Last Tuesday witnessed a historic occasion, when the new Court of Appeal was established. Media coverage has centred on the new judges appointed to that Court and on the reduction in the backlog of cases to the Supreme Court. However, one significant change has not been focused on. Tuesday 28th October, 2014 was also the day when the ‘one judgment rule’ was officially removed.
This rule, previously located in Article 34.4.5 of the Constitution, meant that when the Supreme Court was considering whether or not a law was compatible with the Constitution, the decision of the Court had to issue as a single unanimous judgment; it was not revealed as to whether any of the judges dissented.
The rule was not originally included in the Constitution in 1937 but was added in 1941 during the transitional period when the Oireachtas could amend the Constitution without holding a referendum. It was inserted into the Constitution by the Second Amendment of the Constitution Act 1941, in response to the judgment of the Supreme Court in the case of Re Article 26 and the Offences Against the State (Amendment) Bill 1940. The Bill conferred a power on a Minister to order detention of a person if of the opinion that the person was “engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State.” The constitutionality of the Bill was upheld, but when giving judgment for the Court, Chief Justice O’Sullivan announced that it was the judgment of a majority of the judges, implying that there had not been a consensus.
This evidently did not go down well with members of the Government, who felt that the decision caused speculation as to whether and how many judges had disagreed with the decision. For reasons of clarity and to obtain a definitive decision, it was then decided that any such judgment should have the appearance of unanimity, in order to provide certainty in the law. De Valera noted, during Dáil debates on the matter, that the rule had originally been included in early drafts of the Constitution and he was at a loss to figure out “how it got out”. Thus, the Constitution was amended to include the one judgment rule in Article 34 and also in Article 26.
Last October, the Irish public voted to remove the one judgment rule from Article 34. (The amendment was included in the proposal to establish the Court of Appeal.) The rule persists in Article 26.2.2. This means that when the President sends a Bill to the Supreme Court for a decision on its constitutionality before it is promulgated, a single judgment must still be issued. However, for cases involving the validity of a law generally, judges will now be entitled to issue a dissenting opinion, if they so wish.
In certain other jurisdictions, such as the United States, dissenting opinions are considered a valuable resource. Oliver Wendell Holmes, a famous US Supreme Court Justice is admirably known as “the great dissenter”. Supreme Court Justice Ruth Bader Ginsberg has pointed out that an impressive dissent can often lead the majority to refine and clarify their initial opinions, which in turn, leads to more measured judgments. Another esteemed member of that institution, Justice Antonin Scalia, has argued that dissents “augment rather than diminish the prestige of the Court”. He added that “when history demonstrates that one of the Court’s decisions has been a truly horrendous mistake, it is comforting … to look back and realise that at least some of the justices saw the danger clearly and gave voice, often eloquent voice, to their concern.” We could make similar arguments about Irish constitutional jurisprudence – if the one judgment rule had applied to the Norris Case, described recently by Mr Justice Hogan as a “wrong turning” on the part of the Supreme Court, we would not now have the outstanding dissents of Justices Henchy and McCarthy. In fact, some of our most famous judgments, such as that issued by Chief Justice Kennedy in the case of The State (Ryan) v Lennon, have come from a dissentient.
It has been argued that dissent can cause uncertainty and confusion, but forcing judges into a false consensus is potentially more dangerous and the removal of the rule should be celebrated as giving more independence to the judiciary in exercising their decision-making power.
I was recently told that the late Professor J.M. Kelly, author of the authoritative text on the Irish Constitution, once remarked that if he could change one thing about the Irish Constitution he would have removed the one judgment rule – a surprising choice perhaps, given the lack of attention generally accorded to the rule. It will certainly be interesting to look back in years to come, in order to assess what the impact of the change has been.
Dr Laura Cahillane is a lecturer in law at the University of Limerick.