Supreme Court holds declarations of unconstitutionality apply prospectively and to litigating parties only, not retrospectively to third parties.

[2006] IESC 45

THE SUPREME COURT

Appeal No. 2005/06

Murray C.J.

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

In the matter of Article 40, Section 4, Subsection 2, of the Constitution of Ireland, 1937

Between/

A. Applicant/Respondent

and

The Governor of Arbour Hill

Respondent/Appellant

Reasons delivered on the 10th day of July, 2006 by Denham J.

1. This case raises the issue of the general application retrospectively of a judicial decision declaring that a law is invalid having

regard to the provisions of the Constitution. I am satisfied that there is no principle of retrospective application generally of a

declaration of unconstitutionality in our jurisprudence. On the contrary, outside the litigation which sought the declaration,

declarations of unconstitutionality have not been applied retrospectively. While this has been the practice, the principle of law has

not to date been the subject of an express decision of the Supreme Court.

2. The Constitution of the Irish Free State "was something different it derived from another line of thought", as Kennedy C.J. wrote in

the foreword to The Constitution of the Irish Free State by Leo Kohn. The Constitution of the Irish Free State, 1922 was a step

toward the independent State of Ireland. Subsequently, in the Constitution of Ireland, 1937, further new constitutional foundations

were laid. While the common law was retained, in 1937 the organs of State were established and new fundamental principles stated in

the Constitution.

3. Many of the principles set out in the Constitution of 1937 were ahead of their time. It was a prescient Constitution. Thus, the

Constitution protected fundamental rights, fair procedures, and gave to the Superior Courts the role of guarding the Constitution to

the extent of expressly enabling the courts to determine the validity of a law having regard to the provisions of the Constitution. Over

the succeeding decades international instruments, such as the United Nations Charter and the Universal Declaration of Human Rights,

proclaimed fundamental rights and fair procedures, and it became established that in a democratic state constitutional courts should

have the power to protect fundamental rights, including due process, even to the extent of declaring legislation to be inconsistent

with the Constitution and to be null and void.

4. Ireland lead the common law world in 1937 by expressly stating in the Constitution that the jurisdiction of the Superior Courts shall

extend to the question of the validity of any law having regard to the provisions of the Constitution. This, perhaps more than any

other aspect of the Constitution, signalled the nature of the State, its divergence from the system of government in the United

Kingdom, and the parallels which may be drawn with the Constitution of the United States of America.

5. The power to review the constitutionality of legislation expressly given by the Constitution to the Superior Courts was a novel

aspect of the Constitution in 1937. No such power existed expressly elsewhere in common law jurisdictions, such as the United

Kingdom, Australia, or Canada. While such a power existed in the United States of America it was not expressly stated in the

Constitution of the United States, but rather it was found to be inherent by the Supreme Court of the United States: Marbury v.

Madison (1803) 5 U.S. 137. Consequently, Ireland, in 1937, led the common law countries by giving such a power expressly to the

Superior Courts.

6. This power of review of the constitutionality of law by the Superior Courts is an aspect of the separation of powers. In this design

of government the three great organs of State (the legislature, the executive and the judiciary) were each given constitutional

powers and duties. There are checks and balances upon the powers of each branch of government which create a healthy tension

between the three great organs of State, so as to achieve a balanced government which is to the advantage of the people.

7. One of the important powers given to the Superior Courts is that of review of the constitutionality of law. The judicial power of

constitutional review is exercised carefully by the courts, as may be seen from the jurisprudence which has emerged in this State.

Constitutional principles have been developed which relate to the exercise of this power and duty. Thus the presumption of

constitutionality was recognised. In Pig Marketing Board v. Donnelly (Dublin) Ltd [1939] I.R. 413 at p. 417 Hanna J. stated:

"When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a

law passed by the Oireachtas, the elected representative of the people, is presumed to be constitutional unless the

contrary is clearly established."

8. This principle was explained by O'Byrne J. in Buckley & Ors v. The Attorney General [1950] I.R. 67 at p. 80:

"[it] springs from, and is necessitated by, that respect which one great organ of State owes to another."

