The Irish Supreme Court Decision in Zalewski: Historical Critique

This is my last post in a series on the Irish Supreme Court’s decision in Zalewski, looking at the historical background to Articles 34.1 and 37.1 of the Irish Constitution. See my penultimate post for further background.

There is also historical evidence that supports narrow readings of both Article 34.1 and Article 37.1.

(i)                           Reading Article 34.1 Narrowly

We will see that there are archival materials relevant to understanding Article 37.1. The same is not true of Article 34.1. Whilst Article 37.1 was a new provision, introduced to the 1937 Constitution, Article 34.1 had a predecessor in the 1922 Constitution. Article 64 provided that the “judicial power…shall be exercised and justice administered in the public Courts established by the Oireachtas by judges…” Article 34.1 is generally considered to be a simple redrafting of its predecessor provision.

Notably, the leading case from the post-1922 period, and therefore the case that would have been front and centre as far as the drafters of the 1937 Constitution were concerned, took a narrow view of the ‘administration of justice’.

In Lynham v Butler (No. 2) the (il)legality of the Land Commission was put in issue as a defence to proceedings that assumed the lawfulness of a decision of the Commission. The Commission, as its name suggests, administered a statutory scheme in relation to land, often determining the respective rights and obligations of landlords and tenants. The argument was that the Commission was administering justice within the meaning of Article 64 (the predecessor to Article 34.1) and as the decision was not taken by a court, it was invalid (as was a subsequent chain of orders). In other words, the argument was that the ‘administration of justice’ should be read broadly, encompassing a wide variety of matters including decisions of the Land Commission. But this argument was rejected by the Supreme Court.

Kennedy CJ defined the administration of justice narrowly:

In relation to justiciable controversies of the civil class, the Judicial Power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens or the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State.

However, he was careful to observe that bodies that have the “trappings of a court” will not necessarily be exercising judicial functions. In his view, the Land Commission was primarily an administrative body:

The Land Commissioners (other than the Judicial Commissioner) are, then, an administrative body of civil servants who are not Judges within the meaning of the Constitution and do not constitute a Court of Justice strictly so-called but who, in the performance of some of their duties, must act judicially, and who are always subject, in respect of any justiciable controversy arising in the course of their business, to the exercise of the Judicial Power of the State for the determination of such controversy by one of the Judges of the High Court that the State assigned to act as Judicial Commissioner for the purpose.

Fitzgibbon J largely agreed with this analysis and found that the availability of an appeal to the Judicial Commissioner allayed any concerns that the Commission was exercising judicial functions: inasmuch as it was, the Judicial Commissioner would exercise it.

For his part and echoing the Canadian jurisprudence, Johnston J in his judgment concluded that the Commission was constitutionally sound on the basis that the adjudicative functions exercised by the Commission were ancillary to its administrative apparatus.

In short, in the case that defined the scope of judicial power at the time the 1937 Constitution was being drafted, the judges took a narrow view of what it meant to be engaged in the ‘administration of justice’.

(ii)                         Article 37.1 and the Historical Record

Consider the proposition that the concern of the drafters of the Irish Constitution was to ensure that some judicial functions could be exercised by non-courts. That is to say, the purpose of what became Article 37.1 was to ‘save’ transfers of core judicial powers from unconstitutionality, cutting off at the legs the argument that proved successful in Canada.

This concern was front of mind for Mr. O’Donoghue in the Office of the Attorney General, an influential figure in the drafting of the Constitution. He commented as follows on the draft Article 37.1:

This Article, which only applies to civil matters, is designed to avoid the difficulties and litigation which were experienced in the past when the exercise of powers of a judicial or quasi judicial nature was challenged in the Courts on the grounds that these were matters reserved to the Courts. The phrase ‘judicial power’ has been dropped in the draft Constitution which speaks instead of ‘Justice being administered in public courts’ (Article 34.1). It is absolutely necessary in order to give effect to much of our present day legislation that the Commissioners in the Land Commission, the Minister for Industry and Commerce, County Registrars, Referees (to mention but a few) shall be entitled validly to carry out certain functions of a judicial or quasi judicial kind. While persons affected from such decisions are not debarred from bringing proceedings in the Courts Article 37 merely attempts to establish that the rulings of such quasi judicial bodies shall not be upset on purely technical grounds, namely that they were not judges. This is mischievous.[1]

