The Gazette 1973

whereas before then he had to be judicially and ob- jectively satisfied about this. It followed that the Minis- ter was no longer exercising a judicial function in signing a warrant of internment. In this reference,. Chief Justice Sullivan nebulously laid great stress on the fact that there was nothing in the Clause in the Preamble laying stress on the dignity and freedom of the individual as one of the two aims to be achieved,! which could be invoked to necessitate the sacrifice of the common good in the interest of the freedom of the individual. It is to be noted that Chief Justice Sullivan's view seems to be in direct contradiction with the view of the Supreme Court as expressed by Mr. Justice O'Byrne in Buckley v. The Attorney General— (1950) I.R. 80—as follows : In enacting the portion of the Constitution contained in the Preamble, the People of Ireland seeking amongst other things to promote the common good with due observance of Prudence, Justice and Charity, so that inter alia the dignity and freedom of the individual may be assured, adopt, enact and give to themselves this Constitution. These most laud- able objects seem to us to inform the various Articles of the Constitution, and the Court is of opinion that, in so far as possible, the Constitution should be so con- strued as to give to them life and reality." Chief Justice Sullivan stated (p. 481), that it was alleged that the provision of the offences against the State Amendment Bill, 1940, were repugnant to the guarantee contained in Article 40, Clause 3, of the Constitution. The guar- antee in that Clause was alleged not to be in respect of any particular citizen or class of citizen, but it was to reject Natural Law and was to extend to all the citizens of the State. Thus it was held that the duty of determining the extent to which the rights of any particular citizen or class of citizen could only be pro- perly harmonized in accordance with the rights of the citizen on the whole, and therefore was a matter peculiarly within the province of the Oireachtas. The reason for this nebulous pronouncement is obscure. Any attempt by the Court to control the Oireachtas in the exercise of this function would allegedly be usurping its authority, thus attempting to suppress Constitutional judicial review. Chief Justice Sullivan's arguments appear to conflict directly with Mr. Justice Kenny's quoted passage from the Fluoridation Case as well as the basis of his decision in McCauley v. The Minister for Posts and Telegraphs— (1966) I.R. 345. Chief Justice Sullivan further stated (p. 482) that the phrase "In accordance with law" was used in several Articles of the Constitution, and he narrowly construed this as meaning that it meant "in accordance with the law as it existed at the time when the particular Article was invoked" and so sought to be applied without having the slightest regard for the dignity of the individual", which Professor Kelly calls the unbroken trend of judicial opinion. It will be noted that this construction is redolent of the traditional British view of the supre- macy of Parliament. It was first thought that this con- struction must henceforth prevail for ever, but it could doubtless be reargued on the ground that the Courts contemplated by the Constitution have only been in existence since 1961, and did not exist at the time. The effect of the decision has been to compel the Courts so far to construe the emergency provisions of the Constitution in an exceptionally narrow way and to declare that internment without trial is part of the permanent ordinary law of the land. Constitutional Amendment defining "Time of War' ' It may be contended that the maintenance of Irish 198

judicial power. Once a Court has jurisdiction it has a constitutional right to exercise its judicial power and no law can interfere with this. It followed that the appli- cant was granted an absolute order of Habeas Corpus and entitled to be released from the mental hospital forthwith. The State (Burke) v. Lennon It seems unfortunate that in recent judicial pro- nouncements, there appears to have been a tendency to disregard completely the vital judgment of the then President of the High Court in The State (Burke v. Lennon — (1940) I.R. 141. It was stated that the applicant had been interned without trial from the 16th September to December 1939 in pursuance of the Offences against the State Act 1939, under a Warrant issued by the Minister for Justice on the ground that the Minister was objectively satisfied that he was engaged in activities calculated to prejudice the pre- servation or the security of the State. The Applicant had, the President stated, now challenged the right of the Oireachtas to make a law conferring the power of internment on a Minister. It was thus necessary to determine from a strict legal standpoint a matter of high constitutional importance. It was emphasised that Article 40, Clause 4, originally passed by Popular Plebisite in 1937 was secured by a strongly worked Habeas Corpus Clause to protect the citizen against unlawful imprisonment. The right to personal liberty meant much more than mere freedom from incaceration and carried with it necessarily, the right of the citizen to enjoy other fundamental rights, the right to live his life, subject to law, and if aman is confined against his will, he has lost his personal liberty, whether the name given to the restraint be penal servitude, im- prisonment, detention or internment. It was then stated that there was no provision enabling the Government or the Oireachtas to disregard the Constitution in an emergency short of war or armed rebellion. Furthermore—and this seems vital— the Con- stitution contained no express provision for any Law endowing the executive with powers of internment without a trial. It was further stated that Article 40 guaranteed that no citizen should be deprived of Liberty save in accordance with a law which actively respected his fundamental rights to personal liberty and which consequently defended and vindicated it as far as possible by protecting his person from unjust attack. The Constitution clearly intended that he shall be liable to forfeit that right under the Criminal Law of being duly tried and found guilty. It followed that a law for the internment of a citizen without charge or hearing for activities calculated to prejudice the State does definitely not respect his right to personal liberty and does unjustly attack his person. The Constitution with its most impressive Preamble was the Charter of the Irish people and should not be whittled away. The Constitution obviously intended, while making all pro- per provisions in time of emergency, to secure his per- sonal freedom to the Citizen as truly as did Magna Charta in England. Re Offences against the State (Amendment) Bill 1940 In the reference of the Offences against the State Amendment Bill 1940 (1940) I.R. 470, the Supreme Court by a narrow majority held that this Bill was valid because the subjective view of the Minister had been substituted for an objective one. Henceforth the Minister had merely to be of opinion that a person was acting dangerously against the interests of the State,