The Irish Constitution: Explained by Darrell FiggisFiggis, Darrell
History
The Irish Constitution: Explained by Darrell Figgis
Figgis, Darrell
Ireland -- Politics and government -- 1922-1949
It is little wonder that Mr. Hughes in the same speech should have said
that "Australia's experience of the Privy Council in constitutional cases
has been, to say the least of it, unfortunate." He also read an extract
from a resolution of the Final Court of Appeal of New Zealand, which
declared of the Judicial Committee that "by its imputations in the present
case, by the ignorance it has shown in this and in other cases of our
history, of our legislation, and of our practice, and by its long delayed
judgments, it has displayed every characteristic of an alien tribunal."
The spokesmen for the other States present were equally emphatic. "I
think," said Sir Robert Borden for Canada, "we have had just about enough
Appeal Courts, and I think the tendency in our country will be to
restrict appeals to the Privy Council rather than to increase them."
"There is," said Mr. Rowell for the same State, "a growing opinion that
our own Courts should be the final authority." "You know what our opinion
is in S. Africa," said Mr. Burton. "In our Constitution we have abolished
the right of appeal to the Privy Council as a right. There is no such
right with us at all, but the Constitution merely says that any right
residing in the King in Council to grant special leave to appeal shall not
be interfered with."
These utterances, and the entire course of history on this matter, reveal
an irritation which has grown with experience. The mechanism is merely a
mechanism, and it has not worked well. It has injured harmony, and it
manifestly has not brought justice. Even assuming that the Irish courts
should agree that the decision in any individual case appealed from should
stand, it could equally well argue that that decision could not be held to
govern other cases; and the effect of such a decision would be to make the
appeal nugatory in law.
Besides all of which, the right to allow such appeals to the Judicial
Committee is based, ultimately, on the acknowledgment of the supremacy of
British legislation; and the plain intention of our Constitution is that
this supremacy is not acknowledged, each party to the Treaty being a
co-equal member of a larger Community. Not only, therefore, are the
practical reasons against such a right of appeal, but there is no
substance in the Constitution to make such a right allowable.
There is, indeed, nothing that can be said in favour of such a provision,
from the point of view either of justice, of law, of equity or of harmony.
If it be destined to remain, it is to be hoped that it will remain a dead
letter. Otherwise it will lead to boundless friction and ill-will,
internal and external.
Public-domain text, read in full here on John Shaqi.
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