9. Further, the concept was developed that a court should not enter upon the question of the constitutionality of a law unless it is

necessary for the determination of the case before it: The State (Woods) v. Attorney General [1969] I.R. 385 at p. 390.

10. Also, it is an established principle that law remains constitutional until it is declared to be unconstitutional. Law is relied upon as

valid and is the foundation upon which society proceeds. Personal decisions and circumstances proceed on that basis, institutional

planning is organised on that basis, and the Government, including the Revenue Commissioners, and the State, advance on the

acceptance that the law is valid.

11. In exercising the jurisdiction of determining the validity of a law the date of the legislation is relevant. If it is a statutory law post

1937 then Article 15 governs and any declaration of unconstitutionality renders it null and void ab initio, from the date of the

purported legislation. If it is statutory law prior to the Constitution of Ireland, 1937 then Article 50 is applicable and the law may be

declared to be inconsistent with the Constitution and not to have been continued in force by the Constitution and, consequently, no

matter what the date of such legislation, it is deemed unconstitutional as of 1937. Thus, in relation to both pre and post 1937

legislation, a law may be declared void which has been acted upon for many years.

12. In relation to both types of legislation, both pre and post 1937, no principle of retrospective application of unconstitutionality has

been developed. The precise detail of the application of the judgment may be addressed in the judgment itself, or by subsequent

queries raised by a party in relation to the judgment, or by subsequent cases.

13. There have been decisions which have touched upon the issue of the application of a declaration of unconstitutionality outside

the case itself or related litigation. In de Búrca v. Attorney General [1976] I.R. 38 the Supreme Court, on the 12th December, 1975,

declared that the provisions of the Juries Act, 1927, to the extent that they required a property qualification, were not consistent

with the Constitution and were not continued by Article 50 of the Constitution. Further, that the provisions of the Juries Act, 1927, to

the extent that they extended exemptions from jury service to all women, were not consistent with the Constitution and were not

continued by Article 50 of the Constitution. However, this did not create an avalanche of applications in respect of previous jury

decisions. There was no releasing of prisoners who had been found guilty and convicted by such juries since 1937.

14. Nor was there a general retrospective application of unconstitutionality in Murphy v. The Attorney General [1982] I.R. 241. In

Murphy this Court held that the provisions of sections 192 - 197 of the Income Tax Act, 1967, by providing for the aggregation of

earned incomes of married couples, and thus imposing upon them tax at a higher rate, were repugnant to the Constitution and invalid.

On behalf of the Government this Court was asked: (a) whether the impugned sections were invalid ab initio or had only become

invalid as and from the date of the pronouncement of their invalidity by the High Court or by the Supreme Court, and, (b) the extent

of the relief to which the plaintiffs were entitled in respect of tax overpaid by them pursuant to the impugned sections. This Court

held that (a) the effect of the decision of the Court was that the sections were invalid ab initio and had never had the force of law;

(b) that the date from which the plaintiffs were entitled to be repaid the sums collected from them by way of tax invalidly imposed

(which had been years) was the first day of the financial year immediately succeeding that in which they had challenged the validity

of the imposition of the tax in question, namely the 6th April, 1978; (c) that, as until that date the State had been entitled to act

and to expend the revenue which it had acquired from the tax in question on the bone fide assumption, contributed to by the

absence of objections on the part of any taxpayer, that such tax had been validly imposed and such revenue properly acquired. The

plaintiffs were the only tax payers entitled to maintain a claim for restitution of tax in pursuance of the Court's decision, unless

proceedings had already been instituted by any other taxpayer challenging the validity of the sections impugned in the proceedings.

Thus, this decision on unconstitutionality did not render the State liable to repay all excess monies gathered, bone fide, by the State,

since 1967, to the plaintiffs, or to the many effected married couples. There was no retrospective application of unconstitutionality.

