Supreme Court Relaxes Exclusionary Rule – Latest Shift in a Finely Balanced Debate

Dr Conor O’Mahony

The Four Courts, DublinToday, the Supreme Court ruled by a majority of 4-3 that evidence obtained in criminal cases in breach of constitutional principles need not automatically be excluded at trial. On one level, this is a radical shift from the longstanding strictness of the application of the exclusionary rule. However, underlying it is a much more finely balanced debate than might first appear. A closer examination shows that the 4-3 split in the current Court reflects similar division of opinion in key cases from the past. The balance of opinion has in one sense only shifted very slightly; but nonetheless, in re-defining the exclusionary rule as discretionary rather than automatic, the impact of this shift has the potential to be dramatic.

In State (Trimbole) v Governor of Mountjoy Prison [1985] IR 550, Egan J stated at 565:

“Courts have no higher duty to perform than that involving the protection of constitutional rights and if at any time the protection of those rights should delay, or even defeat, the ends of justice in a particular case, it is better for the public good that this should happen than that constitutional rights should be nullified.”

 On foot of this, cases such as People (DPP) v Kenny [1990] 2 IR 110 established that evidence obtained through a deliberate and conscious breach of a constitutional right is not admissible in criminal proceedings, as to hold otherwise would constitute a breach of the requirement in Article 38.1 that criminal offences shall only be tried “in due course of law”. If the evidence is to be excluded, there must be a causative link between the violation of the rights and the obtaining of the evidence, as established in People (DPP) v Healy [1990] 2 IR 73.

The key issue in this debate is whether the breach of constitutional rights was deliberate and conscious, or whether an inadvertent breach should still lead to the evidence being excluded. A 3-2 majority of the Supreme Court in Kenny felt that the evidence should be excluded either way, as “a positive encouragement to those in authority over the crime prosecution and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to rights” (per Finlay CJ at 133). In Healy, McCarthy J stated at 89 that it was irrelevant whether the Gardaí realised that they were breaching constitutional rights:

 “A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can ensure to the benefit of a person who…is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise, there would be a premium on ignorance.”

 As against this, Lynch J, in his dissenting judgment in Kenny, stated at 142 that unconstitutionally obtained evidence should only be excluded if there is an “element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine ignorantia juris haud excusat)”, and that “adequate excusing circumstances” may exist. Similar suggestions had been made in earlier cases such as People (DPP) v Shaw [1982] IR 1. Hogan & Whyte, JM Kelly: The Irish Constitution (4th ed., 2003) state at 1107 that Lynch J’s approach “has the merit that it is not as absolute in its terms as the rule espoused by the majority, while at the same time not placing the ‘premium on ignorance’…which some feared might result from a purely subjective test.”

The majority of the current Supreme Court obviously found this to be the more persuasive view. Today’s ruling will allow for unconstitutionally obtained evidence to be admitted provided that it was obtained in good faith and that there was no deliberate or conscious breach of constitutional rights. Particularly striking were the words of O’Donnell J, who described the automatic exclusionary rule established by the majority in Kenny as “plainly wrong” and stated that it was “long past time that it was addressed”. Given the level of disagreement on this issue among both the 1990 Supreme Court in Kenny and the current Supreme Court today, this is an unusually dogmatic statement, and one with which McKechnie J expressly disagreed. Murray J and Hardiman J also wrote strongly worded dissenting opinions.

al-charaf-damacheToday’s case concerned evidence obtained pursuant to a search warrant issued under section 29(1) of the Offences Against the State Act 1939. That provision was struck down by the Supreme Court in Damache v DPP [2012] IESC 11. Strictly speaking, therefore, any evidence obtained pursuant to the warrant was unconstitutionally obtained. In Murphy v. Attorney General [1982] IR 241 at 313, Henchy J stated that “[o]nce it has been judicially established that a statutory provision is invalid, the condemned provision will normally provide no legal justification…for transactions undertaken in pursuance of it; and the persons damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.” Thus, under the previous automatic exclusionary rule, any evidence obtained pursuant to unconstitutional legislation would have to be excluded.

