The of powers. This doctrine of the separation

The constitution of the Republic of Ireland is
regarded as grand norm of the state which aids in governing and guiding the ways
of the citizens of Ireland. It is also understood as the fundamental legal
document that asserts the authority of the people of Ireland. The constitution
is the building block in which the justice of the state is administered and
legal rights are enforced in the courts by the government as previously stated.
The constitution also upholds and protects the rights of the people in the
republic of Ireland. The Irish constitution contains over 50 articles with its
contents.1 It created the
institutions of the state and puts down the rules which governs the interaction
between the establishments of the state and the people of the state. The people
are allowed to question and challenge any laws or rules introduced by the
government. 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 the
doctrine of the separation of powers. This doctrine of the separation of powers
requires that the various powers of the state are separated. Each structure is
seen to have exclusive powers that are specific to that structure and only it
can exercise said given power. A breach of this exercise of power by a
different 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 part
of the government.3
The reasoning behind the separation of powers doctrine lies in the notion and
idea that there is a danger in leaving or handing full power to one person or
one body. Hence why the government separated the powers into different parts
and by doing this each part of government can exercise their powers in a way
that allows a scheme of checks and balances by each part being able to
supervise and oversee the activities and the actions of the other parts of
government.4

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 The judicial power of government of those
courts includes the power to review the compatibility of statutes with the
Constitution and to judicially review subordinate legislation, decisions or
actions of the Government or State bodies with a view to determining their
legality and compatibility with the Constitution, and principles deriving from
the Constitution such as due process.5

As stated the
constitution divides its powers into three and gives each part of the
government its own powers. Each of these different parts of the government have
their roles that each of them play for the good of the state of The Republic of
Ireland and these roles are as follows. These parts of government are the
following:

·        
The
Legislature

·        
The Executive

·        
The Judiciary

The
Legislature: The
legislature has the role of making the laws in which the land and the people
are governed. The members of the parliament (the Oirechtas) are the people who
make these laws and the parliament comprises of two houses, the Seanad Éireann
(The senate) and the Dáil Éireann (the chamber of deputies).6 These
two houses are preceded by the President. While Article 15 of the Constitution vests sole law-making power in the
Oireachtas, this power is not unfettered as the Oireachtas is precluded from
enacting legislation that is repugnant to the terms of the Constitution.7  Legislation may be initiated in either of the
two Houses, with the exception of Money Bills and Bills to amend the
Constitution which may only be introduced in Dáil Éireann. A Bill goes through
various stages in both Houses before being sent to the President of Ireland for
his or her signature, whereupon the Bill becomes an Act of the Oireachtas.8

The Executive: The
executive is the government and it also has certain powers that are exclusively
resided for it. The sole power which is exclusively reserved for the government
is the power to determine the state’s foreign policy and this is seen in the
case of Crotty V An Taoiseach 1987.9
And likewise in the case of Horgan v
Ireland 200210
and dubsky v Ireland 200511. The principle of
cabinet confidentiality reflects also the reluctance of judges to interfere in
the functioning the government, by protecting the right of the government to
preserve the secrecy of its deliberation. Article
2812 of the
Constitution, which stipulates that the Government must consist of no fewer
than 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 (Deputy
Prime Minister).13

The Judiciary: The
judiciary 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 court
of law. 14Articles 34-38 of the constitution deals with court systems and the
trial of the offences which are committed. Article
34 expressly says that Justice shall be administered in courts established
by law by Judges appointed in the manner provided by this Constitution”. Article 35 of the constitution states the appointment process and tenure of
the members of the Irish judiciary. 15

The following scenarios have been given in other to understand how these
different bodies function towards the running of the country and law making in
the country.

i) The issue in this question is that The CEO of Group 10 Security, a
firm which provides services in airports, aerodromes and ports throughout the
jurisdiction seeks your advice as to whether there are any grounds in
constitutional law to challenge the provisions of the Act or the Regulations.