15. The issue of the retrospective application of declarations of unconstitutionality was the subject matter of obiter dicta in several

of the judgments. Having considered the judgment of the E.E.C. Court in Defrenne v. Sabena [1976] 2 C.M.L.R. 98. Henchy J. stated,

at p. 324:

"it stands as a cogent example of the principle that what has been done or left undone under a constitutionally invalid law

may, in certain events, such as the evolution of a set of circumstances which it would be impossible, or unjust or

contrary to the common good, to attempt to reverse or undo, have to be left beyond the reach of full redressive legal

proceedings and have to be treated as an exemplification of the maxim communis error facit ius."

16. Griffin J., at p. 328, pointed out:

"The effect of a declaration under Article 50 is not that the condemned provision has ceased to be in force but that, as

of the date when the Constitution came into operation, it was at no time thereafter in force. But, as Mr. Justice Henchy

has pointed out in his judgment, the fact that a provision was held to be no longer in force since 1937 does not

automatically carry the corollary that what has been done under and in pursuance of that provision after the Constitution

came into force will necessarily be condemned for lack of validity."

and at p. 331:

"When a statute has been declared to be void ab initio, it does not necessarily follow that what was done under and in

pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in

respect thereof. Notwithstanding the invalidity of the statute under which such act was done, the Courts recognise the

reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the

invalid statute, . . . the egg cannot be unscrambled."

17. Thus while a law may be void ab initio, the application of that decision retrospectively is a different and additional matter for

consideration. No principle of the general retrospective application of declarations of unconstitutionality has been developed in our

jurisdiction. Instead the Courts in practice have excluded such situations and queried any other possible approach.

18. Not only is there no principle of retrospective application of unconstitutionality, there have been precedents expressly limiting the

temporal effect of a court ruling. For example in People v Finn [2001] 2 I.R. 25, this Court held that the system of having review dates

in sentences violated Article 13.6 of the Constitution. However, Keane C.J. stated that this should not be taken as impugning the

validity of such sentences imposed by trial judges in cases which had already come before the courts. The court, in other words, held

that there was no general application retrospectively of the declaration of unconstitutionality.

19. Thus we see emerging a principle that declarations of unconstitutionality apply to the party in the litigation in which the decision

is made, and prospectively, but that it does not apply retrospectively. The cases to date have inherently applied the principle that

there is no application retrospectively of a declaration of unconstitutionality outside the litigation, or related litigation, which raised

the issue of the validity of the law. This case is the first time that the Court has been requested to state the principle expressly.

However, the principle has been a matter of legal practice for decades.

20. At the core of the jurisprudence is the duty of the courts to administer justice. The courts do not apply a cold logic in a rule

making vacuum. Rather, the courts administer justice to promote the common good. Thus, for example, in Blake v. The Attorney

General [1982] I.R. 117 this Court held that parts II and IV of the Rent Restrictions Act, 1960 were repugnant to the provisions of the

Constitution. In giving the judgment of the Court O'Higgins C.J. pointed out that the effect of declaring the law to be unconstitutional

meant that many thousands of families, who had relied upon the protection of their tenancies by the legislation, no longer had that

protection. He stated that he assumed that the matter would receive the immediate attention of the Oireachtas, that new legislation

would be enacted speedily, and that pending new legislation it might be possible for some landlords and tenants to reach agreement.

While not wishing to pre-empt litigation he stated at p. 142 that the Court:

"desires to emphasise, however, that it is the duty of the Courts to have regard to the basic requirements of justice when

exercising their jurisdiction. In this regard, in the reasonable expectation of new legislation, when a decree for possession

is sought, the court should, where justice so warrants, in a case where the now condemned provisions of Part IV would

have given a defence against the recovery of possession, either adjourn the case or grant a decree of possession with

such stay as appears proper in the circumstances."

21. Thus while the law was declared void, the Court went on to address the application of that decision. The Court did not suspend

the application of the decision, however it made suggestions which, in effect, addressed the time pending new legislation.

22. The concept of justice is at the core of our organised society. This was referred to by O'Higgins C.J. in The State (Byrne) v.

