Separation of Power in the Irish Constitution


The Irish constitution is widely celebrated for promoting liberal democracy. Enthroning the people as the arbiter of the ultimate sovereignty, dividing the constitutional powers into the three organs of government,[2] providing for an independent and strong judiciary,[3] providing and protecting the fundamental human rights of Irish citizens,[4] the Bunreacht Heinemann promotes the modern ideals of a representative government. In recent years, the scope of the separation of powers as provided by the constitution has been the subject of intense debates among legal scholars and jurists. This was particularly the subject of the ruling of the Supreme Court in the landmark case of TD v Minister for Education[5] where it was held that the court would only be compelled to grant mandatory orders against the Government only in extreme circumstances in light of the separation of powers provided in the constitution. This particular ruling of the court has been said to have upheld a rigid interpretation of the scope of the doctrine as contained in the constitution. This essay seeks to examine this notion. In subsequent paragraphs, the doctrine of separation of powers as it exists under the Irish constitution, and its application to the ruling of the Court in TD v Minister for Education[6] shall be briefly examined.

Separation of Powers in Ireland

Separation of Power, as Jeremy Waldron describes it, “counsels a qualitative separation of the different functions of government – legislation, adjudication and executive administration.”[7] Separation of power as a political doctrine was developed by the popular French scholar, Montesquieu. An espousal of the doctrine according to him can be seen in the following words:

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty… there is no liberty if the powers of judging is not separated from the legislative and executive… there would be an end to everything, if the same man or the same body… were to exercise those three powers.[8]

M.J.C. Vile in his book,[9] aligns his thoughts with the thoughts of Montesquieu in defining and explaining the rationale of the doctrine. He succinctly states that:

It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch.

From the definitions provided above, it is clear that separation of power involves the breakdown of governmental powers and authority into three organs of government, such that the organs perform different functions and such functions performed by different individuals. This is to ensure the protection of individual liberty, prevention of tyranny and the protection of democracy. The Constitution of Ireland enshrines this doctrine “so that the dignity and freedom of the individual may be assured, true social order attained… and concord established with other nations.”[11] The constitution recognises the doctrine in its Article 6, where it states that the legislative, executive and judiciary powers derive from the people. The constitution provides for the powers of the Legislature in Article 15, the Executive in Article 28 and the Judiciary in Article 34. In addition to the separation of powers, the Constitution also provides various means to implement checks and balances among the organs.

The Legislature or The Oireachtas is the authority empowered to make laws in the country. Structured into two Houses; House of Representative (Dail Eirean) and the Senate (Seanad Eirean)[12]; the Oireachtas is granted the exclusive authority to make laws for the state.[13] In the law-making process, upon the passage of the bill by both houses, the bill becomes law on the assent of the President. Where the President refuses to assent to the bill or believes the bill to be against the provisions of the Constitution, he can bring an application before the Court to determine such matter. The Judiciary is able to do this by virtue of the Powers of Judicial review provided under the constitution.

The Executive powers of the State is vested in and exercised by the Government.[14] Headed by the Prime Minister (Taoiseach), the government consists of no more than 15 persons appointed by the President in accordance with the provisions of the constitution. The Government is responsible for both the local and international policies of the state. In addition to this duty, the Government is responsible for drawing up the National budget and allocation to be presented to the Dail Eireann for consideration.[15] The Government is not empowered to make declarations of War without the consultation of the national parliament.

Saddled with the responsibility if interpreting the laws and administering justice is the Judiciary.[16] The constitution creates the Courts of First Instance (the High Courts) and the Court of Final Appeal (the Supreme Court) to ensure the effective administration of Justice in the State. No other body is allowed to exercise this function under the law. The administration of Justice, inter alia, involves the process of fair hearing and the pronouncement of the appropriate sentencing. The Court in the case of Deaton v Attorney General[17] declared unconstitutional the law allowing Revenue Commissioners to determine the penalties for tax offenders on the rationale that it is a duty exclusive to the Courts.

The Constitution ensures the separation of the organs of government. It provides exclusive duties of each of the organs, while also ensuring that no organ is more powerful than the other. This is achieved through the checks and balances put in place. In the next section, the ruling of the court in the case of TD v Minister for Education [18]will be examined, in light of the provisions of the constitution and the opinions of legal scholars.

TD v Minister for Education

The majority of the Supreme Court took a position in this case that has been the subject of various scholarly debate. The case addressed the constitutional issue of the protection of unenumerated socio-economic rights in the court of first instance and the issue of granting mandatory orders to the executive arm in the court of final appeal.

The case was instituted by parents of disadvantaged children against the minster of education. The children through their parents, asserted the need for the state to provide certain educational facilities to suit their needs by virtue of their rights under the constitution. The high court upheld their socio-economic rights to these educational facilities even though it was not expressly provided under the constitution. The state argued that it recognised that “such facilities were necessary and had begun the planning process for building them. However, the projects suffered many administrative and logistical delays.”[19] As a result, the high court issued an injunction requiring the state to build a number of facilities by a timeframe set by the court. The State, not satisfied with this exercise of the powers of the court, appealed the injunction before the Supreme Court. The State contested the order on the grounds that it violated the constitutional doctrine of separation of powers; as the granting of such order would mean the intervention of the courts in Executive matters.

