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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> D.P.P. v. S. (M.)  IESC 24 (2 April 2003)
Cite as:  IESC 24,  1 IR 606
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JUDGMENT of the Court delivered the 2nd day of April, 2003, by Keane C.J.
This is a Consultative Case Stated by Judge Michael O'Shea of the Circuit Court pursuant to S.16 of the Courts of Justice Act 1947.
1. The circumstances in which the Case Stated has come before this court should be first set out. The accused was charged in December 1996 with having committed a number of offences of indecent assault contrary to S.62 of the Offences Against the Person Act 1861 (hereafter "the 1861 Act") and one count of sexual assault contrary to the S. 2 of the Criminal Law (Rape Amendment)Act 1990. He was then given leave to institute proceedings by way of judicial review in the High Court prohibiting the continuance of the prosecution on the ground that the time which had elapsed since the offences were alleged to have been committed (in the years 1974 and 1975) would prevent him from being given a fair trial. In February 1999 that application was dismissed by the High Court and, on an appeal to this court, the order of the High Court was affirmed on the 19th December 2000.
2. On the 1st June 2001, the District Court made an order returning the accused for trial to the Circuit Criminal Court. The Director of Public Prosecutions (hereafter "the DPP") gave notice that he intended to have the accused arraigned before a jury at a special sitting of the Circuit Criminal Court, Dundalk, Co. Louth, on 11 counts in the indictment alleging indecent assault contrary to S.62 of the 1861 Act. At a special sitting of the court in Dundalk which dealt with certain pre-trial applications by both the DPP and the accused, the latter gave notice of his intention at the time of arraignment to apply to the court to quash the 11 counts intended to be proceeded with on the ground that S.62 of the 1861 Act was inconsistent with the provisions of the Constitution and ceased to be in force from the enactment of the Constitution because, in particular, it was inconsistent with the provisions of Article 38.1, Article 40.1 and Article 40.3 of the Constitution and on the ground that it violated the provisions of Articles 5, 6 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On the 29th July 2002, the learned Circuit Court Judge directed the accused to serve notice on the Attorney General that he had raised in the proceedings a question as to the inconsistency of the provisions of S.62 of the 1861 Act with the Constitution.
3. At a special sitting of the court in Dundalk on the 7th October 2002, the Circuit Court Judge heard an application on behalf of the accused to quash the 11 counts in the indictment on those grounds. He also heard submissions on behalf of the DPP and the Attorney General as to whether he had jurisdiction to hear the application to quash the indictment. The submission on behalf of the accused was essentially to the effect that, since the maximum sentence in the case of an indecent assault where the complainant was a male was 10 years penal servitude, but where the complainant was a female was (in the case of a first offence) two years imprisonment, the statutory provision in question constituted an unlawful discrimination on the ground of sex which was in violation of the articles of the Constitution and of the European Convention on Human Rights and Fundamental Freedoms which have already been mentioned.
4. It was submitted on behalf of the DPP and the Attorney General that the Circuit Court could not lawfully consider the issue as to whether the legislative provisions in question were inconsistent with the Constitution. The learned Circuit Court Judge acceded to a request made on their behalf that this question should be referred to this court by way of case stated for determination by this court. It was also submitted on their behalf that, if the learned Circuit Court judge acceded to their application then, in addition, the questions of law arising in the substantive application made on behalf of the accused should also be referred to this court. It was submitted on behalf of the accused that the jurisdiction of the Circuit Court to hear and determine the application was clear.
5. Having considered those submissions, the learned Circuit Court Judge acceded to the application on behalf of the DPP and the Attorney General to state a case. In paragraph 16, the questions of law for determination by this court are set out as follows:-
"(i) Does the Circuit Criminal Court have jurisdiction to hear and determine an application by a person represented in proceedings before it to the effect that a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution?
"(ii) Are the provisions of S.62 of the Offences Against the Person Act 1861 inconsistent with the Constitution?
"(iii) Does the Circuit Criminal Court have jurisdiction to hear and determine an application by a person represented in proceedings before it to the effect that a statute enacted prior to the coming into force of the Convention on Human Rights and Fundamental Freedoms (1950) is inconsistent with that convention?
"(iv) Are the provisions of S.62 of the Offences Against the Person Act 1861 in violation of the Convention on Human Rights and Fundamental Freedoms (1950)?
