And Article 37 of Constitution - 2 negatives

gk5000

Section 17 of Defamation law for absolute privalege gives protection based on Article 37 of the constitution

"made in the course of proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution, where the statement is connected with those proceedings"

However, Article 37 is two negative statements as per below.

So how can this be used to define what is "in accordance with Article 37" ?

Does "in accordance with Article 37" have any meaning?

ARTICLE 37

1 Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

2 No adoption of a person taking effect or expressed to take effect at any time after the coming into operation of this Constitution under laws enacted by the Oireachtas and being an adoption pursuant to an order made or an authorisation given by any person or body of persons designated by those laws to exercise such functions and powers was or shall be invalid by reason only of the fact that such person or body of persons was not a judge or a court appointed or established as such under this Constitution.

Peregrinus

Yes, it does. Art 37 refers to "limited function and powers of a judicial nature" being exercised by a person who is not a judge or a court but who is "authorised by law to exercise such powers and functions". In other words, Art 37 allows the Oireachtas to enact a law that permits a person to exercise limited functions of a judicial nature, even though that person is not a judge.

Defamation Act 2009 s. 17(2)(h) confers absolute privilege on statements made in "proceedings involving the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution" — in other words, in judicial-type proceedings before a non-judge, provided the non-judge is authorised by law to conduct those proceedings.

gk5000

Thanks, I know they are related, but from a pure technical construction point of view?

Article 37 is purely negative, starting with the the word Nothing...so it never defines anything in a positive sense, or defines what proceedings are - just that they are not prevented.

Then, the Defamation Act 2009 s. 17(2)(h) expects proceedings according to something, but that something is never defined in a positive way.

So the question is related to the "Nothing" and how it governs, and impacts.

Peregrinus

You can't interpret "in accordance with Art 37" by just looking at the word "nothing"; you have to look at the whole of Art 37. And Art 37 contains a very clear reference to a person or a body of persons being authorised by law to exercise limited judicial powers and functions.

So, when Defamation Act 2009 s. 17 refers to " the exercise of limited functions and powers of a judicial nature in accordance with Article 37 of the Constitution", we look to Art 37 to see what it requires. And what it requires is that the exercise of the functions should be "authorised by law".

So, if such-and-such a panel or tribunal or commissioner or committee or whatever is claiming the protection of s. 17 in relation to judicial-type functions that it exercises, it needs to be able to point to a law which authorises it to exercise those functions. If there is no such law, it doesn't come within Art 37, and so it can't claim the protection of s. 17.

(And there could be other issues. For example, there may be case-law on what is meant in Art 37 by "functions and powers of a judicial nature", so you would then look at whether what the panel, tribunal, etc actually does comes with the scope of "functions and powers of a judicial nature" as that term is used in Art 37. If it doesn't then, again, the protection of s. 17 cannot be claimed.)