Frawley [1978] I.R. 326 where a jury had been selected under provisions of the Juries Act, 1927 which sections were subsequently

declared to be inconsistent with the Constitution. However, the applicant had not objected to the jury. O'Higgins C.J., at p. 341,

drew attention to the situation which would exist if the applicant succeeded. He stated:

"It seems to me proper to add that if the contrary be the case and by reason of the wrongful exclusion of qualified

persons from the panel, every jury then selected is to be regarded as unconstitutional and invalid, then certain very

serious consequences would follow. In the first place it would seem to me to follow with inexorable logic that each trial

held with such a jury would have been a nullity and that sentences imposed and carried out, including sentences of

death, would have been imposed and carried out without legal authority. In addition, even those who won acquittals from

such juries could find that they were still in jeopardy because their trials were regarded as a nullity. Could organised

society accept such a conclusion?"

23. This question was rhetorical, of course organised society could not accept such a conclusion. Nor could or have the Courts.

24. The Constitution established the power of constitutional review by the Superior Courts which, as with all powers and duties, is

required to be performed constitutionally. Thus, it must be exercised in a manner consistent with the Constitution, harmoniously with

other (and sometimes conflicting) rights and principles, and "seeking to promote the common good": as the Preamble states.

25. In this case, and in most cases, the issue of the validity of a law arises in relation to a law which has been treated as valid for

years. The Court may determine that the law is invalid either from 1937 or from the date of the purported legislation, depending on

the date of the statute in issue. Either way a law which has been applied as a valid law for many years may be declared to be null

and void. This power of the Superior Courts is exercised in the context that neither the law nor the Constitution is frozen in 1937. The

Constitution is a living instrument. Concepts are before the courts today in forms not envisaged in 1937. Principles and rights have

developed over the last seventy years, from roots in national society, the European Community, and international documents.

26. Consequently, Acts passed by the legislature many decades ago may be, as with the Juries Act, 1927, the subject of a

declaration that it was not carried over by Article 50 of the Constitution. It is a declaration of our time. It is a declaration achieved

by a party or parties after litigation. While the declaration is that the law is void ab initio, or not carried forward by Article 50 of the

Constitution, that declaration itself does not address the issue of its application.

27. The issue, the retrospective application of a declaration that a law is inconsistent with the Constitution to litigants other than the

party who sought such a declaration, has been the subject of judicial decisions in other common law States and a sophisticated

jurisprudence is developing in several jurisdictions. Such a jurisprudence is appropriate for government in a modern democracy. Of

particular relevance to our analysis is the law in Canada where the Constitution is similar to the Constitution of Ireland.

28. In Canada section 52(1) of the Constitution Act, 1982, provides:

"The Constitution of Canada is the supreme law of Canada, and any law that is inconstant with the provisions of the

Constitution is, to the extent of the inconsistency, of no force or effect."

29. Article 50 (1) of the Constitution of Ireland, 1937 provides:

"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát

Éireann immediately prior to the date of the coming into operation of this Constitution shall contrive to be of full force and

effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."

30. Thus there is a significant similarity between the words in the two Constitutions. Both refer to laws inconsistent with the

Constitution; and both give the power expressly to the relevant courts to declare a law to be consistent or inconsistent with the

Constitution. Thereafter the issue of the application of such an order arises in both States. While this has been a matter dealt with in

practice by our courts and inherently in certain cases it has been the subject of express judicial decisions in Canada.

31. This has been so especially in relation to the Canadian Charter. On many occasions the Supreme Court of Canada has expressly

addressed the issue of the application, the temporality, of a declaration. In R. v. Bain [1992] 1 S.C.R. 91 the majority of the Supreme

Court of Canada struck down a portion of the Criminal Code which allowed the prosecutor, but not an accused, to 'stand by'

prospective jurors. The provisions were held to be contrary to the guarantee of a fair trial because they gave the prosecutor more

influence than an accused in the selection of a jury. However, the declaration of invalidity by the Canadian Supreme Court was

suspended by that Court for six months in order to 'provide an opportunity for Parliament to remedy the situation if it considers it

appropriate to do so'. Thus, not only was there no retrospective application of unconstitutionality but the application was postponed

prospectively for six months. However, no reasons were given. This was remedied in a later case.

