Constitution’s 'greatest strength is its greatest weakness' – Hogan

The 1937 Irish Constitution was a repudiation of the Anglo legal tradition and an emphatic declaration of the independence of Ireland, Mr Justice Gerard Hogan, Advocate General at the EU Court of Justice, said last night (4 December). 

Advocate General Hogan was speaking at the NUI Galway Annual Distinguished Lecture 2020 on the significance of the McGee, Norris and X cases on Irish jurisprudence, on the matters of contraception, homosexuality and abortion.

However, he said that the strength of the Irish Constitution was also its greatest weakness, and therein lies its paradox.

Radical document

“It was as its heart too radical a document to fully and easily be incorporated into a legal system which had for hundreds of years rested on the bedrock of the common law, and a more modest judicial approach to the resolution of these contentious social issues,” he said.

“In 1937, for good or ill, we were adopting our own standards,” he said, pointing to the Supreme Court majority judgment in the 1983 Norris case as reflecting traditional Irish religious values.

Divide

That judgment held that the law which criminalised homosexuality was not unconstitutional.

The European Court of Human Rights subsequently found that the law was in breach of Article 8 of the European Convention on Human Rights.

That law had a very stark gender divide in that only male homosexual conduct was prohibited, Advocate General Hogan pointed out. 

“If the justification for these laws was that they reflected religious thinking … one would have thought it’s just as much a breach, from that perspective, of the sixth and ninth commandments, for females to engage in such activity,” he said.

Judge Henchy in his dissenting opinion pointed out that the McGee judgment had invalidated anti-contraception laws, contrary to the proclaimed religious teachings of the majority Christian tradition in the State, Advocate General Hogan said.

The majority Supreme Court judgment had given rise to a lot of difficulty and had not weathered well, he continued.

'Brilliant dissent'

“The majority judges decided that Irish society was not at that point ready for a change, whereas they had believed the opposite in McGee,” he added.

The Norris case represented the last example of where an Irish Supreme Court had expressly invoked avowedly traditional Christian or Irish Catholic values where these values had played a role in constitutional law, he said.

He said the “brilliant dissent” of Justice Henchy was in many ways the greatest ever Supreme Court judgment.

Right to privacy

All members of the court were agreed that the Constitution protected a general right to privacy, he noted.

They were divided solely on the question of whether a law criminalising homosexual conduct between consenting adult males constituted infringement.

Judge Henchy had to acknowledge that there was not, as such, a general right to privacy in the constitution, but he found other provisions which by implication protected that right, Advocate General Hogan said.

The passage of the anti-abortion eighth amendment in 1983 looked initially as if it would join “largely decorative” features of the Constitution, Advocate General Hogan said.

Juridical effect

These provisions had little real juridical effect and were included as an indication of prevailing moral values rather than a means of bringing about legal rights.

The act of giving a constitutional right to life to the unborn was going to create difficulties, however, and difficulties came with it, Advocate General Hogan said.

“Words matter,” he said. 

“And that is certainly true as far as the drafting of a constitutional amendment is concerned,” he said.

“We as lawyers understand that intuitively but it’s not always fully understood or appreciated by non-lawyers, including sometimes politicians or key policy-makers.”

He said the difficulties of the eighth amendment were identified in 1983 by then Attorney General, the late Peter Sutherland.

Overplayed hands 

Everything then said did ultimately come to pass.

“The parliamentary supporters of the amendment probably overplayed their hands by opting for the original wording.

“Peter Sutherland suggested an alternative wording which was less over-reaching and simply protected the existing laws against abortion from constitutional attack,” he said.

Difficulties

“But that wasn’t good enough for a lot of people in 1983. They wanted a specific guarantee of the right to life of the unborn and that was always going to create difficulties.”

 Advocate General Hogan said he felt that the public would have been satisfied with a largely ornamental anti-abortion clause that did not unleash difficulties with the meaning of the word ‘unborn’. 

The legal objections of the AG were dismissed with dogmatic assertions by opponents, he said.