The Constitution of Ireland
The Constitution of Ireland is the basic law of the State. It was enacted by the people of Ireland following a plebiscite in July 1937 and came into operation on the 29th December, 1937.
The Constitution is the canopy under which justice is administered and legal rights are enforced in courts established by law. By its express provisions it recognises and guarantees protection of the fundamental rights of persons.
Containing 50 Articles, the Constitution establishes the institutions of the State and lays down the rules governing the interaction between the organs of State and between the State and the individual. It may be invoked by individuals to challenge the constitutionality of laws passed by the Oireachtas (parliament) and to seek redress for breach of constitutional rights. Subject to the Constitution the legal system is based on the common law tradition.
Under the terms of Article 6 of the Constitution, sovereignty is vested in the Irish people although the State is externally sovereign in terms of its standing in matters of international law. The State, Ireland, is answerable before the courts for wrongs committed against individuals for breach of their constitutional or legal rights. The Constitution may only be altered following a referendum, provision for which is made in Article 46.
A Bilingual Constitution
A notable feature of the Constitution of Ireland is that it is written in two languages. Article 8 of the Constitution provides that the Irish language, as the national language, is the first official language of the State and recognises English as the second official language. Where a divergence occurs between both texts of the Constitution, the text in the Irish language will prevail.
The Separation of Powers
The Constitution provides for a tripartite separation of powers: the Legislature, the Executive and the Judiciary. This ensures that no one organ of State may interfere with the functions ascribed to the other two. Articles 12 to 14 set out the functions of the President of Ireland, who is the Head of State. The powers vested in the President are largely ceremonial although several discretionary powers are also provided for under the terms of the Constitution. Notwithstanding the separation of powers the Courts exercise a constitutional function in reviewing the constitutionality and legality of actions of the other organs of State.
(i) The Legislature
As mandated by the Constitution, the Oireachtas consists of a bicameral chamber and the President of Ireland. The two Houses of the Oireachtas are Seanad Éireann (the Senate) and Dáil Éireann (the chamber of deputies). 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. Legislation that retrospectively creates an offence or which would provide for the imposition of the death penalty is similarly forbidden. 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 her signature, whereupon the Bill becomes an Act of the Oireachtas.
(ii) The Executive
The Executive is the Government of Ireland and is provided for in Article 28 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).
(iii) The Judiciary
Articles 34 to 38 of the Constitution provide for the system of courts in Ireland and the trial of offences. Article 34 expressly states that "Justice shall be administered in courts established by law by Judges appointed in the manner provided by this Constitution". Provision is made in Article 35 for the appointment and tenure of members of the Irish judiciary, who, under the terms of the Article "shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law." Under Article 35.4.4 of the Constitution, the members of the Supreme Court and the High Court can be removed from office solely by a resolution of both Houses of the Oireachtas for stated misbehaviour or incapacity. The tenure of Circuit and District Judges is similarly protected by statute. In addition, under Article 35.4.5 of the Constitution the remuneration of a judge cannot be reduced during his or her term of office.
The jurisdiction of any Judge depends on the jurisdiction of the court over which he or she presides.
The Court System
The Constitution outlines the structure of the court system in Ireland by expressly establishing the Supreme Court, a court of final appeal, and the High Court, a court of first instance with full jurisdiction in all criminal and civil matters. Provision is also made in Article 34.3.4 for the establishment of courts of local and limited jurisdiction, on the basis of which the Circuit Court and the District Court, which are organised on a regional basis, were established by statute.
(i) The District Court
The District Court is a court of local and limited jurisdiction, having the authority to deal only with certain matters arising within its functional area. The District Court's jurisdictional powers are conferred upon it by statute and it may not, therefore, deal with any matters which fall outside its statutory remit. In civil matters, the District Court has jurisdiction to deal with claims which are not in excess of €6,348.69. In matters of family law, the District Court has jurisdiction in matters concerning maintenance, custody of, and access to, children and may make orders pertaining to domestic violence. In criminal matters, the District Court is a court of summary jurisdiction and deals with the non-jury trial of persons charged with minor offences. The District Court also has jurisdiction to grant bail in most cases and deals with the issue of sending an accused forward for trial in cases involving criminal offences outside its jurisdiction.
(ii) The Circuit Court
The Circuit Court is also a court of local and limited jurisdiction, with appellate jurisdiction of all matters arising in the District Court. The Circuit Court has jurisdiction in civil matters where the claim exceeds the jurisdiction of the District Court but where it is not in excess of €38,092.14. In family law matters, the Circuit Court may grant orders of divorce, judicial separation and nullity as well as any ancillary orders. In criminal matters, the Circuit Court has jurisdiction to deal with all offences except those over which the Central Criminal Court has jurisdiction. Criminal trials in the Circuit Court are heard by a judge sitting with a jury.
