The Minister is right when he says it is for the Supreme Court to interpret the Constitution. No Act can purport to tell the Supreme Court what the Constitution means. It therefore follows that if we insert something in the Constitution, we surrender control over its interpretation. It orbits around us like a space station and we cannot make contact with it again except by the costly and difficult means of another referendum.
We know this from the 1983 pro-life déb�cle. On that occasion politicians dismissed as mischievous and malicious rubbish suggestions that some day a woman would be prevented from leaving Ireland because she was intending to go to England for an abortion. We were told this could not happen. Case law began to build up and zealots had their way. They chased students in UCD and Trinity College down various legal avenues and they finally arrived at the point that they had build up such a corpus of case law that the Supreme Court was bound to take the final logical step and say it had jurisdiction to stop a rape victim from travelling to England for an abortion. I was by no means in the vanguard of the "no" campaign; in fact I voted in favour of the pro-life amendment. I remember dismissing this possibility and was fortified by Ministers and other public figures who said that this could not happen, that it was fanciful and bizarre and that no Supreme Court would ever tell a rape victim that she could not travel to England.
However, this happened and there was nothing the Legislature could do about this amendment. We had to put three enormous constitutional amendments to the people in a referendum, two of which were accepted; the third proposed to restate the law, this was the so-called substantive amendment. What began as a simple Article, in 1937 terms, on the right to life has ended up being hideously distorted.
I agree with the premise of the Minister that once this amendment is inserted in the Constitution we cannot subsequently pass a Bill saying what it means. The other side of this coin must surely be — I think the Minister would agree — that if there is any doubt about the meaning of this and it is open to debate, we must do our best to satisfactorily resolve that doubt before we put this amendment in the Constitution.
The meaning of the term "living apart" is open to two arguable constructions. Most people would probably agree with the Minister that the term should have a liberal construction; this is our political view. However, there is no point in our having a view. At some stage the members of the Supreme Court will decide on this issue and, on the arguments put before them, they will decide what "living apart" means. They may find it means not sharing the same house. Alternatively, they may find it means sharing a house due to economic necessity in circumstances where, effectively, the marriage has died. It is clear that nobody here can say with 100 per cent certainty, or the same degree of certainty we heard in 1983 about rape victims never being prohibited from leaving the country, what "living apart" means. Yet we are being asked to put this proposal in the Constitution and to hope the Supreme Court will interpret "living apart" in the way we think it ought to be.
If you are changing the Constitution your first duty is to put something very clear into it. If you are going to surrender to the Supreme Court the interpretation of an Article, which you necessarily do, you must in the last analysis have written it as clearly and as unequivocally as you can possibly do, to mean what the people will mean by it when they put it into the Constitution.
Deputy O'Malley mentioned Mr. Gerard Hogan, one of the co-authors of the third edition of Kelly's The Irish Constitution, who agreed with the Minister that that liberal interpretation is open. However, I found nobody who said it means that and only that.
The Supreme Court will decide the issue. It may be that the Minister is correct when he looks into his crystal ball. The Supreme Court may find that "living apart" covers the situation where two people share a home but their marriage has collapsed to the point where, in these appalling situations that one hears about, they communicate by notes or through their children. However, the Supreme Court may not take that view and may decide the people clearly meant that living apart means living apart — that what an ordinary person in Ballymun or Rathmines means by that phrase is what is meant and there is no point in going behind the ordinary natural meaning of the words.
If I was on the Supreme Court on the day I would come to the Minister's point of view, but there is no guarantee, or danger, of that depending on your point of view. I would take the view that it must, at the very least, be arguable. Very few lawyers would say that the matter is free from controversy, and I suggest that no lawyer can say to the people, with hand on heart, that it means only one thing.
Are we right to put it into the Constitution if it is open to several interpretations and if we cannot haul it back at a later stage if the interpretation we think is correct but not free from ambiguity — is not accepted by the courts?
In the Minister's proposed change to the Constitution all the conditions specified as conditions 1 to 4 are cumulative. It is strange, therefore, to note that there is a distinction in law between people living apart for four out of five years and there being no reasonable prospect of a reconciliation between the spouses. There may be some overlap between the two but they are different concepts. In other words, people could be living apart for that period of time and one of them could be applying to the court — this is implied in the wording — for a divorce based on that fact. However, you are saying that in addition to that the court judge could say "Yes, you have been living apart, whatever that means, and yes, you want a divorce but you fail the test of no reasonable prospect of reconciliation. I believe there is a prospect here for reconciliation".
A judge of the Circuit Court or High Court applying that constitutional test will find him or herself saying, "I am told by the terms of the Constitution that it is not sufficient to find that they have been living apart and that one of them wants a divorce. I must now inquire into and be satisfied that there is no reasonable prospect of a reconciliation."
That brings you to a second fundamental legal issue which will be determined in the next five or ten years one way or the other: is that an objective or a subjective test? Is the judge entitled to substitute his own view about the prospect of reconciliation between spouses for the views expressed by the spouses themselves? Is the judge entitled to override their views and say, "I think that if there was a bit of goodwill there, and if they behaved reasonably, they could get back together again."
