{"id":4968,"date":"2018-12-30T19:52:13","date_gmt":"2018-12-30T19:52:13","guid":{"rendered":"http:\/\/legalblog.ie\/constitution-overview\/"},"modified":"2022-09-25T19:25:02","modified_gmt":"2022-09-25T19:25:02","slug":"constitution-overview","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/constitution-overview\/","title":{"rendered":"Constitutionality"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Challenging_Constitutionality\" title=\"Challenging Constitutionality\">Challenging Constitutionality<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Interest_Standing\" title=\"Interest \/ Standing\">Interest \/ Standing<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Immunity_from_Constitution\" title=\"Immunity from Constitution\">Immunity from Constitution<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Interpretation_of_the_Constitution_I\" title=\"Interpretation of the Constitution I\">Interpretation of the Constitution I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Interpretation_of_the_Constitution_II\" title=\"Interpretation of the Constitution II\">Interpretation of the Constitution II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Presumption_of_Constitutionality\" title=\"Presumption of Constitutionality\">Presumption of Constitutionality<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/constitution-overview\/#Effect_of_Invalidity\" title=\"Effect of Invalidity\">Effect of Invalidity<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Challenging_Constitutionality\"><\/span>Challenging Constitutionality<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The constitutionality of laws can be challenged by private parties in proceedings.\u00a0 There are two slightly different procedures which apply depending on whether the laws are made prior to or after 1938. \u00a0In the case of post-1938 legislation, the Supreme Court must deliver a single judgment.<\/p>\n<p>There is a special procedure by which the President can refer legislation to the Supreme Court where he or she believes it is invalid.\u00a0 This has happened on a number of occasions with mixed results.\u00a0 The President has an absolute discretion to refer a Bill.\u00a0 He must first consult with the Council of State which is a body made up of major officeholders.<\/p>\n<p>The reference is direct to the Supreme Court and Counsel are appointed representing the two opposing arguments.\u00a0 The Attorney General nominates Counsel supporting the Bill and the Court appoints Counsel against it.<\/p>\n<p>If the Bill is found unconstitutional it has no effect.\u00a0 A disadvantage and reason why such references are relatively rare is that the Bill can never be challenged after that point.\u00a0 Where part of the Bill is found unconstitutional the whole Bill falls.\u00a0 Part of a Bill may be referred. \u00a0However, if it is found unconstitutional the whole Bill falls.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Interest_Standing\"><\/span>Interest \/ Standing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Generally, only persons having an actual interest in the outcome of a case or personally affected by the legislation may challenge it in a constitutional case.\u00a0 The rights of third parties cannot be relied on. \u00a0The arguments must be made by reference to the actual position of the party making the challenge.<\/p>\n<p>Exceptionally and out of necessity the Courts will relax the requirement that the person must be directly and actually affected by the case.\u00a0 If this were not allowed certain types of case may never be subject to challenge.<\/p>\n<p>A bona fide interest group may be allowed to challenge the general rights.\u00a0 Exceptionally a person may take a case if it affects the rights and interests of the public as a whole and no one individually in a position to be affected any more than another.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Immunity_from_Constitution\"><\/span>Immunity from Constitution<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Certain provisions cannot be challenged at all.\u00a0 Emergency legislation made under a declaration of emergency is immune from challenge.\u00a0 An emergency can only be declared in times of war, armed rebellion or other conflicts.\u00a0 This may include situations in which the State is not directly participating.<\/p>\n<p>Two successive emergencies existed from September 1939 to 1995. \u00a0The first emergency ran until 1976.\u00a0 This was continued in view of the troubles in Northern Ireland.<\/p>\n<p>Only legislation passed specifically enacting the emergency is immune. \u00a0For example, despite the long period of emergency that technically existed until 1995.<\/p>\n<p>Legislation mandated by the membership of the European Union is exempt from constitutional scrutiny.\u00a0 This arises from special legislation\u00a0enacted when Ireland joined the EU together with several subsequent referenda.<\/p>\n<p>The Courts decided in 1986 that any significant changes to the original EU treaties themselves required a further amendment.\u00a0 The consequence was that most of the major treaties amending the European Union Constitution required referenda of the people.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Interpretation_of_the_Constitution_I\"><\/span>Interpretation of the Constitution I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In common with the 1922 Constitution, the 1937 Constitution gives the High Court and Supreme Court on appeal power to find legislation made by the Oireachtas invalid on the basis that it is unconstitutional.