Dáil Éireann díospóireacht -
Tuesday, 10 Oct 1922

Vol. 1 No. 20

In Committee on the Constitution of Saorstat Eireann Bill. - ARTICLE 64.

Mr. O'HIGGINS

Article 64 reads:—"The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution. In all cases in which such matters shall come into question, the High Court alone shall exercise original jurisdiction." The object of this Article is to prevent the inferior Courts deciding upon the question of the validity of any law with regard to the Constitution, and to secure both uniformity and finality. We do not accept the amendment which is on the paper to this Article.

The amendment in the name of Seoirse Ghabháin Uí Dhubhthaigh was:—"To substitute for the words `The High Courts alone shall exercise original jurisdiction' the words `in any other Court an appeal from the decision thereon shall lie directly to the High Court, subject, however, to any law that may be passed restricting the jurisdiction of inferior Courts in determining questions and validity of laws."'

Mr. GAVAN DUFFY

I want to suggest to the Ministry and the Dáil that the clause as worded is rather premature, because the clause provides that the High Court, and no inferior Court, shall decide whether any particular law is opposed to the Constitution or not. Now, some such provision as that may be very good to make by law of this Dáil later on, but the Minister has just told us that the whole Judicial System is going to be re-cast, and I think—at the moment we do not know what Judges we may have outside the High Court—it would be a mistake to prohibit those Judges from dealing with such questions as these. For instance, you are going probably to extend County Court jurisdiction. There is a very general feeling that people should be able to get justice without coming to Dublin, and if you will appoint Judges in the country, who will hold a much higher position than the County Court Judges at present do, it would be highly desirable that these Judges should have the power to determine points of ultra vires concerning the propriety under the Constitution of laws that may have been passed, rather than to make your litigant go to the worry of coming to Dublin. My suggestion is that you should leave out the second part of the Article saying “the High Court alone shall exercise original jurisdiction,” or accept the amendment. My only point is that it is premature to say that the High Court only can hear these things.

Mr. O'HIGGINS

As against that, there is the objection that if you leave jurisdiction to County Court Judges, or to whatever will correspond in the new system to the County Court Judges, you might have as many views of the validity of a particular law as Judges. This, above all things, is a question which requires uniformity and finality. Regardless of when the new system may come into being, it is desirable to get one decision that will bind all inferior Courts, and have early finality on the question, whenever the validity of the law may be raised. I do not expect that it will be raised very often, but a prompt and binding decision by all the Courts in the land is desirable.

Mr. GAVAN DUFFY

I would like to point out to the Minister that you would have a case like that of the Recorder of Dublin where you may have to-day a very good judge in possession, and who may not be a judge of the High Courts. If you start now by saying only a person who is technically a judge of the High Courts may decide these points, you may exclude judges to whom you may afterwards want to give the power to decide these things, and not to prejudge everything by the Constitution.

Mr. KEVIN O'HIGGINS

It is easy to amend the Constitution under the amendment to Article 49, which we have accepted, and I think that takes somewhat from the force of the Deputy's arguments.

Amendment put and negatived.