Constitutional Law In Ireland

The primary reasoning for the finding for Noreen on the non-applicability of Article 44. 2. 3i?? was due to having regard to the literal interpretation of the Constitution. While one could argue that the 'broad' and 'harmonious interpretation' approaches to Constitution interpretation are on the ascendance, I found the reasoning of O'Higgins CJ in The People (DPP) v. O'Shea [1982] I. R. 384 where he said the following to be applicable:

"[T]he Constitution as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used, and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be construed as a whole and not merely in parts, and, where doubts r ambiguity exists, regard may be have to other provisions of the Constitution and to the situation, which obtained and the laws, which were in force when enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself…

" Secondly, the interpretation of Section 56(2) of the Landlord and Tenant Act 1931, I feel is in keeping with the doctrine of construction. It is for the legislature to remedy any error or unintended consequence emerging from legislation, subject to long established tenets of construction, words in a statute should be construed in accordance with their plain, ordinary meaning. Having regard to such principles the only construction of the wording of Section 56(2) of the Landlord and Tenant Act 1931, the whether the plaintiff's consent was unreasonably withheld.

Nowhere in that section is there a reference such has 'with due regard to the other party… ' or a definition of impermissible objective discrimination, such as 'based on religion, ethical origin, sex, etc… ' which if inserted would have a different outcome. To find otherwise would be to usurp the constitutionally conferred powers bestowed on the Judiciary; in effect, to disregard the separations of power proscribed by the Irish Constitution. The third reasoning for the finding, is that the rule of stare decisis generally demands that judges must 'follow' previous decisions.

These precedent cases thus bind a court of similar jurisdiction in subsequent cases with the result that the court generally cannot depart from previous decisions unless; the facts are completely different and as such can be distinguished, which was not the case in the factual scenario; or the law has changed, with was also not the case. Finally, justice overwhelmingly demands that the precedent be departed from. The last point would be the sole issue of contention.

However, in must be noted that, as my finding shows, there is a generally fear of terrorism, with is not new to this country, but which has been substantially increased after the happens of September 11th and as such it could be arguable that justice does not overwhelmingly demand the departure from this precedent. However, the ruling could be challenged. Two authorities for which are to by found in the leading textbooks on Land Law and Constitutional Law. In the latter, Casey1 argued in the light of later decisions, however, it is arguable that [Schlegel v. Corcoran] was wrong.

While the State normally acts through the executive and the Oireachtas it also acts through the courts; and a court may not, therefore, ratify acts of religious discrimination by private parties'. Further pointing out that 'the courts would now have to apply Section 56(2) in conformity with the Constitution [Garvey v. Ireland [1981] I. R. 75] and this would seem to preclude the view that religious discrimination is 'reasonable'. Similarly, Lyall2 pointed out in reference to the statutory test provided in Section 56(2) 'that reasonable is opposed to arbitrary and capricious.

A refusal on the ground of race or religion arguably falls within the latter category'. The judgment of United States Supreme Court is intrusive, albeit persuasive authority. In Shelley v. Kramer (1948) 334 U. S. 1 where it was held that a State court could not constitutionally lend its aid to the enforcement of a racially restrictive covenant attached to property. To do so would constitute action by the State in violation of the Fourteenth Amendment's equal protection guarantee.