The highlighted passages clearly indicate that O’Donoghue contemplated Canadian-style arguments about core powers being removed from the ambit of the courts and, therefore, unconstitutional. In a separate submission, O’Donoghue criticized an amendment that would delete Article 37 as:

…exceedingly dangerous and, presumably, will not be accepted under any circumstances. The deletion of Article 37, which is proposed in the amendment, would seriously hamper Ministers and their officials in the administration of the functions of their Departments. Several existing Acts give Ministers quasi-judicial powers, the validity of which would be open to question if the amendment were carried. The danger that they would be questioned would be enhanced as a result of the raising of this issue in the Dáil. The amendment would, moreover, produce chaos in a large area of a administration, as it would deprive, of their functions, the numerous Courts of Referees, Appeal Committees and Appeals Tribunals operating under such Acts as the Old Age Pensions Acts, National Health Insurance Acts and Unemployment Insurance Acts. County Registrars would also find some of their functions taken away.[2]

The reference to Ministers is striking. No one would have thought at that time that Ministers were exercising judicial power or administering justice or even that they were acting “judicially”. In that era, Ministers were concerned with “policy”, were certainly not judges and did not have to act “judicially”. Rather, what O’Donoghue seems to have in mind is that Ministers might exercise some judicial-type powers or functions and he wants to avoid the conclusion – or even the suggestion of the conclusion – that Ministers cannot do so.  A Minister would not be thought to be acting “judicially” and so an argument that Article 34.1 was being breached because a minister was ‘administering justice’ would be fanciful, but a subsidiary argument could have been made that a Minister was exercising “judicial” powers or functions that ought to be reserved to courts. Again, then, the purpose of Article 37.1 was to head off arguments that core judicial powers had been, unconstitutionally, transferred to administrative bodies. There are other instances of this concern being expressed contemporaneously.[3]

In a skillful reconstruction of the majority reasons in Zalewski, Hickey suggests that O’Donnell J was concerned that a narrow approach to the interpretation of “limited” in Article 37.1 “meant that Article 37 had been reduced to ‘saving’ processes that did not need saving in the first place”.[4] I think Hickey is right about this. Those involved in the drafting of Article 37.1 were not concerned with ‘saving’ the Land Commissioners and similar bodies, for these did not fall within the ambit of Article 34.1. They did not need to be saved. But that does not mean that other objections might not be made to the powers of the Land Commissioners: and it was these other objections that were in the minds of those considering the administrative state in the 1930s.

[1] Memorandum by Philip O’Donoghue (Office of the Attorney General, 26 May 1937), in Hogan at pp. 580-581. NAI, DT S9924. Similarly, the Constitution Committee 1934 commented as follows on Article 64:

We are of opinion that this Article should be regarded as fundamental. We suggest, however, that it should be carefully re-drafted so as to meet the present position in which judicial or quasi-judicial functions are necessarily performed by persons who are not judges within the strict terms of the Constitution, e.g. Revenue Commissioners, Land Commissioners, Court Registrars, etc.

Hogan, The Origins of the Irish Constitution, 1928-1941 (Royal Irish Academy, Dublin, 2012), at p. 84.

[2] Memorandum by Philip O’Donoghue (Office of the Attorney General, 28 May 1937), in Hogan at p. 581. NAI, DT S9904.

[3] 67 Dáil Debates, Cols. 1511-1512 (2 June 1937), Eamon De Valera; Memorandum from William Denis Carey to Maurice Moynihan, Observations on 1st Circulated Draft (Office of the Revenue Commissioners, 7 April 1937) in Hogan at p. 455. NAI, DT S9715B.

[4] Hickey, “Zalewski and the Future of Irish Public Law” (2024) 87 Modern Law Review 466, at p. 476.

This content has been updated on May 27, 2024 at 15:13.