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Riordan v. An Taoiseach [1999] IESC 1 (20th May, 1999)

THE SUPREME COURT

Hamilton, C.J. Appeal No. 202/98

Denham, J.

Barrington, J.

Keane, J.

Murphy, J.

DENIS RIORDAN

Applicant/Appellant

and

AN TAOISEACH BERTIE AHERN, THE GOVERNMENT OF IRELAND, DÁIL EIREANN, THE MINISTER FOR THE ENVIRONMENT NOEL DEMPSEY, ATTORNEY GENERAL DAVID BYRNE S.C. and IRELAND

Respondents

JUDGMENT of the Court delivered on the 20th day of May, 1999, by Barrington, J.

1. On the 19th day of May, 1998 the Applicant/Appellant (hereinafter called the Appellant) obtained from the High Court leave to institute the present judicial review proceedings. The first relief claimed by the Appellant in the proceedings is - “A Declaration that Section 1 of the 19th Amendment of the Constitution Bill, 1998 is repugnant to the Constitution”.

2. On the 20th May, 1998 the Appellant brought an application before Mr. Justice Kelly for an injunction restraining the holding of the referendum on the 19th Amendment to the Constitution. This application was heard by Mr. Justice Kelly on the same date. It was agreed between the parties that the hearing of the Motion for the injunction should be treated as the trial of the Action. On the same date Mr. Justice Kelly delivered an ex-tempore Judgment in which he dismissed the Appellant’s application on the merits and also on the grounds of delay. The proposed Referendum was held on the 22nd day of May, 1998 and the people approved the proposal contained in the 19th Amendment of the Constitution Bill, 1998 by 1,442,583 votes to 85,748 votes. The Referendum Returning Officer published his provisional Referendum Certificate pursuant to Section 40 of the Referendum Act, 1994 on the 26th day of May, 1998. On the 3rd June, 1998 the Master of the High Court notified the Returning Officer that no Referendum Petition had been presented to the High Court within the time limit fixed by the Referendum Act, 1994. The Returning Officer accordingly issued his final certificate pursuant to Section 4(3) of the Referendum Act, 1994 on the 3rd June, 1998. The President duly signed the Amending Act and promulgated it as a law on the same date. It thereupon became part of the Constitution.

3. Subsequently the Appellant served his Notice of Appeal dated the 19th day of July, 1998 against the Judgment and Order of Kelly, J.

4. In the Appeal proceedings the Appellant brought a Motion in which he sought a stay on the said Order of Kelly, J. dated the 20th May, 1998 and also this Court’s permission under Order 58 Rule 8 of the Rules of the Superior Courts to amend the relief being sought by him to include, inter alia, the following:-

(1) “An Order of Prohibition prohibiting and/or restraining the Respondents, their servants and/agents from changing or interfering with Articles 2 and 3 of the Constitution until such time as the provisions of Article 46 and Article 47 have been complied with.

(2) A Declaration that the 19th Amendment of the Constitution Act, 1998 is repugnant to the Constitution and is therefore unconstitutional, null, void and inoperative”.

5. Part of the Appellant’s problem was that matters had not stood still

since the hearing before Mr. Justice Kelly on the 20th May, 1998. In the interval the Referendum had been held and the Bill had been passed by the people and promulgated by the President as law in the manner already indicated.

6. This Court in its Judgment on the said Motion delivered on the 19th day of November, 1998 refused to allow the Appellant to amend his proceedings in the manner indicated because to have done so would have been to allow him to make a case which had not been made - and which, indeed, could not have been made - in the Court below. In its Judgment this Court did, however, attempt to isolate what it understood to be the Appellant’s real grievances and to indicate that it considered them to be without foundation. The Appellant however, as is his right, has seen fit to proceed with his appeal against the original Order of Kelly, J. and this Court is now called upon to give judgment on this Appeal.

Article 15.4

7. Part of the Appellant’s problem is that the 19th Amendment of the Constitution Bill, 1998, having been passed by the people and promulgated by the President as a law, no longer exists as a separate entity. There is a sense therefore in which the Appellant’s original case against the Bill is now moot. The Appellant seeks to escape this dilemma by arguing that the original Bill was repugnant to the Constitution and that the Act, as an enacted into law, is invalid having regard to the provisions of the Constitution. This submission depends on the contention that the constitutional amendment, though approved by the people, is still an Act of the Oireachtas and therefore caught by the provisions of Article 15.4.

1 Article 15.4 reads as follows:-

4. 1. “The Oireachtas shall not enact any law which is in any respect repugnant to this Constitution or an provision thereof.

2. Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid”.

8. However this Court has already decided this precise point in a case in which the Appellant himself was the Plaintiff/Appellant (Appeal No. 381.97) and in which this Court also gave Judgment on the 19th day of November, 1998.