(iii) The High Court/Central Criminal Court
The High Court has full original jurisdiction in all matters, civil and criminal. In civil matters, there is no upper limit on the amount of damages that may be awarded. When exercising its criminal jurisdiction, the High Court is known as the Central Criminal Court and, in this capacity, has jurisdiction to try the most serious of offences such as murder, manslaughter, rape, aggravated sexual assault, treason, genocide and piracy. Criminal trials are held before a judge sitting with a jury. The President of the High Court may, in some circumstances, direct that the Court sits with two or more judges. In these circumstances, the High Court is referred to as a Divisional High Court. The High Court also hears appeals from the Circuit Court in civil matters. In addition to its jurisdiction in civil and criminal matters, the High Court also exercises a supervisory jurisdiction, in cases of Judicial Review, in which it has the authority to determine the validity of any law having regard to the provisions of the Constitution. Judicial review of any law in the High Court is governed by Articles 34 or 50 of the Constitution, depending on the vintage of the impugned law. A law passed by the Oireachtas since enactment of the Constitution of 1937, to which the presumption of constitutionality applies, is challenged under Article 34. Laws passed prior to enactment of the Constitution of 1937, to which no such presumption of constitutionality applies, are challenged under Article 50.
(iv) The Special Criminal Court
The Special Criminal Court was established under the terms of the Offences Against the State Act, 1939 and deals with two categories of offence; those which are known as 'scheduled offences' and those in respect of which the Director of Public Prosecutions has certified that the ordinary courts are inadequate to secure the effective administration of justice. The Special Criminal Court sits with three judges and no jury. The three judges invariably comprise a judge of the High Court, of the Circuit Court and of the District Court. The Special Criminal Court functions subject to the Constitution and the ordinary law, its only substantive distinguishing feature being that there is no jury.
(v) The Court of Criminal Appeal
The Court of Criminal Appeal has no original jurisdiction, being solely an appellate court. Sitting with three judges (one Supreme Court and two High Court judges) and no jury, the Court of Criminal Appeal hears and determines appeals from the Circuit Court, the Central Criminal Court and the Special Criminal Court. The appeals may be against conviction or against either the severity or leniency of sentence.
(vi) The Supreme Court
The Supreme Court is the court of final appeal and hears appeals from decisions of the High Court, and, where a point of law of exceptional public importance arises, from the Court of Criminal Appeal. The Supreme Court has full original jurisdiction in only two situations: (i) where the President of Ireland, following consultation with the Council of State, refers a Bill of the Oireachtas to the Supreme Court for a conclusive determination as to its constitutionality under Article 26 of the Constitution of Ireland; and (ii) where the question of the permanent incapacity of the President is in issue. Click here for more information on the jurisdiction of the Supreme Court.
Click here for a diagram of the Court System.
The fundamental rights of the citizen are guaranteed in Articles 40 to 44 of the Constitution. Article 40 provides that all citizens are to be held equal before the law and obliges the State to vindicate the personal rights of the citizen. The term "personal rights", as interpreted by the courts, has led to the recognition and vindication of many rights not expressly provided for in the text of the Constitution. These 'unenumerated rights' include the right to bodily integrity, the right to marry and the right to earn a living, among others.
The 'enumerated' or express rights contained in the Constitution include, among others, the rights to freedom of expression, assembly and association. Article 40 also contains provisions governing the procedure known as habeas corpus through which an individual may challenge the legality of his detention. Articles 41 and 42 relate to the rights of the Family and Education. Article 43 relates to the right of the citizen to the ownership of private property and Article 44 guarantees the right to the free practice of religious worship and forbids the endowment of any particular religion by the State. Although constitutionally protected, none of these rights are absolute and may be curtailed for reasons of State security, the maintenance of public peace and order and where the requirements of the common good require such curtailment.
European Community Law
Ireland is a dualist State, Article 29.6 of the Constitution providing that international agreements have the force of law to the extent determined by the Oireachtas. This means that international treaties entered into must be incorporated into domestic law by legislation before they are applicable within the State (for example, incorporation of the Vienna Conventions on Diplomatic and Consular Immunities was effected by the Diplomatic Relations and Immunities Act 1967). The exception to this is European Community law, which, under the terms of Article 29 of the Constitution, has the force of law in the State. This means that any law or measure, the adoption of which is necessitated by Ireland's membership of the European Union, may not, in principle, be invalidated by any provision of the Constitution.