Riordan v an Taoiseach (No. 2)

• Jurisdiction: Ireland
• Judge: Barrington, J.
• Judgment Date: 20 May 1999
• Date: 20 May 1999
• Docket Number: [1998 No. 213 J.R., S.C. No. 202 of 1998],Appeal No. 381/97
• Court: Supreme Court

RIORDAN v. AN TAOISEACH, JOHN BRUTON, AN TANAISTE, DICK SPRING, THE GOVERNMENT OF IRELAND & AG

Between:

DENIS RIORDAN

Plaintiff/Appellant

and

AN TAOISEACH JOHN BRUTON AN TÁNAISTE DICK SPRING THE GOVERNMENT OF IRELAND AND THE ATTORNEY GENERAL

Defendants/Respondents

1998 WJSC-SC 13916

Hamilton, C.J.,

O'Flaherty, J.

Barrington, J.

Lynch, J.

Barron, J.

Appeal No. 381/97

THE SUPREME COURT

Synopsis

Judicial Review

Judicial Review; Constitutional validity of Nineteenth Amendment to the Constitution Act, 1998; application for injunction to restrain holding of referendum on nineteenth amendment to Constitution dismissed; amendment approved in referendum; appeal against order of High Court; application to stay order of High Court; application for leave to amend grounds of appeal; whether case was an appropriate case for judicial review; whether applicant was entitled to amend proceedings in the manner sought; whether the People can approve conditional amendment to Constitution; whether terms of nineteenth amendment amounted to a delegation by the People to the Government of right to amend Constitution; Articles 29 and 46 of the Constitution Held: Claim rejected; Appellant attempting to make a case, which had not been made at first instance; The People can approve a conditional amendment to Constitution (Riordan v. An Taoiseach - Supreme Court: Hamilton CJ, O'Flaherty J., Barrington J., Lynch J., Barron J. - 19/11/1998) - [1999] 4 IR 331

Constitutional Law

Constitutional validity of Fifteenth Amendment to the Constitution Act, 1995; constitutional validity of Family Law (Divorce) Act, 1996; challenge to appointment of a Minister; constitutional validity of appointment of a Judge as Chairperson of the Commission on Nursing; constitutional validity of appointment of a Judge as sole member of a Tribunal of Inquiry; constitutional validity of establishment of office of Tánaiste; whether a "law" promulgated by the President in accordance with Article 46.5 falls within the scope of Article 15.4; whether there is any constitutional or legal difficulty with appointment of a Judge to a committee or tribunal of inquiry; whether establishment of Office of Tánaiste was unconstitutional in the absence of legislation legalising its establishment; whether expenditure of money on office of Tánaiste was illegal; whether Family Law (Divorce) Act, 1996 is constitutional; Articles 6, 14, 15, 28, 35, 41, 42, 46 and 47 of the Constitution.

Held: All claims dismissed

(Riordan v. An Taoiseach - Supreme Court: Hamilton CJ, O'Flaherty J., Barrington J., Lynch J., Barron J. - 19/11/1998) - [1999] 4 IR 331

Ordinary legislation is a matter for the President and the Oireachtas with the Court having a role only when a bill is referred to it by the President or where somebody ex post facto challenges legislation already enacted on the basis that it violates the Constitution. However, the form of legislation envisaged by Article 46 of the Constitution, which delineates the procedure for the amendment of the Constitution, is a different type of legislation where the people of Ireland themselves decide on whether to approve a proposal from the Oireachtas. In that situation the role of the Court and the President is confined to ensuring that the proposal is properly before the people in accordance with Article 46 and neither the Court nor the president has a function in relation to the content of the proposal. If such a proposal is approved by the people then the President promulgates the law as part of the Constitution because it has been passed by the people to change the Constitution and cannot therefore be attacked as being itself unconstitutional. When the people of Ireland amended the Constitution to give the Courts a discretion to provide for the dissolution of marriage they could not have intended that it would be a discretion which could never be exercised. The Supreme Court so held in refusing all of the declarations sought and dismissing the appeal.

Citations:

FAMILY LAW (DIVORCE) ACT 1996

CONSTITUTION ART 35.3

CONSTITUTION ART 28.12

CONSTITUTION ART 9.2

FIFTEENTH AMDT OF THE CONSTITUTION ACT 1995

CONSTITUTION ART 46.5

CONSTITUTION ART 47.1

CONSTITUTION ART 15.4

CONSTITUTION ART 24

CONSTITUTION ART 26

CONSTITUTION ART 6

CONSTITUTION ART 46

CONSTITUTION ART 34.4.5

CONSTITUTION ART 14

RIORDAN V AN TANAISTE 1998 1 ILRM 494

CONSTITUTION ART 28.6.3

CONSTITUTION ART 28.12

CONSTITUTION ART 28.6.1

CONSTITUTION ART 31.2(i)

CONSTITUTION ART 28.6.2

APPROPRIATION ACT 1996

CONSTITUTION ART 34.4.5

CONSTITUTION ART 41.1.2

CONSTITUTION ART 41.3.1

CONSTITUTION ART 42

1 19th day of November, 1998 by Barrington, J.