"(v) If the said provisions are in such violation of the said convention, what consequences, if any, flow therefrom?"
6. At the outset of the hearing of the appeal, the court invited counsel to address them on the issue as to whether the court had jurisdiction to hear and determine the case stated. Having heard submissions, it indicated that it would reserve that question until it had heard submissions by counsel as to how the first question in the case stated should be answered i.e., as to whether the Circuit Criminal Court has jurisdiction to consider the question whether a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution.
7. It was accepted that, in the event of the answer to that question being in the negative, it would follow that the Circuit Court had no jurisdiction to raise the question at (ii) for determination by this court. It is clear from the decision of the former Supreme Court in Foyle Fisheries Commission v. Gallen  Ir Jur Rep. 35 that a Circuit Court judge is not entitled to state a case to the High Court on a question as to the validity of a statutory provision having regard to the Constitution. The same consequences must follow if the Circuit Court judge is similarly precluded from deciding a question as to whether a statute enacted before the coming into force of the Constitution is inconsistent with the Constitution and hence of no effect: a Circuit Judge cannot ask this court to answer a question of law so as to enable him resolve an issue which he is constitutionally precluded from deciding.
8. It is also clear, and no argument to the contrary was pressed on the hearing of the appeal, that since the European Convention on Human Rights and Fundamental Freedoms has not been incorporated into Irish law by legislation and is not part of the law of the State, the Circuit Court has no jurisdiction to determine whether any statutory provision is inconsistent with the convention, any more than can this court, the High Court or the District Court. Judges can and do refer to the convention and the jurisprudence of the Court of Human Rights by way of analogy when considering issues relating to matters to which the convention applies, but it is not within their jurisdiction to determine whether a particular statutory provision is of no effect because it is in breach of, or inconsistent, with the convention. It has been clear that this is the law in Ireland since the decision of the former Supreme Court in In Re O'Laighleis,  IR 93.
9. The court was also concerned with the question as to whether, in any event, the Circuit Court had jurisdiction to state a case pursuant to S.16 of the Courts of Justice Act 1947 at the stage when it purported so to do. The section provides that
"A Circuit Judge may, if an application in that behalf is made by any party to any matter (other than a re-hearing, under S.196 of the Income Tax Act 1918, of any such appeal as is referred to in the said section) pending before him, refer, on such terms as to costs or otherwise as he thinks fit, any question of law arising in such matter to the Supreme Court by way of case stated for the determination of the Supreme Court and may adjourn the pronouncement of his judgment or order in the matter pending the determination of such case stated."
10. The application for a case stated was made in this case before the accused was arraigned. Where such an application is made after an accused person is arraigned and placed in the charge of the jury and before the jury have returned their verdict, it is beyond argument that it cannot be entertained by the trial judge: see the decision of this court in The People (Attorney General) v. McGlynn  IR 232.
11. It was also held by this court, however, in Director of Public Prosecutions v. EF (unreported: Judgment delivered 24th February 1994), that different considerations applied where, as here, the circuit judge stated a case in respect of points of law raised on behalf of the accused on a motion to quash an indictment preferred by the DPP. That was also a case where the accused had been charged with a number of counts of indecent assault and it was sought to quash the indictment on the ground that the offence charged was no longer known to the law, that the indictment was duplicitous and that the delay in bringing the matter to trial would preclude the accused from having a fair trial in due course of law. It is clear from the judgment of Egan J, with whom the other members of the court (Finlay CJ, O'Flaherty J, Blayney J and Denham J) agreed that he was satisfied that, in such circumstances, the reasons which had led the court in McGlynn to conclude that there was no jurisdiction to state a case did not arise. However, he was also of the view that it would have been more appropriate for the questions relating to delay to have been brought before the court by way of judicial review, as had been also held in The State (O'Connell) v. Judge Fawsitt and The DPP  IR 362.
12. It is true that the first question posed in the Case Stated raises a question which would normally be appropriate to be determined in the first instance by the High Court in proceedings brought by way of judicial review or in some other form. It is certainly unusual for this court to determine as a court of first instance issues which not only relate to the jurisdiction of a court but also to the interpretation of the Constitution. However, as was made clear by Walsh J in The State (Browne) v. Fearon  IR 147, while it is not permissible for legislation to subtract from the jurisdiction directly conferred by the Constitution itself on the High Court and this court, it is permissible for the legislature to confer additional jurisdictions on the High Court and this court, the examples given in his judgment being an appellate jurisdiction in the High Court and a consultative jurisdiction in this court.
