Retroactivity and presumed constitutionallity

scorplett

If, as in the finding of A. v. Govoner of Arbour Hill, the retroactive application of non constitutional statutes is to be considered to extend to the point of enactment of that Bill.
If this is to be understood that such a statute is unconstitutional from it's enactment rather than from the first occasion of the statute causing a breach to an individual's constitutional rights.
Does this undermine the presumption of constitutionality?

Tom Young

No. I understand your point though.

The 1935 Statute was clearly presumed to be Constitutional, as we have seen. Linked with the CC case you'll note that the Law Reform Commission identified the issue of lacking defence some years ago in re. mistake in sex crimes.

The issue in the present case – Absolute retrospectivity
As counsel for the applicant said, his argument in this case is quite simple and he put it in the following terms: his client was convicted of an offence under s. 1.1 of the Act of 1935. That section has been declared unconstitutional pursuant to Article 50 of the Constitution.

That means, because of its inconsistency with the Constitution, the provision was never the law in the State after the adoption of the Constitution in 1937. That means it is deemed not to have been the law at the time of his conviction and sentence for the offence. For that reason alone the final judicial verdict convicting him and sentencing him to imprisonment was null and of no affect. Therefore he is not detained in accordance with law.

It is analogous to the consequence which also flows from a finding that a post-1937 Act of the Oireachtas is incompatible with the Constitution which has the consequence of such an Act being deemed invalid ab initio, that is to say that from the date of its enactment, and never to have entered into force.

He rests his case on the principle of void ab initio exclusively without regard to any other principles deriving from the Constitution.

It is an argument for complete or absolute retrospective effect of such a finding of unconstitutionality on cases previously and finally decided on foot of an impugned statute, so that those judicial decisions are void and of no effect. (For the sake of convenience, except where the context otherwise indicates, I will refer to a finding of unconstitutionality of an Act as including a finding under s. 50.1 that a pre-1937 Act is inconsistent with the Constitution and a finding under Article 15.4 that an Act is repugnant to the Constitution. Also for the sake of convenience reference to the principle of void ab initio includes a reference to a pre-1937 Act not having force and effect from the coming into operation of the Constitution in 1937.)

johnnyskeleton

scorplett wrote: »

If, as in the finding of A. v. Govoner of Arbour Hill, the retroactive application of non constitutional statutes is to be considered to extend to the point of enactment of that Bill.
If this is to be understood that such a statute is unconstitutional from it's enactment rather than from the first occasion of the statute causing a breach to an individual's constitutional rights.
Does this undermine the presumption of constitutionality?

You fail to understand the basic principle of the A decision.......











.....I don't understand it either.

EOK

I think the one thing that can be discerned from the A decision is that the Supreme Court is as susceptible to media pressure as the Executive or the Legislature.

Any attempt to uncover an underlying logic grounding the decision of the Court is, in my opinion, doomed to failure. The most glaringly obvious shortcoming of the Court was its failure to recognise that retrospectivity was not a feature of Mr A's case. Rather, he was seeking a prospective order, specifically one pursuant to Article 40 of the Constitution. The simple fact of the matter was that the offence pursuant to which he was being detained was no longer in existence. The individual judgments (particularly those of the Chief Justice and Hardiman J) are replete with wonderful rhetoric about how undesirable it would be were Mr A to be released; unfortunately, they failed to provide any reason for the continuation of a detention in the absence of any statutory or common law basis. As far as I am aware, unpopularity is not yet a crime in this country.

Most worringly, even if Mr A's case had been predicated on the absolute retrospectivity of the decision in C, the conclusion reached by the Court was totally at variance with the existing jurisprudence on this point. Somehow the Court managed to turn on its head the principles enunciated by Henchy J in State (Byrne) v Frawley and Murphy. In these cases Henchy J had made it clear that, in all but the most exceptional cases, a finding of unconstututionality would have retrospective effect. The list of factors which he considered would militate against such a finding included factors such as waiver and delay. Interestingly, neither the gravity of the offence nor the character of the applicant were listed by Henchy J. These principles had subsequently been approved of and applied by the majority of the Supreme Court on a number of occasions, e.g. Muckley v AG. Notwithstanding this list of authorities, the Court concluded that the position in this jurisdiction was (& had always been) that, in general, a finding of unconstitutionality did not have retrospective effect unless there existed exceptional circumstances justifying such a finding. I think you will agree this clearly reverses the presumption which at existed up to that point.

