THE SUPREME COURT
Appeal No. 2005/06Murray C.J.
IN THE MATTER OF ARTICLE 40, SECTION 4, SUBSECTION 2, OF THE CONSTITUTION OF IRELAND, 1937BETWEEN:
THE GOVERNOR OF ARBOUR HILL PRISON
JUDGMENT DELIVERED ON THE 10TH DAY OF JULY 2006 BY McGUINNESS J.
1. I have had the advantage of reading in draft the judgments of my learned colleagues giving reasons for allowing this appeal. I am in general agreement with the reasons given. I propose to add some brief comments.
2. The facts of the case and the course of the proceedings have been set out in detail by Hardiman J. and there is no need to repeat them here. I gratefully accept his account of the history of this appeal.
3. For the reasons briefly set out below I am in agreement with the conclusion of Denham J. that there is neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. This conclusion is borne out by the case law relevant to the issue which has been analysed by the Chief Justice and my other learned colleagues. This case law includes in particular O’Donovan v Attorney General  I.R. 114, McMahon v Attorney General  I.R. 69, de Burca v Attorney General  I.R. 38, The State (Byrne) v Frawley  I.R. 326, Murphy v Attorney General  I.R. 241, and McDonnell v Ireland  1 I.R. 134.
4. The learned trial judge in her judgment (at page 3) considered the effect of a declaration that a pre-constitutional statute was inconsistent with the Constitution. She went on to adopt and rely on a passage from the judgment of Henchy J. in Murphy v Attorney General  I.R. 241:
5. The learned judge went on to apply these principles as she saw them to the case of the applicant.
“If it is a pre-constitutional enactment, article 50, s. 1, provides in effect that the statutory provision in question shall, subject to the Constitution and to the extent that it is not inconsistent therewith, continue in full force and effect until it is repealed or amended by enactment of the Oireachtas, i.e. the Parliament established by the Constitution. The issue to be determined in such case is whether, when the impugned provision is set beside the Constitution, or some particular part of it, there is disclosed an inconsistency. If the impugned provision is shown to suffer from such inconsistency, it may still be deemed to have survived in part the coming into operation of the Constitution, provided the part found not inconsistent can be said to have had, the time of that event, a separate and self-contained existence as a legislative enactment. Otherwise, the impugned provision in its entirety will be declared to have ceased to have a legislative existence upon the coming into operation of the Constitution in 1937.
Such a declaration under article 50, s.1, amounts to a judicial death certificate, with the date of death stated as the date when the Constitution came into operation.”
6. The passage on which the learned trial judge relied is well known and much quoted. It is a striking and memorable statement of the law, albeit obiter. Having, as it were, signed the death certificate of a statute found to be unconstitutional, Henchy J., however, went on to say (at page 307):
7. It is notable that this passage follows immediately after the passage quoted by the learned trial judge. Henchy J. went on to refer to previous decisions of this court, in particular to The State (Byrne) v Frawley  I.R. 326 and McMahon v Attorney General  I.R. 69. At page 314 of the report Henchy J. referred to The State (Byrne) v Frawley. He stated:
“While a declaration under article 50, s.1, does not arise in this case, it is of importance to note that, notwithstanding a judicial declaration of the demise in 1937 of a statute or a statutory provision it may be that, because of a person’s conduct, or because of the irreversible course events have taken, or for any one of a number of other reasons, what was done on foot of the condemned statute or statutory provision may not necessarily be relied on as a ground for claim for nullification or for other legal redress: see the decision of this court in The State (Byrne) v Frawley. In other words, a declaration under Article 50, s.1 that a law had lost validity in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in pursuance of that statutory provision will equally be condemned for lack of validity. Once a finding is made under article 50, s.1 that, for want of consistency with the Constitution, a law ceased in 1937 to have the force of law, a declaration of such invalidity is a constitutional imperative. Whereas, the consequences arising from having acted on foot of or in pursuance of the statutory provision which has thus retrospectively been found to have lost the force of law in 1937 may, in certain circumstances, be held to be beyond the reach of legal action based on that invalidity.”
8. It appears to me that, without any further addition, this passage outlines the general approach which must be taken to the application of retrospectivity in these circumstances and in particular represents the proper approach which should be taken to the present case. Can it seriously be said on the facts of the present case that the compulsion of public order and the common good would allow the application of the present applicant, Mr A, to succeed?
“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: see, for example, the decision of this court in The State (Byrne) v Frawley. While it is central to the due administration of justice in an ordered society that one of the primary concerns of the court should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent considerations which make such a course undesirable, impractical, or impossible…
For a variety of reasons, the law recognises that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and by-products of time, the compulsion of public order and of the common good, the aversion of the law from giving hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise, void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock. As an eminent historian vividly put it, speaking of the pointlessness of seeking to undo or reshape the facts of history: ‘The statue has taken its shape and can never back to the quarry’.”
