The Judiciary as an Organ of Government

Separation of Powers

The Constitution of Ireland adopted in 1937, organises the powers of Government according to the doctrine of the separation of powers. The legislative powers of the State are assigned to the National Parliament (the Oireachtas) consisting of a House of Representatives (Dáil Éireann) and a Senate (Seanad Éireann) and the President of Ireland by whom all adopted Bills are signed into law. The executive power of the State is assigned to a cabinet government of up to 15 members presided over by a Prime Minister (or Taoiseach) and the judicial power is assigned to the judiciary who are required to administer justice in courts established by law, to include the High Court as a first instance court of general jurisdiction and a Supreme Court as a court of final appeal, but with provision for the establishment by law of other courts of local and limited jurisdiction.

The judiciary is an arm of government and its members are not mere public servants tasked with the resolution of disputes or the enforcement of laws, though that is clearly an important part of what they do. Judicial power is also available to be exercised (by the Superior Courts) as part of the checks and balances built into our system of government, such as the right and duty to examine the validity of any impugned enactment of the Oireachtas, and if it be found inconsistent with the Constitution, to condemn it in whole or in part; and the right and duty to interfere with the activities of the executive in order to protect or secure the constitutional rights of individual litigants where such rights have been or are being invaded by those activities or where activities of the executive threaten an invasion of those rights.

The High Court’s Constitutional Adjudication and Judicial Review Jurisdictions

The High Court is empowered to adjudicate upon claims which assert the incompatibility of legislation with provisions of the Constitution. It also has a general jurisdiction to adjudicate upon the legality of administrative and quasi judicial decisions and regulatory measures adopted by the national and local government, their departments. The latter jurisdiction, referred to in procedural rules as “judicial review”, is broadly equivalent to the competence exercised in the civil law jurisdictions by their administrative courts and is the jurisdiction by which the High Court supervises the legality of the exercise of delegated powers by inferior courts, administrative tribunals and public authorities and officers. The jurisdiction empowers the High Court to grant an applicant relief by way of the principal orders of habeas corpus enquiring into the legality of the detention of any person claiming to be unlawfully deprived of liberty, certiorari quashing an unlawful decision, mandamus requiring a public authority to discharge a public duty in respect of which it is in default, and prohibition restraining an inferior court from acting outside its jurisdiction. The jurisdiction also entitles the High Court to grant declaratory relief with a view to establishing the rights or entitlements of an individual in an area of constitutional or administrative law and injunctions to restrain a public authority adopting or implementing an unlawful measure or decision.

The Supreme Court’s Advisory Jurisdiction

Under Article 26 of the Constitution, before signing a Bill adopted by the Parliament into law, the President of Ireland is entitled, after consulting the Council of State, to refer to the Supreme Court a question as to whether all or any of the provisions of the Bill are repugnant to the Constitution. This must be done within seven days of receipt of the Bill for signature. Upon receipt of the reference, the Court nominates counsel to argue the case against the Bill and the Bill is upheld in argument by the Attorney General or by counsel on her behalf. The judgment of the Supreme Court on the reference is required to be given within sixty days and is given as the judgment of the Court with no other opinions, whether assenting or dissenting, being given. Where the Court holds that a referred Bill or referred provisions of a Bill are incompatible with the Constitution, the President is required to decline to sign it into law and the Bill lapses. If the constitutionality of the Bill or of referred provisions is upheld, it is signed into law and the Act or the relevant provisions become immune from subsequent challenge.

The Supreme Court’s Appellate Jurisdiction

The Supreme Court has appellate jurisdiction in respect of all appeals from the High Court, including cases where the High Court has exercised its constitutional adjudication and/or judicial review jurisdictions.

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