sound of one hand clapping, and has been emphatically overruled by R. v. Beaulac.
The Crown Respondent’s assertion that the rights in the Languages Act are met by the provision of an interpreter amounts to a sloughing of the language rights of the litigant to the Charter legal right to due process, natural justice and a fair trial. As to the reference in the June 22, 1988, ministerial statement, to the provision of an interpreter if necessary, I infer from those words that the interpreter is to be provided for witnesses who do not speak the language, English or French, in which the trial is being conducted.”

(Emphasis added)

This passage emphasises that language rights are stand-alone rights and are not merely a function, or a corollary, of rights to due process, natural justice or a fair trial. I agree with the statement of Judge Brown and consider them self evident in any polity which has constituted itself as a bilingual state and which takes seriously the provisions of its own Constitution.
(3) Thirdly, the appellant puts his case in terms of his right to equality before the law pursuant to Article 40.3.3 of the Constitution. An English speaker, who speaks a language “recognised as a second official language” is accorded the right to defend himself in the second official language before a tribunal which will understand him directly. The appellant says that he is treated unequally before the law if the State cannot secure to him a trial before a tribunal which will understand him directly in the National and first official language which is also his own mother tongue. As we shall see, on the authority of the Law Reform Commission, an informal policy of language assessment is applied to ensure the competence of juries in the English language, in English speaking areas, the very thing which was found legally impossible when used to secure an Irish speaking jury, is both the Circuit Court and the High Court, in this very case. I repeat, the State has not commented on the Law Reform Commission’s information at all.
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The appellant advances his case in each of these separate ways individually and not in substitution of one for the other. But, fundamentally, it seems to me, this is a language rights case. He raises the question of whether the designation of Irish as the National and first official language is anything more than a mere shibboleth. He relies on the dictum of Kennedy C.J. that, by reason of its status under the Constitution:
“… the State is bound to do everything with its sphere of action… to establish and maintain [the Irish language] in its status as the National language and to recognise it for all official purposes as the National language”.

The State’s answer.
The State does not deny or seek to qualify or downgrade the status of the Irish language as the National and first official language. Nor does it adopt the view that the consequences of that recognition are trumped by the practical needs of the administration of justice. That view was quite recently advanced by the State in Ó Beoláin v. Fahy, cited above, as appears from p.352 of the Report:
“The most fundamental of the points raised by [Mr. Maurice Gaffney S.C.], counsel for the respondents, with great suavity, is this: which is more important, the right of the public that the law should be enforced or the right of the citizen to use Irish? It is necessary, he submits, that one of these rights should yield to the other.
I am firmly of the view that there is no such necessity that one of these rights should yield to the other. In a State in which Irish is the National and first official language, which is committed to a statutorily mandated policy of bilingualism, it is necessary that the laws should be issued and, where requisite, enforced in each of the official languages. In a case such as the present, where there is no question as to the competence and bona fide desire of the citizen to use the National language it is in my view extraordinary to attempt to set up an antithesis between his right to do so and the public right that the law should be enforced. Furthermore, there is no insuperable difficulty in enforcing the law through the medium of the National and first official language and whatever difficulty there may be in this regard arises directly from the inaction of the State over a period of decades in relation to the National language. If these difficulties fall to be addressed in a haphazard and ad hoc fashion, that is because the State has been unwilling to address them in any more coherent way.

The modern State necessarily imposes many onerous duties on citizens in relation to various aspects of life from tax compliance to planning law. Many of these duties are irksome, time consuming and expensive to comply with, but compliance is properly required. Equally, the State itself must comply with its obligations, particularly those enshrined in the Constitution and can no more be heard to complain that such compliance is irksome and onerous than can the individual citizen. In particular, the State cannot be heard to complain that its non-compliance over a period of decades have now rendered present compliance even more difficult.”

The State relies, fundamentally, on the provisions of the Juries Act, 1976. It says that the jury district for the purpose of the offences in question here is the County of Galway and not any part or sub-division of that county and that it cannot be confidently predicted that a jury randomly selected from the County as a whole will have any competence at all in Irish. It says that it is a fundamental right that a jury be randomly selected and thus be representative of the county as a whole. It says that this principle, enjoined by the statute itself, precludes the imposition of any test, such as a language test, for eligibility for jury service either in general or in a particular case.
In other words, the State says that it is impossible, in a jury district consisting of the County of Galway, to provide a jury every member of which will be able to understand Irish. It says further that it is legally impossible to impose a test to ensure competence in Irish on the part of potential jurors who are called as members of the jury panel.