However, where evidence is obtained by the Gardaí under the authority of legislation which has been enacted by the Oireachtas and which enjoys the presumption of constitutionality, it can hardly be said that they were “deliberately and consciously” acting unconstitutionally when serving the warrant. Applying the maxim of ignorantia juris haud excusat in such circumstances arguably does not fall within what Lynch J in Kenny imagined as a “reasonable application of the doctrine”. The majority accepted the DPP’s argument that Gardaí acted reasonably in serving warrant issued under section 29(1) at a time when they could not reasonably have been aware of any issues relating to the constitutionality of that provision. On the other hand, given that the entire purpose of the legislative provision in question is to obtain evidence for use in criminal proceedings, it seems somewhat perverse to find the legislation to be unconstitutional and yet admit the evidence. Having said that, Irish case law imposes limits on the retroactive effect of declarations of unconstitutionality. Even where a statute creating a criminal offence is struck down, persons previously convicted of that offence will not necessarily have their conviction vacated or be released from prison, notwithstanding the fact that in principle, the offence was never validly enacted to begin with (see A v Governor of Arbour Hill Prison [2006] 4 IR 88). The impact in this case is arguably less harsh, given that it relates only to the admissibility of evidence and not to the very offence, conviction and sentence involved.

The more flexible approach adopted by the Supreme Court today is in line with a number of decisions of the European Court of Human Rights. In Khan v United Kingdom (2001) 31 EHRR 1016, it was held that even where the use of surveillance had constituted a breach of the right to private and family life under Article 8, the admissibility of that evidence in criminal proceedings did not violate the right to a fair trial under Article 6, as the applicant had had the opportunity to challenge the admissibility of the evidence during the proceedings, thus preserving his right to a fair trial. Subsequently, in Allan v United Kingdom (2003) 36 EHRR 143, the Court held that once the domestic court had assessed the reliability and admissibility of the evidence, this satisfied the right to a fair trial under Article 6, whatever about the separate question of whether the process of obtaining the evidence was in violation of some other right. This case law suggests that it is difficult to establish that the admission of the evidence constitutes a violation of Article 6, as the applicants may still challenge the admission of the evidence in the domestic courts under Article 38 of the Constitution; however, the ECHR case law would not save the evidence if such a challenge was successful.

Dr Conor O’Mahony is a senior lecturer in constitutional law at University College Cork.

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The Revised Irish Wording for the Marriage Referendum – An Analysis

Dr Seán Ó Conaill

The Government has decided to revise the Irish wording for the Marriage Referendum after criticism over the first version published.

In preparing the first draft particular wording and phrasings were used in an effort to avoid breaking with the consistency of language in use throughout the text which I previously discussed here.

The new wording which is to be inserted by a Committee Stage amendment to the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015 is;

“Féadfaidh beirt, gan beann ar a ngnéas, conradh pósta a dhéanamh de réir dlí.”

This new version is much closer to the proposed English text and a literal translation of the new Irish text into English would read along the lines of the following;

“Two persons may, without regard to their sex, make a contract of marriage in accordance with law.”

In using this formula of words the Government have rowed back against the previous attempt to maintain consistency in the Irish text of the Constitution and have embraced the literal translation approach which traditionally has been avoided.

The word “beann” which the authoritative Ó Dónaill Dictionary translates as “regard” or “dependence” is not used elsewhere in the Constitution or indeed in legislation in Ireland nor does it appear in Téarmaí Dlí the Irish language legal terms order. “Beann” is used because the commonly used Irish wording for “without distinction” (“gan idirdhealú”) is already used in the Constitution in Article 44.2.3 to represent “discrimination”. Whilst there is some use of the term “Beann” in legislation it only occurs in legislation dealing with place names containing the word Beann such as Beann Éadair (Howth). Elsewhere in the Constitution the English word “regard” which is the closest representation to “beann” is represented differently e.g. in Article 40.3.3 “due regard” is represented as “ag féachaint go cuí” and in Article 34.4.5 “having regard to” is represented as “ag féachaint d[o]” .

“Gnéas” is used to represent the word “sex” and again this term is not used elsewhere in the Constitution nor does it appear in Téarmaí Dlí. “Gnéas” is however extensively used in legislation and other official legal translations to represent “sex”. Article 16.1.3 uses the expression “toisc gur fear nó toisc gur bean an saoránach sin” to represent “on the grounds of sex” and Article 16.1.2 uses the now infamous and rejected “cibé acu is fear nó mná” expression to represent “without distinction of sex” whereas Article 16.1.1 uses the same formula but this time in the singular. Article 9 represents “the sex of such person” as “toisc gur fireann nó toisc gur baineann an duine sin”. In each case due to slightly different usages in the English language the Irish text is altered to represent the precise legal aim which is being sought and is in no circumstances a direct translation, the use of “gnéas” is a departure from this style.

