A senior judge has said the judiciary’s record on “substantive rights” under the Constitution over the past 30 years has been “often disappointing”, “marred by missed opportunities” and sometimes “baffling”.
Mr Justice Gerard Hogan said it is "significant" that the recent Supreme Court decision on a right to work for asylum seekers "is probably the first time in 25 years or so that the Supreme Court has invalidated a major item of social legislation or social policy".
That decision, particularly because it involved the effective suspension of a declaration of constitutional invalidity to allow the legislature time to respond, may signal a new direction, he said.
A judge of the Court of Appeal and recognised authority on constitutional law, Mr Justice Hogan was addressing a conference at the University of Limerick marking 80 years of the Constitution.
He said a prediction in 1979 that the work of “constitutional expansionism” was at an end “has on the whole been subsequently vindicated by history”.
Certain judicial decisions over the past 30 years which upheld various laws and administrative practices could, in light of the essence of the constitutional guarantees and jurisprudence of the 1970s, “only be regarded as surprising and, in some instances, baffling”.
These included a 2003 Supreme Court judgment "sanctioning de facto deportation of Irish citizen children of foreign asylum seekers" which was "flatly contradicted" by the European Court of Justice.
He said moves to reduce the scope of “the most fundamental constitutional safeguard of all” — the habeas corpus guarantee in Article 40.4.2 – “speaks volumes regarding the prevailing constitutional zeitgeist”.
This must be seen in a context where the “efficient” part of the Constitution, involving judging existing law by reference to inherently generalised principles including “constitutional rights”, had not changed.
While many pine for the “golden era” of constitutional law lasting from about 1963-75, when Supreme Court decisions included endorsing a married couple’s right to use contraception, the “judicial and legal zeitgeist” now was different.
The reasons for that perhaps included the judiciary’s “often disappointing” record since on the question of substantive rights. The record on procedural rights, in contrast, “remains excellent”.
The Constitution has to be either “radical or redundant”, he said. Being radical requires the courts ensuring fundamental rights of citizens are “genuinely protected in a manner that goes beyond judicial clichés and tokenism”.
That effectively means the courts replicating the work of the European Court of Human Rights in the State, he said.
There was no textual reason why that could not be done and, if it were, there should be no reason why Ireland, except in exceptional cases, should ever again lose before the European Court of Justice. All that is required is a “judicial willingness to step up to the challenge”.
He said the constitutional text is one that “can be adapted for the ages” but that was not to say the Constitution could not be improved. Too much emphasis, he considered, was placed on unenumerated or implied constitutional rights at the expense of the actual text .
If he could, he would also insert the dignity provisions in the preamble into Article 40 and declare “protecting the dignity and value of each individual is the State’s most fundamental obligation”.
He said other reasons for the lack of constitutional expansionism were the emergence of “a sort of legal seoninism” towards the Constitution over the last 30 years, perhaps fed by negative comments about the “decorative” parts of the Constitution, such as the reference to the special position of the Catholic church, since deleted.
This seoninism - or aping of an outside culture - involved lawyers and litigants apparently preferring to rely on the European Convention on Human Rights (ECHR) rather than the Constitution, “as if a victory by reference to Irish law would not be good enough”.
Findings of unconstitutionality of legislation during the 1970s and 1980s also seemed to have induced a “sort of silent judicial counter-revolution”, he believed.
The powerfulness of the effect of a finding of unconstitutionality appears, on some occasions, to have dissuaded courts from making findings of unconstitutionality that might otherwise have been made.
A further reason for the legal seoninism was the “mixed performance” of the judiciary in constitutional matters over the past 30 years. Case law on key topics such as equality, free speech and inviolability of the dwelling “remains stubbornly undeveloped” even though, in the meantime, the ECHR had “powered ahead” with its free speech jurisprudence.
The courts have also just begun to explore the implications of the guarantees in respect of dignity in the preamble and concerning the protection of the person in Article 40.3.2, he said.
This is where the judiciary’s hidden love of the common law comes in because, in order to develop these rights, the courts would have to abandon the common law step-by-step and fact specific approach in favour of “an entire realignment of a corpus of the law by reference to general abstract principles contained in a few paragraphs in the Constitution”.
This unease was not confined to constitutional law, he added. In a judgment earlier this year, he had questioned why Irish law of contract has not to date recognised a general principle of good faith as an integral part of contract dealing.
The efficient part of the Constitution required a quite different mind set, involving judging existing law by reference to a set of inherently generalised principles, such as “constitutional rights”, plus the ultimate power to annul that law if it does not measure up to such constitutional standards.
The largely symbolic part of the Constitution has attracted “an unusually high degree of unmerited criticism”, he also said.
The only remnants of the traditional era, apart from the “special case of abortion”, were set out in aspects of the preamble, the reference to blasphemy in Article 40.6 and the woman in the home provision in Article 41.2.
Criticism of the few remaining religious references ignores that, from the outset, Article 44 ordained freedom of religion and conscience, non-discrimination on grounds of religious belief or status and precluded the establishment and endowment of religion. Such provisions offered enough practical protection to both minority beliefs and non-believers.
For most of his adult life, he was told parts of the Constitution were “specifically objectionable” to unionists such as the ban on divorce, Articles 2 and 3 describing the national territory as the island of Ireland and the “special position” of the Catholic church. “These provisions are all gone and yet I am not sure that the people of the island are any closer.”