Finn v Attorney General

• Jurisdiction: Ireland
• Judgment Date: 26 July 1983
• Date: 26 July 1983
• Docket Number: [1983 No. 3752P]
• Court: Supreme Court

High Court

Supreme Court

[1983 No. 3752P]

Finn v. The Attorney General

Eugene P. Finn

Plaintiff

and

The Attorney General and The Minister for the Environment and Ireland, Defendants

Cases mentioned in this report:—

¹ McGee v. The Attorney General [1974] I.R. 284.

² G. v. An Bord Uchtála [1980] I.R. 32.

³ Norris v. The Attorney General (Supreme Court: 22nd April, 1983).

⁴ The State (Healy) v. Donoghue [1976] I.R. 325.

⁵ Murphy v. Corporation of Dublin [1972] I.R. 215.

⁶ Buckley & Others (Sinn Féin) v. The Attorney General [1950] I.R. 67.

⁷ Roche v. Ireland (High Court: 16th June, 1983).

⁸ Wireless Dealers Association v. Fair Trade Commission (Supreme Court: 7th March, 1956).

⁹ The State (Ryan) v. Lennon [1935] I.R. 170.

¹⁰ The State (Burke) v. Lennon [1940] I.R. 136.

¹¹ The State (C.) v. Minister for Justice [1967] I.R. 106.

¹² The State (D.P.P.) v. Walsh [1981] I.R. 412.

¹³ The State (Sheerin) v. Kennedy [1966] I.R. 379.

¹⁴ Boland v. An Taoiseach [1974] I.R. 338.

¹⁵ Byrne v. Ireland [1972] I.R. 241.

¹⁶ Hamilton v. Hamilton [1982] I.R. 466.

¹⁷ The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567.

Constitution - Amendment - Bill - Validity - Proposal for amendment contained in Bill - Proposal to be submitted to decision of electorate - Referendum - Courts without jurisdiction to review terms of proposal - Constitution of Ireland, 1937, Articles 26, 34, 46, 47.

Plenary Summons.

After the Eighth Amendment of the Constitution Bill, 1982, had been passed by both Houses of the Oireachtas, the plaintiff issued in the High Court a summons in which he sought (1) a declaration that the provisions of the Bill were ultra vires the provisions of Article 46, s. 1, of the Constitution of Ireland, 1937, and (2) an order restraining the Minister for the Environment from making an order under s. 8 of the Referendum Act, 1942, appointing the day upon which polling at the referendum on the proposal contained in the Bill should take place. In his statement of claim the plaintiff claimed that the provisions of the Bill were repugnant to the Constitution.

At the dates of delivery of the judgments, infra, the provisions of Article 40, s. 3, of the Constitution were as follows:—

"1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."

The proposal contained in the Eighth Amendment of the Constitution Bill, 1982, was that the Constitution be amended by the addition of the following sub-section to Article 40, s. 3, of the Constitution:—

"3 The State acknowledges the right to life of the unborn, and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

Article 46 of the Constitution provides:—

"1. Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.

2. Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

3. Every such Bill shall be expressed to be 'An Act to amend the Constitution.'

4. A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.

5. A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law."

Section 47, s. 1, of the Constitution provides:—

"Every proposal for an amendment of this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such Referendum shall have been cast in favour of its enactment into law."

Article 25, s. 4, of the Constitution provides:—

"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.

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."

Section 58 of the Offences Against the Person Act, 1861, states:—"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony." Under s. 1 of the Penal Servitude Act, 1891, a court may sentence a person convicted of an offence under s. 58 of the Act of 1861 to penal servitude for a period of not less than three years, or to a term of imprisonment (with or without hard labour) not exceeding two years.

The plaintiff's action was tried by Barrington J. on the 12th and 13th July, 1983.

The plaintiff appealed to the Supreme Court from the judgment and order of the High Court. The appeal was heard and determined by the Supreme Court on the 26th July, 1983.

Prior to the submission of the proposal contained in the Eighth Amendment of the Constitution Bill, 1982, to the electorate for their decision in a referendum held pursuant to Article 46, s. 2, of the Constitution of Ireland, 1937, the plaintiff issued in the High Court a plenary summons in which he claimed (a) a declaration that the terms of the proposal were repugnant to the Constitution and (b) an injunction restraining the Minister for the Environment from holding a referendum in connection with the proposal.

Held by Barrington J. and affirmed by the Supreme Court (O'Higgins C.J., Walsh, Henchy, Griffin and Hederman JJ.), in dismissing the plaintiff's claims, that the provisions of Article 34, s. 3, of the Constitution do not confer on the High Court jurisdiction to adjudicate the...