9. The Court said (at pages 9,10 of its unreported Judgment):-

“The procedure for the amendment of the Constitution is set out in Article 46. This too is a form of legislation. But it is different in kind from ordinary legislation. Whereas ordinary legislation requires the participation of the President and the two houses of Parliament, a constitutional amendment requires the co-operation of the President, the two houses of Parliament and the people. It is a procedure in which Parliament proposes and the people disposes. The people either approves of the proposal, and it is carried, or disapproves of the proposal, in which event it is defeated. The role of the President and the Courts is simply to ensure that the proposal is properly placed before the people in accordance with the procedure set out in Article 46 and that the referendum is properly conducted as provided by law. They have no function in relation to the content of the proposed referendum. That is a matter for the people. There can be no question of a constitutional amendment properly placed before the people and approved by them being itself unconstitutional. That is why the President has no power to refer to the Supreme Court a Bill containing a proposal to amend the Constitution for an opinion on its constitutionality. A proposed amendment to the Constitution will usually be designed to change something in the Constitution and will therefore, until enacted, be inconsistent with the existing text of the Constitution, but, once approved by the people under Article 46 and promulgated by the President as law, it will form part of the Constitution and cannot be attacked as unconstitutional. When the President promulgates a Bill to amend the Constitution duly passed by the people in accordance with Article 46 ‘as a law’ within the meaning of Article 46 s.5 she is promulgating it as part of the basic law or ‘bunreacht’ because it is an amendment to the Constitution duly approved by the people.

Such ‘law’ is in a totally different position from the ‘law’ referred to in Article 15 s.4 of the Constitution which refers only to a law ‘enacted by the Oireachtas’.

10. The fact that a constitutional amendment, duly passed is not an Act of the Oireachtas within the meaning of Article 15.4 of the Constitution is not, necessarily, fatal to the Appellant’s case. This Court has repeatedly stated that under our constitutional system the people are sovereign. Provided the appropriate procedures are complied with there are no circumstances in which this Court could purport to sit in judgement on an authentic expression of the peoples will or an amendment of the Constitution made in accordance with the provisions of Article 46.

11. Article 46 of the Constitution provides as follows:-

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 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”.

12. In the case of Finn v. The Attorney General [1983] IR 154 the Plaintiff sought an injunction to restrain the holding of a Referendum on the 8th Amendment of the Constitution Bill, 1982 on the rather curious grounds that the right to life of the unborn being already protected by the Constitution no amendment was necessary and as the proposed amendment did not amount to a “variation, addition, or repeal” of anything already contained in the Constitution the proposed amendment was not constitutionally permissible.

13. The Supreme Court dismissed the case out of hand. O’Higgins, C.J. (with whom all the other members of the Court agreed) stated:-

“The judicial power to review legislation on the ground of constitutionality is confined (save in cases to which Article 26 of the Constitution applies) to enacted laws. Save in these excepted cases, there is no jurisdiction to construe or to review the constitutionality of a Bill, whatever its nature. The Courts have no power to interfere with the legislative process”.

14. The Judgment serves to emphasise the importance of the Courts not getting involved with the content of draft legislation whether it be legislation pending before Parliament or a proposed constitutional amendment being submitted to the people.

15. The Supreme Court, having adopted such a robust attitude towards the Finn case did not find it necessary to discuss a problem which had been raised in the Court below. This is the problem of what could be done if a Bill containing a proposed amendment to the Constitution did not comply with Article 46 in either form or content. Barrington, J. refers to this matter in his Judgment in the Court below at page 161 of the Report. He says:-

“ Mr. Geoghegan goes further and says that the Courts have simply no function so far as the content of the proposal to amend the Constitution is concerned. Likewise, the President’s role in a referendum appears to be concerned with the propriety of the procedure being followed rather than with the content of the proposal being placed before the people.

The President’s duty in relation to a referendum on a proposal to amend the Constitution is described in Article 46, s. 5, of the Constitution as follows:- ‘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.’

It is necessary to refer also to Article 46, s. 4, which provides:- ‘A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.’ It is extremely unlikely that the Houses of the Oireachtas would abuse their powers by attempting to incorporate some other proposal with a proposal to amend the Constitution. Apparently, such a possibility was present to the minds of the framers of the Constitution and, therefore, it cannot be dismissed. Mr. Geoghegan submits that in such an eventuality the President could refer the Bill to the Supreme Court under Article 26 of the Constitution. However, the President would not appear to have the power to refer the Bill to the Supreme Court if the Bill were to be ‘expressed’ to be a Bill to amend the Constitution. In such an event, were the proposal which was contained in the Bill supported by a majority of the people at a referendum, the procedure prescribed by Article 46 of the Constitution would not have been followed and it would appear that the President would be justified under Article 46, s. 5, of the Constitution in refusing to sign the Bill.

Mr. Mackey, however, submits that the Courts too have a duty to uphold the Constitution and that, upon a complaint being properly made that the Houses of the Oireachtas had acted in contravention of Article 46, s. 4 of the Constitution by incorporating other proposals in a Bill to amend the Constitution, the Courts would be justified in examining the Bill and taking appropriate action. Subject to this possible exception, I accept Mr. Geoghegan’s submission that the High Court has no function in relation to the content of a proposal to amend the Constitution. Certainly it is not concerned with the propriety or wisdom of any such proposal, nor has it any power to restrain the two Houses of the Oireachtas from putting any such proposal before the people”.