13. I am, accordingly, satisfied that the application before the learned Circuit Court judge in the present case is a "matter … pending before him" within the meaning of S.16 of the Courts of Justice Act 1947 and one in the course of which he may refer a question of law to this court by way of case stated for determination by this court. This was, of course, a matter which, assuming it was within his jurisdiction, could be determined by the trial judge without hearing any oral evidence and, accordingly, the question as to the jurisdiction of the Circuit Court to state a case under the section where not all the evidence has been heard by the trial judge does not arise. That question has led to a significant divergence of opinion in this court – see the decisions in Corley v. Gill  IR 313, Dolan v. Corn Exchange  IR 315, Director of Public Prosecutions v. Gannon (unreported judgments delivered June 3rd 1986), and Doyle v. Hearne  ILRM 318 – but does not arise in this case.
14. I am also satisfied that, if there was any ambiguity in the provisions of S.16, which I do not think there is, the requirements of justice would be better met by resolving the issue posed in at paragraph (i) than by leaving it to be determined by the learned Circuit Court Judge. If he were to conclude that he was entitled to determine the question posed in paragraph (ii) and further to hold that the impugned provision of the 1861 Act was inconsistent with the Constitution, the DPP would inevitably seek to challenge his decision by applying to the High Court for leave to institute proceedings by way of judicial review. That might lead to a further hearing in the High Court followed by an appeal to this court. Equally, if he were to hold that he had no jurisdiction to resolve that issue, an application might well be made on behalf of the accused for leave to apply for an order of mandamus by way of judicial review requiring him to determine that issue. Either course could only result in further delay in the hearing of proceedings which, in the interests of the accused and his alleged victims and in the public interest, should be heard and determined with such expedition as is consistent with the proper administration of justice.
15. I turn now to the question posed in paragraph (i) of the Case Stated, i.e., whether the Circuit Court has jurisdiction to hear and determine an application to the effect that a statute enacted prior to the coming into force of the Constitution is inconsistent with the Constitution.
16. Article 34 of the Constitution provides inter alia as follows:-
" 2 The courts [established pursuant to sub paragraph 1] shall comprise Courts of First Instance and a Court of Final Appeal.
3.1 The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, whether civil or criminal.
2. Save as otherwise provided by this article, the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution, and no such question shall be raised (whether by pleading, argument or otherwise) in any court established under this or any other article of this Constitution other than the High Court or the Supreme Court.
3. No court whatever shall have jurisdiction to question the validity of a law, or any provision of a law, the bill for which shall have been referred to the Supreme Court by the President under Article 26 of this Constitution, or to question the validity of a law where the corresponding provision in the bill for such a law shall have been referred to the Supreme Court by the President under the said Article 26.
4. The Courts of First Instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.
4.1.1 The Court of Final Appeal shall be called the Supreme Court…."
17. In The State (Sheerin) v. Kennedy  IR 379, this court considered the meaning of the words "validity of any law having regard to the provisions of this Constitution" in Article 34.3.2. That case was concerned with Article 40.4.3 which provides that
"Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of Case Stated …."
18. It was held in that case that the "law" referred to in that article was a law enacted by the Oireachtas. In the course of his judgment, Walsh J, with whom O'Dálaigh CJ, Lavery J, Haugh J and O'Keeffe J agreed, said
"Articles 34 and 40, where the law referred to is not expressly referred to as a law of the Oireachtas, in my view must be treated as meaning that the validity in question is a validity to be determined by the provisions of the Constitution in respect of something purporting to have been done within the terms of the Constitution and within the powers conferred by the Constitution."
19. In the result, it was held that an Act of the Parliament of the United Kingdom or of the Oireachtas established under the Constitution of the Saorstat Eireann was not a "law" within the meaning of those articles. No question could arise as to the power of the Parliament of the United Kingdom or the Oireachtas of Saorstat Eireann to enact such measures: if they have ceased to be of effect in our law, it is because, although validly enacted by the legislature in question, the impugned provision is inconsistent with the provisions of the Constitution and hence did not survive the enactment of the Constitution by virtue of Article 50.1. That provision states:
"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstait Eireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of then shall have been repealed or amended by enactment of the Oireachtas."