32. In Schachter v. Canada [1992] 2 S.C.R. 679 the Supreme Court of Canada proceeded on foot of a concession by the Government

of Canada and held that a provision of the federal Unemployment Insurance Act, 1971 offended the guarantee of equality because

the provision allowed more generous child care benefits to adoptive parents than to natural parents. Lamer C.J., for the majority,

pointed out that striking down the act would have the result of denying the statutory benefit to adoptive parents and grant no rights

to natural parents. He stated:

"The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine

whether to cancel or extend the benefits".

33. In other words Canada is developing a jurisprudence of suspended declarations. This is not an issue before the Court in this case.

But the rationale for such an approach is fundamental and arises out of the constitutional exercise of the constitutional power and

duty. It assists in the analysis of the power. It raises for consideration the argument that a Court may consider it appropriate in

certain extreme circumstances to suspend a declaration that a law is unconstitutional so that the Oireachtas might address the issue

if it wished.

34. Obviously such a suspended declaration is in aid of organised society as it enables the legislature address the issue. It also

enables dialogue in the community as to the best way to proceed. In Corbiere v.Canada (Minister of Indian and Northern Affairs)

[1999] 2 S.C.R. 203 L'Heureux-Dubé J. pointed out that there were a number of ways in which the residence requirement at issue

could be corrected and that the best solution would be that determined by Parliament after consultation with the Aboriginal people

affected by the decision. In her view the principle of democracy should guide the court, that principle 'encourages remedies that allow

the democratic process of consultation and dialogue to occur'. The eighteen months suspension of the declaration of invalidity in that

case enabled Parliament have the time to develop and enact a new voting regime, should it choose to do so.

35. This rationale strikes a familiar note in this jurisdiction. Ireland is a democratic State: Article 5. The terms of the Constitution

giving to the Superior Courts the power to review legislation gives rise to the single remedy of a declaration of invalidity. While the

Irish Constitution and the Canadian Constitution expressly contemplate as a remedy an order of invalidly and thus that the law was

void, to exercise such a power constitutionally the Court has inherent power to administer justice. The jurisprudence which has been

developed in Canada in relation to the Charter has addressed the issue of the application of such power.

36. I have referred to Canadian jurisprudence relating to their Charter, and accept that such case law may not be referable or

persuasive to our Constitution, however it illustrates a developing jurisprudence and highlights Constitutional law consistent with a

modern functioning democracy. In accordance with Article 15.4, a declaration of unconstitutionality of an Act of the Oireachtas

renders the Act void ab initio. Pursuant to Article 50.1, a declaration that a statute is inconsistent with the Constitution means that it

was not carried over by the Constitution and is null and void since 1937. However, the declaration of invalidly of a law and any order

relating to the application of that declaration are two quite separate matters, two different issues. The inherent jurisdiction of the

Superior Courts to administer justice is applicable to the decision on both issues. Consequently, the appropriate application of an

order may be considered by a court in all the circumstances of the case, for the purpose of doing justice. While it has never been so

decided, and it would require a full argument, it appears to me that the issue of additional remedies in relation to the application of

such a declaration, for example the suspension of an application of a declaration of invalidity, could be raised in our courts.

37. The principle of law is that a declaration that a law is unconstitutional applies in the litigation in which the issue arose, and

prospectively, there is no general retrospective application of such an order. However, I do not exclude the possibility that an

exception may arise where in wholly exceptional circumstances the interests of justice so require.

38. The issue of the retrospective application of a declaration of unconstitutionality has arisen as a consequence of C.C. v. Ireland

and Ors., (Unreported, Supreme Court, 23rd May, 2006). C.C. was charged with four offences contrary to s. 1(1) of the Criminal Law

(Amendment) Act, 1935, which states:

"Any person who unlawfully and carnally knows any girl under the age of fifteen years shall be guilty of a felony, and shall

be liable on conviction thereof to penal servitude for life or for any term not less than three years or to imprisonment for

any term not exceeding two years."

39. The penalty aspect of the clause was amended by the First Schedule of the Criminal Law Act, 1997, but this was not a relevant

factor.