This is the view which found favour in the High Court.
Decision of the High Court.
In the judgment of the High Court delivered the 14th May, 2010, the third Section is entitled “Decision of the Court”. It sets out Section 5 of the Juries Act, 1976 and goes on as follows:

“The Section poses no difficulty in interpretation. Unless the Minister by Order divides a county into two or more jury districts or limits a jury district to a part or parts of a county a jury district is synonymous with a county.
The power of the Minister for Justice to divide or limit is necessarily geographic.

This corresponds to the right of the citizens to be tried by each of the county within which offences are alleged to have been committed [sic].

A jury is selected from the Electoral Register of that jury district. The selection is made by random sampling. The selection cannot be restricted in any way, for example, by way of political affiliation, religious belief, cultural identity or otherwise. To do so would be to interpret the Section beyond its simple meaning.

It would follow that a selection by linguistic ability, albeit restricted to the official languages of the State, would not accord with the provisions of Section 5. It would, as well as other discriminants, create a bias and would be unworkable.

The system of justice requires juries to be drawn from a common pool of those entitled to vote. Restrictions such as the exclusion of non-ratepayers, which discriminated against women, as was seen in de Burca, moved the basis away from ratepayers to the electorate within the geographical district. The random selection is an integral part of the jury. It would be absurd to say that the basis for jury selection should be otherwise than a random selection of the jury.

It would, moreover, be beyond the power of the Court to interfere with the power of the Executive or the Minister in relation to the exercise of his discretion under s.5(2) of the Juries Act.

The Court, accordingly, refuses the relief sought.”

Some Statutes.
In light of the evidence in this case, the submissions of the parties, especially the Respondents, and the judgment of the High Court it is necessary now to set out certain statutory provisions:
S.5 of the Juries Act 1976:
“5.—(1) Subject to the provisions of this section, each county shall be a jury district and for this purpose the county boroughs of Dublin, Cork, Limerick and Waterford shall be deemed to form part of the counties of Dublin, Cork, Limerick and Waterford respectively.

(2) The Minister may by order divide a county into two or more jury districts or limit a jury district to a part or parts of a county.

(3) The Minister may by order revoke or vary an order under this section.

(4) Every issue that is triable with a jury shall be triable with a jury called from a panel of jurors drawn from the jury district in which the court is sitting.”

S.11 of the Juries Act 1976:

“11.—Each county registrar, using a procedure of random or other non-discriminatory selection, shall draw up a panel of jurors for each court from the register or registers delivered to him under section 10 (omitting persons whom he knows or believes not to be qualified as jurors).” [Emphasis supplied]

S.15(3) of the Juries Act 1976 provides:

“(3) Before the selection is begun the judge shall warn the jurors present that they must not serve if they are ineligible or disqualified and as to the penalty under section 36 for doing so; and he shall invite any person who knows that he is not qualified to serve or who is in doubt as to whether he is qualified or who may have an interest in or connection with the case or the parties to communicate the fact to the judge (either orally or otherwise as the judge may direct or authorise) if he is selected on the ballot.”

Schedule 1, Part I of the Juries Act 1976 contains a list of persons who are ineligible for jury service which includes “incapable persons”:
“Incapable persons
A person who because of insufficient capacity to read, deafness, or other permanent infirmity is unfit to serve on a jury.” (Emphasis added)

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S.8 of the Official Languages Act 2003:

“8.—(1) A person may use either of the official languages in, or in any pleading in or document issuing from, any court.

(2) Every court has, in any proceedings before it, the duty to ensure that any person appearing in or giving evidence before it may be heard in the official language of his or her choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.

(3) For the purposes of ensuring that no person is placed at a disadvantage as aforesaid, the court may cause such facilities to be made available, as it considers appropriate, for the simultaneous or consecutive interpretation of proceedings from one official language into the other.

(4) Where the State or a public body is a party to civil proceedings before a court—

(a) the State or the public body shall use in the proceedings, the official language chosen by the other party, and
(b) if two or more persons (other than the State or a public body) are party to the proceedings and they fail to choose or agree on the official language to be used in the proceedings, the State or, as appropriate, the public body shall use in the proceedings such official language as appears to it to be reasonable, having regard to the circumstances.

