The Gazette 1976

GAZETTE

J U NE/J U LY

1976

THE CONSTITUTIONALITY OF THE CRIMINAL LAW (JURISDICTION) BILL 1975 The President of Ireland, the Hon. Cearbhall O'Dalaigh, having first consulted the Council of State, referred the whole of the Criminal Law (Jurisdiction) Bill 1975, under Article 26 of the Constitution for an opinion as to its constitutional validity to the Supreme Court. The Supreme Court heard arguments against the constitutionality of the Bill by Mr. Colm Condon, S.C., and Mr. Donal Barrington, S.C., and in favour of the constitutionality of the Bill by the Attorney General (Mr. Declan Costello, S.C.) and Mr. Rory O'Hanlon, S.C. from 26th April to 30th April, 1976, inclusive. On 6th May, 1976, in accordance with Article 26, a single judgment was delivered by the Chief Justice on behalf of the Supreme Court which advised the President that all provisions of the Bill were in full accord with the Constitution. The President sub- sequently signed the Bill, which has now become an Act. On 25th May, 1976 the Minister for Justice (Mr. Patrick Cooney) and the British Secretary of State for Northern Ireland (Mr. Merlyn Rees) signed a Convention whereby the British Criminal Jurisdiction Act 1975 and the Irish Criminal Law (Jurisdiction) Act 1976 were to come into force on 1st June, 1976. In the course of a 41 page judgment, the following submissions were considered :- I General Principles As the Bill had been passed by the two Houses of the Oireachtas, the Court adopted the dictum of Sullivan, C. J., in re the Offences against the State (.Amendment) Bill 1940 - (1940) I.R. 178 - that "if it is sought to establish that a law is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion that such repugnancy must he clearly established". The Court rejects the contention that a distinction should he drawn between an Act passed by the Oireachtas and a Bill referred by the President under Article 26. II Extra-Territorial Effect of Irish Legislation It was submitted that pending the re-integration of the National Territory under Article 3 of the Con- stitution, the Oireachtas was debarred from passing legislation which had territorial effects in Northern Ireland. It is to be noted that Articles 1 to 3 of the Constitution refer to "The Nation", whereas Article 10, which relates to natural resources, refers to "The State". The Court stated that Articles 2 and 3 could only be appreciated in relation to a knowledge of the back- ground of law and politics. Up to 1920, the Imperial Parliament at Westminster claimed sole legislative power over the whole of Ireland. The Government of Ireland Act 1920 made provision for a Parliament of Northern Ireland with limited legislative jurisdiction over the six North Eastern Counties and a Parliament of Southern Ireland with the same limited jurisdiction over the remainder of Ireland. Articles 11 and 12 of the Treaty of 1921 made provision for the area then known as the Irish Free State, and now described as the Republic of Ireland. The Treaty was ratified by the Imperial Parliament on 31st March, 1922, and by Dail Eireann, sitting as a Constituent Assembly, on 25th October, 1922. The effect of the said Articles 11 and 12 of the Treaty was that, if within one month of the ratification of the Treaty, an address was presented to the King by both Houses of the Parliament of Northern

Ireland to the effect that the powers of the Parliament and Government of the Irish Free State were no longer to extend to Northern Ireland, then this provision would take full effect, and the powers given to the Parliament of Northern Ireland under the Government of Ireland Act 1920 would also be of full effect. The Irish Constitution of 1922 was ratified by an Act of the Imperial Parliament on 5th December, 1922, and the Proclamation issuing the Constitution was signed by the King on 6th December, 1922. In accord- ance with Article 12 of the Treaty, the Parliament of Northern Ireland presented a resolution that the powers of the Government and Parliament of the Irish Free State should not extend to Northern Ireland on 7th December, 1922. The Irish Constitution of 1922 derived its authority not from any British Act, but essentially from the Act of Dail Eireann establishing that Constitution, which was passed on 25th October, 1922. The Constitution was in fact enacted as a Schedule to the Constituent Act passed on 25th October, 1922 by the Third Dail Eireann. The existing boundaries of the Irish Free State with Northern Ireland were duly confirmed by the Treaty (Confirmation of Amending Agreement) Act 1925. The correct meaning of any constitutional document is to he construed with regard to the historical circum- stances in which it came into being. The Constitution is a fundamental document which establishes the State, and expresses not only legal norms, but in Article 5 of the present Constitution, which declares Ireland as a sovereign, independent and democratic State, and also contains basic doctrines of political belief. One of the basic theories held in 1937 was that the Nation, as distinct from the State, has rights, and that the Irish people in the whole island of Ireland formed the Irish Nation as a unitary or federal State and that a nation has a right to unity of territory; it was consequently felt that the provisions of the Govern- ment of Ireland Act 1920, though legally binding, were a violation of the right to national unity (which had been superior to positive law). The claim to national unity is stated in Article 2 of the present Constitution. The effect of Article 3 is that, until the division of Ireland is ended, the laws enacted by the Oireachtas are to apply to the same area as was formerly the Irish Free State and is now described as the Republic of Ireland. The laws enacted by the Oireachtas under the present 1937 Constitution were to have the same territorial effect as the laws of Saorstat Eireann. It is clear that the natural resources belonging to the State under Article 10 of the Constitution only applies to the natural resources "within the jurisdiction of the Parliament and Government established by this Constitution". Article 3 does not prohibit the Oireachtas from legislating with extra-territorial effect in relation to Northern Ireland, as long as the division of the country lasts, as long as the Parliament of Saorstat Eireann was enabled to do so. Section 3 of the Statute of Westminster 1931 had declared that the Parliaments of British Dominions had full power to make laws having extra-territorial operation. Since the Constitution of 1922 had been enacted in 1922 by a Dail sitting as a Constituent Assembly, Saorstat Eireann had full power to legislate with full extra-territorial effect. In the Lotus case (1927), the Permanent Court of International Justice held that every sovereign State had power to legislate with extra-territorial effect; conse- quently it may enact that acts or omissions done outside its borders may apply to its own citizens; this is techni- cally called a "jurisdiction to prescribe", particularly if 121