40. C.C. wished to raise the defence of mistaken belief as to the age of the person with whom he was charged of having carnal

knowledge and he brought judicial review proceedings seeking:

(a) A declaration that a reasonable belief on the part of a defendant that the alleged injured party was over the statutory

age constituted a defence to a charge under s. 1(1) of the Act of 1935.

(b) A declaration, in the alternative, that the exclusion of the defence of mistake as to age is repugnant to the

Constitution and that if the offence created by s. 1(1) of the Act of 1935 is an offence of strict liability, that provision is

inconsistent with the Constitution.

41. On the 12th of July, 2005, this Court, by a majority, held that the defence of mistake as to age was not open to C.C. on s 1(1) of

the Act of 1935. On 23rd May, 2006, this Court held that as the defence of mistake as to age was not open to C.C., as it was held to

be an offence of strict liability, it was inconsistent with the provisions of the Constitution.

42. Subsequently this applicant brought habeas corpus proceedings seeking his release on the basis that he was in custody in respect

of an offence not known to law.

43. The facts of the applicant's case are that on the 24th November, 2004, he was sentenced to a term of imprisonment of three

years to date from the 8th November, 2004, at the Dublin Circuit Criminal Court for the offence of unlawful carnal knowledge contrary

to s. 1(1) of the Criminal Law (Amendment) Act, 1935. The decision of C.C. v. Ireland and Ors.which declared that s. 1(1) of the Act

of 1935 was inconsistent with the Constitution, was relied upon. It was submitted that the applicant was in custody in respect of an

offence not known in law. The High Court ordered his release stating that in accordance with the decision of this Court s. 1(1) of the

Act of 1935 ceased to have legislative existence in 1937. The High Court then considered the consequences, stating:

"In this case, the applicant is detained on foot of a conviction for an action which was accepted by the applicant and by

the People through the relevant State authorities, including the Director of Public Prosecutions, to be an offence on 15th

June, 2004 but which we now know, by reasons of the declaration made by the Supreme Court last week, was not an

offence either when the action occurred or when the applicant was convicted or sentenced…the only consequence of the

declaration of the inconsistency of s. 1(1) with the Constitution with which I am concerned on this application is whether

it has rendered the detention of the applicant unlawful as of now."

44. For the purpose of the application the following facts were agreed: (a) that the date of the alleged offence was 18th May, 2003,

(b) that the applicant's date of birth is 25th April, 1965, so that he was 38 years of age at the date of the alleged offence; (c) that

the complainant's date of birth is 21st August, 1990, so that she was 12 years of age at the date of the alleged offence; and (d)

that at the date of the alleged offence the applicant knew that the complainant was under the age of 15 years.

45. It was conceded that the applicant would not have had locus standi to challenge the constitutionality of s. 1(1) of the Act of

1935 before the C.C. decision. The High Court concluded:

"The fact that the declaration rendered the applicant's detention unlawful may have the appearance of a "windfall bonus"

for the applicant. Be that as it may, in my view, his detention was rendered unlawful by the declaration and cannot

continue. Not being satisfied that the applicant is being detained in accordance with the law, I direct his release from

detention in Arbour Hill Prison."

46. The Governor appealed against the judgment and order of the High Court and consequently the issue of the retrospective

application of a declaration of unconstitutionality has arisen before this Court.

Conclusion

47. The principle of judicial review of the constitutionality of a law by the Superior Courts was a novel aspect of the Constitution of

Ireland, 1937. Ireland led the common law world by expressly incorporating this power into the Constitution. Such a power carries

duties. Over the years the courts have developed constitutional principles and presumptions relevant to the exercise of such a

constitutional power and duty. No principle of retrospective application of a declaration of unconstitutionality has been developed. To

the contrary, the application of declarations of unconstitutionality has been limited to the parties, or identified litigants, and

prospectively.

48. There is no express principle of retrospective application of unconstitutionality in the Constitution. I am satisfied that no such

principle may be implied into the Constitution. Such a principle would bring disorder into society disproportionate to the benefit to be

achieved. Such a principle would render the express power given to the Superior Courts a tool of chaos.