(5) Notwithstanding any other provision of this section, a person shall not be compelled to give evidence in a particular official language in any proceedings.
(6) In choosing to use a particular official language in any proceedings before a court, a person shall not be put by the court or a public body to any inconvenience or expense over and above that which would have been incurred had he or she chosen to use the other official language.” (Emphasis added)

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It was common case on the hearing of this appeal that the Minister has not made any such order as is envisaged by s.5(2) of the Juries Act, 1976 in respect of the County of Galway, although his power to do so is indisputable.
At the time these proceedings were instituted there were two jury districts in Galway, respectively Galway City and the County of Galway. However, by an order made pursuant to the Juries Act by the Minister for Justice on the 27th March, 2013 these districts were abolished. That measure, which came into operation on the 8th April, 2013 revives in relation to Galway the basic statutory provision that “each county shall be a jury district”. Accordingly, the effect of the ministerial order just referred to (SI 115 of 2013) is correctly stated in the explanatory note:

“The Jury Districts in the Counties of Cavan, Galway, Kerry, Kildare and Monaghan are abolished and each of those counties becomes a Jury District”.
It would be equally easy to make a ministerial order to the effect that the Gaeltacht electoral divisions set out above would constitute a jury district, but this has not been done.
Qualification of Jurors generally.
It will surprise many people to know that there is no express legal requirement in the Juries Act or in any other statute that a person called for jury service should be able to understand or speak the English language. But, where a case is tried in English, it is manifestly necessary that the Tribunal of Fact understand that language. We have it on the authority of the Law Reform Commission that this manifest necessity is secured in practice by “Court Service staff dealing with jurors and [by] County Registrars” who “play a role in identifying persons liable for jury service who are unable to communicate in the English language”. (See below)

What exactly this may mean is not further elaborated by the Law Reform Commission but it is obvious that it means that such persons, persons who are unable to communicate in English, are in some way filtered out and excluded from service on a jury. It is manifest that, according to the Law Reform Commission, some investigation is in practice made as to the ability of jurors to speak English, in a case tried in English so as to “identify” those “unable to communicate” in English. This is done without express statutory mandate. Whatever criticism one may make of this system it is manifest that if it is lawfully applied in cases tried in English, it could lawfully be applied to cases tried in Irish. In a Gaeltacht jury district, if there were one, there would be few such persons unable to undertake Irish, on the strength of the expert evidence which was unchallenged in this case.

The position as to the qualification of jurors generally is summarised in the Law Reform Commission in their consultation paper on jury service (LRC CP 61–2010). At pages 112-113, jury literacy is discussed as follows:

“4.76 It is necessary for jurors to comprehend the evidence presented in court and to be able to communicate with other jurors during the deliberation process. There is no express requirement in the Juries Act 1976 that requires that a juror be fluent in the English language or that they are able to write. However, there is a requirement that they are able to read. The Juries Act 1976 as amended by the Civil Law (Miscellaneous Provisions) Act 2008 provides that persons who have “incapacity to read… such that it is not practicable for them to perform the duties of a juror” are ineligible for jury service. Candidate jurors’ literacy is not tested but there is an obligation under the Juries Act 1976 to disclose an inability to read. While there is no express English language requirement in order to be eligible for jury service, Court Service staff dealing with jurors and Court Registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language.” (Emphasis added)
It is also clear that if the provisions of s.8(4) of the Official Languages Act 2003 applied to the criminal prosecution in which Mr. Ó Maicín is the defendant, then the Director of Public Prosecutions would be obliged to use in that case the official language chosen by Mr. Ó Maicín, which is Irish, and Mr. Ó Maicín would be entitled not to be put to any inconvenience or expense over and above that which would have been incurred had he chosen to use English.
But s.8(4) of the 2003 Act applies only “where the State or a public body is a party to civil proceedings before a court…”. (Emphasis added)

The appellant has put before the Court very impressive material from other jurisdictions which are committed to bilingualism, most notably material from Canada. From these it is quite clear that it is possible, in a State sharing the same fundamental attitudes to the administration of criminal justice as prevail here, and which shares in particular a commitment to jury trial, to ensure that jurors competent to conduct a trial in each of the languages legally or constitutionally available to citizens can be provided.

But, says the Irish State, that is not possible here having regard to the lack of statutory provision for it and, in particular, to the need to select a panel of jurors “using a procedure of random or other non-discriminatory selection” from the register of electors in the jury district. The State do not attempt to explain how a competent knowledge of the English language is ensured amongst jurors. But the Law Reform Commission has given the game away in that regard.

In saying this, I mean that the Law Reform Commission’s discussion documents and report have made it clear that, even in a generally English speaking area of the country it is necessary for court staff to intervene for the purpose of:

“Identifying persons summoned for jury service who are unable to communicate in the English language”.
This is done informally or, to use the word preferred by the Law Reform Commission “casually”. When the Law Reform Commission came to make its recommendations it recommended a continuation of this “casual” system.
In drawing attention to this practice, I do not mean in any way to suggest that it is an unlawful or discredible practice. On the contrary, for reasons set out towards the start of this judgment, I consider it to be absolutely essential to ensure that the jury which is to try the issue of guilt or innocence be capable of understanding the language of the case. The “language of the case” means either of the languages recognised as official languages, Irish or English, whichever the case is to be tried in. I would draw attention to a number of aspects of the provisions of the Juries Act, set out above.

