The constitution of the Republic of Ireland isregarded as grand norm of the state which aids in governing and guiding the waysof the citizens of Ireland. It is also understood as the fundamental legaldocument that asserts the authority of the people of Ireland. The constitutionis the building block in which the justice of the state is administered andlegal rights are enforced in the courts by the government as previously stated.The constitution also upholds and protects the rights of the people in therepublic of Ireland. The Irish constitution contains over 50 articles with itscontents.
1 It created theinstitutions of the state and puts down the rules which governs the interactionbetween the establishments of the state and the people of the state. The peopleare allowed to question and challenge any laws or rules introduced by thegovernment. The Irish constitution bases its laws on the common law approach,which is the approach used by most of the countries in the European Union.2 A basic aspect of the Irish constitution is thedoctrine of the separation of powers. This doctrine of the separation of powersrequires that the various powers of the state are separated. Each structure isseen to have exclusive powers that are specific to that structure and only itcan exercise said given power. A breach of this exercise of power by adifferent part of the government which is meant for another part of the government,would be deemed as unconstitutional and an incursion of the powers of that partof the government.
3The reasoning behind the separation of powers doctrine lies in the notion andidea that there is a danger in leaving or handing full power to one person orone body. Hence why the government separated the powers into different partsand by doing this each part of government can exercise their powers in a waythat allows a scheme of checks and balances by each part being able tosupervise and oversee the activities and the actions of the other parts ofgovernment.4 The judicial power of government of thosecourts includes the power to review the compatibility of statutes with theConstitution and to judicially review subordinate legislation, decisions oractions of the Government or State bodies with a view to determining theirlegality and compatibility with the Constitution, and principles deriving fromthe Constitution such as due process.5As stated theconstitution divides its powers into three and gives each part of thegovernment its own powers.
Each of these different parts of the government havetheir roles that each of them play for the good of the state of The Republic ofIreland and these roles are as follows. These parts of government are thefollowing:· TheLegislature· The Executive· The JudiciaryTheLegislature: Thelegislature has the role of making the laws in which the land and the peopleare governed. The members of the parliament (the Oirechtas) are the people whomake these laws and the parliament comprises of two houses, the Seanad Éireann(The senate) and the Dáil Éireann (the chamber of deputies).6 Thesetwo houses are preceded by the President. While Article 15 of the Constitution vests sole law-making power in theOireachtas, this power is not unfettered as the Oireachtas is precluded fromenacting legislation that is repugnant to the terms of the Constitution.7 Legislation may be initiated in either of thetwo Houses, with the exception of Money Bills and Bills to amend theConstitution which may only be introduced in Dáil Éireann.
A Bill goes throughvarious stages in both Houses before being sent to the President of Ireland forhis or her signature, whereupon the Bill becomes an Act of the Oireachtas.8The Executive: Theexecutive is the government and it also has certain powers that are exclusivelyresided for it. The sole power which is exclusively reserved for the governmentis the power to determine the state’s foreign policy and this is seen in thecase of Crotty V An Taoiseach 1987.9And likewise in the case of Horgan vIreland 200210and dubsky v Ireland 200511. The principle ofcabinet confidentiality reflects also the reluctance of judges to interfere inthe functioning the government, by protecting the right of the government topreserve the secrecy of its deliberation. Article2812 of theConstitution, which stipulates that the Government must consist of no fewerthan 7, and no more than 15 members and includes the Taoiseach (Prime Minister)who is the head of the Executive and his next-in-command, the Tánaiste (DeputyPrime Minister).
13The Judiciary: Thejudiciary have the role of interpreting and enforcing the law of the state.They have the exclusive power given to them to administer justice in the courtof law. 14Articles 34-38 of the constitution deals with court systems and thetrial of the offences which are committed. Article34 expressly says that Justice shall be administered in courts establishedby law by Judges appointed in the manner provided by this Constitution”. Article 35 of the constitution states the appointment process and tenure ofthe members of the Irish judiciary. 15The following scenarios have been given in other to understand how thesedifferent bodies function towards the running of the country and law making inthe country.
i) The issue in this question is that The CEO of Group 10 Security, afirm which provides services in airports, aerodromes and ports throughout thejurisdiction seeks your advice as to whether there are any grounds inconstitutional law to challenge the provisions of the Act or the Regulations. Answer: As stated earlier in thisdocument, the Oirechtas includes the President and the two houses of power andtheir role in law making. The first house which is the Dail Eireann and theSeanned Eireann. The Dail is the lower house in the parliament but it holdsmore power in the making of the law than does the Seanned. The Seanned,although it is the upper house in the parliament it holds significantly lesspower than the Dail. Example of said power which is held by the Dail would bethe creating of a bill to be passed by the houses.