The majority ruling (Keane CJ, Murphy, Murray, Hardiman and Denham dissenting) reversed the mandatory order issued the high court. The court relied on the position of the court in the case of O’Reilly v. Limerick Corporation[20] where it was held that the courts were only concerned with Commutative Justice and not Distributive Justice. The court had no duty to make determinations as to the allocation of national resources. The court held further per Murray J that the court would only intervene and issue such order against the Executive, in the instance of a clear disregard of its constitutional duties. According to him, a clear disregard would mean a conscious and deliberate decision of the executive to act in breach of its constitutional duties. Denham J, in holding a dissenting view, held that the particulars of the instant case constituted an example of such exceptional circumstances and such a mandatory order should be granted. Hardiman J was of the opinion that the order issued by the high court amounted to a political order, and allowing the grant of such orders would amount in the increase of the powers of an unelected judiciary which is in contradiction with the separation of powers envisaged under the constitution.

A similar case to the case in question is the case of Sinnott v Minister of Education.[21] The plaintiff, due to autism was limited in the amount of primary education he received. He sought a declaration that the defendant had failed its constitutional duty to provide free education and also, a mandatory order against the defendant to provide free education for the plaintiff as long as he is capable of benefitting from such. The Supreme Court held per Keane CJ and Hardiman J that it was sufficient to grant declaratory reliefs and not mandatory orders in the believe that the institution of the state would take the appropriate actions to uphold the constitutional rights of the plaintiff.

Gerry Whyte, in his paper, has described the views held by the courts in the cases above to be “certainly inimical to an extensive judicial role in the protection of the interests of the disadvantaged of our society.”[22] According to him, the Irish courts “could not be relied upon to protect socio-economic interests that are not explicitly referred to in the Constitution or legislation.”[23] The comments above initially imply a total loss of confidence in the courts as the courts have not expressly recognised and upheld unenumerated socio economics rights. However, the decision of the supreme court in the case of Re Article 26 and the Health (Amendment) (No.2) Bill 2004[24] extends a ray of hope to the public.

Commenting on this issue as well, Aoife Nolan believes that the distinction between the distributive and commutative justice relied upon is “hardly watertight”.[25] He goes on to say that even where it is agreed that the executive is better suited to administer distributive justice and the courts administer commutative justice, it still does not justify the adoption of such restrictive position by the courts. she was also of the opinion that “the majority of the Supreme Court in TD appeared oblivious to the reality that judicial decisions in relation to civil and political rights can also have budgetary and policy implications.”[26]

Blathna Ruane, in considering the effects of the decision of the court in this case concludes that “the supreme court’s jurisdiction and the extent of the duty and obligation on the court to protect fundamental rights is more constrained by the principle of separation of powers than might have been expected”[27]

Keane C.J expressed his views outside the courts in his paper, and he reaffirmed the position of the court. He reiterated that “What has been made clear is that the courts will not usurp what they regard as the role of the legislature and the executive in determining priorities in the allocation of national resources or in supervising the expenditure of money for specific social needs.”[28]

Comments and Conclusion

In spite of the opinions of legal scholars cited above, it is the humble of this writer that the supreme court engaged in not a rigid but an appropriate interpretation of the constitution as it relates to the principles of separation of powers. Hardiman J’s position reflects the position of the constitution. By virtue of the provision of Article 28.4.4 of the constitution of Ireland, the Government is the only authority allowed to determine the allocation of national resources to the benefit of the citizens of the country. To hold that the court is allowed to grant mandatory orders against the executive to determine the allocation of national resources would amount to the expansion of the powers of the court, and even in a way replacing the executive. This would be setting a precedent under the law which will be appealed to over and over by the public. It would mean the court is now empowered to determine the allocation of national resources alongside the executive and this is obviously against the intentions of the constitution.

The intention of the constitution through the application of the doctrine of separation of powers is such that the organs of government would carry out their constitutionally defined duties with little or no interference from other organs of government. This intention of the constitution was upheld in the case of Deaton v Attorney General[29] where the court asserted their constitutional duty and barred the executive arm from exercising the duty of determining penalties for offences under the law. Relying on the reasoning of the court in that case, it would also be inappropriate for the court to grant order which fall under the powers of the executive arm.

There have been arguments stating that the constitution does not provide for a clear separation of power. This argument is hinged on the fact that Ireland practices a parliamentary system of government, which implies that some members of the Government are members of the Oireachtas. As a result, it is not the completely the case that there is a separation of function and separation of persons. On this point, this writer begs to differ. It is the humble opinion of this writer that the constitution provides a clear separation of power. The constitution ensures the independence of all organs of government and their powers including the Judiciary. In fact, the court asserted this notion in the case of Buckley v Attorney General[30] where the legislature sought to oust the jurisdiction of the court by enacting a law.

Another point to consider is the enforcement of checks and balance. By virtue of the fact that the Government is politically elected, it is directly responsible to the people and can be checked through the legislature and even the courts when it is not fulfilling the mandates of the people. Where the Judiciary is allowed to interfere and take on this extra powers, which organ of government will serve as checks on those powers? This would translate to the granting of uncheckable powers to an unelected judiciary to dictate the allocation of national resources. This is clearly against the intentions of the constitution.

In light of the reasons provided above, it is the opinion of this writer that the court did not make a rigid interpretation of the constitution but appropriate to protect the separation of powers as envisaged by the constitution.


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