Constitutional - Justiciability

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Justiciability - Introduction

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The courts will only deal with justiciable disputes Tormey v Ireland

A non-justiciable claim is not a political claim, but a legal or constitutional claim to be settled by political institutions

For example, if the matter is uniquely within the province of the Oireachtas, or of the Executive, then the Separation of Powers would dictate the matter is non-Justiciable.

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Issues Involving Policy Decisions

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Rights to particular kinds of education: Sinnott, TD, Cronin, O’Carolan

Rights relating to particular living standards & accommodation: O’Reilly, Doherty

Distributive Justice: when goods held in common for the benefit of the entire community fall to be distributed and allocated (for Leinster House)
-Commutative Justice: deals with questions re ‘what is due to an individual from another individual (including a public authority)’ (for the Judiciary)

In some cases, rather than looking at commutative / distributive justice, courts have found that some matters are simply ‘for’ the legislature, as policy-making decisions.

The Distinction between Justiciable and Non-Justiciable is NOT Clear, as evidenced by the two McKenna v An Taoiseach (No 1 and No 2) cases:

Both these case concerned the Constitutionality of the Government funding one side of a Referendum debate (Maastricht Treaty Referendum), thus demonstrating a partisan approach.

The High Court said (in McKenna v An Taoiseach (No 1) [1995] that this was NON-Justiciable – being too complex a dispute of social and political issues

The Supreme Court (in (No 2)) held the very opposite.

Difficult to determine what areas are for the Oireachtas

Certain aspects of the Constitution place decision-making functions within powers of other bodies- ‘textual commitment’

The Courts allow themselves intervene in ordinarily “Non-Justiciable” cases, if the matter is “extreme” enough.

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O’Reilly -v- Limerick Corporation [1989]

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Travellers living in serious poverty claimed a right to a basic and, per Costello J., "comparatively modest" standard of living. The core reason for rejecting this claim was Costello J.'s now famous distinction between distributive and commutative (or corrective) justice. Distributive justice, for Costello J., involves "the distribution of common goods and common burdens". He continues:

"But it cannot be said that any of the goods held in common ... belong exclusively to any member of the political community. An obligation in distributive justice is placed on those administering the common stock of goods ... [D]istribution can only be made by reference to the common good ... it cannot be made by any individual who may claim a share in the common stock.

HELD: Costello J: distinction between distributive and commutative justice

HELD: plaintiff’s claim was distributive in nature and was for political, and not judicial, resolution

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R(M) v R(T) & Ors [2006]

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FACTS: were frozen embryos ‘unborn’, and entitled to protection

HELD: matter for the Oireachtas, issue should be dealt with by regulatory regime established by Act of the Oireachtas.

McGovern J. said that he simply could not decide this:

It is not for the Courts to decide whether the word "unborn" should include embryos in vitro. This is a matter for the Oireachtas, or for the people, in the event that a Constitutional Amendment is put before them.

Noted that an Oireachtas Commission had examined the issue.

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Sinnott v Minister for Education [2001]

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Sinnott: four reasons put forward as to why the Court cannot second guess decisions on distribution of funds and prioritisation of policies and sources of funding:

(i) Offends separation of powers
(ii) Courts would be taking decisions in areas where no experience
(iii) Would permit Court taking decisions could not be accountable for (unlike legislature and executive)
(iv) Evidence based adversarial procedures of the Court are too technical, expensive and focused on the individual issues to be appropriate for deciding policy issues

Hardiman J. reserves a power of judicial intervention in those "types" of case for "extreme" situations. A reasonable point could be made that Sinnott and TD represent about as extreme cases as one can find; Jamie Sinnott had received less than three years of suitable primary education in his lifetime.

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McKenna v An Taoiseach (No. 1) (1995)

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Costello J. in the High Court held that the question as to the constitutionality of the Government using public moneys to support a partisan result in a referendum was non-justiciable.

He noted that resolution of this question called for a careful analysis and balancing of complex political and social factors.

Costello J. held that the extent of the role the Government feels called upon to play to ensure ratification is a matter of concern for the executive arm of government, not the judicial arm.

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McKenna v An Taoiseach (No. 2) (1995)

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The Supreme Court reached a different result and held that the Government was under an obligation to act in accordance with what is, essentially, a principle of electoral equality.

O'Flaherty J. , for example, finds It almost self-evident that in a democracy a government cannot spend public funds to benefit one side rather than another.

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Horgan v Ireland (2003)

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FACTS: alleged unconstitutionality of the use of Shannon by military personnel involved in overseas conflict. Conflict had not been joined formally by Ireland, Article 28.3.1requires the formal approval of the Dáil for Ireland to ‘participate’ in war (The Express Text of the Constitution). The argument was that the action of the Irish Executive – in allowing the Military personnel use Shannon – was “participation” in war without Dáil approval.

HELD: Kearns, J deemed the matter non-justiciable by the Courts

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Dubsky v Government of Ireland (2005)

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FACTS: government permitted aircraft involved in military action in Afghanistan to overfly the State / refuel within the State. Same argument as Horgan, participation in war with no prior formal approval of Dail

HELD: Unlike Kearns J. in Horgan, Macken, J did consider the substantive issues of

Whether, and to what extent, the Executive had assisted the Military Personnel involved

Whether or not there was a War in progress

By considering these issues, she seemed to accept that the matter was, at least, Justiciable.