Wow, that rant was rather cathartic!

scorplett

Entirely removed from the facts of the case I was working strictly off the basis of the numerous dicta of the case in relation to an impugned statute or section being void ab initio.
While I understand the relevance of C.C to the consideration and outcome of the case, and as the dicta of Hardiman J in particuluar would ensure to be understood. He also makes valid point with the issue I question in reference to Henchey's decision in the Murphy case. I found further in Hardimans ratio the basis for my question:
" The fact is that in the cases cited the conviction, the payment of tax, the long series of general Elections, and the dismissal all occurred in reality, just as the Sections impugned in those cases had nevertheless commended themselves to the Oireachtas or its predecessor and had in reality been acted upon, no doubt in good faith, for periods up to half a century or (as in this case) considerably more. "

I would be in agreement that the decision in this case was a tar on the court and goes against established jurisprudence and needless to say I would have reservations about the nature of the applicant his situation and the obvious media and public opinion pressure etc, However, I was wishing to address more the abstract potential of the dicta and their possible future relevance to both the general concept of retroctivity and of presumed constitutionality.

EOK

In that case:
1. The A case has absolutely nothing to do with the presumption of constitutionality.
2. In the A case the Supreme Court reversed the presumption in relation to the doctrine of retrospective effect. Now, a finding of unconstitutionality will not have retrrospective effect, except in the most exceptional cases (which obviously don’t include continued deprivation of liberty in the absence of a valid legal basis).

Tom Young

*Hat tip*

Victor

There is of course the matter that the convicted could have challenged the act all along, but didn't.

While I suppose it would be harsh on the individual, does that individual owe it to victims, society and the Oireachtas the oppurtunity to revise legislation in future cases.

scorplett

Hope I'm not being too much of a pedant here, I know that what I am questioning is fairly abstract.. it's just something that I have wondered about in the theoretical sense and totally outside of actual... So thanks for the replies so far.... Cue further conceptual tangents

EOK wrote: »

In that case:
1. The A case has absolutely nothing to do with the presumption of constitutionality.

Fair enough, However, I am not questioning a direct point of law, I am questioning potential reasoning and logic as an extension of the various dicta that by consequence appeared in the judgment of A and all the cases it has cited.

EOK wrote: »

2. Now, a finding of unconstitutionality will not have retrospective effect, except in the most exceptional cases (which obviously don’t include continued deprivation of liberty in the absence of a valid legal basis).

Yes, and the question being, that the courts recognize that the legislature may commend a Bill to the house which is not constitutional, the court may find this to be the case, may find that such a thing has never been capable of being constitutional, and outside of obvious public policy reasons and other reasons (such as momentary lapses of reason on the bench :P), will apply such a thing retroactively.
This is understandable, and there is much that can be discussed within each of these concepts individually and as a whole.
I guess I am trying to get my head around the idea that if the finding, and specifically excerpts of dicta, in this case could cause excessive confusion in future cases. Especially considering that the court is generally reluctant to find an Act unconstitutional based on the presumption of constitutionality from the legislatures constitutional requirement to enact legislation which is constitutional, it's effect on the function of challenging Acts on constitutional grounds, the concept of retroactivity in relation to this, and all these concepts given all they now entail, do they then being to frustrate, confuse, undermine each other or any one of these concepts?

So;
Aside from the actual practical outcome.
Do these findings contradict each other to the point of frustrating any or all of the individual concepts involved?
Could they potentially do so in the future?

It' ok if people think this is not the case and my reasoning is off the wall... But I would appreciate an indication as to reason.

scorplett

Victor wrote: »

There is of course the matter that the convicted could have challenged the act all along, but didn't. While I suppose that is harsh on the individual, those that individual owe it to victims, society and the Oireachtas the oppurtunity to revise legislation in future cases.