Interestingly Article 45.4.2 which, by its own terms is not cognisable by any Court, uses the expression “gné” to represent “sex” . Ó Dónaill translates “gné” as “species” or ” kind”. Today this word is used mostly in Irish, both in the vernacular and in legal terminology, to represent aspect or appearance.

While the new wording is a better attempt at a literal translation it does open up some questions about how we draft amendments and the type of language we should use. I have previously argued that co-drafting by lawyer linguists would produce the best outcomes and it was at least a positive development to see the Taoiseach make some soundings in this direction.

Dr Seán Ó Conaill

twitter @soconaill

Posted in Attorney General, Constitutional History, Irish language, Marriage, Oireachtas, Referendum | Leave a comment

The Bederev case – a careful and considered restatement of the principles and policies test

Dr Laura Cahillane 

Contrary to what is being reported in certain newspapers over the past 24 hours, the Court of Appeal did not declare killer drugs legal to posses and buy yesterday, nor did they ‘accidentally’ legalise these drugs. While the effect of the ruling means that the section which had prohibited these drugs has been struck down and that until sometime tomorrow, there is no law which declares these drugs illegal, the focus of the judgment was on the power given to the Government to make orders under the Act.

 

The legislative power

The Irish Constitution embraces the idea of the Separation of Powers. This doctrine envisages state power being divided between three principal state institutions – the executive (government), the legislature (Oireachtas) and the judiciary. Each branch is to exercise separate and specific powers. Article 15.2.1 expressly declares that the ‘sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.’ This means that no other body can make laws for the State and any purported law must go through the conventional legislative stages in both Houses of the Oireachtas and be signed by the President to be constitutionally valid. However, it is also permissible to delegate limited legislative functions under certain restricted circumstances. The reason for this is that the legislative process is a long and arduous one and it can take some time for a legislative measure to be brought before the Houses, because of this, rather than settling all of the points of law in a particular bill, sometimes a defined area of legislative power is left over to be exercised ‘by order’ – meaning by statutory instrument – by some other authority, usually the responsible minister.

 

Problems with Delegated legislation

It could be argued that this regime creates problems in relation to the ‘rule of law’ namely that unlike the normal legislative process whereby debates are publicised3672625058_4952490634 and any change in the law is very clear, a statutory instrument or regulation is only required to be ‘laid before each House’ which effectively means that it is entered into the library in Leinster House and therefore is at odds with the idea that the law should be definite and accessible so that everyone has the chance to bring their behaviour into line with the law. Because of this conflict with the rule of law, the courts have only allowed for this type of delegated legislation in very specific circumstances, which were laid out in the form of a test in the case of Cityview Press v. AnCo [1980] IR381.

 

The Cityview Test

In this case, the Industrial Training Act, 1967 gave AnCo (the Industrial Training Authority) power to make a statutory instrument fixing the amount of a levy to be collected from each business in a specified industry and used for training recruits to that industry.  Cityview argued that the delegation of the power to fix the amount they had to pay violated Art 15.2.1.  Setting out the test to be applied in this area, O Higgins C.J. stated: ‘the test is whether that which is challenged as an unauthorized delegation of parliamentary power is more than a mere giving effect to of principles and policies which are contained in the statute itself.’ In other words, it is permissible for the Oireachtas to delegate authority to make law but only law which fills in details of a policy already contained in legislation.  The person or body making the statutory instrument is not allowed to establish new principles not already found in the parent act or some other act of the Oireachtas. Furthermore, there must be sufficient guidance in the parent Act for the order or regulation to follow. This was ultimately the problem in the Bederev Case.