That appears to be an implicit problem in the Minister's proposed wording. I am not suggesting, by the way, that this wording is ridiculous or that the Minister is coming up with a ridiculous formula. It might be very well expressed in the form of a statute where we could fine tune it this way or that depending on how it was interpreted by the courts. We could put in a few definition sections or say it shall be presumed that, where people have been living apart for four out of the last five years, there is no reasonable prospect of reconciliation. However, what we are putting in place now is a system where that is not the case and where the courts will have to conduct this inquiry in those circumstances.
This is not all theoretical. In 1983 the case of the girl who might be raped and injuncted sounded entirely theoretical and fanciful, but it turned out to be the case later on. On a number of occasions the courts have sought to prevent young women leaving Ireland to have abortions. You have to deal with what I believe will be real cases where the question of, for instance, the reasonable prospect of a reconciliation will arise.
One example might concern a woman and man who are married and where the man is sent to jail for 12 years for an armed robbery. After five years his wife says "I want a divorce. I want to get on with the rest of my life and I have waited long enough. I have satisfied Deputy Taylor's strict and unyielding test. I do not intend to wait for the next seven years for that man to come out." Can a judge say to a man who is incarcerated, and whose marriage was perfectly happy until the date of the crime he committed, that there is no reasonable prospect of reconciliation?
The prisoner will say: "Here I am in Mountjoy or Portlaoise. Of course, my marriage has withered on the vine for the time being but I was a happily married man until I committed a crime. I believe that I am not entitled to be told by a judge that, because my wife now wants to marry somebody else, there is no reasonable prospect of reconciling us."
That is not like an X case which may happen. For a certainty, within three or five years, there will be a case of a long term prisoner whose spouse wants to divorce him or her. Some High Court or Supreme Court judge will have to look at this issue and say: "I know from the Constitution that the mere fact that you are living apart is not a sufficient ground, yet your wife wants to marry somebody else." The prisoner will say: "Yes but you know, looking to the Constitution as framed by the Oireachtas and adopted by the people, that you have to find there is no reasonable prospect of a reconciliation between us. I am now prevented from re-establishing a normal marriage relationship with my spouse because I am not being given temporary release."
I would like the Minister to advance a view as to how the courts will deal, in general terms, with long term convicted prisoners. I do not know how they will decide it. All I can say is that I can see both sides of the argument. A woman might well be entitled to say that if this man has blighted her life, destroyed her family and put himself behind bars, it is absurd for him to argue that he can hope to pick up the pieces where he left off when he is released from prison.
I can imagine the woman's advocate saying that this is an absurdity, but I can equally imagine the "tie a yellow ribbon" argument being made by the man's advocate. The man could claim it is monstrous that, in addition to being put into jail, his family rights are cancelled in his absence in circumstances where the Constitution requires it to be demonstrated that there was no reasonable prospect of reconciliation, but where he is in no position to effect such a reconciliation until he is let out of jail.
That is a debatable issue. I defy anybody here to say that neither side is unstatable or ridiculous. It will come for determination sooner rather than later. The High Court or Supreme Court will offend a significant proportion of the population by saying that a bank robber is still capable of effecting a reconciliation when released and ought not to be visited with a divorce suit as well as a sentence. Alternatively, those courts will offend many Irish women by saying: "Sorry. In those circumstances we have to wait and see when he is released whether there is really the prospect of restoring a normal marital relationship." We could be faced with the more bizarre scenario of a right to a conjugal visit. Those are the realities we now face. That decision will be made in the next few years. No one at this table today could put his hand on his heart to take The Irish Constitution—J. M. Kelly in his hand and say “I know how that will be decided.”
Do we want to put ourselves in the position where the Supreme Court can say that because these conditions are cumulative, there will be circumstances where long term convicted prisoners will be told there will be no dissolution while they are in jail and they must be given a reasonable opportunity to restore their marriage relationship when they are released? That is a hard case, but the hard cases, as we are always reminded, make bad law. That issue must be decided if this becomes part of our constitutional law. I defy anyone to say for certainly how it will be decided. I am also sure there will be great controversy if that case is decided one way or the other, because people will say it was wrongly decided.
These matters should make us conscious of the risks attached to writing detailed social legislation into the Constitution. I understand the Minister's argument and I am not saying it is ridiculous argument that some divorce is better than none, or half a loaf is better than nothing. If he loses the argument, he will lose it to a scaremongering campaign which suggests that he agrees with quickie divorce. In a perfect world he would agree with the Progressive Democrats, but we live in a real world with the Mr. McCarrolls, etc. taking pot shots at him. I am not suggesting the Minister's view is bizarre, but that, as Deputy O'Malley and Deputy Keogh have pointed out, there is a clearly identifable downside based on some of the arguments here today. I am presuming we are not omniscient on this side. There are probably 20 arguments which nobody here will foresee.
I remember the Minister's legislation on the Family Home Bill. No one in the Dáil foresaw or articulated the basis on which that would be turned down.