A bill can be introduced byeither part of the houses, no part of the bill can become a law without theDail consenting and giving its approval of the bill. While on the other hand abill can be rejected by the Seanned can still become law. Article 23 of the constitution deals with this more in detail. Thisarticle allows the Dail to supersede the rejection of the bill by the Seanned.The Seanned cannot do anything if the Dail passes a bill in the house. The mostpower given to the Seanned would be the power of delaying the bill by at most90 days.
After this 90 day period it is deemed that the Seanned have passed thebill. When both houses pass a bill the next step is for the president to signit.16Every bill must be signed by the president in order for it to become law. Butbefore the signing of the bill, the president under Article 26 of the constitution, refers the bill to the SupremeCourt if he believes there is any chance of it being unconstitutional. 17Thisdecision is held exclusively by the president but the council of state has tobe contacted as well. The Supreme Court has to come to the conclusion andagreement that the bill is unconstitutional.
And if this is seen as the case bythe Supreme Court, then the president cannot sign the bill into law. Article 34 of the constitution statesthat if the president has given the bill to the Supreme Court and they deem itto be constitutional then there is a reluctance and in most cases the lawcannot be challenged for being unconstitutional after that.18For example in the case of Maher vAttorney General 197319theSupreme Court refused to remove words from a piece of legislation in order torender the legislation constitutional. The Court held that such intrusion wouldinvolve “law making”, and therefore this responsibility could only be performedby Parliament.
Also in the case of DeatonV Attorney General 1963 IR 17020the supreme court held that a law which was allowing the tax revenuecommissioners choose what type of penalty tax offenders would face was deemedas unconstitutional due to the fact that law making was a job left only forjudges in the court. In McGrath V McDermott1988 I.L.R.M 64721.
In this case the Supreme Court held that it could not add or delete anythingfrom the legislation provision with the view to closing off any loopholes leftin the tax code. The Court states that in order to do so it would involve the alteringand making changes to the legislation and this is a function which is saved andheld exclusively to the Oireachtas. In C.
C V Ireland 2006 I.E.S.C. 3322 the Supreme Court struck down a lawbanning sexual intercourse with girls under 15 years old.
The law did not havea defence of misidentification of the girl’s age. The court refused to give anorder to include this defence. Justice Hardiman stated that if the court addsto said legislation that would be a breach of their duties. Which does notinclude the making or passing of legislation.
Based on the above stated matters, precedenceshows that it would be in situations such as this, the doctrine of separationof powers comes into fruition. It is clear from this doctrine and from the lawsof the Republic that laws and rules of the country are made and determined bythe legislative. Based on this, my advice to the CEO of Group 10 Security, wouldbe that as seen from the cases which I have given, it is clear that the courtsare strict in the delegation of the job of law making being held exclusively bythe members of Parliament or legislative. The minister who passed this act isunable to pass such an act into law due to the fact that he/she is not part ofthe Oireachtas and by this making the act which was past unconstitutional. ii) Jamescontends that this is an issue which should be addressed by legislation, and additionallyin the alternative is seeking that the courts mandate the Executive to increasethe age bracket to 80.
Considering the Executive function advice James. Answer: The executive does notpass the laws of the state neither does it interpret the laws of the state. Theduty of the executive is to enforce the laws which are passed by the legislature.23Thehead of state and the council of ministers maintain the law and order, and therunning of the administration. The head of state makes some very integralappointments in the state with the advice and guidance of his council(ministers).
24Theexecutive has an important role to play in the making of law. They preparebills for the purpose of introducing them to the legislature. The laws whichare passed by the executive can be vetoed by the president. So we see that theexecutive holds significant power in the making of law. The executive have hadwhat was known as the ‘executive privilege’.
This privilege allows (entitles)the government to refuse (deny) to disclose (disclosure) the contents ofdocuments relating to the operation of the government. In the case of Murphy v Dublin 1972 I.R.
21525,the Supreme Court struck down the executive privilege as being inconsistentwith the constitution. The privilege, the court held, infringed the court’sright and duty to consider all relevant evidence in a case before it. The lackof access to certain evidence, in other words, potentially undermined itsability to achieve success in a particular case. By this, the courts were entitled to determine whether suchdocuments would be included or withheld in appropriate cases, not thegovernment. Additionally, there was generally no exceptions in the class ofdocuments that qualified for the courts scrutiny. Judges had to rule on acase-by-case basis, whether certain documents were to be incorporated orwithheld. As a result of this case, the courts were effectively reinstated theright to determine whether government documents were appropriate to bedisclosed as evidence. Therefore, this case is a fundamental illustration ofhow power operates between the executive and the judiciary, showing that the executivepowers do not include making of laws and rules of the Republic and illustratingthe doctrine of separation of powers.