 

The Bederev Case

In this case, 2(2) of the Misuse of Drugs Act 1977, which vested the Government with powers to declare certain substances to be ‘controlled drugs’, was challenged as unconstitutional on the ground that it contravened Article 15.2.1 of the Constitution. Under the Act, there were two means by which a substance could be defined as a ‘controlled drug’ and therefore be banned. First, the schedule of the 1977 Act contains a list of drugs which are designated as ‘controlled drugs’. Section 2(2) also empowered the Government to make an order adding a particular ‘substance, product or TheHonMrJusticeGerardHoganpreparation’ to that the schedule. In other words this section delegated legislative power to the Government to change to the parent Act by adding substances to the ‘controlled drugs’ list. It was argued on behalf of Bederev that there were no principles and policies contained in the section to provide guidance to the Government in relation to the granting of orders. However, Counsel for the State argued that the Act was to be construed as a whole and that the guidance was to be found in the long title and the schedule so that any order made by the Government would have to be in respect of drugs which had the same character, properties and propensities as those controlled drugs already contained in the schedule to the Act. In a very careful and detailed consideration of these points, Justice Hogan came to the conclusion that the Act did not contain sufficient principles and policies.

 

Lack of Guidance – principles and policies

On the argument that the Government would have to follow the definition of a ‘controlled drug’ contained elsewhere in the Act, Hogan pointed out that the very definition of the term ‘controlled drugs’ contained in s. 2(1) of the 1977 Act is expressly premised on the basis of alternatives: ‘either the controlled drug is either one which is contained in the schedule or is one which has been declared to be such by the Government by the making of an order under s. 2(2). The use of the words ‘either’ and ‘or’ in this definition clause clearly and unambiguously posit the existence of such alternatives.’ Thus no guidance is to be found here. In fact, Hogan opined that rather than confining the Government to a particular definition of a controlled substance, the section had been written to allow the widest possible power for the Government for the albeit innocent purpose of banning new dangerous drugs which might have no comparable physical or other properties or qualities with those drugs already specified in the Schedule.

On the argument that the long title provided sufficient guidance, Hogan accepted that the long title had the effect that any drug purportedly banned by the Government under section 2(2) would have to be a ‘dangerous or harmful one’. However, difficulties remained. The first is enunciated by Hogan as follows:

The fundamental difficulty here is that the 1977 Act determined that only ‘certain’ dangerous or harmful drugs would be controlled, thus leaving important policy judgments to be made by the Government rather than by the Oireachtas. One may immediately ask: how is to be determined which of these dangerous or harmful drugs are to be contrindependence of judolled and which are not? How can it be determined which drugs are ‘dangerous’? Again, one might ask: dangerous to whom? Is this standard to be measured by reference to the general public? Or would it suffice that the drug in question would be dangerous if consumed or used by certain sectors of society such as children or young adults? By what standards are the questions of whether particular drugs are ‘harmful’ and liable to be ‘misused’ to be assessed and determined?

He then highlighted that virtually every drug is potentially harmful and liable to be misused and gave the examples of alcohol and tobacco, which could be defined as harmful and potentially dangerous. He therefore felt that the long title did not contain the guidance needed and indeed felt that it would have been rather asking too much of a long title in any case. Because of this, he stated that this was ‘far from a case of the Government filling in only the details’ insofar as the making of a controlled drugs order under s. 2(2) of the 1977 Act was concerned.

 

The Effect of Section 2(2)

Boiling this down to the basics, this case is about the proper exercise of legislative power. While the Oireachtas has responsibility for the passing of legislation and did pass the 1977 Act, it also delegated limited power to the Government to amend this legislation. However, this power granted to the Government is only valid if it is curtailed by the original Act and does not allow for the Government to create new law under the auspices of the original legislation. Unfortunately, because of the manner in which the legislation was set out, the power given to the Government under section 2(2) was too vague, gave a power to the Government which was not limited by principals and policies, and did not contain sufficient guidance in relation to the exercise of this power. This was therefore an unconstitutional delegation of legislative power under Article 15.2.1 and so it was struck down. This also meant that the 2011 Order made under the Act, which had banned many psychoactive substances being sold in ‘head shops’ and over the internet, was also made invalid.

 

Consequences?