Answer: As stated earlier in this
document, the Oirechtas includes the President and the two houses of power and
their role in law making. The first house which is the Dail Eireann and the
Seanned Eireann. The Dail is the lower house in the parliament but it holds
more 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 less
power than the Dail. Example of said power which is held by the Dail would be
the creating of a bill to be passed by the houses. A bill can be introduced by
either part of the houses, no part of the bill can become a law without the
Dail consenting and giving its approval of the bill. While on the other hand a
bill can be rejected by the Seanned can still become law. Article 23 of the constitution deals with this more in detail. This
article 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 most
power given to the Seanned would be the power of delaying the bill by at most
90 days. After this 90 day period it is deemed that the Seanned have passed the
bill. When both houses pass a bill the next step is for the president to sign
it.16
Every bill must be signed by the president in order for it to become law. But
before the signing of the bill, the president under Article 26 of the constitution, refers the bill to the Supreme
Court if he believes there is any chance of it being unconstitutional. 17This
decision is held exclusively by the president but the council of state has to
be contacted as well. The Supreme Court has to come to the conclusion and
agreement that the bill is unconstitutional. And if this is seen as the case by
the Supreme Court, then the president cannot sign the bill into law. Article 34 of the constitution states
that if the president has given the bill to the Supreme Court and they deem it
to be constitutional then there is a reluctance and in most cases the law
cannot be challenged for being unconstitutional after that.18
For example in the case of Maher v
Attorney General 197319
the
Supreme Court refused to remove words from a piece of legislation in order to
render the legislation constitutional. The Court held that such intrusion would
involve “law making”, and therefore this responsibility could only be performed
by Parliament. Also in the case of Deaton
V Attorney General 1963 IR 17020
the supreme court held that a law which was allowing the tax revenue
commissioners choose what type of penalty tax offenders would face was deemed
as unconstitutional due to the fact that law making was a job left only for
judges in the court. In McGrath V McDermott
1988 I.L.R.M 64721.
In this case the Supreme Court held that it could not add or delete anything
from the legislation provision with the view to closing off any loopholes left
in the tax code. The Court states that in order to do so it would involve the altering
and making changes to the legislation and this is a function which is saved and
held exclusively to the Oireachtas.  In C.C V Ireland 2006 I.E.S.C. 3322
 the Supreme Court struck down a law
banning sexual intercourse with girls under 15 years old. The law did not have
a defence of misidentification of the girl’s age. The court refused to give an
order to include this defence. Justice Hardiman stated that if the court adds
to said legislation that would be a breach of their duties. Which does not
include the making or passing of legislation.  Based on the above stated matters, precedence
shows that it would be in situations such as this, the doctrine of separation
of powers comes into fruition. It is clear from this doctrine and from the laws
of the Republic that laws and rules of the country are made and determined by
the legislative. Based on this, my advice to the CEO of Group 10 Security, would
be that as seen from the cases which I have given, it is clear that the courts
are strict in the delegation of the job of law making being held exclusively by
the members of Parliament or legislative. The minister who passed this act is
unable to pass such an act into law due to the fact that he/she is not part of
the Oireachtas and by this making the act which was past unconstitutional.

ii) James
contends that this is an issue which should be addressed by legislation, and additionally
in the alternative is seeking that the courts mandate the Executive to increase
the age bracket to 80. Considering the Executive function advice James.

Answer: The executive does not
pass the laws of the state neither does it interpret the laws of the state. The
duty of the executive is to enforce the laws which are passed by the legislature.
23The
head of state and the council of ministers maintain the law and order, and the
running of the administration. The head of state makes some very integral
appointments in the state with the advice and guidance of his council
(ministers). 24The
executive has an important role to play in the making of law. They prepare
bills for the purpose of introducing them to the legislature. The laws which
are passed by the executive can be vetoed by the president. So we see that the
executive holds significant power in the making of law. The executive have had
what was known as the ‘executive privilege’. This privilege allows (entitles)
the government to refuse (deny) to disclose (disclosure) the contents of
documents 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 inconsistent
with the constitution. The privilege, the court held, infringed the court’s
right and duty to consider all relevant evidence in a case before it. The lack
of access to certain evidence, in other words, potentially undermined its
ability to achieve success in a particular case. By this, the courts were entitled to determine whether such
documents would be included or withheld in appropriate cases, not the
government. Additionally, there was generally no exceptions in the class of
documents that qualified for the courts scrutiny. Judges had to rule on a
case-by-case basis, whether certain documents were to be incorporated or
withheld. As a result of this case, the courts were effectively reinstated the
right to determine whether government documents were appropriate to be
disclosed as evidence. Therefore, this case is a fundamental illustration of
how power operates between the executive and the judiciary, showing that the executive
powers do not include making of laws and rules of the Republic and illustrating
the doctrine of separation of powers.

 In the case of James, the power
held by the executive deems them able to give the age range in which they have
established. The government create acts and pass it onto the legislation to be
written into law. The courts have no effect on this and could be hit with the
executive privilege, and by doing this they do not need to issue or disclose
their documents to the courts whose function it is, is to enforce the law. Thus
it makes it difficult to request that the courts mandate the government to
increase the age range for any reason.

iii) Mary seeks your advice as to whether the Separation of Powers doctrine
can be utilised to challenge either the Act or the Order.

Answer: The role of the judiciary
is to interpret and enforce the laws of the country, which can also be stated
as administering justice. This role and duty is preserved solely for the
judiciary in the court of law26.
For this, no one other than a judge may pass judgement on legal issues or
impose any legal liabilities on an accused person. This is power which was
given to the judges by the Irish constitution in Article 34.127.
The courts also act as an independent body, thereby prohibiting other parts of
the state from partaking in cases that the courts are involved in.  Murphy v
British Broadcasting Corporation 2004 I.E.H.C.44028
emphasized 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 where
their proceedings reside. It was said that the conduct of the courts cases was
a power held exclusively for the judiciary and not for any other part of
government. This stresses the independence of the court in the performance of
its function, in other words the coordination of court cases is exclusively
reserved for the judiciary. Having said that, The Irish constitution also
allows the establishment of Tribunals which can be seen to aid in the
administering of justice.

