From The Irish Constitution Explained by Darrell Figgis 1922

The three organic parts of every Constitution are the Legislature, for the making and enacting of laws, the Executive, for the execution and administration of laws, and the Judicature, for the interpretation and enforcement of laws. These three comprise the powers of Government which a people bestow on certain organisations which they create for that purpose, in the sovereign act of conferring a Constitution on themselves. The authority which such organisations shall henceforward exercise in Ireland derive, under the Constitution, from the people of Ireland; and from no right or power, pretended or real, existing elsewhere.

The first of these three organic parts, obviously, is the Legislature, since laws cannot be executed or interpreted until they first exist. The second, equally obviously, is the Executive, since laws, having come into existence, must first be put into execution before they can be liable to interpretation, or before they can be said to require enforcement. But when a Legislature and an Executive have been brought into existence, as necessary organisations for a people's government of themselves, a Judicial organisation at once becomes necessary. For no law can so be made as of itself to fit each particular case. Laws, by their nature, are of general meaning, and must be interpreted to the particular instance where its construction is questioned. And there is (unhappily) no law that is not sometimes altogether challenged, and set at defiance, when therefore the law made by the people at large must be enforced on the individual, and its defiance punished.

Unfortunately few people regard their Judicature with the same pride of possession with which they (sometimes) regard the Legislature, and even the Executive. Even when folk disapprove of their law-makers and their ministers, they disapprove because they conceive they have acted mistakenly on their behalf, whereas they conceive of judges as having acted from a malignancy inborn in them or in the system, with the kind of disapproval reserved for those who are created and are destined to act against their behalf. That is—in most countries, and especially in Ireland—a legacy from evil days, when judges were not the people's judges, but whips sent forth through the land by some person who claimed to be sovereign. With the reversal of sovereignty, however, the judges become the people's judges; the courts are the people's courts, where the laws of their own making are interpreted; the judicial system is the people's system; and it is for the people to insist that this attitude is observed, not only by them, but by those who interpret the laws and administer justice. For, under the Constitution, no judge sits in any court in the land save by an authority bestowed on him by the people, in the Constitution which they confer on themselves. And it is for the people to remember that fact; for only by that memory will it be recognised in the courts themselves—and, indeed, only thus will it deserve to be recognised there.

It is not, however, necessary that the details of the judicial system should be worked out in the Constitution. It is not, indeed, desirable that they should be (a consideration worthy of attention, not alone here, but in connection with the provisions for the Executive also), for such details belong to later legislation. All that is required in the Constitution is the general outline of the Judiciary, and a statement of its organic relation to the other parts of the powers of government created under it. How that outline will be completed, and the details of the organic relation made good, must be dealt with in a subsequent Judiciary Act, preceded probably by a Judiciary Commission established to review the whole of the present system and to report to Government on the changes required. In the meantime the present system will continue, subject to the principles and plan of the Constitution, which is the law fundamental to the later Act, and therefore at once of effect in respect of its general principles and plan.

According to that plan the entire system of courts and titles that derive from ancient feudal practice is abolished. A new and simple system comes into existence, comprising a number of courts, civil or criminal, of original instance and a Court of Final Appeal. The Court of Final Appeal is to be known as the Supreme Court, and the chief of the courts of first instance as the High Court. In these courts all cases are entered, and the Civil Authority of the Nation is made paramount in all circumstances. "The jurisdiction of Courts Martial," says Article 69, "shall not be extended to or exercised over the civil population save in time of war, and for acts committed in time of war, and in accordance with the regulations to be preserved by law. Such jurisdiction shall not be exercised in any area in which the civil courts are open or capable of being held, and no person shall be removed from one area to another for the purpose of creating such jurisdiction." Moreover, soldiers themselves are relieved from Courts Martial, unless they are on active service, except for purely military offences. For Article 70 reads: "A member of the armed forces of the Irish Free State not on active service shall not be tried by any Court Martial for an offence cognisable by the Civil Courts."

It may be asked, however, how safeguards such as these, together with the qualities of sovereignty declared in the Constitution to be the Fundamental Rights of the people, shall be protected. For it is a temptation to all governments to find an easy way out of difficulties by riding roughshod over rights and safeguards, however earnestly they may be declared. There is only one answer. In the making of constitutions there can be only one answer. It is that the Judiciary is the People's Judiciary, and the third part of the organic whole of Government which the people create. Article 64, therefore, reads that "the judicial power of the High Court"—with appeal to the Supreme Court—"shall extend to the question of the validity of any law having regard to the provisions of the Constitution." The Judiciary is the interpreter of laws. It is therefore the interpreter of the Fundamental Law. And it is therefore the interpreter of the Fundamental Law and the protector of the Fundamental Law, as against all other laws of the Legislature that may violate it, not to say arbitrary acts of the Executive that may neglect it.

It must be so. There is no other way to protect the guarantee of fundamental rights written carefully in a people's constitution. Without some such provision a Constitution might be written in water, and its guarantees set aside by any powerful executive, or any executive not instantly answerable to the people's will. A provision of this kind is, therefore, a necessary democratic safeguard. It is true that in the United States the judicial review of the Supreme Court over legislative and executive acts has led to unfortunate decisions and much acrimonious discussion. The evils of an institution are always apparent, and no institution but has its evils. The evils that would have come into existence had that institution not been there, however, are not apparent. They are the incalculable part of the bargain; and, being incalculable, are inevitably neglected in argument. Yet they may prove to be the overwhelming factor of the argument. So it is in this case. It would be blindness to neglect it. The mere existence of the Judicial Review in the United States has unquestionably prevented many an arbitrary act of the Executive in defiance of the rights ensured by the Constitution; and if the Supreme Court has, as it undoubtedly has, abused its power of interpretation, the remedy is, not to sweep away that Judicial Review, and so to jeopardise the provisions of the Constitution, but to amend the Constitution in plainer terms, or to amend the Supreme Court. For it is plain that without Judicial Protection of the Fundamental Law (as the Judiciary is required to protect, interpret and enforce the ordinary law) its clearest provisions could be neglected at pleasure.

I may take only one instance. Article 9 of the Constitution protects the right of free expression of opinion, the right of free assembly, and the right of forming associations not opposed to public morality. Now it hardly needs to be said that no Government likes the expression of opinions hostile to itself. And no Government likes associations formed to bring its hour to an end. Under the Constitution the minorites of the day have the honest chance of becoming the majorities of the morrow in a peaceable manner. But what would be the worth of this honest chance before a powerful Government unless these protections, these rights of a sovereign people, were placed in the care of the third institution of the Constitution, the institution entrusted with the interpretation and enforcement of laws?

It is true that the Judiciary may abuse its power (since power is nearly always abused) by interpreting social reform, let us say, to be "opposed to public morality." But in this connection, it is right to remember, first, that judgment is not reserved only to one Court, but to two Courts—to the High Court, with appeal to the Supreme Court. And it is right to remember, next, that the people have always in their possession the instruments of the Initiative and the Referendum, by which they may require either the Fundamental Law or later laws to be amended to meet their need. There are, therefore, considerable safeguards in the Constitution against abuse. Yet, even so, because one-fourth of a fundamental right may be jeopardised by an abuse of the Judicial Power, that is no reason why four-fourths should be surrendered to the abuse of the Executive Power.

Therefore the Judiciary is placed in care of the provisions of the Constitution, not to imperil but to protect them. The rights conferred in the Constitution are the People's rights. The Constitution is the People's Constitution. The Judiciary is the People's Judiciary. It is for the people, by alert and active citizenship, to make them so in every real sense.

« The Executive Power | Contents | The Question of Appeals »