Consequences Of A Finding Of Unconstitutionality - Irish Constitutional Law

Consequences of a Finding of Unconstitutionality

The State (Byrne) v Frawley (SC 1977)

Facts

1. The prosecutory was tried before a jury which was empanelled pursuant to the provisions of a statute that was later found to be unconstitutional.

2. The prosecutor sought an order of habeas corpus following his conviction.

Issue

• Consequences of a Finding of Unconstitutionality – Waiver

Judgment

• The order of habeas corpus should be overturned.

1. O'Higgins CJ (partly dissenting)

   • The constitutionality of the composition of the actual jury was not in issue in de Búrca, only the method of selection – every jury empanelled under the Act was qualified to serve.

   • Thus the trial of the prosecutor was permissible.

   • If the trial was unconstitutional, it could not be said that the prosecutor's acquiescence conferred validity – if he were unaware of the invalidity he could not have been said to have acquiesced and in any case, acquiescence can not confer validity, just as consent can not confer jurisdiction.

2. Henchy J (concurring)

   • A judge at trial has a duty to put an end to the trial if he becomes aware that it is operating according to unconstitutional proceedings.

   • Even if the juror's who served at the time of the trial were eligible under the Act, the gravamen of the complaint in de Búrca was that juries empanelled under that Act were unrepresentative of the community to an unconstitutional degree.

   • As the prosecutor was aware during his trial that the jury were empanelled under an unconstitutional system, his failure to challenge them at the time in the hope that they would acquit him precluded him from seeking to do so later.

   • It would also seem that, in light of the length of time elapsed since the finding of unconstitutionality, an insuperable barrier has been raised against a successful challenge on behalf of anyone who is yet to challenge their mode of trial.

3. Griffin J (concurring – agreed with Henchy J)

4. Kenny J (partly dissenting – agreed with O'Higgins CJ)

5. Parke J (concurring – agreed with Henchy J)

Murphy v Attorney General (SC 1980)

Facts

1. The applicants were a married couple who successfully challenged the rates of income tax as they applied to married couples.

2. The respondents on behalf of the Government sought a decision from the Supreme Court clarfying whether the relevant sections were void ab initio or from the date of pronouncement of invalidity.

Issue

• Consequences of a Finding of Unconstitutionality – Practical Considerations

Judgment

• The effect of a finding of unconstitutionality was that the section was void ab initio

1. O'Higgins CJ (partly dissenting)

   • In the case of laws found inconsistent with the Constitution under Article 50, a finding of unconstitutionality is necessarily entirely retroactive.

   • In the case of laws found invalid under Article 15.4.2, a retroactive approach would cause unconscionable problems, e.g. the laws would have had real and intractable consequences on the behaviour of public officials, citizens, prosecutions etc. - this concept is repugnant to a Constitution dedicated to the ideals of a true social order.

   • If the law is void ab initio, this conflicts with the provision of the constitution that states a law becomes of full force and effect as of the moment of its signing by the President – for the Constitution to be given a harmonious effect, the law can only be void as of the date it is proclaimed to be so.

   • The idea of individual estoppel could only apply where the individual had full knowledge of the true facts – thus it is unlikely to provide a satisfactory answer for most cases.

2. Henchy J (concurring)

   • While laws found unconstitutional under Article 50 are void from the moment of enactment of the Constitution, depending on the circumstances everything done on foot of that satute may not necessarily be successfully challenged.

   • In the case of a post-Constitution statute, invalidity does not apply only from the moment of declaration because A) this fails to recognise the true nature of the constitutional limitation of legislative power, B) it takes the word 'invalid' to mean voidable rather than void (a proposition which is given the lie by the Irish text) and C) it ignores precedent.

   • However it is not a universal rule that what has been done under an unconstitutional statute can always be challenged – transcendent considerations which must be enumerated on a case by case basis may make such an approach impossible.

