Introduction

This commentary examines the Supreme Court of Ireland’s decision in Tomás Heneghan v Minister for Housing, Planning and Local Government, the Government of Ireland, the Attorney General, and Ireland (Supreme Court appeal S:AP:IE:2022:000006), delivered on 31 March 2023. The proceedings arise from the long-standing non-implementation of the Seventh Amendment of the Constitution (approved by referendum in 1979), which enabled changes to the election of six university members to Seanad Éireann. The appellant argued, inter alia, that the constitutional amendment imposes an obligation on the State to legislate to extend or alter the university franchise to include other institutions of higher education, and sought judicial relief to compel action.

The judgment excerpt provided is the partial dissent of Charleton J. While the Court’s majority proposed a “far-reaching order,” apparently construing the constitutional text as giving rise to a justiciable duty to legislate, Charleton J rejects that outcome. His opinion advances two central propositions:

• Textually and contextually, the words inserted by the Seventh Amendment are enabling, not mandatory; the Irish-language verb “féadfar” cannot be judicially converted from “may” into “must.”
• Nonetheless, a fundamental democratic obligation arose once the People approved the amendment: the Government and Oireachtas had a duty to consider and respond within a reasonable time to the electorate’s decision. That duty is political in character but warrants a formal judicial declaration that it has been disregarded.

The dispute thus presents a sharp choice in constitutional adjudication: whether courts may convert enabling constitutional provisions into enforceable obligations on the political branches, or whether the judicial role is limited to marking the democratic failure (through declaratory relief) while preserving separation-of-powers limits.

Summary of the Judgment (Partial Dissent)

Charleton J would not endorse the majority’s “far-reaching” order, which, as he characterises it, interprets the Seventh Amendment’s “may” (“féadfar”) as an imperative “must” requiring legislative change to the Seanad’s university representation. He undertakes a rigorous textual analysis, emphasising the definitive status of the Irish text and the constitutional pattern of using “féadfar” to indicate legislative permission rather than compulsion. On that basis, he concludes:

• The Seventh Amendment enabled the Oireachtas to alter the university franchise, but did not mandate any particular change—or change at all.
• However, the democratic process that culminated in a successful referendum created a fundamental political duty: within a reasonable time, the Government and Oireachtas were obliged to consider, debate, and formulate a response to the People’s vote. The four-decade failure to do so constitutes a serious neglect of democratic obligation.
• The only appropriate judicial relief, therefore, is a declaration stating that duty and the failure to discharge it—not an order compelling legislation or prescribing outcomes.

He warns that transforming enabling language into a judicially enforceable mandate risks distorting the carefully integrated constitutional text and trenching on separation of powers. Still, he underscores the gravity of disregarding a referendum result and the imperative of a formal parliamentary response.

Analysis

A. The Constitutional Context and the Seventh Amendment

Prior to 1979, Article 18 provided for six university senators: three elected by Dublin University (Trinity College Dublin) graduates and three by National University of Ireland (NUI) graduates. The Seventh Amendment inserted text allowing, “by law,” for election by “one or more of” Dublin University and NUI and “any other institutions of higher education in the State,” with the total not to exceed six. The referendum description told voters that any such reallocation would be “in substitution” for an equal number of the existing six seats and that the amendment would permit the dissolution by law of the named universities. The Oireachtas, however, never acted to broaden or reconfigure the university franchise.

For Charleton J, the textual choices in both constitutional languages are decisive. The phrase “Provision may be made by law” (Irish: “Féadfar foráil a dhéanamh le dlí chun go…”) is permissive. It creates legislative space; it does not impose a legislative duty. The ballot text itself, he notes, offered no concrete directive as to which institutions should gain or lose seats, or in what number. Rather, it signalled that any change would be effected “by law,” i.e., by subsequent political decision-making within the Oireachtas.