(i) The requirement, contained in s.11 of the Juries Act, 1976 of “a procedure of random or other non-discriminatory selection” applies, not to the selection of a juror for the trial of a case, but to the selection of the panel of jurors from which the jury to try the case will be selected.
(ii) The basis on which a jury who is called from the panel to serve in a particular case may be excluded from doing so is on the basis of being disqualified or ineligible. Schedule I, Part I of the Act of 1976 contains a list of the persons who are ineligible, which includes persons who are “incapable”. Due, no doubt, to an error in draftmanship, a person may be incapable “because of insufficient capacity to read”. It is very remarkable that nothing is expressed in the Act about insufficient capacity to speak or understand the language of the case which is more obviously an essential qualification for the work of a juror.

But the basis of incapacity, which starts with a mention of insufficient capacity to read, continues by referring to:
“Deafness, or other permanent infirmity, is unfit to serve on a jury”.
In my view, it is of the essence of the right, not merely to have a jury seated in the courtroom when the trial takes place, but of the right to trial by jury, that the jury be able to understand the evidence in the language of the case.
I therefore think that the County Registrars and other court staff who presently behave as described in the Law Reform Commission Report, are doing so lawfully and in the interest of trial by jury as guaranteed in the Constitution.

In my view, it is essential that this Court on the hearing of the present appeal come to a firm conclusion on this question. If the present practice is unlawful then the Court should say so, notwithstanding that the consequence may be to invalidate some indefinite number of recently held trials. But if the practice (as I believe) is lawful, then there is no reason that cannot be applied to secure a jury capable of understanding the evidence in whichever of the official languages is the language of the case. In that latter event, it follows that the reasoning of the High Court in refusing relief to the appellant, cannot stand.

It must, of course, be said that it is a truly remarkable omission in the Juries Act 1976 to fail to specify that a juror called to serve in a particular case must be able to understand the language of that case. But that is an omission by the legislature, and there is nothing the Court can do about that.
A Gaeltacht Jury District?
It is true, of course, that the Minister might by order divide the County of Galway into two or more jury districts and might limit a jury district to a part or parts of the County, for example the Gaeltacht parts of County Galway. But the Minister has not done this and, say the State, the Court should not compel him to do so.

The State have not denied that, if there were a jury district consisting of, or including, the large Gaeltacht area already delineated by statutory instrument, it would be readily possible to find in such area a jury capable of hearing the case in Irish. There was evidence to this effect in this case. Any difficulties in doing so could be surmounted by exactly the steps used to ensure a jury competent in English, where English is the language of the case.

The legislation on juries, the relevant parts of which are mentioned above, are remarkably silent on the question of the qualifications of jurors. There is, for example, no express legal provision that a juror sworn for a trial in, say, Dublin, should be able to speak English. There is provision that a person may be ineligible for jury service “because of insufficient capacity to read” but it is apparently sufficient to remove oneself from that category that one is able to read in any particular language: no particular language is specified. In today’s conditions, it is certainly not improbable that a person whose native language is not English may be summoned for jury service in Dublin. About this contingency, and the question of whether such person has enough English to follow the proceedings, the Law Reform Commission can say only:

“While there is no express English language requirement in order to be eligible for jury service, Courts Service staff dealing with jurors, and court registrars, play a role in identifying persons summonsed for jury service who are unable to communicate in the English language.
If such a person is called for jury service, the terms of s.15(3) of the Juries Act 1976 mean that the onus is upon that person himself to declare that he is ineligible.”

In fact, as clearly emerges from the statutory provisions quoted above, and from the Law Reform Commission’s paper, “… there is no express English language requirement in order to be eligible for jury service”.
The practical difficulty that this remarkable omission causes is remedied quite informally: “Court Service staff dealing with jurors and Court Registrars play a role in identifying persons summoned for jury service who are unable to communicate in the English language”.

It is quite clear that this is done by excluding such persons from jury service because they cannot communicate in English. This practice which is nowhere expressly authorised in law, but which has been revealed by the Law Reform Commission, gives the lie to any suggestion that all jurors are in fact selected on a totally random basis. It is clear from the source quoted that persons who cannot communicate in English are “identified”. It would of course be much more honest and transparent if there were a legal basis for this process but the existence of the practice renders it quite impossible for the State to say that one cannot select an Irish speaking jury because that would interfere with the random nature of the process.