True, and this is I believe the main basis of the "piggyback" argument that a number of the judges in the cases discussed.

dermot_sheehan

What A shows is that you can't challenge the basis of a detention warrant by collateral attack.

In "A", the prisoner launched an article 40 habeas corpus challenge to his detention, the state responded with a warrant of detention for the relevant number of years, he responded with the fact that the offence for which the detention warrant was issued did not exist since 1937.

Supreme Court held that you can not challenge the constitutional basis of the statute grounding the detention warrant by collateral attack, only by direct appeal. Mr. A was not detained by virtue of a statute that did not exist but rather by a detention warrant issued by a court, and the time limit for challenging that detention warrant (by direct appeal) had expired.

Courts have held in the past that placing reasonable time limits on the ability to enforce constitutional rights (in this case appeal the case) are constitutional (cahill v. sutton), therefore his habeas corpus challenge failed

EOK

in relation to the "piggybacking" argument, this was a red herring as Mr A was not attempting to mount a collateral attack on the Act. His application has to be distuinguished from that put forward in CC. As I indicated before, A's case was entirely predicated on Article 40.4. This provides that:

"No citizen shall be deprived of his personal liberty save in accordance with law."

As such, Mr A's challenge was not collateral in nature. Unlike Mr C, he did not seek to impugn the statute on the basis that it provided him with no defence of honest mistake. On the contrary, his Counsel accepted at the outset that he would not have had locus standi to challenge the statute on this ground. Rather, he argued that his right to liberty under Article 40.4 (as distinct from the right raised in C, namely that to a trial in due course of law under Article 38.1) was infringed by his continued detention. This is a discrete issue and consequently it cannot be characterised as a collateral attack (or piggybacking as you put it).

I'm not sure I understand exactly the point you are making in relation to the presumption of constitutionality and retrospective effect. The presumption of constitutionality is merely an interpretative tool used by the courts to minimise the detrimental impact which legislative ambiguity could have on our society. Its effect is merely to interpret a statute in a manner which accords with the constitution when two interpretations are open to the court. If, however, the court cannot interpret a statutory provision in a constitutional manner, they must declare the statute in question to be void ab initio pursuant to Article 15.4.2. One is an interpretative tool, while the other is a constitutional imperative. I don't see how the two have been conflated.

Perhaps if you quoted the precise passages from the A case which you feel blur the distinction between these two principles? Alternatively, you could attempt to articulate exactly what about the A decision leads you to believe that these two concepts have been confused?

bigbobbya

gabhain7 wrote: »

What A shows is that you can't challenge the basis of a detention warrant by collateral attack.

In "A", the prisoner launched an article 40 habeas corpus challenge to his detention, the state responded with a warrant of detention for the relevant number of years, he responded with the fact that the offence for which the detention warrant was issued did not exist since 1937.

Supreme Court held that you can not challenge the constitutional basis of the statute grounding the detention warrant by collateral attack, only by direct appeal. Mr. A was not detained by virtue of a statute that did not exist but rather by a detention warrant issued by a court, and the time limit for challenging that detention warrant (by direct appeal) had expired.

Courts have held in the past that placing reasonable time limits on the ability to enforce constitutional rights (in this case appeal the case) are constitutional (cahill v. sutton), therefore his habeas corpus challenge failed

Cahill v. Sutton was primarily concerned with the time limits prescribed by the Statute of Limitations for bringing actions in Tort between private parties; it had absolutely nothing to do with actions against the State. While the effect of such an action might well be to indirectly enforce a right (e.g. that to bodily integrity), I still don't think it's a very good example. Habeas Corpus (as in A) is a discreet procedure laid down in the Constitution and is therefore not governed by any such statutory time limits. Furthermore, the fact that it relates to an ongoing state of affairs (unlawful deprivation of liberty) as opposed to other Constitutional actions for the redress of wrongs committed by the State at some point in the past (such as isolated incidents of invidious discrimination) is hugely significant.