Last week's Supreme Court ruling does not apply retrospectively, writes David Gwynn Morgan
The Osayande Supreme Court judgment ruled that it would not be unconstitutional to deport the immigrant parents of children born in Ireland. Michael McDowell's commendably swift reaction to this case was to rule out the mass deportation of such immigrants already living in Ireland. This was not only humane, but also realistic, in the light of the Constitution.
Until last week, the law in this field was fixed by the Supreme Court ruling in Fajujonu (1989). This case held that, save in compelling circumstances, such as a serious criminal offence, it was unconstitutional to deport the immigrant parents of minor children born here.
The most intellectually honest summation of the majority judgments in Osayande would be that the court reversed Fajujonu, on the basis that socio-economic circumstances had changed in that more people than expected had taken up the rights created in the earlier case.
The big question is what effect last week's ruling would have on immigrants who already have an Irish-born child, and thus have acquired Fajujono rights - reported to number 10,000.
One of the most deeply-rooted principles in the law is that it is unfair, and possibly unconstitutional, for an Act of the Oireachtas to be drafted so as to catch actions taken before the law was passed.
However, judge-made law - sometimes called the common law - has traditionally been regarded as different. This difference is conventionally justified on the basis of the fiction that judges do not make or, therefore, change the law; they only "declare" it; and, consequently, there is no retrospective operation.
In the present case, what has happened is that it is not the common law, but individual constitutional rights, which have been changed, by being significantly reduced. Nothing like this has happened before. The closest we have come to it is a situation in which an Act of the Oireachtas on which people have relied has been struck down as unconstitutional.
The question has then arisen as to the validity of actions taken on the basis of this Act before it was struck down. In theory, there is a case for retrospective operation here on the basis that an Act of the Oireachtas which violates the Constitution could never have been a law in the first place. On this basis, all that a case striking down a law does is to provide a sort of judicial death certificate.
The result of this line of thought would be that taxes which had been paid, contracts made or land owned, under the law struck down, would all have to be reversed or nullified. In fact, when it comes to it, the courts have jibbed at the "appalling vista" (to quote from a different context) which would have been opened up if full retrospective operation had been allowed. And common sense has prevailed.
But the present situation is different in that neither theory nor practice requires that last week's ruling be given retrospective effect to catch immigrants who had already qualified under Fajujono.
For the important point is that they gained these rights not on the basis of any Act of the Oireachtas which has been swept away, but by virtue of the Constitution itself, as interpreted in the earlier case. Moreover, it is also relevant that in many cases the immigrants will have changed their position by coming to Ireland, and possibly even having a child, on the basis that this would give them constitutional rights of residence.
THE real issue, therefore, is the scope of the Fajujono ruling and which residents actually acquired rights under it. Here one needs to dig a little deeper into the reasoning of the Supreme Court in that case. There were two major judgments. The first judgment was that of Mr Justice Walsh, whose argument was essentially followed by the two dissentients in last week's decision.
His argument laid emphasis on the fact that the Fajujono infant had been born in Ireland. Therefore, she was an Irish citizen with a right to reside here. She also had the constitutional right to live with her family. Save in what Mr Justice Walsh described as compelling circumstances, she could not be forced to make the hard choice between these two rights.
Mr Justice Walsh seemed to add on to this condition a second one, namely that before the immigrant parents gained a right of residence ". . . the family had to have made its home and residence in Ireland".
The second judgment was that of Chief Justice Finlay. He followed the same basic analysis, but his add-on was more stringent. It was that "the Alien has, in fact, resided for an appreciable time in the State" - in the case of the Fajujono family, the period was eight years up to the time of the Supreme Court case.
Thus the two major judgments were rather different. Yet the other three members of the court said simply that they agreed with both. Now, 13 years later, the lame ducks have come home to roost.
In assessing the constitutional position of any illegal immigrants with children born here, the basic difficulty would be to decide whether it is the Finlay or the Walsh judgment which represents the Fajujono law. This is critical, because so many people affected have probably not been here for an "appreciable time", to quote Chief Justice Finlay (though, again, it is difficult to be definite as to what this expression means).
There is another consequence of the ancient fiction that judges do not make law. It lies in the fact that, in a multi-judge court, each judge may give their own judgment, so that the task of anyone trying to obtain a precise statement of judge-made law is made difficult. (The same difficulty materialised in Fajujono, as we have seen, for a different reason).
Since the practice has developed, in Sinnot, Abbeylara and now Osayande, of convening a seven-person Supreme Court, presumably to give a really authoritative ruling, the disease has become worse. Thus there is a difficulty - confronting anyone seeking to make law on the basis of Osayande - of finding out what the present law is.
Imagine, to take an analogy with statute law, if all deputies and senators could each devise their own version of a law, instead of simply voting for or against one version. In fact, as we know, if there are differences among the designers of an Act of the Oireachtas, a compromise is reached before the law is published: it never occurred to anyone that several versions of the Act could all be thrown at the public, who would be told to make the best of it.
None of this is rocket science. Judges do sometimes try to hold meetings or circulate draft judgments so as to produce, at most, two or three joint judgments. This is in the interest of ensuring that the law is certain and definite. Seven judgments from seven judges in Osayande suggest that judges should try harder in this endeavour.
A final comment may be made in praise of one aspect of Osayande. It shows acceptance of the idea that judicial activism may be inappropriate in areas involving mass policy, such as immigration, not least because of the narrowed scope which court proceedings impose on consideration of all the issues.
Chief Justice Keane has adopted a consistent, principled view on judicial activism in a number of areas. In Osayande, he remarked that "the resolution of the complex political, social and economic issues surrounding immigration, which are not unique to Ireland, are entirely a matter for the Oireachtas and the Executive".
David Gwynn Morgan is a Professor of Law at University College, Cork