Supreme Court of the Republic of Ireland
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The Supreme Court (Irish: Chúirt Uachtarach) is the highest judicial authority in the Republic of Ireland. The Supreme Court is the "Court of Final Appeal" and exercises judicial review, to ensure that other institutions of the state comply with the Irish constitution. The Supreme Court consists of its presiding member, the Chief Justice, and seven other judges. Judges of the Supreme Court are appointed by the President in accordance with the binding advice of the Government. The Supreme Court currently sits in the Four Courts in Dublin.
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Creation
The modern Supreme Court was created in Bunreacht na hÉireann, the Irish constitution enacted in 1937. Ironically though constitutionally created in 1937 it did not come into existence until 1961. The transitory provisions of the new constitution allowed the previous Supreme Court of the Irish Free State to continue to exist pending the formal legal creation of the new court in statute law. Due to an oversight the temporary continuation of the old court did not end until 1961 when the new court was formally legally constituted, albeit with no change in membership and little change in procedure. Some lawyers have questioned whether all decisions taken by the old Supreme Court up to 1961 are legally sound as a result, given that the old court in their view, as constituted under the old constitution, did not have all the legal jurisdiction possessed by the new court. In particular questions have been raised about the old court's rulings in references by Presidents of Ireland of bills to the Supreme Court to test their constitutionality, and as to whether, unlike decisions of the modern Supreme Court with regard to presidential references, those decisions may still be reviewed and possibly overturned.
The issue as to whether the Supreme Court in existence between 1937 and 1961 was a legal continuation of the old court with its old powers, or was a temporary new court operating exclusively with the powers given to the new Supreme Court by the Bunreacht, is still a matter of legal dispute and debate because the relevant line in the Transitory Article 58, "subject to the provisions of this Constitution relating to the determination of questions as to the validity of any law, continue to exercise the same jurisdiction respectively as theretofore" could imply either that the old court was receiving new powers vis-a-vis the determination of the constitutionality of a law, or was subject to restrictions imposed by the new constitution, with its previous jurisdiction otherwise unchanged. Though a topic of academic debate, no clear interpretation has been given as to which meaning for the words is the correct one.
Composition and functions
The precise number of judges of the Supreme Court may be changed by law. At present it consists of the Chief Justice and seven ordinary judges. In addition it also includes the President of the High Court who is ex officio a member of the court. The Supreme Court sits as a three, five or eight judge court and may sit in two or more divisions at the same time. When ruling on constitutional questions it must sit as either a five or eight judge court. Judges of the Supreme Court may be removed from office, but only for stated misbehaviour or incapacity. To remove a judge a resolution must be passed by both houses of the Oireachtas (parliament). Once such a motion has been approved the judge is dismissed by the President.
The court has such appellate jurisdiction from decisions of the High Court and lower courts as is determined by law. However the law cannot exempt from the Supreme Court's jurisdiction the power to decide upon the constitutionality of laws. In practice the Supreme will usually only hear appeals on points of law. Under Article 12 of the constitution if the Supreme Court, in a sitting consisting of at least five judges, determines that the President has become "permanently incapacitated" then it may remove the President from office. The remuneration of a judge may not be diminished during their term of office.
Today the Irish judiciary shares authority with two supra-national courts: the International Criminal Court and the European Court of Justice. In matters relating to the correct interpretation of European Union law decisions of the European Court of Justice take precedence over those of the Irish Supreme Court. Decisions of the European Court of Human Rights have been accepted as part of the Council of Europe system to which Ireland is also party. Although this may require legislation and states can derogate.
Judicial review
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The Irish constitution states that:
- every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid (Article 15.4.2).
The activities of the Government (executive) must also be both constitutional and legal. The constitution makes the Supreme Court the highest authority in interpreting the constitution and its decision on any such question is final. The court can therefore strike down laws, or provisions of laws, that it finds to be unconstitutional and order the Government to comply with the constitution. The Supreme Court also settles questions as to the correct interpretation of ordinary laws. However, the Supreme Court cannot declare to be invalid a law that has previously been referred to it by the President, under her reserve powers, and on that occasion been found to be constitutional.
In its rulings the members of the Supreme Court are usually permitted to give dissenting opinions. However, when ruling on the constitutionality of a bill referred to it by the President, no such dissenting opinions are permitted. After a slow start in its first few decades the Supreme Court has made some important decisions in judicial review. In particular it has:
- Ruled that Articles 2 and 3 (as they stood before 1999) did not impose obligations upon the state that were enforceable in a court of law
- Ruled that major changes to the treaties establishing the European Union may not be ratified by the state unless accompanied by a constitutional amendment.
- Discovered a broad right to privacy in marital affairs implicit in Article 41.
- Discovered a right to an abortion where there is a risk to the life of the mother through suicide in Article 40.
Important rulings
- 1971 - Byrne v. Ireland (state no longer immune from suit).
- 1973 - Boland v. An Taoiseach (challenge to constitutionality of Sunningdale Agreement)
- 1974 - McGee v. The Attorney General (marital privacy and the legalisation of contraceptives).
- 1983 - Norris v. The Attorney General (criminalisation of homosexuality upheld)
- Later reversed by European Court of Human Rights in Norris v Ireland
- 1987 - Crotty v. An Taoiseach (ratification of European treaties)
- 1990 - McGimpsey v. Ireland (challenge to the constitutionality of the Anglo-Irish Agreement)
- 1992 - Attorney General v. X, more commonly the "X case" (abortion and risk of suicide)
- 1995 - McKenna v. An Taoiseach (government cannot spend public money to promote one side in a referendum campaign)
Current judges (23 May 2005)
- The Chief Justice The Hon Mr Justice John L. Murray
- The Hon Mrs Justice Susan Denham
- The Hon Mrs Justice Catherine Mc Guinness, President of the Law Reform Commission
- The Hon Mr Justice Adrian Hardiman
- The Hon Mr Justice Hugh Geoghegan
- The Hon Mr Justice Nial Fennelly
- The Hon Mr Justice Brian McCracken
- The Hon Mr Justice Nicholas Kearns
- The Hon Mrs Justice Fidelma Macken
- Justice Joseph Finnegan, President of the High Court (ex officio member)
Related topics
- Courts of the Republic of Ireland
- Politics of the Republic of Ireland
- Supreme court
- Judiciary
- History of the Republic of Ireland
- Abortion in Ireland
External link
- Irish Courts Service - the Courts (http://www.courts.ie/Home.nsf/Content/Courts+Opening)