B. Precedents and Authorities Cited

• Roche v Roche [2010] 2 IR 321: The appellant relied on Roche for the proposition that the context of a referendum can inform the interpretation of inserted text, especially if there is ambiguity. Charleton J accepts that contextual aids may be relevant where ambiguity exists (Geoghegan J’s reference to the “abortion referendum”), but he finds no ambiguity here. The Seventh Amendment’s text is clear: “féadfar” denotes permission, not obligation. Because the words are unambiguous in context, recourse to referendum context is unnecessary.
• Gilchrist & Rogers v Sunday Newspapers [2017] IESC 18, [2017] 2 IR 284: O’Donnell J’s principle that the Constitution should “function harmoniously” underpins the integrated reading favoured by Charleton J. The Seventh Amendment must be read as part of a coherent constitutional scheme; importing an imperative where the text has chosen permission would jar the scheme.
• State (DPP) v Walsh [1981] IR 412: O’Higgins CJ stressed that no constitutional provision should be interpreted in isolation—an approach Charleton J deploys to resist construing “may” as “must.”
• Tormey v Ireland [1985] IR 289: Henchy J’s emphasis on a reading that enables “smooth and harmonious” operation of the Constitution is central to Charleton J’s method. A mandatory reading of “féadfar” would unsettle the Constitution’s deliberate pattern of enabling clauses.
• The People v O’Shea [1982] IR 384: Henchy J observed that context matters and that literalism has limits in constitutional interpretation. Charleton J takes this as support for an integrated, context-sensitive textualism—not for importing compulsion where the Irish text signals discretion.
• Sinnott v Minister for Education [2001] 2 IR 545: Hardiman J acknowledged different interpretive approaches (historical, harmonious, purposive) as complementary. Charleton J invokes this to argue that none of these methods justifies flipping “may” to “must” in the Constitution’s carefully calibrated language.
• Costello v Ireland [2022] IESC 44: Reaffirmed the vesting of the “sole and exclusive” law-making power in the Oireachtas (Article 15.2), a separation-of-powers baseline that counsels judicial restraint in compelling legislation absent a constitutional imperative.
• The People (DPP) v McNamara [2020] IESC 34: Cited not for a substantive principle but to illustrate a trend in judicial communication towards clarity in dispositive guidance—a stylistic contrast with the Constitution’s own method of deploying precise, purpose-weighted phrases.
• References to CJEU phraseology (various cases): These comparative references demonstrate how repeated formulae build consistent legal meanings. The analogy supports the claim that recurrent constitutional phrasing—like “féadfar”—has a stable, enabling sense across the text.

C. Legal Reasoning

Charleton J’s reasoning proceeds along three interlocking axes: textual fidelity (with primacy to the Irish text), structural coherence (harmonious interpretation), and constitutional role-differentiation (separation of powers).

1. Textual fidelity—Irish text as definitive; “féadfar” as enablement: The Irish-language text of the Constitution is definitive. Across the Constitution, forms of “féadfar” are used to empower the Oireachtas or other organs to make provision by law; they do not impose a duty to legislate. Charleton J catalogues numerous examples to show a consistent pattern:
   • Article 8 (official languages): the Oireachtas may provide for exclusive use of Irish or English for official purposes.
   • Article 10 (natural resources): the State’s ownership is declared, and the Oireachtas may regulate management or alienation by law.
   • Articles 12–13 (President): the President may be given further functions; impeachment may be pursued; presidential conduct may be reviewed—none of this is mandatory.
   • Article 13.6 (commutation): clemency is vested in the President, but powers may be conferred on others by law.
   • Article 15.2 (law-making): while law-making power is exclusive to the Oireachtas, subordinate legislatures may be established by law.
   • Article 16.5 (Dáil terms): may be shorter than seven years by law.
   • Article 35.5 (judicial remuneration): may be reduced—per the Twenty-Ninth Amendment—without mandating any particular reduction.
   • Article 38 (criminal trials): due course of law is imperative; summary or special courts may be provided for.
   • Article 40 (rights): protest may be regulated; foetal life and later termination provisions likewise used enabling phrasing (“Féadfar socrú a dhéanamh…”).
   • Article 40.4.6° (bail): post-1996 amendment, the Oireachtas may provide for refusal of bail to prevent serious offences.
   • Articles 18 and 19 (Seanad): the same enabling template reappears.
   In light of this pervasive pattern, interpreting “féadfar” in Article 18.4.2° as a command to legislate would create disharmony across the constitutional text and undermine the People’s choice of precise linguistic tools.
2. Structural coherence—harmonious readings and the referendum mechanism: Articles 46 and 47 establish a rigorous democratic process for constitutional change; when the People accept a “proposal,” that proposal’s exact text is what becomes law. The Seventh Amendment proposal told voters that any reallocation would be done “by law,” not by automatic constitutional operation. While many voters likely expected change on a “Yes” vote, the text does not prescribe it. Harmonious interpretation therefore respects the enabling character of the amendment and the Constitution’s overall design.
3. Separation of powers—limits on judicial compulsion; declaratory remedy: The Oireachtas holds exclusive law-making power. Transforming “may” into “must” invites judicial overreach into legislative prerogatives. Yet judicial silence would ratify an undemocratic neglect: the Government asked the People a question; the People answered; the political branches then effectively ignored that answer for decades. The appropriate constitutional midpoint, for Charleton J, is a declaration that:
   • The Government owed a duty to formulate a considered response, and
   • The Oireachtas owed a duty to debate that response within a reasonable time.
   Such a declaration vindicates democratic accountability without dictating legislative content or compelling the enactment of a particular scheme.