   • In this case, the logistics of reparation have become so weighted and distorted by factors such as inflation and interest and the prima facie right of taxpayers to restitution has been devalued by the fact that as members of the community they had benefited from the taxes thus raised and it would be inequitable, unjust and unreal to expect full reparation.

3. Griffin J (concurring)

4. Kenny J (partly dissenting)

5. Parke J (concurring – agreed with Griffin and Henchy JJ)

Muckley v Ireland (HC 1984)

Facts

1. The Finance Act 1980 provided for a system of taxation whereby the tax extracted from married couples would be the same as provided for under the sections found unconstitutional in Murphy v Attorney General.

2. The purpose of the statute was to ensure that people who had failed to pay the tax found unconstitutional, whether by default or otherwise, were not benefited in comparison to people who had paid it.

Issue

• Consequences of a Finding of Unconstitutionality – Validation Statutes

Judgment (Barrington J)

• The Supreme Court found that there was no obligation to effect full reparation in Murphy v Ireland because of practical considerations.

• This did not justify the extraction from those who delayed or defaulted on their payments a tax which they were under no obligation to pay.

McDonnell v Ireland (SC 1997)

Facts

1. The applicant was dismissed from his post in the Civil Service on foot of statute that was later found unconstitutional.

2. He insitituted proceedings claiming that his puported dismissal was unconstitutional and seeking damages for the attack on his constitutional rights.

Issue

• Consequences of a Finding of Unconstitutionality – damages

Judgment

• The declaration of a finding of unconstitutionality meant that an Act was void ab initio and not from the date of declaration.

1. Hamilton CJ (concurring)

2. O'Flaherty J (concurring – agreed with Keane J)

   • Enactments still have the force of law and should be observed until they are struck down – the consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration.

3. Barrington J (concurring)

   • Having regard to Article 15.4 an Act of the Oireachtas found unconstitutional was never valid law.

4. Keane J (concurring)

5. Barron J (concurring)

   • In this case, just as in Murphy, it would be inequitable to give the applicant restitution for his unconstitutional dismissal – the defendant's bona fide belief that he was acting constitutionally, couple with the applicant's failure to challenge the dismissal for a substantial period of time ground this inequity.

   • As the Act was void ab initio, the plaintiff's contract of employment had never been terminated – the correct cause of action was a breach of contract, but such a claim was at this point statute barred.

An Blascaod Mór Teoranta v Commissioners for Public Works (HC 2000)

Facts

1. The plaintiffs sought declarations that an Act of the Oireachtas was unconstitutional.

2. As a preliminary question, the court was asked whether the damages can arise from the passing of the Act in the case of its being invalid.

Issue

• Consequences of a Finding of Unconstitutionality - Damages

Judgment (Budd J)

• The Oireachtas does not have total immunity in respect of liability for invalid legislation, but where it is weighing conflicting rights it must be given considerable tolerance by the court.

• Under Articles 15.4.2 and 34.3.2, the court has jurisdiction to declare an Act invalid and to give only such redress as was proved to have flowed directly from the effects of invalidity – the appropriate redress in this case was a declaration of invalidity, which has had the effect of largely vindicating the plaintiffs' rights.

Kelly v Minister for the Environment (SC 2002)

Facts

1. The plaintiff challenged legislation which failed to have regard to expenses defrayed by using any property, services or facilities for the purpose of capping election expenditure.

2. The respondents appealed to the Supreme Court and argued that the decision of the Court be prospective only in its effect, as otherwise incumbent politicians would be exposed to criminal prosecution under the Act.

Issue

• Consequences of a Finding of Unconstitutionality

Judgment (Keane CJ)

• As the Supreme Court is an appellate court, and no question as to the retrospectivity or otherwise of the statute was raised in the High Court, the Court does not have jurisidiction to make the declaration sought by the respondents.

• As the effect of a finding of unconstitutionality depends on the circumstances of its implementation, the Court should not...