The somewhat ad hoc system which, in the view of the Law Reform Commission, ensures that jurors in Dublin are able to speak English could plainly be used to ensure that jurors selected from a jury district comprising a large Gaeltacht are able to speak Irish. If such ad hoc arrangements are not objectionable in the Galltacht, I cannot see that they would be unacceptable in the Gaeltacht. And if they are objectionable in the Gaeltacht, they are to the same extant objectionable in the Galltacht. In that event statutory reform is urgently needed.

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The State’s principal Authority.
The State Respondents rely very heavily on the case of MacCártaigh v. Eire [1999] IR 186. The plaintiff in that case was a native Dublin man charged with theft offences allegedly committed in the Dublin Metropolitan District. He was an Irish speaker. The headline offence was the alleged theft of chocolates and sweets worth £11,252.50. He, too, wanted a trial before a jury who could understand him in Irish without the intervention of an interpreter. He was refused relief on the grounds that “if every member of the jury had to be able to understand legal proceedings in Irish without the help of an interpreter, that would exclude the majority of the People of Ireland”. (Page 199).
That, indeed, is the entire ratio of MacCártaigh, both in the High Court and in the Supreme Court.

The State defendants say that this case is directly in point in the present litigation. The plaintiff/appellant says that it is clearly and obviously distinguishable and indeed the undisputed evidence of Dr. Ó Giollagáin is directed to that point.

The judgment of this Court in MacCártaigh was delivered in Irish by Hamilton C.J., and it upheld the Order of the High Court. At p.196 Hamilton C.J. said, again in my translation:

“According to O’Hanlon J., if the plaintiff’s claim were acceded to, the majority of the People of Ireland would not be able to serve on the jury in a case like this; and that would be contrary to the sense in which the Supreme Court interpreted Article 38.5 of the Constitution in the case of de Búrca v. Attorney General [1976] IR 38”.
O’Hanlon J., at p.192 of the Report had said, again in my translation, in the High Court:
“In regard to the State as a whole, including Gaeltacht and Galltacht (including City of Dublin in the figures, of course) 29.4% of the community above the age of three years said (or it was said on their behalf) that they were able to speak Irish, but this figure was below 25% households in the Dublin district. There is no account at all of how fluent [in Irish] any of the People who answered the question were, with regard to their knowledge and capacity to speak Irish, and everyone knows (“Tá a fhios ag an saol”) that many of the community would not like to admit that they had entirely lost their Irish, because they wish to be loyal to the language and to the cause of the language.
That means, if one were setting about putting together a jury list which would have no-one on it except people who had a good knowledge of the spoken language, that it would be necessary to exclude 75% at least of the community in the City of Dublin (“D’fhaigáil ar leath-taoibh”, lit. to leave on one side from the start). And I am of the opinion that the figure would be closer to 90% or more if one were concerned with people who would be able to address complicated questions of criminal law and to understand them”. (Emphasis added)

Both the High Court and the Supreme Court found this objectionable in a jury panel which was required to constitute “a fair cross-section” of the community “to ensure that the jury’s verdict will have the quality of a community decision”. These phrases are derived from the judgment of Henchy J. in The State (Byrne) v. Frawley [1978] IR 326 and de Búrca v. The Attorney General cited above.
The figures quoted above are taken from the 1986 Census of Population. The most dramatic figure, that on the basis of which it is possible to say that a requirement for a jury panel composed of people who would understand Irish would exclude 90% of the population, relates expressly and specifically to the Dublin Metropolitan District only. It was so described by O’Hanlon J. in the passage quoted above.

It is to those figures, and the conclusion based upon them, that the uncontradicted evidence of Dr. Ó Giollagáin in the present case was directed.

As the Statutes quoted in this judgment makes clear, there is no question, in any circumstances, of a jury panel being derived from the People of Ireland as a whole. On the contrary, the jury for any particular case is selected from different and smaller “jury districts” which, unless the Minister specifies otherwise, are the administrative counties. In the present case, there is no evidence on either side as to the linguistic competence, or the probable linguistic competence, of a jury selected from the County of Galway as a whole. There is ample uncontradicted evidence that, if there were a jury district consisting of the Gaeltacht areas of West Galway, a very high percentage of a jury panel taken from those districts would be able to speak Irish and to follow legal proceedings in that language. Such a district would also, according to the uncontradicted evidence, provide a reasonable cross-section of the community including those engaged in professional and other skilled occupations, officials, business people, self employed people, students and the unemployed, as well as farmers and other agricultural workers.
Power to require a Gaeltacht Jury District.
Having regard to the terms of the Juries Act, 1976 requiring the composition of jury panels, not from the population as a whole, but from the population of individual jury districts, the ratio and the statistics on the basis of which MacCártaigh was refused relief simply have no bearing on the present case. No figures whatever have been adduced as to the linguistic competence of a representative cross-section of a population of the County of Galway and there has been ample evidence that a representative cross-section of a jury panel drawn from the Gaeltacht districts would be able to follow the legal proceedings in Irish.

