Sir, – In a recent letter (February 24th) in response to Bruce Arnold's piece on the same-sex marriage referendum ("Referendum wording is threat to Constitution", Opinion & Analysis, February 23rd), a number of legal colleagues correctly state that the courts apply rules of interpretation when examining the text of the Constitution in order to avoid absurd results flowing from such interpretations. However, they go a little too far when that say that it is established "beyond argument" that the courts will avoid any unintended consequences by examining the purpose of the provision itself.
There are several examples of where this approach was not followed by the Supreme Court, the most notable of which is the X case in 1992, which is still a matter of considerable debate today. The eighth amendment to the Constitution, which was the main focus of that case, was proposed and implemented with the sole purpose of implementing a constitutional ban on abortion.
This was made abundantly clear during its passage through the Oireachtas in 1985 and during a lengthy and bitter debate on the matter during the referendum itself.
When the matter came before the Supreme Court, however, they found that an ambiguity in the text of the amendment in fact permitted abortions in a situation where the mother’s life was at risk due to self-destruction. In other words, the Supreme Court interpreted the amendment in a way which directly contradicted the clear stated purpose for which it was introduced. Ironically, this potential defect in the wording of the eighth amendment was raised by the then attorney general, but his concerns were angrily dismissed by those who proposed it, much in the same way that Mr Arnold’s concerns are now being dismissed.
Admittedly, the X case is an extreme illustration of this point, and it would take an equally extreme interpretation of the proposed amendment on same-sex marriage in order for Mr Arnold’s hypothetical scenario to arise. But both the Government and the Yes campaigns would be quite unwise to ignore the issues he raises before a final wording is agreed. – Yours, etc,
THOMAS RYAN, BL
Harold’s Cross, Dublin 6W.
Sir, – Dr Conor O’Mahony and Prof Ivana Bacik (and 54 others) seek to reassure us that “where a literal reading [of an amendment to the Constitution] would result in absurdity, the courts will use a different approach, such as examining the purpose of the provision”. Writing purely as a layman, and not having the advanced law degrees of the 56 signatories, would it not be better to pass an amendment, the literal interpretation of which would not result in absurdity? Why should we have to rely on the courts to ignore the literal wording and examine the purpose of the provision? – Yours, etc,
COLM FITZPATRICK,
Castleknock
Co Dublin.