20. While it was sought to argue on behalf of the DPP and the Attorney General in the present case that the principle laid down in that case did not apply to the words in Article 34.3 ("the validity of any law having regard to the provisions of the Constitution") I am satisfied that such an argument is simply unstateable. The words used are virtually the same as those in Article 40.4.3. They are precisely the same as those in Article 34.4.5 which requires one judgment only to be given in this court in a case concerning "the validity of a law having regard to the provisions of this Constitution". As Walsh J pointed out, that article has invariably been construed by this court as permitting more than one judgment to be given where the law the constitutionality of which is in issue was in force prior to the enactment of the Constitution.
21. It was submitted on behalf of the accused in this case that, having regard to the decision in The State (Sheerin) v. Kennedy, the Constitution did not preclude a court of local and limited jurisdiction, such as the Circuit Court, from determining an issue as to the constitutionality of pre 1937 legislation and that since, as held by this court in The People (DPP) –v Lynch  IR 64 and Coughlan v. Pattwell  1IR 31, the judges of such courts are under the same obligation to uphold the Constitution and the law as judges of the courts created by the Constitution itself, it follows that the Circuit Court Judge in this case was not only entitled, but obliged, to resolve the issue of the Constitutionality of S.61 of the 1861 Act, when that issue was raised by a person in proceedings before him. Counsel relied in support of that proposition on the decision of the High Court in DPP (Stratford) v. O'Neill  2IR 383 and of the Court of Criminal Appeal in The People (DPP ) v. JT, 3 Frewen 141.
22. In DPP (Stratford) v. O'Neill, the court was concerned with the provision of S.5 (1) of the Summary Jurisdiction Over Children (Ireland) Act 1884. Under that provision, the District Court was obliged to consider the "character and antecedents of the person charged" before the court could determine to try the case summarily. A question having been raised in the District Court as to whether S.5(1) of the Act was constitutional, the Attorney General was put on notice and an application made to the District Court Judge to state a case to the High Court inquiring inter alia whether such a case stated could be referred by a judge of the District Court to the High Court in respect of the constitutionality of a pre-1937 law. In his judgment, Smyth J said:
"If, in appropriate proceedings, the District Judge is faced with a conflict between a pre-1937 law and the Constitution, he is bound to give effect to the higher law, namely, the Constitution by 'dis-applying' the ordinary law. However, this does not mean that the accused, as it were, could institute the equivalent of declaratory proceedings in the District Court to challenge the validity of pre- 1937 legislation, but rather, where, as in this case, the constitutional question arose incidentally in the course of ordinary proceedings the District Judge has jurisdiction to pronounce on the question."
23. A different view had been taken by Carroll J in The State (Pheasantry Limited) v. District Justice Donnelly and Anor  ILRM 512, a case which is not referred to in DPP (Stratford) v. O'Neill. In that case the constitutionality of S.28(1) of the Intoxicating Liquor Act 1927, providing for the forfeiture of a licence in certain circumstances, was challenged in proceedings in the High Court seeking relief by way of certiorari. An argument was advanced that the prosecutor had not exhausted the remedies open to it by appealing from the relevant order of the District Court to the Circuit Court. The learned trial judge rejected that argument saying
"Once the prosecutor had decided to challenge the constitutionality of the Intoxication Liquor Act 1927, in respect of the charges against him, the only way open to him was to proceed by way of certiorari. He could not argue the constitutionality of the Act in either the District Court or the Circuit Court. He must come to the High Court in order to do so."
24. It should, however, be pointed out that it is not clear whether any arguments were addressed to the court in that case in support of the proposition that was successfully advanced in DPP (Stratford) v. O'Neill.
25. In The People (DPP) v. JT a question arose as to whether the common law rule that the spouse of a party in a criminal trial was not competent to testify against the other spouse was inconsistent with the provisions of Article 41 of the Constitution. The court, having directed that notice should be served on the Attorney General and adjourned the case in order to enable the latter to be represented, heard arguments as to the constitutionality of the rule in question and concluded that it was inconsistent with the Constitution and had not remained in force by virtue of Article 50 of the Constitution. Again, it should be noted that there is no indication that any arguments were advanced to the court as to its jurisdiction to determine the constitutional issue so raised.