The plaintiff/appellant has, however, the difficulty of establishing that it is within the jurisdiction of the Court to compel the Minister to create a jury district of the sort he requires or that, even if it is, the Court should exercise such jurisdiction. But these are different and quite other issues, which will be considered in their place below. For the present, it is sufficient to note that the ratio of MacCártaigh, concerned as it is with the availability of Irish speaking jurors in the Dublin Metropolitan District or, obiter, in the country as a whole, is quite different to that pertaining to a claim whose facts and legal contentions alike are restricted to the actual circumstances of the plaintiff here, that is of a gaelgeoir, a native speaker, charged with an offence against another Gaeltacht resident, which offence is said to have taken place within the Gaeltacht.

There can be no dispute with the various cases cited, holding a jury panel should be representative of the community. The community, or, in Irish, Pobal, in question here is a Gaeltacht community which is part of the County of Galway as opposed to a broader area, such as the people of Ireland as a whole, or one which is simply different, such as the community of the Dublin Metropolitan District. The Circuit Court, where this case will be tried, is a court of “local”, and not National, jurisdiction.

The most fundamental problem, the first of two such problems, faced by the appellant is that the Minister has not, of course, designated a jury district comprising of, or comprising largely of, the Gaeltacht. He could do so if he wanted to, but has not done so. It would seem necessary to do so, as a practical matter, if a reliable source of Irish speaking jurors is to be found.

The appellant seeks in these proceedings, amongst other reliefs:

“An order directing the Minister to take all necessary and/or convenient steps to ensure and facilitate a trial before a bilingual jury for the applicant, including specifying a new jury area in County Galway pursuant to s.5 of the Juries Act 1976 and/or creating a new jury summons pursuant to s.12 of that Act.”
It will be recalled that s.5(1) of the Act of 1976 established a position whereby, in the absence of a Ministerial Order, each county shall be a jury district. Section 5(2) then provides as follows:
“The Minister may by order divide a county into two or more jury districts or limit a jury district to a part or parts of a county.”
In The State (Sheehan) v. The Government of Ireland [1987] IR 550, Mr. Sheehan was suing Cork Corporation for damages due to a fall on the public footpath. The Corporation, as Road Authority, would only be liable to him in those proceedings if the Corporation could be shown to have been guilty of misfeasance with regard to the construction or maintenance of the footpath and would not be liable if guilty only of non-feasance i.e. a failure or omission to repair the footpath.
That state of the law was changed by s.60 of the Civil Liability Act, 1961, providing that “a Road Authority shall be liable for damage caused as a result of their failure to maintain adequately a public road”, i.e. for non-feasance.

But another provision of s.60 provided that the Section “shall come into operation on such day, not earlier than the 1st day of April, 1967 as may be fixed therefore by order made by the Government.”

No order was ever made by the Government bringing s.60 into operation and Mr. Sheehan sought relief by way of mandamus requiring the Government to make an order fixing the date for the coming into operation of the Section. He was successful in the High Court (Costello J.) but that decision was reversed in this Court.

Henchy J., with whom a majority of the Court agreed said at p.551:

“The essence of [Mr. Sheehan’s] case is that the discretion given to the Government by s.60(7) requires to be exercised reasonably, that is to say within a reasonable time after the 1st April 1967, and that the default on the part of the Government leaves them open to mandamus. On the other hand, the case for the Government is that s.60(7) merely allows them to bring the Section into operation whenever they choose, so long it is after the 1st April 1967.
I am satisfied that s.60(7) is merely enabling. The usage of ‘shall’ and ‘may’ both in the subsection and in the Section as a whole point to the conclusion that the radical law reform embodied in the Section was intended not to come into effect before the 1st April 1967 and thereafter on such day as may be fixed by an order made by the Government. Not, be it noted, on such day as shall be fixed by the Government. Limiting words such as ‘as soon as may be’ or ‘as soon as convenient’, which are to be found in comparable statutory provisions are markedly absent. If the true reading of s.60(7) were to the effect that the Government were bound to bring the Section into operation, it would of course be unconstitutional for the Government to achieve by their prolonged inactivity the virtual repeal of the Section.”

