Courts administer for 'common good'

Justice Susan Denham: There is no express principle in the Constitution of retrospective application of any declaration that a law is unconstitutional, Ms Justice Susan Denham said.

If there were, the power given by the Constitution in 1937 to the superior courts to review the constitutionality of our laws would be "a tool of chaos".

On the contrary, outside of the particular litigation which sought such declarations, the practice has been that declarations of unconstitutionality of laws have not been applied retrospectively. The Mr A case was the first time the Supreme Court had been asked to state the principle expressly.

Until the 1935 statutory rape law was struck down last month in the CC case, it had been law for some 70 years and it was assumed it was constitutional.

Neither justice nor the reality of the situation in the community were served by applying retrospectively an invalidity in circumstances where a law had been relied on for so many years.

As Mr Justice Kevin O'Higgins had stated in another case, "organised society could not accept such a conclusion". The Constitution nor the courts required such a conclusion.

Where a law has been treated as valid law for decades, it was unjust, impossible and contrary to the common good to reverse the many situations which have arisen and been affected in all their myriad forms over the decades. Even if a law existed only a few years, it would have affected people in ways that were not reversible.

The general principle is that a declaration of invalidity of a law applies to the parties in the litigation or related litigation in which that declaration was made but does not apply retrospectively unless there are wholly exceptional circumstances.

There were no such circumstances in Mr A's case; he was not a party to the CC litigation which resulted in the 1935 law being declared unconstitutional and he was not entitled to the retrospective application of the declaration of unconstitutionality.

The courts have a duty to administer justice but do not apply "a cold logic in a rule-making vacuum", Rather, the courts administer justice "to promote the common good".

Neither the law nor the Constitution were "frozen" in 1937 and declarations of the unconstitutionality of law dating back many years were declarations "of our time". Such declarations of themselves did not address the issue of their application.

Of particular relevance in this regard were decisions of the Canadian supreme court where a jurisprudence of suspended declarations of unconstitutionality was developing. While not an issue before the Supreme Court in the Mr A case, this raised the argument that a court may consider it necessary to suspend a declaration that a law is unconstitutional so the Oireachtas may address the issue if it wished.

A number of previous Supreme Court decisions had touched on the issue of the application of declarations of unconstitutionality. There was no retrospective application of the 1982 Supreme Court decision which found that certain provisions of the Income Tax Act 1937 relating to taxation of married couples were unconstitutional. Instead, the Supreme Court found taxes collected under the impugned provisions had been properly collected up to the opening date of the tax year in which the challenge was brought.