On June 2nd last, RTÉ's Liveline radio programme mobilised the outrage of the populace over the release of an egregious sex offender from imprisonment, writes Vincent Browne
As the populace was revolting on the airwaves, the Supreme Court was deliberating on the validity of the release of Mr A from imprisonment because he had been convicted on the basis of a law which the Supreme Court had found earlier was null and void.
Amid the baying of the populace, the Supreme Court ordered the rearrest of Mr A for a crime they had held did not exist. They said they would explain their reasons at a later date.
The populace was delighted by the decision. "Common sense" won the day, it was claimed.
The man did wrong and let's not fuss over the detail of the law: he had raped the 12-year-old friend of his daughter. He was charged, convicted and imprisoned under Section 1 (1) of the Criminal Law Amendment act 1935, the very law which the Supreme Court found on 23rd May was unconstitutional.
The seeming absurdity of imprisoning a person on the basis of a law that was now found not to exist was urged upon the judges by senior counsel for the State, Gerard Hogan, who also happens to be a distinguished academic and co-author of what is now regarded as the authoritative textbook on the Constitution, JM Kelly, The Irish Constitution.
Gerard Hogan urged the judges of the Supreme Court not to allow logic get in the way of arriving at the right verdict, which he called "justice".
For the purposes of his application Gerard Hogan apparently was of the view that logic would deliver one verdict, but if the proper outcome was to be arrived at, logic would have to be forsaken. He had a point.
But he has left it to the judges of the Supreme Court to come up with a judgment which, while defying logic, may still seem reasonable. Quite a task.
The scale of the task may be gleaned from the latest edition of the very book that Gerard Hogan has co-authored.
Some of us will remember a constitutional case taken by a one-time radical socialist/feminist/republican, Máiríde Búrca, back in the mid-1970s on the constitutionality of juries drawn exclusively from the rate-paying male population. The Supreme Court logically found the restriction of juries to males and rate-payers was unconstitutional.
The sky-falling-in scenario arose: did that mean that all previous jury verdicts in criminal trials were invalid? The then Chief Justice, Tom O'Higgins (formerly a Fine Gael TD and presidential candidate) said the "overriding requirements of an ordered society" demanded that no such conclusion could be drawn from the finding that all male rate-payer juries were unconstitutional.
He said the jurors in the previous cases were not ineligible, even though the way they were selected was unconstitutional. On page 898 of this book Gerard Hogan finds this reasoning "dubious". Actually "very dubious". Remember the case on the taxation of married couples in 1982? The Supreme Court found an Act which treated married couples differently to unmarried couples was unconstitutional. The question again arose as to the retrospectivity of this decision.
Again Tom O'Higgins thought there was no retrospectivity, but the four other judges on the Supreme Court found it certainly did have retrospectivity. One of the great judges of the Supreme Court, Séamus Henchy, speaking for the majority of the court, said that a finding that there was no retrospectivity "flies in the face of an unbroken line of judicial decisions, which expressly or by necessary implication, point to the date of enactment as the date from which invalidity is to attach to the measure which has been struck down because of this unconstitutionality". This is quoted on page 899 of Gerard Hogan's book.
Some legal sophist will jump up at this stage and say: "Ah! this applies only to laws enacted since the 1937 Constitution came into effect and the law we are talking about here pre-dates the Constitution, it is a 1935 Act."
But the same judge (Séamus Henchy) in another case said, in a side remark, (obiter dicta) that a declaration of unconstitutionality of a pre-1937 Act "amounts to a judicial death certificate, with the date of death stated as the date when the Constitution came into operation" (this is further down page 899 and on to page 900).
There is some doubt about the redress that people are entitled to having been disadvantaged by legislation found to be unconstitutional, but that does not arise here.
In this A case, a man is now in jail on the basis of a law that does not exist. And the Supreme Court is soon to explain to us how it stands over this.
In so justifying what seems on the face of it to be an absurdity, the Supreme Court must address issues to do with its own credibility. And it might also have regard to the question: who runs the Supreme Court, the judges of the court or Joe Duffy?