By Bosco – The Irish Sentinel –

Pursuant to Article 26 of the Irish Constitution the President of Ireland may, after consultation with the Council of State, refer Bills of the type prescribed in that Article to the Supreme Court for a decision as to whether any such Bill or specified provision(s) thereof is repugnant to the Constitution. There have been 15 such referrals to date, the last being in 2005 and the health (Amendment) bill 2004.
When considering the compatibility of a proposed with the Constitution, referred under an Article 26 reference, the decision of the Supreme Court must issue as a single unanimous judgment. No dissenting judgements, if any arise during the deliberations, are mentioned in the final decision. This provision, contained in Article 26.2.2, was inserted into the Constitution by the Second Amendment of the Constitution Act 1941, in response to the judgment of the Supreme Court in the case of Re Article 26 and the Offences Against the State (Amendment) Bill 1940.
Then Chief Justice O’Sullivan, in rendering judgment for the Court, announced that the decision was the judgment of a majority of the judges, implying that there had not been a consensus concerning the constitutionality of the Bill. It had been determined that any such judgment should have the appearance of unanimity, to provide certainty in the law.
In 1995 a Bill dealing with the provision of information about abortion services abroad was upheld by the Supreme Court. In that case the court found that its function was to determine whether, from an objective stance, the provisions of the Bill represented a fair and reasonable balancing by the Oireachtas of the various conflicting rights in this situation and whether the Bill was so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn, the mother and any other person.

Consequently, when a bill is referred to the Supreme Court to test its constitutionality, the justices must attempt to balance various conflicting rights; between those purported in the legislation under review established by the government and the object it will serve, and any fundamental rights they might abridge or abrogate in achieving that legislative objective.

Establishing a balancing act between conflicting rights is the sole domain of the courts. However, the role of the President under article 26 is to act prudently and in the interests in the Irish people by referring suspect legislation.

It should be noted that a bill that is referred to the Supreme Court under Art 26 and upheld, becomes immune from any subsequent constitutional challenge.  Therefore, presidents tend not to refer suspect bills to the supreme court favouring instead for the bill to become law and then allowing it to be subject to challenge (by a member of the public with standing who can bring a case before the courts to test its compatibility with the constitution).

The most extreme measures were put in place by the government to tackle the so called Covid10 pandemic. These far-reaching measures involved extraordinary incursions upon fundamental freedoms and liberties. Irish people were forced into behaviours that were detrimental to their physical and mental wellbeing, measures that were imposed disproportionately to the imagined threat. Freedom of movement was restricted and curtailed even within the confines of person’s own home such that the Irish people believed themselves to be under constant threat of garda overreach when policing these draconian laws. The absurd inconsistencies were visible to all. A rugby player carrying on water to the pitch had to wear a mask in an open field, while inches away his teammates spat and spluttered on each other and their opposition in the proximity of scrums and rucks. Initially for pubs to remain open, the patrons were allowed to be served meals over 9 euro only as if the virus could discern between the value of a sandwich and pizza. Spluttering actors and journalists didn’t have to wear masks but a man standing alone next to a conveyor belt in his workplace, had to comply. Bus drivers, Store security men and hospitality workers with leaving certificate education suddenly became medico-legal experts in discerning whether a certain illness, and the permission letter that provided an exemption from wearing masks, would properly accord the wearer and bearer with immunity. Even then Taoiseach, Leo Vardakar admitted on the state propaganda machine, RTE, that he was, more or less, making up the rules as they went along. One might be forgiven for believing it was humankind’s first encounter with a virus.

The common interest, the public good, the public interest etc were the driving force behind such draconian measures. The common good soon became an increase in suicide rates to 192%, where the elderly were unlawfully denied contact with loved ones, where grieving families had their suffering magnified with the most obnoxious and arbitrary social distancing rules. There were caveats though. If you were a politician or judge, found in a hotel drinking session after a round of golf, both the virus and laws were not applicable.

All in all, it was an event not witnessed before, and it may not yet be over. There had not been such an abridgment of fundamental rights since the emergency period during world war, but the Covid19 restrictions were far more egregious than those. Emergency measures enacted by the government we are told by legal experts can be necessary in the most extreme and rarest of circumstances. However, as Lord Acton famously warned, “power tends to corrupt and absolute power tends to corrupt absolutely” and the Irish government didn’t disappoint. They, with their agents, the gardai and the Irish army, seemed very enthusiastic in negating fundamental freedoms for a disease that didn’t warrant such overkill. The Irish government was required to demonstrate the necessity of such draconian laws, instead deferred to fear causing propaganda through the corrupt channels of an anaemic media apparatus. The government also needed to show that every restriction imposed was proportionate to the risk posed by the pandemic. The government were also duty bound to listen to all sides of the debate, instead they paid lip service to men whose tragic record of malfeasance had already been documented with the cervical cancer debacle. “Trust the science “was the mantra used by the self-interested cadre of media approved scientists, scientists who were approved by the government AND big pharma.

