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Thursday 14 November 2019

When judges intervene...

The courts have played a vital role down the years in ruling on major constitutional issues, says Diarmaid Ferriter

At the age of 43, High Court judge Brian Walsh was promoted to the Irish Supreme Court in 1961, becoming its youngest-ever member.

At the time of his appointment, the Taoiseach, Sean Lemass, told him he hoped the court would become more like the US Supreme Court.

The significance of this became apparent in subsequent years, when the Irish Supreme Court began to interpret the broad guarantees of fundamental rights in the Constitution that had previously been little invoked or defined.

Walsh delivered some ground-breaking judgments, including one that declared the Constitution forbade the detention of accused persons pending trial on the ground that they might commit offences, or the reception of evidence obtained as a result of a breach of constitutional rights.

He also insisted that it was for the judiciary, rather than the executive, to decide if evidence should be withheld from a court, and maintained that the State could be sued for any wrongs committed by its servants or agents.

The 1935 law prohibiting the importation of contraceptives, even for personal use, was struck down as an infringement of marital privacy in a case – named after the principal character Mary McGee in 1973 – where Walsh gave the leading judgment.

On the same day that Walsh was promoted to the Supreme Court in 1961, his colleague Cearbhall O Dalaigh, who had been appointed to the Supreme Court in 1953, became Chief Justice, and he also made it clear that the Supreme Court would be vigilant in upholding the fundamental rights guaranteed by the Constitution.

A notable judgment was delivered in 1965 when O Dalaigh upheld the finding of John Kenny in the High Court – that the guarantee of personal rights in the Constitution was not confined to the rights actually specified in the document but extended to 'unenumerated rights'.

The courts were now prepared to strike down actions of the Oireachtas and the executive on grounds significantly wider than those previously recognised.

O Dalaigh declared: "It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizens that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights.

"As a necessary corollary, it follows that no one can with impunity set these rights at naught or circumvent them and that the courts' powers in this regard are as ample as the defence of the Constitution requires."

Challenges to the validity of legislation and acts of the executive on constitutional grounds were more likely to succeed than had been the case in the early years of the constitution.

Both men shared an energetic and innovative approach to interpreting the Constitution and were helped by the presence of two other supportive judges, Cecil Lavery and Theodore Kingsmill Moore.

In 1972, O Dalaigh resigned from the office of chief justice to become the first Irish member of the court of justice of the European Communities, while three years later, Walsh became the first president of the Law Reform Commission.

Irish Independent Supplement

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