The Juries Act does not contain, like s.60 of the Civil Liability Act, a proposal for the reform of the law of tort, but makes provision for practical arrangements in relation to an important constitutional matter, the right to trial by jury. It is also bound to reflect, and to facilitate, other constitutional rights, such as those reflected in Article 8.
On the hearing of this appeal Mr. Lúan Ó Braonain S.C. for the State said that the fundamental difficulty in complying with a plaintiff’s wish to address the Tribunal of Fact directly in his native language and to be understood directly by them in doing so was that it would be impossible to find a competent jury. This is not so. On the uncontradicted evidence in this case, it would be quite possible to find such a jury but the Executive has refrained from taking the simple and virtually cost free step that would allow the provision of an Irish speaking jury, representative of the pobal or community of Connemara.

The Executive is not here confronted with the sort of difficulty or sheer impossibility which prevented the plaintiff being accorded relief in MacCártaigh v. Eire, above. There, where a Dublin based defendant was charged with offences against property committed in Dublin, Hamilton C.J. cited with approval a passage from the Vanderbilt Law Review which I have quoted above. He nonetheless dismissed the plaintiff’s claim for an Irish speaking jury. The judgment was delivered entirely in Irish so that the citation which follows is my translation of what was said by Hamilton C.J., at p.198 of the Report. After citing the passage from the Vanderbilt Law Review already referred to he continued:

“That is true enough but it must be said that, in Ireland at present, there is no better solution available. If it were necessary for each member of the jury to be able to understand the legal proceedings in Irish, without the assistance of translation, that would sideline (ar leathaobh) most of the People of Ireland. That in itself would contravene Article 38.5 of the Constitution as the Supreme Court explained it in de Búrca v. Attorney General [1976] IR 38 and The State (Byrne) v. Frawley [1978] IR 326.
For that reason the Court will dismiss the appeal”.

In the present case there is a ready solution to the problem of allowing the defendant to stand his trial, and to make a defence, before a jury who will understand it directly. The Executive has not chosen to make that readily available provision available in practice, but that is not the same as saying that it is impossible to do so. Indeed, quite manifestly it is not impossible: it has simply not been done.
The Supreme Court judgment in Sheehan v. Ireland “seems unduly timid in the circumstances…” according to the learned editors of J.M. Kelly: The Irish Constitution (4th Edition, p.380). But it is not necessary for present purposes to enter into the merits or otherwise of the case since I believe that it is plainly distinguishable from the circumstances of the present case, which concern the measures to be taken by the legislature in the discharge of a constitutional duty. This duty is that expressed by Kennedy C.J., in language already quoted in this judgment, as follows:

“… the State is bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language”.
And a little later:
“ None of the organs of the State legislative executive or judicial may derogate from the pre-eminent status of the Irish language and the National language without offending against the constitutional provision…”
The fact that a constitutional duty (rather than a mere discretionary item of law reform) is in question was what enabled Kearns P. to grant relief against the Government in the circumstances of Doherty v. Government of Ireland and Anor. [2011] 2 IR 222. This well known case concerned the failure or omission for the Government to move the writ for a by-election to fill a casual vacancy in the representation for the three seat constituency of Donegal Southwest. The vacancy had occurred on the 6th June 2009, so that the delay in moving the writ was the longest which had occurred in the history of the State.
Kearns P. first held, as summarised at para. 1 of the headnote:

“That decisions or omissions which affected citizens’ rights under the Constitution were prima facie justiciable”. (Emphasis added)
The State contended that the question of when the writ was to be moved was a matter wholly and solely within the discretion of the Government. To grant relief would, it was submitted by Mr. Maurice Collins S.C., amount to “tearing asunder” the provisions of the Constitution. But Kearns P. held, at p.247 of the Report:
“Far from the Court ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application, it is the ongoing failure to move the writ for this by-elections since June, 2009 which offends the terms and spirit of the Constitution and its framework for democratic representation”.
I have no hesitation in holding that the failure to take the necessary steps to ensure that the plaintiff can be tried, on the criminal charges which the State have brought against him, by a jury which will understand him directly in the National and first official Language “offends the terms and spirit of the Constitution”, and the status and the rights which it accords to the National and first official Language and to citizens who wish to speak it.
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I am impressed with the strength and coherency of the appellant’s claim to be enabled to conduct his defence, before a tribunal which will understand him directly, in the National and first official language. I do not believe that there is any other country in the world in which a citizen would not be entitled to conduct his business before a court in the National and first official language, and to be understood directly by such court in that language. I have very carefully considered whether it is not incumbent on the State, by reason of its being “bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language and to recognise it for all official purposes as the National language”, to quote Chief Justice Kennedy, to take whatever steps are necessary to ensure that the defendant, a Gaelgeoir living in the Gaeltacht and charged with an offence said to have been committed there against another Gaelgeoir, may address the Court which is to try him in a language which is at the same time his own language and the National and first official language of the State, before a tribunal that can understand him directly.
Those steps involve merely the making of a statutory instrument of the kind indicated at page 33 and 34 above.