The far-reaching nature of the legislation that would impose such tyranny on the general public existed only because those with a duty to safeguard the Constitution remained indifferent and mute. Instead, it was people like John Waters and Gemma O Doherty, who dared challenge these nefarious laws but even then, justice was denied. Both John and Gemma are still waiting to be heard having appealed their case to the higher courts. I would wager however, that if their case is heard it will again be denied under some doctrine of mootness.
Where was Michael D. Higgins in all of this? Silent and inactive. Those who argue that the president should be above politics haven’t been paying any attention to the presidency over the last few decades. The president is anything but politically neutral, at least in practice. Higgins is constantly promoting political agenda but when it came to his duty as a president in referring an egregious set of bills to the courts for judicial scrutiny, he failed.

As I have already mentioned, the defence given to Higgins by some will be the acknowledgement that by referring such bills to the court to test their compatibility with the Constitution pursuant to Article 26, will give legal immunity to such Bills in the future.  Under principles of Constitutional jurisprudence where a Bill is deemed to be in accordance with the Constitution, there can be no further challenge to it. The possible argument provided for the reluctance to defer the egregious health Bills under Article 26 is that issues not known at the time of referral may become apparent in the future and that the maligned Act cannot then be amenable to judicial scrutiny on account of it having been deemed Constitutional previously under the hitherto article 26 referral.

For arguments sake, let’s pretend this was the reason for Higgin’s reluctance to send the maligned legislation for referral. However, this presupposes that the legal system and all the civil rights advocates who operate within it, those who dehumanised the unborn with such abandon, would be highly energetic in their civil liberty laden submissions to test the validity of such legislation. There were none, bar the attempts made by pro-lifers, John Waters and Gemma O Doherty. In fact, many of those “human rights” organisations who were quick to arbitrarily remove humanity from the unborn on the basis of “choice” were now wholly on board with denying the most fundamental expressions of choice.

It may come to pass that the courts, as they have done already, will ignore the case brought before them by John Waters and Gemma O Doherty, and defer to some legal principle like “ mootness” to avoid the issue altogether.
Legal proceedings are considered ‘moot’ where there is no longer any legal dispute between the parties. The Irish Supreme Court in Goold -v- Collins applied a Canadian definition of mootness in Borowski -v- Canada, namely: “when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of parties”.
Why do courts apply the doctrine of mootness? A look at another case might inform the reader. In Borowski -v- Canada: the court gave the following reasons for applying mootness to a case at bar. The court recognises that the resolution of legal disputes in common law jurisdictions is rooted in the adversarial system but also that judicial resources must be used properly; and finally the separation of powers must be respected. These principles are weighed together to decide whether a case is considered “moot”.
The Court may decide that an issue is not moot if it is “capable of repetition yet evading review”, see Honig – v- Doe. Nevertheless, where an issue concerns a body exercising statutory functions and powers and its determination would impact future cases, the Court may proceed to issue a decision. If the offending legislation under challenge has since lapsed but where a case concerns the constitutionality of temporary legislation which is likely to be re-enacted, the Court may nevertheless decide the case on the basis that the legislation requires scrutiny. However, this is at the discretion of the courts and as we have seen to date, confidence in the court system to hear, let alone defend basic rights, is at an all-time low.

The Court may deny a hearing on the basis that its purpose is to adjudicate over live disputes between parties. If the lockdown and the impact of the draconian legislation is no longer “live”, the court may reject any submissions. There may arise circumstances however where the Court considers that a matter is not moot and that it is justified to clarify an area of law despite arguments to the contrary. Instances have included: where the case concerned the “special and possibly unique” category of children and child protection, see MF -v- Superintendent Ballymun Garda Station & Ors; where the nature of the constitutional obligation to educate mentally handicapped children remained an issue, see O’Donoghue -v Minister for Health & Ors; where a judgment debtor would continue to be affected by the legislation under challenge, see McCann -v- Monaghan District Court.

Where then stands Higgins and his duty as president to act in the interest of the Irish people? Given the far-reaching incursions upon fundamental freedoms brought about through the substance of provisions of the maligned legislation, as well their over-reaching implementation by government agents, it was incumbent on those with power and knowledge to test the Constitutionality of the legislation, whether at the Bill stage with a referral pursuant to Art 26 or there after once signed into law and operative. Whilst defenders of Higgins might excuse him on account of the implications of legislation being deemed Constitutional and incapable of further review upon article 26 referral, such a defence relies on other interested quarters as well as an amenable judicial system to allow for later scrutiny to ensure the protection of the people against unjust legislation.
Nevertheless, because of the gravity of the consequences that the legislation imposed on the Irish people ab initio, Higgins could have been forgiven if he did refer the offending Acts to the supreme court. However, he chose not to and the Irish people suffered immensely and for years under a tyranny never seen before since the establishment of this state in 1921.