Tribunals are understood to be
institutions different from the hierarchy or organisations of the court and
legal system which can have both administrative and judicial roles. Tribunals
are usually set up by acts for a number of reasons such as, resolving disputes
between private individuals within a community or a state and can also be a
means of resolving disputes between these private individuals and does in the
public who serve them. Tribunals are also regarded as faster and cost less than
taking matters to court. A major reason for the establishment of tribunals is
to reduce or decongest the vast number of cases and disputes brought to the
Courts. 

The Residential Sustainability
Act 2017 enacted by which then goes on to establish the Residential Sustainability
Tribunal (the Tribunal) is seen as legitimate and follows due process in this
situation. In this particular scenario, the law has established a tribunal for
the settling and resolving particular issues when they come about. Sections 10
states that a complaint can be made and how it can be made while Section 13 of
the Act empowers the Tribunal, if they are satisfied that the complaint is made
out, to issue an Order directing that the resident leave the residence in
question.

This is the alignment of the
process in which the proceedings take place if charged by this act, this
alignment is comparable to that followed by the court. The proceedings of Mary’s
case followed the above mentioned process and the defendant was found guilty of
anti-social disturbance. And by being found guilty, the separation of powers
doctrine cannot help in any way because the power it inhibits are like that of
the court by which making the verdict of being guilty.

1  Ryan, F. (2000). Constitutional law in Ireland.
Dublin: Round Hall Sweet & Maxwell.

2 Irish
Law: A student’s Guide. (2017). Constitutional Law. online
Available at: https://lawinireland.wordpress.com/constitutional-law/ Accessed
27 Dec. 2017.

3 Cpaireland.ie.
(2017). Cite a Website – Cite This For Me. online Available at:
http://www.cpaireland.ie/docs/default-source/Students/Study-Support/F1-Business-Laws/the-doctrine-of-the-seperation-of-powers.pdf?sfvrsn=0
Accessed 27 Dec. 2017.

4 Fergus,
R. and Carolan, B. (2008). Constitutional law. Dublin: Thomson
Round Hall.

5 Supremecourt.ie.
(2017). Supreme Court of Ireland. online Available at:
http://www.supremecourt.ie/SupremeCourt/sclibrary3.nsf/pagecurrent/D5F78352A387D74480257315005A419E?opendocument&l=en
Accessed 27 Dec. 2017.

6 Fergus,
R. and Carolan, B. (2008). Constitutional law. Dublin: Thomson
Round Hall.

7 O.
Briain, B. (1929). The Irish constitution. Dublin and Cork: Talbot
Press.

8 Ryan, F.
(2000). Constitutional law in Ireland. Dublin: Round Hall Sweet
& Maxwell.

9Crotty
V An Taoiseach 1987 (Supreme Court), p.1.

10 Horgan
V Ireland 2002 (High Court), p.4.

11 Dubsky
V Ireland 2005 (Supreme Court), p.2.

12 O.
Briain, B. (1929). The Irish constitution. Dublin and Cork: Talbot
Press.

13 Fergus,
R. and Carolan, B. (2008). Constitutional law. Dublin: Thomson
Round Hall.

14Fergus,
R. and Carolan, B. (2008). Constitutional law. Dublin: Thomson
Round Hall.

15 O. Briain,
B. (1929). The Irish constitution. Dublin and Cork: Talbot Press.

16 O.
Briain, B. (1929). The Irish constitution. Dublin and Cork: Talbot
Press.

17 O.
Briain, B. (1929). The Irish constitution. Dublin and Cork: Talbot
Press.

18 O.
Briain, B. (1929). The Irish constitution. Dublin and Cork: Talbot
Press.

19 Maher V
Attorney general 1973 (Supreme Court), p.3.

20 Deaton
V Attorney General 1963 (Supreme Court), p.6.

21 McGrath
V McDermott 1988 I.L.R.M 647 1988 (High Court), p.7.

22 C.C V
Ireland 2006 I.E.S.C. 33 2006 (Supreme Court), p.1.

23 Political
Science Notes. (2018). Meaning, Types and Functions of the Executive
Organ of the Government. online Available at:

Meaning, Types and Functions of the Executive Organ of the Government


Accessed 1 Jan. 2018.

24 Fergus,
R. and Carolan, B. (2008). Constitutional law. Dublin: Thomson
Round Hall.

25 Murphy
v 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: Talbot
Press.

28 Murphy v
British Broadcasting Corporation 2004 I.E.H.C.440 2004M
v BBC (Supreme Court), pp.1-3.