However, she did note: that the onus was on the applicant to establish the existence of a war in Afghanistan before the issue of Ireland's participation required consideration. The applicant had failed to so prove.

Macken J. did note that participation must be established by reference to " objective factors". That would seem to suggest that a Court could, perhaps, be as well placed as other bodies to make a decision thereupon, but this was only in obiter.

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O’Malley v Ceann Comhairle [1997]

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FACTS: Was the Ceann Comhairle acting unlawfully in disallowing a Parliamentary question?

HELD: It was a matter peculiar to the inner workings of Dail Eireann, but nonetheless Justiciable due to the urgency of the matter

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Doherty & Anor v South Dublin County Council [2007]

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FACTS: Accommodation for Travellers. Departmental guidelines re Building Regulations – on the face of it, a matter peculiarly for the Executive:

HELD: While deciding against the Plaintiff, the matter was nonetheless justiciable, and this despite the peculiarly Executive nature of the matter involved.

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Callely v Moylan [2011]

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FACTS: Challenge by Senator Ivor Callely against disciplinary action taken by Committee on Members Interests of Seanad Eireann pursuant to S. 8 Ethics Act 1995. Justiciable?

HELD: Court made reference to :

O’Malley Parliamentary Question: internal and non-justiciable

Controller of Patents Designs & Trademarks: happenings in Leinster House not cognisable by the court

Howlin v Morris: Art 15 does not envisage any body outside Oireachtas exercising powers conferred on that body. Court has never exercise power Constitution has conferred on Oireachtas

Maguire Gardai: external, therefore justiciable

HELD:

1)No Constitutional bar to jurisdiction of courts

2)When statute regulates Oireachtas, regulation is within scope of courts

3)No appeal outside Committee = offence of nemo iudex in sua causa

4)Under Act members of public can complain, therefore not a wholly internal Oireachtas matter

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Abuissa -v- Minister for Justice (2010)

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Held by the High Court (Clark J.), in refusing the relief sought, 1, that the Act of 1956 afforded the Minister absolute discretion to grant or refuse a certificate of naturalisation, fettered only by the obligation to act fairly and in accordance with the principles of natural justice.

2. That it was within the Minister's prerogative to elect not to give reasons for refusing to grant, in his absolute discretion, a certificate of naturalisation to an applicant and such a decision was only subject to judicial review where it was demonstrated that the Minister acted unfairly, capriciously or mala fides. Contrarily, such a refusal could be subject to judicial review where the Minister had not exercised his absolute discretion under the Act of 1956. Policy decisions in relation to the issue of Irish passports were a feature of government policy over which the court had a limited review function.

3. That, while all legislative and administrative acts could be challenged if shown to be inconsistent with the Constitution and constitutional justice, executive prerogative powers, which included the power to formulate foreign policy and manage state security, were constitutionally outside the scope of judicial review, even where such powers derived from statute.

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Doherty -v- Government of Ireland & Anor. (2010)

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Facts: The applicant, a senator and a registered elector in Donegal South West, had been given leave to seek a declaration that in view of the duration of the vacancy for membership of the Dail in Donegal South West constituency since June 2009 and the extent to which its electors and population were under-represented, that the Government was in breach of the Constitution. The applicant contended that the Government had failed to move the writ for a by-election and that there had been excessive delay in filling the vacancy in breach of the requirements of the Constitution, pursuant to Articles 5 and 16.2.2 and the provisions of s. 39(2) of the Electoral Act 1992. The respondent contended that the issue was non-justiciable by reason of the doctrine of the separation of powers. The Minister for State at the Department of An Taoiseach had informed the Dail on behalf of the Government that it was the intention of the Government to move the writ for the by-election to fill the vacancy in 2011. The respondents contended that the proceedings were moot.

Held by Kearns P. that to read the Act of 1992 as devoid of any temporal requirement clearly offended the provisions of the Constitution. To read s. 39(2) as being subject to the requirement that a writ had to be moved within a reasonable time did no violence to the express wording of the subsection. Even having regard to ordinary principles of statutory construction, it was well-settled that a statute would not be given an interpretation which was illogical or absurd. S. 39(2) had to be construed as incorporating a requirement that the discretion reserved thereunder be exercised within a reasonable period of time.

As to the question of mootness, the Court would not resile from its constitutional obligations. The unprecedented delay in light of the term served by the Government of the day was a significant one. The delay was so inordinate as to amount to a breach of the constitutional rights of the applicants. The on-going failure to move the writ offended the terms and spirit of the Constitution and its framework for democratic representation.

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Jiad -v- MJELR (2010)

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Cooke J: So far as s. 15 of the 1956 Act is concerned therefore, the Court considers that the law remains clear. Where the Minister genuinely exercises the absolute discretion to refuse the application he is under no obligation to give a reason for so doing and until such time as the law which this court must apply is changed, no arguable case can be made out that a refusal is tainted by illegality by reason only of the fact that it is one of a series of refusals for which no reason has ever been given. In the judgment of the Court this position is not altered in such a case by the invocation of constitutional rights to fair procedures "and/or the European Convention on Human Rights". As already indicated above, in the judgment of the Court the obligation to accord fair procedures arises where an administrative decision involves a determination which will impose some liability upon an addressee; withdraw some existing entitlement or a deny a benefit which accrues provided certain conditions are met. As the above authorities make clear, the grant of a certificate of naturalisation for citizenship under the 1956 Act does not fall into any such category: it is the purely gratuitous conferring of a privilege in exercise of the sovereign authority of the State.