16. The Appellant submits that something very similar to the situation contemplated in the Finn case has happened in the present case. The Oireachtas may have passed the 19th Amendment of the Constitution Bill; the people may have approved of the proposal contained therein at a referendum; the returning officer may have issued his final certificate pursuant to Section 4.3 of the Referendum Act, 1994; and the President may have promulgated the 19th Amendment to the Constitution as law; but, the Appellant maintains, the entire proceedings were a nullity for non-compliance with Article 46 of the Constitution. We have therefore, the Appellant contends reached a situation which is even worse than that contemplated in the Judgment of Barrington, J. in the Finn case and the Appellant appeals to the ultimate residual right of this Court to exercise all powers necessary to defend the Constitution.

THE SUBSTANCE OF THE APPELLANT’S CLAIMS.

17. The substance of the Appellant’s claim is that “any provision” of the Constitution can be amended but only in accordance with the procedure provided by Article 46 of the Constitution. But, he claims, the 19th Amendment of the Constitution Act, 1998 - and in particular the Schedule thereto - purports to allow the Constitution to be amended in a manner other than by a Referendum held under Article 46 of the Constitution. The Appellant challenges in particular Section 7.3 in the Schedule to the 19th Amendment of the Constitution Act, 1998 which provides as follows:-

“If the Government declare that the State has become obliged, pursuant to the agreement, to give effect to the amendment of this Constitution referred to therein, then notwithstanding Article 46 hereof, this Constitution shall be amended as follows”.

18. There then follows the text of the proposed new Articles to replace the present Article 2 and 3 in event of the Government making the Declaration referred to.

19. This Court, in its Judgment on the Appellant’s application to amend his pleadings herein delivered on the 19th day of November, 1998 summarised the Appellant’s contentions as follows:-

1. “What was put before the people was a proposed amendment to Article 29 of the Constitution and not to Articles 2 and 3.

2. S.7 s.s.3 of the Amendment violates the Constitution by providing that Article 46 of the Constitution may, in effect, be ignored .

3. S.7 s.s.3 also violates the Constitution by providing that the Government may, of its own initiative, and without reference to the people, amend the Constitution”.

20. Commenting on points two and three above the Court stated as follows:-

“The Appellant has failed to understand the problem which confronted the Government in relation to the Belfast Agreement. That Agreement imposed reciprocal obligations on the various parties to it and each party wished to be reassured that the other parties would carry out their respective obligations. For instance the Irish Government undertook to have Articles 2 and 3 of the Constitution amended but only on the basis that the British government and the Unionist parties to the Agreement would establish the power sharing executive and the cross-border bodies contemplated in the Agreement. On the other hand the British Government and the Unionist parties did not wish to establish the power sharing executive and the cross-border bodies only to find that the proposal to amend Articles 2 and 3 was defeated in a Constitutional referendum.

The text of the new S. 7 is a clever drafting device designed to resolve this problem. By means of it the people have given a conditional assent to the amendment of Articles 2 and 3 of the Constitution.

The people have a sovereign right to grant or withhold approval to an amendment to the Constitution. There is no reason therefore why they should not, provided the matter is properly placed before them, give their approval subject to a condition.

It is quite wrong to suggest that the people have delegated to the Government the right to amend the Constitution. This is not so. The people have consented to an amendment to the Constitution subject to the happening of a particular future event. That future event is that the Government should have made the declaration referred to in S.7 s.s.3.

S.7 s.s.3 provides that if the Government makes that declaration ‘then, notwithstanding Article 46 hereof, this Constitution shall be amended as follows.........’. But it is the people, not the Government who are speaking in the passage quoted. The reference to ‘Notwithstanding Article 46 hereof’, is merely an indication that the people have consented to the making of the amendment on the happening of the event referred to and that they do not wish to be consulted again”.

21. The Court can only reiterate that statement adding that if it is competent for the people to give a conditional consent to an amendment to the Constitution there must be a drafting procedure whereby the matter can properly be placed before the people.

22. Turning to the Plaintiff’s first point, it is undoubtedly true that what was put before the people was, in form, an amendment to Article 29 of the Constitution and not an amendment to Articles 2 and 3. The Bill, when placed before the people, was entitled “An Act to amend the Constitution” as required by Article 46 of the Constitution. But the only proposal in the body of the Bill was to amend Article 29 of the Constitution. In form, all that has happened to date is that Article 29 of the Constitution has been amended. But there is now in the Constitution an Article (to wit Article 29 as amended) which, on the happening of a future uncertain event, may operate to amend Articles 2 and 3 of the Constitution “notwithstanding Article 46” . It is not unusual to have in legal documents a provision whereby one clause, on the happening of a particular event, is to overrule another. There is nothing sinister in this. It is merely an appropriate procedure.

23. Under these circumstances the Court rejects the Appellant’s submissions and, in particular his submission that there has been a breach of Article 46 of the Constitution.

24. The Appeal is dismissed.

jb242.