This is an extract of our Consequences Of A Finding Of Unconstitutionality document, which we sell as part of our Irish Constitutional Law Notes collection written by the top tier of Trinity College Dublin students.
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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. IssueConsequences of a Finding of Unconstitutionality - Waiver
Judgment The order of habeas corpus should be overturned. O'Higgins CJ (partly dissenting)
? The constitutionality of the composition of the actual jury was not in issue in de Burca, 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. 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 Burca 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. Griffin J (concurring - agreed with Henchy J) Kenny J (partly dissenting - agreed with O'Higgins CJ) Parke J (concurring - agreed with Henchy J)1.
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. IssueConsequences of a Finding of Unconstitutionality - Practical Considerations
Judgment The effect of a finding of unconstitutionality was that the section was void ab initio 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. 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. Griffin J (concurring) Kenny J (partly dissenting) Parke J (concurring - agreed with Griffin and Henchy JJ)1.
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