The Oireachtas is in the process of passing legislation which will close this loophole in that all of the previously banned substances will now be included in an Act. Once this Act is passed, these substances will once again be illegal. However, questions have arisen as to whether previous convictions are safe. While the ruling may affect a very small number of cases, the reality is that there will be very few knock-on effects following this judgment. As explained by Dr Conor O’Mahony in the Irish Examiner here, a person already convicted for offences relating to any of the controlled drugs proscribed by section 2(2) of the 1977 Act  would only be able to challenge their conviction now if they had argued in their original case that the law in question was unconstitutional. The main consequence is that anyone who committed an offence prior to the enactment of the emergency legislation who has not yet been convicted, cannot now be prosecuted for that offence. This is because the Constitution requires that any law which creates an offence can only be forward looking – eg.you can’t declare that something which was legal yesterday is now illegal but with retrospective effect. Thus, only a very small number of cases are likely to be affected.

 

The Bottom Line

What is important to note is that this case was not about legalising drugs and the consequences were certainly not ‘accidental’, although they may have been unfortunate. Justice Hogan and his colleagues knew perfectly well what they were doing – they issued a clear restatement of the principles and policies test and made it clear that the principle of the separation of powers in the Constitution is to be taken seriously.

 

Dr Laura Cahillane 

Twitter @LaurCah

 

 

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Teasc Gaeilge an Reifrinn Posta

Dr Seán Ó Conaill

Leagan Béarla Anseo / An English Language Version of this piece can be found here

Tá an-chuid plé faoin leagan Gaeilge den fhoclaíocht den Reifreann Posta le déanaí tar don phíosa seo a bheith san Irish Times.

Is é seo leanas an leagan oifigiúil i nGaeilge;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

Má dhéantar aistriú liteartha ar sin go Béarla faightear rud éigin ar nós;

“Two persons, whether they be men or women, may contract in relation to marriage in accordance with law”.

Ach deir an leagan oifigiúil i mBéarla

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

Is teasc dhá theangach í Bunreacht na hÉireann. Dréachtaíodh í i mBéarla agus i nGaeilge cé go raibh tús áite ag an mBéarla sa phróiseas.imagesCAW77Z4F Ní féidir linn a rá in aon chur gur aistriúcháin simplí atá i gceist. Tá iomaí sampla sa teasc féin a chruthaíonn go bhfuil I bhfad níos mó i gceist seachas aistriúcháin simplí. Míníonn mo chomhghleacaí ón Roinn Nua Ghaeilge Dr Neil Buttimer an pointe seo san fís atá le fáil anseo.  An sampla is mó le rá b’fhéidir ná an aois atá ag teastáil le hOifig an Uachtaráin a ghlacadh in Airteagal 12.4.1. Sa teasc Bhéarla braitear go bhfuil botún sa tslí go ndeir an Bunreacht go bhfuil gá go mbeadh duine sa 35ú bhliain (eg 34 bliain d’aos) ach sa teasc i nGaeilge tá riachtanais go gcaithfidh go bhfuil an 35ú slán ag duine. In Airteagal 29.3 atá bunaithe ar an dlí idirnáisiúnta tá an frása “ina dtreoir” nach bhfuil sa teasc i mBéarla in aon chur. Tá uaireanta ann leis nuair atá an teasc Gaeilge á úsáid le pointe polaitiúil nó náisiúnach a dhéanamh mar shampla in Airteagal 8.2 tugtar Sasc-Bhéarla seachas Béarla ar an tarna teanga oifigiúil – níl aon éifeacht dhlíthiúil aige seo ach is léir go bhfuil pointe á dhéanamh.

Tuigimid ó Airteagal 25.4.5 nuair atá coimhlint idir an teasc i mBéarla supreme courtagus i nGaeilge go mbíonn tús áite ag an teasc i nGaeilge. Tugann sé seo ról lárnach don Ghaeilge sa chóras bunreachtúil ach go praiticiúil ní minic go mbíonn difir shoiléir idir an míniú dlíthiúil idir an teasc i mBéarla agus i nGaeilge. Tarlaíonn sé i bhfad níos minice áfach go mbíonn na teisce i mBéarla á léamh i leith an teasc i nGaeilge le míniú a bhaint aisti agus tharla sé seo in an-chuid cásanna mór le rá  ar nós X v Ireland, Roche v Roche, Doherty v Ireland srl srl.