Barrington, J.

2 This is the Plaintiff's appeal against the Judgment and Order of Costello, P. delivered and made in the High Court on the 14th day of November, 1997 whereby the former President dismissed all of the Plaintiff's claims in this Action.

3 The substantive relief claimed by the Plaintiff (hereinafter referred to as the Appellant) in this Action is a series of declarations. These are as follows:-

4 (1) A declaration that the 15th amendment of the Constitution Act, 1995, having been promulgated by the President as a law on the 25th day of June, 1996 and now being a law of the State is repugnant to the Constitution and is therefore unconstitutional, null, void and inoperative.

5 (2) A declaration that the Family Law (Divorce) Act, 1996, having been promulgated by the President as a law, and now being a law of the State is repugnant to the Constitution and is therefore unconstitutional, null, void and inoperative.

6 (3) A declaration that the appointment of Alan Dukes as a member of the Government was unconstitutional and was therefore null, void and inoperative.

7 (4) A declaration that the appointment of Judge Mella Carroll as chairperson of the Commission on Nursing is repugnant to Article 35.3 of the Constitution, and is therefore unconstitutional, null, void and inoperative.

8 (5) A declaration that the appointment of Judge McCracken as sole member of a Tribunal of Inquiry is repugnant to Article 35.3 of the Constitution, and is therefore unconstitutional, null, void and inoperative.

9 (6) A declaration that the establishment of the Office of Tánaiste in January, 1993 was repugnant to Article 28.12 of the Constitution, and is therefore unconstitutional, null, void and inoperative.

10 (7) A declaration that the continued existence and operations carried out by the Office of Tánaiste were illegal and unconstitutional throughout the period January, 1993 to end of April 1997.

11 (8) A declaration that Taoiseach John Bruton acted illegally and unconstitutionally by allowing the fraudulent use of public funds and the illegal Office of Tánaiste to continue unabated when he became Taoiseach in December 1994.

12 (9) A declaration that the appointment of the Minister of State Eithne Fitzgerald at the Office of the Tánaiste was illegal and unconstitutional.

13 (10) A declaration that the transfer of the Office of Tánaiste from the Department of the Taoiseach to the Department of Foreign Affairs was illegal and unconstitutional.

14 (11) A declaration that the Taoiseach John Bruton and the Tánaiste Dick Spring were grossly negligent in their performance of their constitutional duties as outlined above.

15 (12) A declaration that the Taoiseach John Bruton and the Tánaiste Dick Spring deliberately undermined provisions of the Constitution as outlined above.

16 (13) A declaration that the Taoiseach John Bruton and the Tánaiste Dick Spring are guilty of breach of trust and are unfit to hold constitutional office.

17 (14) A declaration that the Taoiseach John Bruton and the Tánaiste Dick Spring violated Article 9.2 of the Constitution.

18 The Appellant, who is a lay litigant, has formulated his submissions with great ingenuity. Unfortunately he also appears to take the view that those who act in a manner inconsistent with his interpretation of the Constitution are not only mistaken but corrupt. He has made quite scandalous and unnecessary allegations against Mr. Bruton, Mr. Spring, Mr. Dukes, Judge Carroll and Judge McCracken. The last three persons are not even parties to these proceedings and, accordingly, have had no opportunity to defend themselves. The Court will not therefore entertain any submission which reflects upon the integrity of any of the persons named but will confine itself to submissions concerning the allegedly mistaken use of constitutional powers.

19 Approached in this manner the Appellant's claims maybe analysed under the following headings:-

20 (1) The constitutional validity of the 15th Amendment to the Constitution.

21 (2) The constitutional validity of the Family Law (Divorce) Act, 1996.

22 (3) The constitutional validity of the appointment of Mr. Alan Dukes as a member of the Government in December 1996.

23 (4) The constitutional validity of Judge Mella Carroll acting as chairperson of the Commission on Nursing and of Judge Brian McCracken acting as sole member of a tribunal of inquiry.

24 (5) The constitutional validity of the "establishment of the office of Tánaiste" in January, 1993 and of it's continuance in the Government of Mr. John Bruton which came to power in December, 1994.

THE FIRST CLAIM - CONSTITUTIONAL VALIDITY OF THE 15TH AMENDMENT TO THE CONSTITUTION - THE DIVORCE REFERENDUM.

25 The first hurdle which confronts the Appellant in attempting to attack the constitutional validity of the 15th Amendment of the Constitution Act, 1995is that the amendment to the Constitution thereby made now forms part of the Constitution itself and therefore cannot be attacked in the light of the Constitution.

26 The Appellant tries to surmount this difficulty by submitting that Article 46 S.5 of the Constitution provides that if a Bill containing a proposal for the...