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The President of Ireland may, under Article 26 of the Constitution of Ireland, refer a bill to the Supreme Court of Ireland to decide on its constitutionality before he signs it.

Article 34.3.3 of the Constitution of Ireland states that:

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 provision of a law where the corresponding provision in the Bill for such law shall have been referred to the Supreme Court by the President under the said Article 26.

  1. Does this mean that even the Supreme Court of Ireland cannot overrule its decisions made under the Article 26?

  2. Is it different in other cases, i. e. when the Court decides on the constitutionality of a law outside of the Article 26 procedure? If so, how?

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A decision under Article 26 that legislation is constitutional means that the constitutionality of that specific piece of legislation cannot be considered again.

As to whether the Supreme Court is bound by precedent set by previous Article 26 decisions (their Ratio decidendi) is more open to question.

In Re The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, the Supreme Court were invited to depart from previous decisions that bills submitted to them under Article 26 had a presumption of constitutionality. They declined to do so, saying:

The court is, accordingly, being asked in the case of the present reference to overrule two earlier decisions of the court where precisely the same issue was debated and resolved. It could be said, by way of comment on the arguments advanced by counsel assigned by the court on this issue, that they give entirely insufficient weight to the fact that the President, although doubtless an integral part of the Oireachtas, plays no part whatever in the purely legislative function of the Oireachtas. It is, however, sufficient to say that, whatever the merits be of the arguments advanced in this issue, it has not been demonstrated that in The Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129 and The Matrimonial Homes Bill 1993 [1994] 1 IR 305, any relevant argument or authority was overlooked in the judgments of the court. Nor are there any other compelling reasons which would permit the court to depart from those decisions. The court is satisfied that this does not constitute an exceptional case as defined in the judgment of Kingsmill Moore J. in The Attorney General v Ryan's Car Hire Ltd [1965] IR 642. It follows that the court will approach its decision on the reference on the basis that the presumption of constitutionality applies to the two provisions under consideration. (at page 369, emphasis added)

It would follow, therefore, that the court might reconsider a previous decision it made under Article 16, if they felt there were "compelling reasons" to do so, which constituted "an exceptional case".

Indeed, the last the of the decisions cited by the court, Ryan's Car Hire, was not an Article 26 reference, but was a seminal decision that established the Supreme Court could overturn its old decisions (and those of its predecessors). Accordingly it's arguable that the reasons from departing from an Article 26 decision would be much the same as departing from a decision in any other case.

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  • An Article 26 challenge is essentially a facial unconstitutionality challenge. I could imagine a subsequent challenge that determines that while a law is not unconstitutional on its face, that as applied (perhaps in conjunction with some later enacted law that is also facially constitutional that wasn't considered when the first law was passed) that it might be unconstitutional.
    – ohwilleke
    Sep 5 at 0:15
  • I would be careful about trying to apply US legal concepts to Irish law. The facial/as-applied distinction doesn't appear in Irish jurisprudence.
    – MJ Walsh
    Sep 6 at 12:20

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