Monday, July 15, 2013

Should the President refer new abortion law to Supreme Court? estimable Senator Paul Coughlan has suggested that the Protection of Life During Pregnancy Bill, if enacted into law, was likely to be challenged and for that reason he hoped that President Michael D Higgins, "in his sanguinity and wisdom", would call in the Council of State to refer the matter to the Supreme Court so that the bill could be put beyond doubt. 

At least one member of the Government shares his view.

The senator is right to refer to the President's "sanguinity and wisdom" but would the referral of this bill be a good idea?

Article 26 of the Constitution provides that the President may, after consultation with the Council of State, refer a bill to the Supreme Court for a decision as to whether the bill or any provision of it is repugnant to the Constitution. He has to do so within seven days of its being presented to him for signature.

The Supreme Court, consisting of not less than five judges, must pronounce its decision on the reference within 60 days. Only one judgment is allowed; no dissenting judgment is allowed or even disclosed. 

If the bill is adjudged constitutional, no further challenge can be brought to it as an act in the future. 

If adjudged unconstitutional then it would be back to the drawing board for the Dail and Seanad.

This is one of two powers that the President can exercise in his absolute discretion. While he will listen to what members of the Council of State have to say, he is not bound to act on their advice.

This procedure works best where there is a net point to be decided; where the answer is yes or no. For example a bill was referred where the question was: is it permissible to give the vote to non-citizens by ordinary legislation: answer, No, a referendum was required. On the other hand, on a reference whether children born in wedlock could be adopted, the court answered Yes and a referendum to amend the Constitution was not required.

As regards the current bill, if it were to be referred, it is likely that the court would assign two sets of counsel to present arguments against the constitutionality of the bill. One set would argue that the bill has gone too far; the other that it did not go far enough.

So it would be better that the bill should become law and if a case emerges with a concrete set of facts then the courts – the High Court would come into play in this scenario too – could properly adjudicate on the constitutionality of the act. In contrast, where a bill is referred no evidence is heard and so matters have to proceed on a theoretical basis.

There is a precedent where doubtful legislation was signed by the President. In March, 1967, President De Valera was presented with an enormous consolidated Income Tax Bill. 

According to his biographers, Longford and O'Neill, the President was not satisfied that certain powers of entry and arrest given to revenue officers were in accordance with the Constitution.

The President did call a meeting of the Council of State but did not refer the bill. 

Seemingly, he had got an assurance from the Government that if he signed the bill into law an amending bill would be passed immediately deleting the repugnant sections. That is what happened: it was a fair and pragmatic solution.

For the court to have to grapple with such a huge bill and produce a judgment within 60 days would have been a truly nightmare scenario.

A final word on the bill. It has been repeatedly stated the bill is to deal with the X Case decision of 21 years ago. It is more accurate to state legislation is required under the Constitution itself. 

When the eight amendment to the Constitution was passed 30 years ago it provided: The State acknowledges the right to life of the unborn, and with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

So amending the Constitution was an incomplete work. 

The hard work had to follow. 

Time will tell if it has been a success.

Hugh O'Flaherty is a retired Supreme Court judge.