Articles 34 - 37 The Courts
Article 38 Trial of Offences
Article 34
34.1 It is in courts which are established by law and by judges who are appointed in the manner that is set out in this Constitution that justice will be administered, and it is publicly that that will be done except in those special limited cases that will be enjoined by law.
34.2 Those courts will include Courts of First Instance and a Court of Final Appeal.
34.3.1 Those Courts of First Instance will include a High-Court which will have full fundamental jurisdiction, and power to give a judgement, in every matter and question of law or fact whether they are civil or criminal.
34.3.2 Apart from a case for which the contrary is provided by this Article, the High Court will have jurisdiction as regards that question of any particular law having or not having validity having regard to the provisions of this Constitution, and no question of that kind is permitted to be raised (through pleading or argument or otherwise) in any Court, established under this Article or under any other Article of this Constitution, except the High Court or the Supreme Court.
34.3.3 No Court will have jurisdiction to put in doubt the validity of a law or of any provision of a law which is a law that the President submitted the Bill for it to the Supreme Court for decision under Article 26 of this Constitution, nor to put in doubt the validity of a provision of a law if the President submitted the corresponding provision in the Bill for that law to the Supreme Court for decision under that Article 26.
34.3.4 Among the Courts of First Instance, moreover, will be Courts which will have limited local jurisdiction along with a right of appeal against them as will be determined by law.
34.4.1 It is the Supreme Court which is the title of the Court of Final Appeal. / The Supreme Court is the title of the Court of Final Appeal.
34.4.2 It is the Chief Justice which is the title of the president of the Supreme Court. / The Chief Justice is the title of the president of the Supreme Court.
34.4.3 Apart from whatever exceptions and within the constraint/scope of whatever rules that will be enjoined by law, the Supreme Court will have appellate jurisdiction on all the judgements of the High Court and, moreover, on those judgements by other courts that will be enjoined by law.
34.4.4 It is not permitted to enact any law which would put beyond the appellate jurisdiction of the Supreme Court cases in which questions needed to be settled regarding any law’s having validity or not, having regard to the provisions of this Constitution.
Article 34
34.4.5 He who will announce the judgement of the Supreme Court on a question regarding a law’s having validity or not having regard to the provisions of this Constitution is that one of the judges of that Court which that Court will appoint for that (purpose), and it is not permitted to announce any other opinion on that question, agreeing or disagreeing with that decision, nor is it permitted to disclose there being any other opinion of that kind.
34.4.6 There will be no passing over / bypassing the judgement of the Supreme Court in any case.
34.5.1 Every person who will be appointed to be a judge under this Constitution (he) must make the following declaration and put his hand to it:
“In the presence of God the Almighty I, , (am) promising and declaring solemnly and truthfully that I will duly and faithfully perform, to the best of my knowledge and ability, the office of Chief-Justice (or according as suits) without fear or bias, without partiality or malevolence/ill-will to anyone, and that I will uphold the Constitution and laws of Ireland. God direct and protect me.”
34.5.2 It is in the presence of the President that the Chief Justice will make that declaration and put his hand to it, and it is in the court publicly and in the presence of the Chief Justice or of the most senior judge of the Supreme Court who will be available that every other judge of the Supreme Court and every judge of the High Court and of every other Court will make that declaration and put his hand to it.
34.5.3 Every judge must make the declaration and put his hand to it before (he) takes up the responsibilities of the duties of his office, and at any rate, on a date not later than ten days after the day of his appointment, or a date which is later than that as the President will decide.
34.5.4 Any judge who will refuse or neglect to make the aforesaid declaration (it) must be deemed that he has relinquished his office.
Article 34
The Irish Courthouses are the most important buildings on the island. Retaining the ability to make our own laws is the cornerstone of our sovereignty as a nation State.
This Article has had extensive amendments since 1937; a section and three subsections plus 18 words.
All judges and courts have a declaration to uphold the Irish Constitutionand to respect individual's human rights and their fundamental rights. They have the authority to deem legislation inconsistent, repugnant or invalid.
These specific sections requiring in-depth understanding:
34.3.1 Those Courts of First Instance will include a High-Court which will have full fundamental jurisdiction, and power to give a judgement, in every matter and question of law or fact whether they are civil or criminal.
34.3.2 Apart from a case for which the contrary is provided by this Article, the High Court will have jurisdiction as regards that question of any particular law having or not having validity having regard to the provisions of this Constitution, and no question of that kind is permitted to be raised (through pleading or argument or otherwise) in any Court, established under this Article or under any other Article of this Constitution, except the High Court or the Supreme Court.