9. In the same case (Murphy v The Attorney General) Griffin J. dealt with the same considerations more briefly. At page 331 of the report Griffin J. stated:
10. This qualified approach to retrospectivity is evident in the decisions of this court in the cases listed earlier. I would also draw particular attention to the judgment of O’Flaherty J. in McDonnell v Ireland and Others  1 I.R. 134 (the facts of this case have been set out by Hardiman J. in his judgment). While somewhat different reasons were given in the judgments in the case this court was unanimous in dismissing the applicant’s appeal. O’Flaherty J. gave the fullest consideration to the effect of this court’s judgment in Murphy v The Attorney General. At page 142 of the report he stated:
“When a statute has been declared to be void ab initio, it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person, who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the statute under which such Act was done, the courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute – as it was put so succinctly during the argument ‘the egg cannot be unscrambled’.”
11. I have said earlier that the dictum of Henchy J. that a declaration of unconstitutionality amounts to a judicial death certificate is well known and much quoted. It is couched in striking language which readily remains in the mind. Perhaps these very qualities have militated against the giving of full consideration to the careful qualifications and fuller explanations of the effect of a applying this “death certificate” to a statute contained both in Henchy J’s own judgment and in the other judgments of this court over the years. It is in this context that I am in agreement with the Chief Justice in his analysis of the judgment of the learned High Court judge.
“In any event, since the provision was in place when the plaintiff was prosecuted on the 30th May, 1974, he cannot now avail of its extirpation as giving him the cause of action. This is established in both the majority judgments as well as in the minority judgment, of the court in Murphy v The Attorney General  I.R. 241.
It will be recalled that in that case O’Higgins C.J., in his minority judgment, concluded that under the Constitution a declaration as to the invalidity of a law or any provision thereof can only operate from the moment such invalidity is declared in the High Court or in the Supreme Court. He went on to hold that the requirement of an ordered society would have inclined his mind to such a conclusion aside altogether from his interpretation of the express provisions of the Constitution. The idea that a declaration of invalidity operated to say that the provision was void ab initio ‘would provide…the very antithesis of a true social order – an uneasy existence fraught with legal and constructional uncertainty’.
The approach of the majority in Murphy v The Attorney General while holding that declarations of invalidity of legislation worked to make the impugned legislation void ab initio, produced more or less the same results…
The correct rule must be that laws should be observed until they are struck down as unconstitutional. Article 25.4.1 of the Constitution provides that:
‘every bill shall become and be law as of and from the day on which it is signed by the President…’
and that, unless the contrary is expressed, that law is effective from that day forth. Following signature by the President, a public notice is published in Iris Oifigiúil stating the Bill has become law; (Article 25.4.2).
From that date, all citizens are required to tailor their conduct in such a way as to conform with the obligations of the particular statute. Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold ‘the Constitution and the laws’; the judge cannot have a mental reservation that he or she will uphold only those laws that will not some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by ‘the reality of situation’ (to adopt Griffin J’s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy v The Attorney General  I.R. 241 as well as in Cox v Ireland 2 I.R. 503.”
12. A consideration of the case law as a whole demonstrates that, while the principle that the impugned statute or section is void ab initio is generally if not invariably set out, the actual outcome of the cases show that what might be described as blanket retrospectivity has not in fact been applied. The facts of the cases differ and the reasoning for the conclusions may vary but it is impossible to establish either an express or an implied principle of unqualified retrospectivity. In common with Geoghegan J. I agree with the statement of Denham J. that a court is required to differentiate between the declaration of unconstitutionality and retrospective application of such a decision and that as a consequence it is a matter of construing the Constitution to determine how such a decision should be applied in a manner consistent with the principles of the Constitution. I also agree that when a law has been treated as valid law for decades it is impossible, unjust, and contrary to the common good, to reverse the many situations which have been affected over the decades. I concur with the view of Geoghegan J. that concluded proceedings based on an enactment subsequently found to be unconstitutional cannot normally be reopened. This approach is in accordance with common law principles of finality in legal proceedings.
13. I would not exclude exceptions to this normal rule but any such exception should be based on the clear demands of justice in the particular case. I do not consider that the present case on its facts is in any way such an exception. The applicant was convicted of an offence which consisted of sexual intercourse with a girl under the age of consent. At no stage has he denied that the act of sexual intercourse with this girl took place. There is no suggestion that he was denied due process in the course of his trial. He did not at the time challenge the constitutionality of the relevant section or take any of the other steps which might in law have been open to him. The case was decided in accordance with the law applicable at the time and is not now open to attack. I agree with the Chief Justice in what he has stated concerning the general principle governing criminal prosecutions where the State has relied in good faith on a statute in force at the time and concerning the application of those principles.
14. For these reasons I allowed the appeal in this case.