Does Irish Constitutional law deny the Oireachtas a mandate for legislating on #Savita case?

So the Sinn Fein motion dropped, as we knew it would, last night in the Dail. It’s a complex situation, in which there are no obviously easy wins. Last week, Gerard Howlin noted that the fault lies with the 8th Amendment of the Irish Constitution:

Would legislating for the Ms X case have helped Savita Halappanavar? That judgement required ‘a real and substantial risk’ to the life of the mother before a termination is lawful. It is not clear if such a risk was plain in time to save Ms Halappanavar. That will be a central point of any inquiry.

It is certain, however, that legislation under the Ms X case will not be enough to protect the health of women in uncertain medical circumstances. What is clearly required is the repeal of the eighth amendment to the constitution.

Elaine Byrne on Twitter last night, called it just about right:

It calls to mind a review of her book, Political Corruption in Ireland, by Peter Geoghegan:

Adopting a narrow definition of corruption as the exchange of public goods for private gain, the Free State’s early leaders saw no need to legislate against conflicts of interest. In 1946, in the wake of a tax scandal, one Irish TD told a sympathetic Dáil that the Ten Commandments and “the ordinary principles of decency and good conduct” were sufficient to ensure probity in Irish public life.

It’s this absence of a code, or as Howlin puts, the almost complete absence of a mandate to legislate on the permissive use of abortion that’s help create this moral paralysis in the Irish body politic.

Everyone is sure that something must be done, they just seem unsure about whether or how ask the people if they agree. Just striking the eighth amendment leaves a whole that would have be to filled with something.

To quote Jean Claude Junker’s famous line:

“We all know what to do, we just don’t know how to get re-elected after we’ve done it.”

  • John Ó Néill

    I put up a fairly long comment on this on another thread.

    This seems to throw up another problem of who compels the state to legislate when the Supreme Court rules it is needed. Is there not a legitimacy crisis underlying this where the legislative arm of the state can ignore the judiciary (technically, is it not holding the Supreme Court ‘in contempt’)?

  • Alias

    It is not the role of an unelected elite (judges) to govern the people without their consent or mandate, even if granting them such a role is consistent with the known flaws of the statist and europhile mentalities.

    The Courts interpret legislation but they don’t legislate. Where the Courts have interpreted law in its application to particular cases its judgements become precedent and case law.

    It is a fundamental principle of Irish case law that it must be consistent with provisions of the Irish Constitution. That is because the people are sovereign, not the Courts or the State. That, of course, is what actually bugs the statists and the europhiles.

    The State, of course, has derogated some of the peoples’ sovereignty by ratifying treaties which must also be considered by the Irish courts, where the legislation contained within is not devised by the Irish people, but it is the people who agreed to those derogations of their sovereignty via referendum.

    Where the Irish Constitution makes no mention of specific issues then the Courts can refer to the judgements of foreign Courts (it has used the rulings of the House of Lords on such issues for example) as precedents to be considered in making their judgements.

    Hence, from the statist and pro-abortion point of view, if the reference to abortion was to be removed from the Irish Constitution then the Courts would be free to legislate for abortion on a case by case basis based on the rulings of other Courts and the State would also be free to impose whatever law its EU master wanted them to impose without any consideration of the will of the Irish people on the issue.

    The Irish people should not give up their sovereignty to foreign powers here as they are being led to do by those who do not have the interests as their agenda.