26. In the 3rd Edition of Kelly on The Irish Constitution, the learned editors had this to say:
"Although the lower courts are, by implication, not prevented from considering the constitutional consistency of pre- constitution laws, the mode by which this could happen is unclear. In fact, no pre-constitution law seems yet to have been considered from the constitutional point of view by either the Circuit Court or the District Court; and, as these courts have limited and defined jurisdictions by statute, which do not include the adjudication of the constitutionality of laws of whatever kind, it seems that it would not be possible to challenge e.g., an old statute by means of a declaratory action in the Circuit Court. At the same time the judges of the lower courts take an oath (sic) to uphold the Constitution (Article 34.5.1), and, as pre-constitution statutes naturally enjoy no presumption of consistency with the Constitution which did not exist when they were enacted, it must follow that a Circuit Court Judge or a District Judge is entitled to consider, if the point arises before him in pleading or argument, whether an old law he is being asked to apply is, in fact, consistent with the Constitution. If this proposition is correct, it would seem that the words used by Carroll J in the State (Pheasantry Limited) v. Donnelly – she said the applicant 'could not argue the constitutionality of the [Intoxicating Liquor Act 1927] in either the District Court or the Circuit Court [but] must come to the High Court in order to do so' – are too broad a statement; he could not, as a plaintiff, have taken the initiative in either of those courts to challenge the Act but as a defendant in a prosecution which rested on that Act he might have asked either court to consider its consistency with a subsequently enacted Constitution."
27. The issue that arises is not whether Article 34.3.2, prohibiting the District Court and Circuit Court from entertaining any question as to the validity of any law having regard to the provisions of the Constitution, is confined in its application to legislation enacted by the Oireachtas. In the light of the decision of The State (Sheerin) v. Kennedy, it is quite clear that it is. The issue is as to whether the District Court and Circuit Court which were created by statute as courts of local and limited jurisdiction enjoy a jurisdiction, in addition to the jurisdictions expressly conferred on them by statute, to determine whether laws in existence at the time of the enactment of the Constitution remained in force by virtue of Article 50 or ceased to have effect because they were inconsistent with the Constitution.
28. I have no doubt that it was not intended by the framers of the Constitution that an issue as to the constitutionality of a law, whether it took the form of legislation or a rule of the common law, should be determined by a court of local and limited jurisdiction. The Constitution, viewed as a legal instrument, cannot, in my view, be equated to a statute of the Oireachtas or any form of secondary legislation, such as statutory instruments or by-laws, which may have a limited and even a purely local application, and which may appropriately be construed by courts of local and limited jurisdiction, afforded such assistance as they may require by the High Court or this court through the case stated machinery. The Constitution, as the fundamental law of the State, has a universal character and adjudications by courts of competent jurisdiction as to the legal efficacy of primary or secondary legislation, or rules of the common law, having regard to the provisions of the Constitution, are binding in their effect on all three organs of the State, not merely in the instant case, but in all cases to which the laws in question have application. To hold that District and Circuit Courts throughout the length and breadth of the State are entitled to adjudicate on those issues in any case where they arise, leading it may be to a multiplicity of conflicting decisions and serious uncertainty as to the state of the law, would be to attach wholly excessive weight to the undeniable fact that such issues are not expressly excluded from the jurisdiction of those courts.
29. Where individual judges of the Circuit or District Courts give conflicting decisions at to the meaning of primary or secondary legislation, any difficulties that may arise can be dealt with by amending legislation. The framers of the Constitution cannot, in my view, have envisaged that a similar situation could arise where the constitutional validity of a particular law was in issue, and where the problems arising from conflicting adjudications by courts throughout the country could only be resolved by the holding of a referendum.
30. It must also be remembered that the wording of Article 34.3.4 does not preclude the Oireachtas from establishing courts of first instance, other than the High Court, which are not courts of local and limited jurisdiction, as pointed out by Walsh J in The State (Boyle) v. Neylon  IR 551. A court of that nature, being neither local nor limited in its jurisdiction, might be conferred with a jurisdiction to entertain constitutional issues other than the validity of a post-1937 statute. Similarly, while this court is the only court of final appeal which may be established under the Constitution, it was possible for the Oireachtas to provide for other appellate courts, the jurisdiction of which, while limited, could in no sense be regarded as "local". Thus the Oireachtas of Saorstat Eireann availed of that power to establish a Court of Criminal Appeal, as did the Oireachtas under the present Constitution. That may be the explanation of the decision of that court in The People (DPP) v. JT. Since, however, the issue as to the jurisdiction of the court to consider the constitutionality of the common law rule under scrutiny does not appear to have been raised or argued, the question as to whether that court enjoys such a jurisdiction can be left for another occasion.
