Constitution - Amendment - Whether the court has jurisdiction to review constitutionality of a Bill amending the Constitution - Whether delay fatal to an application challenging a bill amending the Constitution - Rules of the Superior Courts 1986, Order 84 - Constitution of Ireland 1937, articles 2, 3 and 46.

Judicial Review - Delay.

The High Court (Mr Justice Kelly); judgment delivered ex tempore 20 May 1998.

The High Court has no jurisdiction to review the constitutionality of a bill. In the case of a bill which proposes to amend the constitution, once it has been introduced in compliance with Article 46 of the Constitution, the court has no power to interfere. Any delay in bringing judicial review proceedings to challenge such a bill may be fatal to the application. The High Court so held in dismissing an application to restrain the Government from holding a referendum on a bill to amend the Constitution.

The applicant appeared in person; Donal O'Donnell SC and Nuala Butler BL for the respondent.

Mr Justice Kelly set out the facts. The application was brought by Denis Riordan to restrain the holding of a referendum on 22 May 1998 which sought the decision of the people on the bill which proposed amending the Constitution. The amendment was required by the coming into effect of the "Good Friday" multiparty agreement on Northern Ireland. The applicant conceded that the bill was introduced into the Dail, was passed by both Houses of the Oireachtas and had been submitted for the decision of the people in accordance with Article 46 of the Constitution and the provisions of the Referendum Act 1998. In compliance with Article 46, the bill was expressed to be an act to amend the Constitution. The applicant also conceded that the court had no jurisdiction to construe or review the constitutionality of the Bill. Mr Justice Kelly said that this concession was in accordance with the decision of the Supreme Court in Finn v The Attorney General [1983] IR 154. The applicant indicated that he did not intend to ask the court to consider the substance or the merits of the Nineteenth Amendment of the Constitution Bill 1998 or its contents. His submission was that Article 46 of the Constitution was being violated by the procedure which was adopted by the respondents.

Article 46 provides: "1. Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal, in the manner provided by this Article.

"2. Every proposal for an amendment of this Constitution shall be initiated in Dail Eireann as a Bill and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum. "3. Every such bill shall be expressed to be `An Act to amend the Constitution'.

"4. A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.

"5. A Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof and that such proposal has been duly approved by the people in accordance with the provisions of section 1 of Article 47 of this Constitution and shall be duly promulgated by the President as a law."

The Bill provided as follows:

"Article 29 of the Constitution is hereby amended as follows:

"(a) the section of the text which is set out in Part I of the schedule to this Act shall be inserted after section 6 of the Irish text.

"(b) the section of the text which is set out in Part II of the Schedule to this act shall be inserted after Section 6 of the English text."

The part of the Schedule which the applicant objected to was contained at paragraph 7.3. "If the Government declare that the state has become obliged, pursuant to the agreement, to give effect to the amendment of this Constitution referred to therein, then notwithstanding Article 46 hereof, this Constitution shall be amended as follows:

"(i) the following articles shall be substituted for articles 2 and 3 of the Irish text: . . . "

The applicant submitted that the proposed amendment to Articles 2 and 3 was being brought without due compliance with Article 46. Mr Justice Kelly said that two points were fatal to this submission. Firstly, a consideration of this submission necessarily involved a consideration of the merits of the proposal contained in the bill. The court had no jurisdiction to do that. Secondly, the appropriate procedures prescribed under Article 46 had been complied with. There was no procedural lacuna which would allow a challenge to the bill. Mr Justice Kelly said that even if he was wrong in this approach, he could find nothing in the amendment which ran counter to the spirit of Article 46 or the Constitution. He said the decision of Mr Justice McCarthy in Slattery v An Taoiseach and Others [1993] 1 IR 286 was apposite to this case. There the court held that it had no jurisdiction to interfere with the power of the people to amend the Constitution. The applicant had submitted that the multi-party agreement could not have been entered into because of its provisions concerning the release of prisoners and its failure to address the special position of prisoners convicted of capital offences and the right of the President concerning the commutation of punishment in respect of such persons. Mr Justice Kelly said that this argument was devoid of merit.

He also considered the delay in bringing the application for leave to apply for judicial review. Order 84 Rule 21 of the Rules of the Superior Courts provides that such an application must be made promptly. Here the Bill was passed by the Oireachtas on 22 April 1998. The application was only made on 19 May 1998 which would effect the referendum scheduled for 22 May 1998. No evidence was put before the court to explain the delay in instituting proceedings. Mr Justice Kelly said that the solemnity and importance of the process of amending the Constitution by the people dictates that any attempt to review or challenge or interfere with that process should be commenced speedily in order to permit the constitutional institutions involved the necessary time for consideration of the issue. It would have been preferable to deliver a reserved judgement on the matters arising in this case but because of the constraints of time the judgment had to be delivered ex tempore. The time constraints were caused by the applicant's delay in bringing the proceedings for which no explanation had been given. On both grounds of delay and on merit, the application was dismissed.

Solicitors: The applicant appeared in person; Chief State Solicitor for the respondent.