\u00a0\u00a0There have been numerous cases where laws have been found unconstitutional and have been struck down by the Court. This means that the legislation is deemed void and never to have been effective.\u00a0 This can have the most profound legal consequences.<\/p>\n<p>Precedent (see our separate section on the common law) is less significant in the context of constitutional law.\u00a0 The interpretation of the Constitution has changed over time in accordance with prevailing notions of prudence justice and charity. \u00a0The Supreme Court has decided that in appropriate cases it may overrule its own prior decisions on constitutional matters.<\/p>\n<p>As with legislation, there are a number of different methods which the Courts use to interpret the Constitution.\u00a0 A literal interpretation involves looking at the plain meaning.\u00a0 This is often the approach but other approaches are more common. \u00a0A broad or purposive interpretation looks at the Constitution in the context of its overall purpose and aims.\u00a0 In this case, it is the spirit rather than the letter that prevails.\u00a0 The broad sentiment is more important than the literal words.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Interpretation_of_the_Constitution_II\"><\/span>Interpretation of the Constitution II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Another approach seeks to interpret the Constitution in a harmonious way so that the parts complemented each other rather than being looked at as a whole.\u00a0 A hierarchical interpretation ranks rights according to their relative importance.<\/p>\n<p>In some cases more important and fundamental rights such as the right to life take precedence over less important rights.\u00a0 For example, in one\u00a0case it was justified to detain a person beyond the legal time where the Garda acted with a view to saving a third party\u2019s life.\u00a0 Sometimes the historical approach is taken so that the meaning of the provisions at the time the Constitution was adopted is looked at in\u00a0order to make sense of its provisions.<\/p>\n<p>In some cases, the Courts interpret natural in rights which are presumed to be antecedent to man-made law.\u00a0 These are often expressed in terms of universal human rights.\u00a0 These have been justified by reference to the Christian content of the Constitution which is controversial.\u00a0 In this sense rights are said to be acknowledged.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Presumption_of_Constitutionality\"><\/span>Presumption of Constitutionality<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is a presumption that laws made after the Constitution commenced are unconstitutional.\u00a0 This means the burden is on the person alleging that they are unconstitutional to show this.<\/p>\n<p>The presumption arises from the respect the Courts have for the Oireachtas being the other constitutional entity or body or institution. \u00a0The presumption of constitutionality does not apply to pre-1937 laws.<\/p>\n<p>It is presumed that cases will be interpreted so that they are unconstitutional. \u00a0Therefore broad literal meanings may be narrowed so that they are interpreted in light of the fundamental constitutional rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Effect_of_Invalidity\"><\/span>Effect of Invalidity<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>If any law is found unconstitutional it is null and void.\u00a0 Strictly where, for example, persons have been imprisoned it is deemed retrospectively unlawful.<\/p>\n<p>In some cases, the finding of constitutionality can have dramatic retrospective effect.\u00a0 This showed in relation to the unlawful nursing home cases.<\/p>\n<p>However, where the discriminatory treatment of married couples in the tax code was struck down with retrospective effect the Courts decided that the State did not have to repay married couples who had been overtaxed. \u00a0It took the view that the State had spent the money in good faith and could not be ordered to repay.\u00a0 Only those who instituted legal proceedings were entitled to repayment of the surplus money.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4968\" data-postid=\"4968\" class=\"themify_builder_content themify_builder_content-4968 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Challenging Constitutionality The constitutionality of laws can be challenged by private parties in proceedings.\u00a0 There are two slightly different procedures which apply depending on whether the laws are made prior to or after 1938. \u00a0In the case of post-1938 legislation, the Supreme Court must deliver a single judgment. There is a special procedure by which [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[38],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4968"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4968"}],"version-history":[{"count":1,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4968\/revisions"}],"predecessor-version":[{"id":18774,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4968\/revisions\/18774"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4968"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4968"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4968"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}