31. This analysis would suggest that, even on a literal reading of the Constitution, the proposition which found favour in DPP (Stratford) v. O'Neill is not necessarily correct. Even if a literal reading did lend support to that decision, however, I am satisfied that a reading having results which cannot have been within the contemplation of the framers of the Constitution should be avoided, unless only that construction is open. As Henchy J put it in a frequently cited passage in The People (Director of Public Prosecutions) v. O'Shea  IR 384,
"I agree that if the relevant subsection of the Constitution is looked at in isolation and is given a literal reading, it would lend itself to [the interpretation that an acquittal by a jury could be appealed to the Supreme Court.] But I do not agree that such an approach is a correct method of constitutional interpretation. Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought into play as part of a larger composition, and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a Constitution, more than of any other legal instrument, that "the letter killeth, but the spirit giveth life".
32. As is accepted in the passage I have already cited from the 3rd Edition of Kelly on The Irish Constitution, the legislature have in any event not conferred on the Circuit Court or the District Court any jurisdiction to grant relief in the form of a declaration that a particular statute is inconsistent with the Constitution. It would be a strange statutory scheme which would preclude such an issue being raised, as it almost invariably is in the High Court, with the full panoply of pleadings, but enable it to be raised by a defendant where, in the words of Smyth J, it arose "incidentally" in the course of ordinary proceedings. However, I do not rest my view that the District and Circuit Courts enjoy no such jurisdiction simply on the absence of legislation: if it were necessary so to decide in the present case, I would hold that legislation purporting to confer on those courts a jurisdiction to entertain such issues would be constitutionally invalid as being irreconcilable with their status as courts of local and limited jurisdiction.
33. It is true that in The People (DPP) v. Lynch  IR 64, Walsh J said that
"…the judges of the District Court and judges of the Circuit Court are not dispensed from, or expected to overlook, their constitutional obligation to uphold the Constitution in the discharge of their constitutional and legal function of administering justice."
34. To the same effect is the observation of Denham J in Coughlan v. Judge Pattwell, where she said
"…while the District Court is a court of limited statutory power, it remains at all times a court which must protect the individual constitutional rights of the person."
35. Those observations are, in my view, perfectly consistent with the District Court or the Circuit Court having no power to determine issues as to the constitutional validity of legislation or rules of the common law, whether dating from before or after the enactment of the Constitution. Unless and until the legislation in question is found to be constitutionally invalid by the High Court or this court, the trial judge discharges his or her constitutional duty by upholding it and applying it to the facts of the case before him or her. There is ample machinery available to the litigant who is advised that any particular law is arguably unconstitutional to institute appropriate proceedings to have that issue resolved in the superior courts.
36. I am confirmed in these views by the decision of this court in I.O'T v. B  2 IR 321. That was also a case stated from the Circuit Court in which the Circuit Court Judge posed a number of questions, including the question as to whether he was correct in holding that the Circuit Court does not have jurisdiction to ascertain and declare, concurrently with the High Court and this court, what the unenumerated rights of the citizen which are guaranteed by the Constitution actually are and that the Circuit Court is limited to defending and vindicating unenumerated rights which have been actually ascertained and declared by the Superior Courts. In answering that question in the affirmative, Hamilton CJ said
"I am satisfied that it was the intention of the framers of the Constitution that all matters pertaining to the interpretation of the provisions of the Constitution should be decided by the courts whose jurisdiction derives from the Constitution itself and not by courts of limited and local jurisdiction whose jurisdiction is derived from Acts of the Oireachtas."
37. That passage should, of course, be read subject to the qualification that it may be possible to establish by statute courts of limited, but not local, jurisdiction, such as the Court of Criminal Appeal, enjoying a jurisdiction to decide that pre-1937 laws are inconsistent with the Constitution.
38. I would, accordingly, answer the questions in the case stated as follows:-
(2) Does not arise
(4) Does not arise
(5) Does not arise.