In the case of James, the powerheld by the executive deems them able to give the age range in which they haveestablished. The government create acts and pass it onto the legislation to bewritten into law. The courts have no effect on this and could be hit with theexecutive privilege, and by doing this they do not need to issue or disclosetheir documents to the courts whose function it is, is to enforce the law. Thusit makes it difficult to request that the courts mandate the government toincrease the age range for any reason.
iii) Mary seeks your advice as to whether the Separation of Powers doctrinecan be utilised to challenge either the Act or the Order. Answer: The role of the judiciaryis to interpret and enforce the laws of the country, which can also be statedas administering justice. This role and duty is preserved solely for thejudiciary in the court of law26.For this, no one other than a judge may pass judgement on legal issues orimpose any legal liabilities on an accused person. This is power which wasgiven to the judges by the Irish constitution in Article 34.127.
The courts also act as an independent body, thereby prohibiting other parts ofthe state from partaking in cases that the courts are involved in. Murphy vBritish Broadcasting Corporation 2004 I.E.
H.C.44028emphasized that the acts within the courts only be ruled on by the court.
Contempt of court was upheld by the courts due to the fact that it is wheretheir proceedings reside. It was said that the conduct of the courts cases wasa power held exclusively for the judiciary and not for any other part ofgovernment. This stresses the independence of the court in the performance ofits function, in other words the coordination of court cases is exclusivelyreserved for the judiciary.
Having said that, The Irish constitution alsoallows the establishment of Tribunals which can be seen to aid in theadministering of justice. Tribunals are understood to beinstitutions different from the hierarchy or organisations of the court andlegal system which can have both administrative and judicial roles. Tribunalsare usually set up by acts for a number of reasons such as, resolving disputesbetween private individuals within a community or a state and can also be ameans of resolving disputes between these private individuals and does in thepublic who serve them. Tribunals are also regarded as faster and cost less thantaking matters to court. A major reason for the establishment of tribunals isto reduce or decongest the vast number of cases and disputes brought to theCourts. The Residential SustainabilityAct 2017 enacted by which then goes on to establish the Residential SustainabilityTribunal (the Tribunal) is seen as legitimate and follows due process in thissituation.
In this particular scenario, the law has established a tribunal forthe settling and resolving particular issues when they come about. Sections 10states that a complaint can be made and how it can be made while Section 13 ofthe Act empowers the Tribunal, if they are satisfied that the complaint is madeout, to issue an Order directing that the resident leave the residence inquestion.This is the alignment of theprocess in which the proceedings take place if charged by this act, thisalignment is comparable to that followed by the court.
The proceedings of Mary’scase followed the above mentioned process and the defendant was found guilty ofanti-social disturbance. And by being found guilty, the separation of powersdoctrine cannot help in any way because the power it inhibits are like that ofthe court by which making the verdict of being guilty.1 Ryan, F. (2000).
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Dublin: Round Hall Sweet& Maxwell.9CrottyV An Taoiseach 1987 (Supreme Court), p.1. 10 HorganV Ireland 2002 (High Court), p.4.
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Dublin and Cork: TalbotPress.19 Maher VAttorney general 1973 (Supreme Court), p.3.20 DeatonV Attorney General 1963 (Supreme Court), p.
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M 647 1988 (High Court), p.7.22 C.
C VIreland 2006 I.E.S.C. 33 2006 (Supreme Court), p.
1.23 PoliticalScience Notes. (2018). Meaning, Types and Functions of the ExecutiveOrgan of the Government. online Available at:http://www.politicalsciencenotes.
com/articles/meaning-types-and-functions-of-the-executive-organ-of-the-government/344Accessed 1 Jan. 2018.24 Fergus,R. and Carolan, B. (2008). Constitutional law.
Dublin: ThomsonRound Hall.25 Murphyv Dublin 1972 I.R. 215 1972Murphy V Dublin (Supreme Court),pp.1-5.26 Ryan, F.
(2000). Constitutional law in Ireland. Dublin: Round Hall Sweet& Maxwell.27 O.Briain, B. (1929). The Irish constitution.
Dublin and Cork: TalbotPress.28 Murphy vBritish Broadcasting Corporation 2004 I.E.H.C.440 2004Mv BBC (Supreme Court), pp.1-3.