I have considered whether the Court should refrain from ordering this step to be taken on the basis of the provisions of the Official Languages Act 2003 and in particular those set out above.

It appears to me that s.8(4) of that Act actually secures to a party who is the litigious opponent of the State or a public body precisely the right which the appellant seeks here – the right to dictate the language in which the proceedings are conducted and adjudicated.

I say “adjudicated” because s.44 of the Courts of Justice Act, 1924 provides that:

“So far as may be practicable having regard to all relevant circumstances, the Circuit Judge assigned to any circuit which includes a district where the Irish language is in general use shall possess such a knowledge of the Irish language as would enable him to dispense with the assistance of an interpreter when evidence is given in that language.”
It seems likely that the judge assigned to preside at the hearing of this criminal prosecution on the Western Circuit, in a county containing the largest Gaeltacht in the country, would be capable of dispensing with the services of an interpreter when evidence is given in Irish, as the Statute envisages.
But the relevant provision of the Act of 2003 is drafted with regard to civil proceedings only. That is, it is drafted so as to exclude criminal proceedings of any kind, whether prosecuted summarily, or on indictment.

It might be thought that this is not a rational distinction. Certainly it is the case that if a person were engaged in civil proceedings against the State for assault by an official, he would be entitled to trial by jury of that cause and he would be entitled, by reason of the 2003 Act, to have the case conducted in Irish on both sides. It is not obvious to me why a distinction is made between the trial of a civil action for assault and the trial of a criminal prosecution for assault.

The state of law and practice whereby the State cannot or will not provide for the trial of the appellant a tribunal which will understand him directly as he makes his defence to a serious criminal charge which the State has brought against him in one of its own courts is in my view a breach of the principle, established in Ó Foghludha v. McLean, according to which:

“None of the organs of the State, legislative, executive or judicial may derogate from the pre-eminent status of the Irish language as the National language of the State without offending against the constitutional provision of Article 4”.
The failure to provide a tribunal such as is mentioned above for the trial of this citizen who wishes to defend himself in the National and first official language is a breach of the principle, also established in that case:
“… that the State is bound to do everything within its sphere of action… to establish and maintain [the Irish language] in its status as the National language and to recognise it for all official purposes as the National language”.
This failure to provide such a tribunal offends the principle, expressed in Ó Beoláin v. Fahy, in a passage quoted above at:
“… the Irish language which is the National language… cannot … be excluded from any part of the public discourse of the nation or the official business of the State or any its emanations. Nor can it be treated less favourably in these contexts than the second official language.”
Section 8(4) of the Official Languages Act, 2003 confers on a litigant in civil proceedings the right to require that the State party shall use the official language of its opponent’s choice. This does not preclude the plaintiff from seeking the right he claims in respect of criminal proceedings, to which the Section does not apply.
To order the creation of a jury district composing the area constituted by the Gaeltacht would permit a trial in Irish, directly understood, in the particular case of the applicant. It would not, of course, remove linguistic inequalities more generally, for instance in the context of a person such as Mr. McCártaigh whose case is cited above. But it is beyond the power of the Court to amend the law generally, though we can grant relief in the particular case of an individual whose legal or constitutional rights have been denied or disregarded.

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As I understand it, the State does not dispute that a litigant is entitled to have provided to him in Irish the Rules of the Court wherein he is to be tried, and that he has in fact been provided with such Rules. In those circumstances I do not consider that any relief is necessary in relation to the appellant’s claims in these regards.
Conclusion.
I would allow the appeal. But in the circumstances of this case, and in view of the remarks of Kearns P. in Doherty v. Ireland, cited above and the cases to which he refers, I would at the present time grant no relief other than a declaration.

I would grant that declaration substantially in the terms of the second relief claimed by the applicant in his statement grounding the application for judicial review and declare:

“That the appellant is entitled to be tried before a jury who will understand evidence given in Irish directly and without the assistance of an interpreter.”

Appendix I
Appendix II
Appendix III
Appendix IV
Appendix V