Sir, – Some people, including at least one Government Minister (Leo Varadkar) have suggested that it would be a good idea for the President to refer the Protection of Life During Pregnancy Bill to the Supreme Court under article 26 of the Constitution to test its compatibility with the Constitution. I do not agree.
The article 26 procedure may be satisfactory when a single readily identifiable point is at issue. The constitutionality of more complex legislation is best tested in the light of the facts of particular cases. In examining a Bill under article 26, the court cannot foresee all of the situations that could arise in future cases and can only deal with the constitutionality of the Bill in a theoretical fashion. Once the court has found a Bill to be constitutional under article 26, no further challenge can be brought to the Act in the future, even if a future case exposes considerations or circumstances, of a nature unforeseen by the court, that would otherwise raise serious questions about the constitutionality of the Act.
Hard cases may make bad law but absence of cases can make bad and unchangeable law. – Yours, etc,
CIARÁN CONNOLLY,
St Assam’s Avenue,
Raheny, Dublin 5.
Sir, – Sr Catherine Tansey calls for a referendum on the abortion legislation currently being pushed through the Oireachtas by the Government (July 11th).
This is perfectly possible under article 27 of the Constitution once the Bill has been passed by both Houses of the Oireachtas.
What is required is for one-third of the membership of the Dáil and a simple majority of the Seanad to address a petition to the President to “request the President to decline to sign and promulgate as a law any Bill to which this section applies on the ground that the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained”.
Under article 27.3, any such petition must be presented to the President “not later than four days after the date on which the Bill shall be deemed to have been passed by both Houses of the Oireachtas”. This is entirely distinct from any eventual decision by the President to refer the Bill to the Supreme Court to rule on its constitutionality.
Whether or not this would actually make any difference to the final result is hard to say, but there’s only one way to find out and there’s no logical reason for any party leader to try to prevent it. Giving the people the final say on such contentious legislation, in strict accordance with established constitutional procedures, is surely the most democratic way to handle the matter, irrespective of whether one is for or against the Bill. – Yours, etc,
ED KELLY,
Keswick Road,
St Helens,
Merseyside, England.