T.D. Re-Considered: Constructing A New Approach to Enforcement of Rights

Author:Francis Kieran
Position:Junior Sophister (Law), Trinity College Dublin
Pages:62-79
T.D.
RE-CONSIDERED:
CONSTRUCTING
A
NEW
APPROACH
TO
ENFORCEMENT
OF
RIGHTS
FRANCIS KIERAN*
On
17th
December
2001 the
Supreme
Court
handed down
judgment
in
the
case
of
T.D.
and
Others
v.
Minister
for
Education.'
An
unprecedented
application
of
the
separation
of
powers
principle
saw
the
majority
declare
that
the
making
of
mandatory
orders
to
uphold
constitutional
rights
is
ultra
vires
the
judiciary
in
all
but
the
most
extreme
of
circumstances.
The T.D.
judgment
marks
a
new
departure
in
changing
the
face
of
Irish
constitutional
jurisprudence
and
not,
it
is
suggested,
for
the
better.
By
taking
a
fresh
look
at
the
issue
of
mandatory
orders,
the
reasoning
of
the
majority
in
TD.
may
be
challenged
on
both
pragmatic
and
theoretical
bases.
Hence
a
different
approach,
which would
permit
positive
orders
in
cases
like
T.D.,
can
be
constructed.
On
such
a
delicate
legal
fault-
line,
an
alternative
approach must
take
account
of
the
various
caveats;
these
are
considered
in
detail.
The
aim
is
to
strike
a
desirable
balance
between
the
effective vindication
of
rights
which
the
Constitution
undoubtedly
intended and
the
proper
parameters
of
each
branch
of
government
in
the
constitutional
order.
Inspiration
for
such
an alternative
is
drawn
in
part
from
obiter
dicta
of
Keane
C.J.
in
Sinnott
v.
Minister
for
Education.
2 Judgments
in this
case
are
explored
with
a
view
to
discerning whether
an
alternative reasoning
could
have been
possible
in
TD.;
in
particular
the
judgment
of
Murphy
J.
and his
finding
that
the
rights
in
question did
not
exist
under
the
Constitution
will
be
assessed.
Dicta
in
Sinnott
In
order
to
analyse
the
reasoning
of
the
majority
judges
in
T.D.
on the issue
of
the
separation
of
powers,
it
is
instructive
to
begin
with
the
well-known
*
Junior
Sophister
(Law),
Trinity
College
Dublin.
259. (Hereinafter
TD.).
2
545.
(Hereinafter
Sinnott).
©
2004
Francis
Kieran
and Dublin
University
Law
Society
T.D.
Reconsidered
dicta
expostulated
a
few
months
earlier
in Sinnott
v.
Minister
for
Education.
The
facts
of
that
case
are
well
known.
In the High
Court
Barr
J.
found
that
the
constitutional guarantee
of
free
primary education
continued
to
be
operative
notwithstanding
the
fact
that Jamie
Sinnott
exceeded
the
age
of
18
years.
The
plaintiff
had severe learning
difficulties
and
the
State
had
failed
provide
for
his education.
Accordingly,
he
granted
a
mandatory
order
against
the
Minister
for
Education
to
provide
facilities
for
Mr.
Sinnott's
education,
an
order
which
entailed
expenditure.
A
majority
in
the
Supreme Court found
that
the
Article
42.4
obligations
only
concerned
"children";
this
was
narrowly
interpreted
to
mean
persons
under
18.
The
merits
of
that
particular
decision
are
beyond
the scope
of
this
article.
Sinnott
provided
the
Supreme
Court with
its
first
opportunity
to
express
a
view,
albeit
obiter,
3
on
the
separation
of
powers
regarding
these
particular
rights.
Four
of
the
seven
judges
chose
to do
so,
their
dicta
proving
insightful.
From
one
point
of
view,
Sinnott
may
be
regarded
as
the
harbinger
of
the
strict
approach
in
T.D.
However,
it
is
suggested
that
such
a
view
gives
undue
focus
to
the
judgment
of
one
judge,
namely
Hardiman
J.,
and
that
the
correlation
between
the
dicta
in
the
two
cases
is
not
quite
as
clear-cut
as
might
first
seem.
On the
separation
of
powers
issue,
Hardiman
J.
was
the
most
trenchant
of
the
judges
in
the
case.
The
separation
of
powers enshrined
in
Art.
6
is
"itself
a
high
constitutional
value
... not inferior
in
importance
to
any article
of
the
Constitution".4
He
referred
to
the
judgment
of
Costello
J.
in
O'Reilly
v.
Limerick
Corporation
5, coming
to
the
conclusion
that
the
judiciary
has
no
role
in
granting
mandatory
orders
to
command
expenditure
for
the
purpose
of
upholding
constitutional
rights.
He
concedes
that
the
courts
may
make
mandatory orders
in
exceptional
circumstances,
yet the
existence
of
such
an
emergency
power
is
no
argument
for
its
application
in
any
lesser situation.
With
regard
to
Hardiman
J.'s
views on
the
separation
of
powers,
Keane
C.J.
said
that
he
"agree[d]
entirely with
what
he
says
and
[had]
nothing
to
add
on
the
matter".6
However,
despite
this
prima
facie
The
decision,
the
Supreme
Court held,
did
not have
to
be
made upon
these
grounds.
4
Ibid., at
702.
'
181.
Whyte
has
commented
that
Hardiman
J.
does not
appear
to
be
aware
that
Costello
J.
subsequently
resiled
from
his
decision
in
O'Reilly
in his
ex
tempore
decision in
O'Brien
v.
Wicklow
UDC
(Unreported,
High
Court,
10
June
1994);
see
Whyte,
Social
Inclusion
and
the
Legal
System:
Public
Interest
Law
in
Ireland,
(Institute
of
Public
Administration,
2002), at
351.
6
545,
at
640.
2004]

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