Nuair a dhéantar dréachtú ar leasuithe bunreachtúil déanta tromlach na hoibre i mBéarla. Is cinneadh polaitiúil í ag deireadh an lae agus dar ndóigh déantar an cinneadh ag bord an rialtais, le cabhair ó dhlíodóirí an rialtais, i mBéarla. Is ag an bpointe seo, nuair atá an teasc i mBéarla deimhnithe go ndéantar an aistriúchán. Ní féidir leis an aistritheoir an teasc i mBéarla a athrú in aon chur agus caithfidh siad an teasc i nGaeilge a chur le chéile go cúramach ag cinntiú go bhfuil an míniú céanna dlíthiúil ag teacht ón dhá theanga. Dár ndóigh tá Béarla agus Gaeilge go hiomlán difriúil mar theangacha, ní féidir aon dá theanga a aistriú focal ar fhocal go simplí. Tá inscne i nGaeilge agus Francis nach bhfuil i mBéarla, tá athruithe ar fhocal i dteangacha Ceilteach nach bhfuil sa Bhéarla srl srl . De dheasca seo ar fad tá post fíor casta ag aistritheoirí agus iad ag obair leis an mbunreacht.

Tá an post seo níos deacra fós toisc go bhfuil stíl agus teanga faoi leith sa bhunreacht sa chéad áit. Caithfidh aistritheoirí a chinntiú go bhfuil leanúnachas ó thaobh teanga de sa Bhunreacht fiú amháin nuair atá forálacha nua á chur leis. Ar leibhéal amháin tá gach seans go mbeadh an t-aistriú seo thíos níos cóngaraí don leagan i mBéarla ach tá roinnt fadhbanna leis;

“Féadfaidh beirt dhaoine, gan idirdhealú ó thaobh gnéis, conradh a dhéanamh i leith pósadh de réir dlí.”

Ach deir an leagan oifigiúil;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

Úsáidtear “cibé acu is fir nó mná iad” ar bhonn leanúnachais toisc go bhfuil an fhoclaíocht sin le fáil chéanna féin sa Bhunreacht mar aistriú ar “every citizen without distinction of sex” in Airteagal 16.1. Níl an focal gnéas sa Bhunreacht in aon chur agus níl fáil air i dTéarmaí Dlí ach oiread. Úsáidtear “beirt” le beirt dhaoine a chur in iúl toisc go bhfuil an leagan sin in úsáid in Airteagal 28.7.2. Ní bháitear úsáid as “idirdhealú” le “distinction” a thabhairt le fios toisc go bhfuil “idirdhealú” in úsáid chéanna féin sa bhunreacht mar aistriúcháin ar “discrimination” .

Cé nach bhfuil an aistriúcháin fhoirfe tá mé féin agus mo chomhghleacaí Dr Conor O’Mahony á rá go bhfuil rialacha dlíthiúil maidir le ciall a bhaint as dlíthe leis an fhadhb seo a leigheas. Ní chiallóinn sé seo áfach nach bhfuil gá dúinn rudaí a fheabhsú in Éirinn. Faoi láthair lá na haistritheoirí ag snámh in aghaidh easa. I dtíortha eile le córas dátheangach ar nós Ceanada agus na Breataine Bige úsáid có-dhreachtú áit go mbíonn dhá dhlíodóirí agus obair le céile ar an dlí. Tugann sé seo deis do dhá theangacha ról a bheith acu sa phróiseas ón tús agus ciallaíonn sé go féidir teasc atá in-aistrithe a sholáthair sa dá theanga. Deir an taithí ó Cheanada agus ón mBreatain Bheag  linn go mbíonn teasc i bhfad níos fearr sa mhion-theanga agus go mbíonn feabhas freisin ar an teasc i mBéarla. Ní hamháin seo ach tá an próiseas níl saora agus níos éifeachtaí ó thaobh ama de.

 

Dr Seán Ó Conaill

Twitter @soconaill

Posted in Irish language, Marriage, President, Uncategorized | Leave a comment

The Irish Wording of the Marriage Referendum

Dr Seán Ó Conaill

Leagan Gaeilge le Fáil Anseo / Irish language version of this piece is available here

Much attention has been paid to the Irish wording of the proposed marriage referendum after a piece appeared in the Irish Times on the subject.

The wording that is proposed to go before the people on 22nd May reads as follows in Irish;

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

A literal translation of this word would read;

“Two persons, whether they be men or women, may contract in relation to marriage in accordance with law”.

whereas the official English wording reads;

“Marriage may be contracted in accordance with law by two persons without distinction as to their sex.”

