DPP v Banks
|Mr Justice Peter Charleton,Mr. Justice Gerard Hogan,Mr. Justice Brian Murray
|31 March 2023
| IESC 7
|Supreme Court appeal number: S:AP:IE:2022:000006  IEHC 716
 IESC 7
Supreme Court appeal number: S:AP:IE:2022:000006
High Court (Divisional Court) record number 2019/893 JR
An Chúirt Uachtarach
The Supreme Court
Judgment of Mr Justice Peter Charleton delivered on Friday 31 March 2023
The purpose of this judgment is to indicate why, according to the analysis which follows, it is not appropriate to make the far-reaching order which the majority of the Court proposes. Instead, it is here posited that upon the passing by the People of the Seventh Amendment of the Constitution on 3 August 1979, a serious defect in the operation of our constitutional architecture occurred through the complete failure of the Government and the Oireachtas to respond to that referendum by considering what the will of the people had positively authorised in amending our fundamental law. In negation of fundamental democracy, in the aftermath of the positive vote to amend the Constitution, there was neither any parliamentary debate as to what the people had willed nor the sponsoring before either the Dáil or Seanad of any proposal as to how to respond to the vote of the people. On the analysis here offered, no judgment indicating any consequent obligation to legislate is possible on that referendum due to the wording of the amendment: but a fundamental political duty to consider and to take seriously the expression of the will of the people has arisen. Regrettably, a basic democratic obligation has been ignored. A declaration to that effect should issue: but only that declaration.
Essentially, a textual analysis of the Constitution, clearer in the Irish language structure, demonstrates that the actual amendment passed by the People by way of referendum is not capable of demanding of the Oireachtas that the representation of the graduates through the election of senators should be changed either in any particular manner or at all. That approach, however, does not detract from the obligation on the Oireachtas to consider and debate potential change to the electoral system consequent upon the people voting that the Constitution's text would be amended. As to what change, if any, should be made, any such decision was placed by the constitutional wording squarely within the sphere of political action.
Where this judgment differs from the majority is in analysing the text of the Constitution itself. Focus upon principles of statutory interpretation are inappropriate. The reason being that legislation reacts to and alters existing law, be it common law or a prior statute, or addresses issues that press for a political response that are unforeseen, and thus not covered, by prior law. Originating in crisis, political expediency, considered analysis as to policy or in response to gaps which emerge through litigation or in consequence of analysis, the reactive nature of legislation generates legal rules in utterly different contexts.
Consequently, rules have evolved whereby order in terms of analysis may be brought to bear on disparate laws emerging in situations often at odds with one another by way of the cannons of construction. Be those rules that of plain meaning, of presuming against unintended consequences, of bypassing absurdity or of contextual analysis, these are tools of analysis applicable to the chaotic emergence of laws through statutes separated in time, in motivation and in origin. Statutes require cannons of construction, whereby, as in this instance, and according to the majority, ‘may’ can be interpreted imperatively as ‘must’. But, those are rules that emerged in utterly different circumstances and are not applicable to the carefully thought-through and considered text of a fundamental law.
In complete contrast to how statutes are formulated and now laws are subject to amendment by the Oireachtas, the Constitution of 1937 was a closely considered and self-contained text: one where not only every word is given meaning but where the use of words is predicated on the choice of key phrases, each of which drives a conclusion to proper interpretation, and each being based on aspiration, obligation, guarantee, qualification or the granting of political choice as to action. It is precisely the latter which this amendment mandated: and no more. To interpret the choice of action as anything beyond a mandate by the people to the political power to consider and make a choice, including declining to make a choice so as to leave matters as they were pre-referendum, endangers not only a harmonious interpretation of the Constitution but also potentially trenches on the separation of powers.
The background facts and the interaction of the text of the referendum proposal with the original constitutional provisions are set out in detail in the judgment of Murray J. What follows suffices for the purposes of this partial dissent.
Bills to amend the Constitution follow a distinct path. These, under Article 46 of the Constitution, are initiated only in Dáil Éireann but are required to be passed, or deemed to be passed, by both the Dáil and Seanad, though they cannot be signed into law unless a majority of the People in referendum accept the proposal under Article 47. Hence, the Seventh Amendment of the Constitution (Election of Members of Seanad Éireann by Institutions of Higher Education) Bill, a government proposal sponsored by the Minister for Education, was initiated and passed by both Houses of the Oireachtas, received “a majority of the votes cast at such Referendum” on 3 August 1979, as required by Article 47, and was signed into law by the President on that day. The Constitution was thereby amended.
The Bill contains the exact text of the new pieces of the Constitution to be slotted into Article 18. It is this Bill which is the “proposal for an amendment of this Constitution”, or in the Irish text of Article 46 and 47, “togra chun an Bunreacht seo a leasú”, upon which the people voted and which the people endorsed. Thus, the people agreed to slot into Article 18.4 text enabling provision “by law” for the election by “one or more” of Dublin University and the National University of Ireland and of “any other institutions of higher education in the State” of senators who could not exceed the original number of six senators in the original provision whereby Dublin University – commonly called Trinity College Dublin – graduates supplied three senators and National University of Ireland – Cork, Dublin and Galway – graduates supplied the other three. Hence, on the passing of the Seventh Amendment, there would still be six senators supplied by the institutions of higher education but the pool being broadened would mean the dilution of the original franchise. By the way, whereas the provision under the legislation (see ss 6 and 7 of the Seanad Electoral (University Members) Act 1937, which provide for the number of senators to be elected by each university constituency and that graduates will form the electorate in such elections respectively) is that graduates vote for six senators, the Constitution simply enables the election “on a franchise and in the manner to be provided by law”, meaning that, for example, the governing body may constitute the electors if this is so stipulated by the Oireachtas. The use of the word “franchise” mandates a democratic process, however, as opposed to some form of anointment by university presidents.
Two principles have been argued on behalf of Tomás Heneghan to be important in the context of the passing of a referendum. Firstly, it is claimed that a proposal to amend should be judged differently when slotted into the Constitution than when analysing the original text from 1937. Secondly, on his part it is asserted that, where there is ambiguity in the wording of text to be inserted into the Constitution, the form of the proposal on the ballot paper upon which the people voted should inform the meaning. In , , to follow this contention, the context of the insertion of Article 40.3.3°, namely the referendum, was considered by Geoghegan J who stated that it is appropriate to “take judicial notice of the fact that the referendum that led to the insertion of this provision in the Constitution was generally known as the ‘abortion referendum’” at . He goes on to state that it would be highly artificial if a judge could not “use as an aid to interpretation, the ordinary common understanding of what in context was involved in the referendum” at .
Ambiguity is argued to arise from the actual wording of Article 18.4. But, this provision is not difficult to construe when read in context. There are a maximum of six university seats and by the original text the distribution is to Dublin University and to the National University of Ireland. By the amendment, that may change and may change in any manner “by law” so that those three-each may be redistributed, or the electorate may widen so that other institutions of higher learning may get one or more of those seats or there may be a general pool. The original debates on the Bill, as recorded in the evidence of Professor Laura Cahillane, supposed that change would happen and, necessarily, that was the purpose of the proposal. In the appended newspaper commentary, speculation of a reduction for Dublin University seemed universal, with the possibility that what were then institutes of higher education, such as St Patrick's Pontifical University in Maynooth, would receive a senator. But, it was all up in the air.
Also mooted at the time was the possible splitting up, effectively the...
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