49. The issue of the general retrospective application of the declaration of unconstitutionality was not dealt with in C.C. v. Ireland.

Nor was there any query raised subsequently, by any party, about the application of the judgment. Instead this issue has been raised

in subsequent, unrelated, litigation, this case.

50. Prior to the declaration of its unconstitutionality last May s.1 (1) of the Criminal Law (Amendment) Act, 1935 was treated as the

law of the land. While the court order is to the effect that the section was not continued in force by Article 50(1) of the Constitution,

and so it is deemed invalid since 1937, this does not reflect the reality of the situation since 1937. The reality is that it was assumed

that the law was constitutional. It has been acted upon for seventy years. Over the decades people have been prosecuted,

convicted and acquitted, under this legislation. The section of law has been relied upon. People have altered their positions

detrimentally because of the section. The State, via many instruments, has acted upon the section. It occupied the position of a law

which must be observed - until it was struck down as unconstitutional.

51. While it has been declared that the section is inconsistent with the Constitution and thus not carried over in 1937, that decision

does not address its application outside the case in which it arose. There is no principle of the retrospective application of a

declaration of unconstitutionality outside the particular parties of a case, or litigants specifically named by the court. This has long

been the practice in this jurisdiction, which practice is based upon sound constitutional principle.

52. Organised society and the common good are protected by the Constitution. This includes the orderly administration of justice.

Justice is not served, nor is the reality of the situation in our community served, by applying retrospectively an invalidity in

circumstances where a law has been relied upon by all for many years. Such a principle of retrospective application would be the

antithesis of law and order. Contemplate a situation in 1976 if a retrospective application of de Búrca had resulted in all the prisoners

tried by such juries released? Contemplate a situation in 1982 if retrospective application of Murphy applied and the Revenue

Commissioners were required to return all the invalid taxation collected from all married couples over the years? To borrow from

O'Higgins C.J., organised society could not accept such a conclusion. The Constitution does not require such a conclusion, and nor

have the courts.

53. A court is required to differentiate between the declaration of unconstitutionality and the retrospective application of such a

decision. While in cold logic all such declarations are null and void since 1937, or the date of a post 1937 purported legislation,

application of such a ruling is a further issue for consideration. Consequently it is a matter of construing the Constitution to determine

how such a decision should be applied in a manner consistent with the principles of the Constitution. The fact that there is no

principle of retrospective application of a declaration of unconstitutionality, outside the case or cases in which the issue was decided,

has, quite remarkably, not been the subject to date of express judicial decision in Ireland, although it has underpinned the practice

and application of the law for many years.

54. When a law has been treated as valid law for decades it is impossible, unjust, and contrary to the common good, to reverse the

many situations which have arisen and been affected, in all their myriad forms, over the decades. In fact, even if a law has been

presumed valid for only a few short years it will have affected people and institutions in ways not reversible. The community accepted

the law, the way it was assumed or presumed it to be, and acted accordingly. The clock cannot be put back. The egg cannot be

unscrambled. Indeed this fact is one of the reasons why consideration may be given by the President of Ireland to sending a bill to

the Supreme Court under Article 26 of the Constitution. Such an action by the President, if the bill is found to be unconstitutional,

prevents irreversible consequences. Once a law is applied in a community it has ripple effects which are irreversible.

55. The issue of the application of declarations of unconstitutionality has been the subject of sophisticated jurisprudence elsewhere.

The law of Canada appears to be of particular interest. For example, in Charter cases the Supreme Court of Canada has developed

the concept of suspending a declaration of invalidity so that Parliament may have time to address the issue.

56. In conclusion, the general principle is that a declaration of invalidly of a law applies to the parties in the litigation or related

litigation in which the declaration is made, and prospectively, but that it does not apply retrospectively, unless there are wholly

exceptional circumstances. The applicant in this case was not a party in C.C. v. Ireland and Ors., nor had he commenced related

litigation, or any form of group action, nor are there any wholly exceptional circumstances. Consequently, the applicant is not entitled

to the retrospective application of the declaration of unconstitutionality.

57. For these reasons I allowed the appeal in this case.