It must be borne in mind in any debate as to wording that the Irish Constitution is a bilingual document which, when drafted originally was co-drafted to some extent, although the English text would certainly have taken a lead role. The Irish text of the original version however cannot be regarded as a mere translation of the English text.

imagesCAW77Z4FThere are numerous examples within the text of the Constitution which make this clear and demonstrate that the Irish text is much more than a simple translation of the Constitution. My colleague from the Department of Modern Irish Dr Neil Buttimer discusses many of these issues in this video. In some instances the Irish version of the text corrects presumed errors in the English text such as the age at which a person can take the Office of President in Article 12.4.1. The English text, presumably in error, says a person may do so in their 35th year eg when they are 34 years of age whereas the Irish text makes it clear you must actually be at least 35 years of age. In Article 29.3 whereas the English version of the text notes that Ireland accepted the generally recognised principles of international law the Irish text adds the proviso “as a guide”. At time the Irish version of the Constitution is even used to make political or nationalistically loaded statements. The English language for example in the Irish Constitution is not described as “Béarla”, the term normally used for English, but rather “Sacs-Bhéarla”. Although there is no difference in legal meaning to be attribute to this choice of words it is clear that there is a wider point being made about the “Saxon-English” language.

 

Article 25.4.5 tells us that where conflicts between the teThe Four Courts, Dublinxts are found the version in the national language shall prevail. This gives the Irish text a very important legal position in our modern Constitutional order however direct contradictions in interpretation between the English and Irish texts have been rare. The Courts have however been very keen to look to the Irish wording to help them fully interpret the English text and very many of our leading constitutional law cases involving examining the Irish text including case such as the X case, Roche v Roche, Doherty v Ireland etc etc.

The process of drafting amendments to the Constitution is somewhat problematic for the Irish language text. Constitutional amendments by their nature are politically driven and tend to be agreed by cabinet, with input from legal advisers, in English only. The Irish text is then subsequently produced. Although there is some element of consultation with the translators in reality the process is very much English language driven. The translators are then faced with an English text which they cannot modify or amend in any way and must produce an Irish text which reflects the same legal meaning. English and Irish, like any two languages, cannot ever be translated word for word. There are words in both languages which do not have an exact corresponding word in the other language. English does not have masculine and feminine words as languages such as Irish or French have nor does English have the sort of mutations that are common in Celtic languages. Thus when translating a constitutional amendment translators are faced with a very challenging task.

This task is made all the more difficult by the style of language used in the original Irish text of the Constitution. It is important that consistency of language is maintained within the Constitution. On the face of it a literal translation reading along the lines as follows would be closer to the English language version but a number a problems arise;

“Féadfaidh beirt daoine, gan idirdhealú ó thaobh gnéis, conradh a dhéanamh i leith pósadh de réir dlí.”

Whereas as the official translation reads

“Féadfaidh beirt, cibé acu is fir nó mná iad, conradh a dhéanamh i leith pósadh de réir dlí.”

The choice of the phrase “cibé acu is fir nó mná iad” is guided by the desire to be consistent with Article 16.1, in which “Every citizen without distinction of sex” is translated as “Gach saoránach, cibé acu fear nó bean”.  The Irish for sex (gnéas) does not appear in the Constitution nor does it appear in Téarmaí Dlí, the Irish legal terms order. “Beirt” is used to denote two persons (as in Article 28.7.2). The common Irish word for distinction (“idirdhealú”) needs to be avoided because it is already used in Article 44.2.3 as a translation for “discrimination”.

Whilst the translation is not perfect my colleague Dr Conor O’Mahony and I have argued that the well-established rules of interpretation will help to resolve any issues arising. This does not mean that we cannot make serious improvements in Ireland. The translators, at present, are essentially working with one hand tied behind their back. In other bilingual jurisdictions such as Wales and Canada laws are co-drafted by two lawyers in both languages. This gives an opportunity for both languages to have an input from the start of the drafting process and allows laws to be more carefully drafted to ensure ease of translation in both texts. The experience from Canada and Wales has been that co-drafting not only produces a much better translation in the minority language but greatly improves the quality of the English language text too. Co-drafting has also been proven to be cheaper and quicker than subsequent translation.

Dr Seán Ó Conaill

Twitter @soconaill

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