D. Equality and the Design of the Seanad

Charleton J endorses Murray J’s analysis that the Constitution’s design of a differently constituted second chamber (with vocational panels and a small university electorate) cannot be invalidated by importing general equality principles to demand “one person, one vote” parity in Seanad electoral mechanisms. The differentiation is constitutional by design. If reform is to occur, it originates in political will, not constitutional compulsion (absent a new amendment).

E. Impact and Prospective Significance

• On constitutional interpretation: The judgment underscores the primacy of the Irish text and the settled, enabling meaning of “féadfar.” Attempts to read enabling clauses as mandatory are likely to face heightened scrutiny. Even where a referendum signals political appetite for change, courts will resist rewriting permissive text into imperative commands.
• On remedies and separation of powers: Charleton J’s approach refines the remedial palette. Declaratory relief can mark and condemn democratic failures without prescribing legislative content. This can shape future public law litigation: claimants may secure declarations that the Executive and Legislature must respond to constitutional changes, while courts refrain from dictating how they must respond.
• On referenda drafting and political practice: If the State intends to bind itself to legislate (or to effect specific changes), clear imperative language should be put to the People. Enabling language will likely be treated as such. Politically, however, failing to debate and respond to a referendum result can attract judicial censure and reputational costs.
• On the Seanad’s university representation: While the Court (per Charleton J) would not require legislation, this litigation highlights the long-neglected question of extending or reorganising the franchise to include graduates of other higher education institutions. A constitutionally proper response would be a Government memorandum and structured Oireachtas debate, culminating either in reform or a reasoned decision to retain the status quo.
• On equality arguments about Seanad design: The commentary reiterates that the Seanad’s non-majoritarian features are constitutionally sanctioned. Reform arguments will thus proceed more fruitfully through political channels (including further constitutional amendment) than through equality-based litigation.

Complex Concepts Simplified

• “Féadfar” vs “Must”: In the Constitution’s Irish text, “féadfar” signals permission—“may” be done by law. It is not a directive. To read it as “must” would change the People’s chosen words and unsettle many other provisions drafted with the same verb.
• Harmonious interpretation: Constitutional provisions should be read so they fit together without conflict. You do not zoom in on one sentence and ignore the rest; you read the part in light of the whole.
• Political duty vs legal duty: A political duty is a constitutional expectation of responsible governance (e.g., to debate and respond to a referendum). A legal duty is a rule a court can enforce by orders. Charleton J says the State breached the former, but the Constitution does not create the latter in this context.
• Declaratory relief: A court statement that clarifies legal rights or duties without compelling a specific action. Here, it would publicly mark the State’s failure to respond to the referendum, while stopping short of ordering legislation.
• Separation of powers: The Constitution assigns law-making to the Oireachtas. Courts interpret and apply law; they do not (absent explicit constitutional command) order the Oireachtas to legislate or dictate legislative content.
• Referendum proposal vs constitutional text: What the People approve is text. The ballot explanation assists understanding, but it does not override the enacted words. If those words enable rather than compel, the political branches retain discretion—though they should not ignore the vote.

Conclusion

Charleton J’s partial dissent articulates a principled boundary for constitutional adjudication in the wake of enabling referenda. It grounds itself in the definitive Irish text—especially the repeated, system-wide use of “féadfar”—and in the demands of harmonious interpretation and separation of powers. On that reading, the Seventh Amendment did not oblige the Oireachtas to legislate to alter the university seats in the Seanad; it permitted such legislation. The judiciary should not convert that permissive power into a mandatory command.

At the same time, the judgment is not indulgent of political inertia. By recognising a fundamental democratic duty to respond to a referendum result—and by proposing a declaratory order to that effect—it condemns the decades-long failure to bring any considered proposal before the Oireachtas. The message is stark: the People’s voice in a referendum cannot be treated as a nullity. Government must formally respond; the Oireachtas must debate.

The broader significance lies in two clarifications. First, enabling constitutional clauses will be treated as such unless the text unmistakably imposes duties. Second, courts can and should vindicate democratic accountability through declarations, while respecting legislative autonomy over whether and how to legislate. In the long-running story of Seanad reform—and of Irish constitutionalism more generally—this judgment marks both a limit on judicial compulsion and a strong affirmation that referendum outcomes command serious, timely political engagement.