Article 34
34.4.6 There will be no passing over / bypassing the judgement of the Supreme Court in any case.
34.5.1 Every person who will be appointed to be a judge under this Constitution (he) must make the following declaration and put his hand to it:
“In the presence of God the Almighty I, , (am) promising and declaring solemnly and truthfully that I will duly and faithfully perform, to the best of my knowledge and ability, the office of Chief-Justice (or according as suits) without fear or bias, without partiality or malevolence/ill-will to anyone, and that I will uphold the Constitution and laws of Ireland. God direct and protect me.”
See Article 5 and Article 58 as this includes The Declaration that all judges must take when entering into office.
A constitutional court of record
Article 35
35.1 It is by the President that the judges of the Supreme Court, the High Court and every other Court which is established in pursuance of Article 34 of this Constitution will be appointed.
Article 35 refers to
Official Literal English translation
Article 35.2 Every judge will be free (and) independent as regards the operation of his judicial functions, with no restriction on him except this Constitution and the law.
35.3 It is not permitted that any judge be a member of either of the Houses of the Oireachtas, nor be in any other gainful post or office.
35.4.1 It is not permitted to put a judge of the Supreme Court nor of the High Court out of office except because of misconduct or mental disability which will be mentioned, nor even at that time unless Dáil Éireann and Seanad Éireann pass resolutions demanding he be put out of office.
35.4.2 Any resolutions of that kind which Dáil Éireann and Seanad Éireann will pass the Taoiseach must duly give account of them to the President and send a copy of each of those resolutions to him under the certification of the Chairman of the House of the Oireachtas that passed it.
35.4.3 Immediately after the President receives that account and copies of those resolutions he must, by order under his hand and under his Seal, put the judge to whom they relate out of office.
35.5 It is not permitted to reduce the salary of a judge while (he) is in office
In 'The Irish Constitution, Supplement to second edition Jurist'
by J.M. Kelly with G.W. Hogan & G. Whyte
In Crotty Vs An Taoiseach (1987) Finley C.J. said that the right of the courts to intervene to protect the constitutional rights of the individuals against interference by actions of the executive was expressly vested in the High and Supreme Courts by Arts. 34.3.1 and 34.4.3, and impliedly arose from the form of the judicial oath contained in Art. 34.5.1.
:Relevance of declaration to judicial conduct of proceedings:
In The State (Byrne) v. Frawly Henchy J. said it was a judge's duty irrespective of the wishes of the parties - to put an end to any civil or criminal proceedings before the court once it has been established that they have been "authoritatively declared to rest" on an unconstitutional statute:
As required by the Constitution, every judge, on being appointed, makes a solemn declaration in open court that he will uphold the Constitution and the laws . . . The silence or acquiescence of a party . . . can not abrogate the judge's duty to uphold the Constitution in his court by refusing to preside over a conclusively established unconstitutionality.
Article 36
Within the constraint/scope of the foregoing provisions of this Constitution which relate to the Courts it is in accordance with law(s) that the following matters will be regulated i.e.
i the number of judges of the Supreme Court, and of the High Court, the salary, age of retirement and pensions of those judges,
ii the number of judges of every other Court, and the conditions under which they are appointed, and
iii the constitution and the co-ordination of those Courts,
the division of jurisdiction and work among those Courts and among those judges, and everything that
relates to procedure.
Article 36 refers to
Article 37
37.1 Any person or any group who are duly authorized by law to operate limited functions and powers of judgement in matters that are not criminal matters, if they operate those functions and powers that operation will not be without legal validity by reason of anything in this Constitution, even though that person or group is not a judge or a court which was appointed or established as a judge or as a court under this Constitution.
Article 37 refers to
Article 38
TRIAL IN OFFENCES
38.1 It is not permitted to try any person in any criminal case/prosecution except as is proper according to law.
38.2 Minor offences may be tried at courts of summary jurisdiction.
38.3.1 Specific courts may be established by law to try offences in cases regarding which it will be determined, in accordance with that law, that the ordinary courts are not adequate to enforce effectively the administration of justice and to preserve public order and peace.
38.3.2 It is by law that the constitution, powers, jurisdiction and procedure of those specific courts will be arranged.
38.4.1 Military benches may be established to try people in offences against military law which it is said they did while they were under military law, and moreover to cope with unrest or with armed rebellion.
38.4.2 A person of the Defence Forces who is not on (military) service it is not permitted to try him before any army court or other military bench in an offence that can be tried in the civil courts, unless it is a crime which is under the jurisdiction of any army court or other military bench under any law to enforce military discipline.
Article 38 refers to
Official Literal English translation
Article 38
TRIAL IN OFFENCES contd
38.5 It is not permitted to try a person in any criminal charge/prosecution except in the presence of a sworn committee, except in the case of trial of offences under section 2, section 3 or section 4 of this Article.
38.6 The provisions of Article 34 nor of Article 35 of this Constitution will not concern any court nor any bench which will be established under section 3 or section 4 of this Article.
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