The Gazette 1976

N O V E M B E R

1976

G A Z E T T E

THE CONSTITUTIONALITY OF THE EMERGENCY POWERS BILL, 1976 The Facts On 1st September, 1976, Dail Eireann passed a resolution in the following terms:— "That Dai.l Eireann hereby resolves, pursuant to Article 28 (3) (3) of the Constitution, (a) That the National Emergency created by the armed conflict referred to in the Resolution, pursuant to Artile 28 (3) (3), of Dail Eireann and of Seanad Eireann of the 2nd September, 1939, had ceased to exist. (b) That, arising out of the armed conflict now taking place in Northern Ireland, a National Emergency exists affect'ng the vital interests of the State. On 1st September, 1976, Seanad Eireann passed a resolution in identical terms. On 16th September, the Emergency Powers Bill, 1976, was passed by both Houses of the Oireachtas. On 24th September, President O'Dalaigh, having consulted the Council of State, referred the Bill to the Supreme Court under Article 26 of the Constitution to decide whether any provision of the Bill was repugnant to the Constitution. The Court duly heard arguments on behalf of the Bill by the Attorney General, Mr. Declan Costello, S.C., and Mr. Kevin Liston, S.C., and against the Bill by Counsel assigned by the Court, Mr. Niall McCarthy, S.C., and Mr. Hugh O'Flaherty, S.C. from 11th to 13th October, 1976. Preamble The Preamble of the Bill is entitled "An Act for the purpose of securing public safety and the preser- vation of the State in time of an armed conflict in respect of which each House of the Oireachtas has adopted a resolution on 1st September, 1976, pursuant to Article 28 (3) (3) of the Constitution. The full text of Article 28 (3) (3) of the Constitution which was passed in September, 1939, at the beginning of the Second World War, is then quoted. The effect of this Sub-Section is: (1) Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is stated to be for the purpose of securing the pub- lic safey and the perservation of the State in time of war or armed rebellion. (2) Nothing in this Constitution shall be invoked to nullify any act don? or purporting to be done in time of war or armed rebellion in pursuance of such law. (3) "Time of war" includes a time when there is taking place an armed conflict in which the State is not a participant, but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emer- gency exists affecting the vital interest of the State. (4) "Time of war or armed rebellion" includes such time after the termination of any war, or of any previously mentioned armed conflict, or of an armed rebellion as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency ocacsioned by such war, armed conflict, or armed rebellion has ceased to exist. Editor's Note: The definition of "Time of War" was passed to emphasise the neutral status of the State declared at the beginning of the Second World War, and is contained in 2 1 8

the First Amendment to the Constitution Act, 1939. The definition of "Time of War and armed rebellion" was one of the amendments passed in the Second Amendment to the Constitution Act, 1941, when it was uncertain when the war would end. While most emergency legislation was repealed in 1946, the resolution ending the state of emergency declared in 1939 was only passed by the Oireachtas on 1st September, 1976, before the enactment of the present Bill, although the all-party Committee on the Constitution had recommended that such a resolution should be passed in 1967. The Chief Justice, speaking on behalf of the whole Court, at this stage made the important distinction, that, unless an armed conflict is taking place in which the State is not a participant, and that a law is passed for the purpose of securing the public safety and the preservation of the State in time of such armed conflict, such a resolution by the Oireachtas is not a condition precedent for the passing of a law for the purpose of securing the public safety in time of war or armed rebellion. The Oireachtas resolution leading to the enactment of this Emergency Powers BiJl states that there is an armed conflict taking place in Northern Ireland, and that a national emergency arising out of that armed conflict exists affecting the vital interests of the State. This Bill must therefore be confined to such armed conflict. There is no doubt that the President has power to refer this BiJl to this Court. If the Court decides that any provision of this Bill is repugnant to the Constitution, the President would be obliged, according to Article 26 (3) (1) of the Constitution, to decline to sign this Bill. The Attorney General contended that Section 2 of the Bill would be repugnant to the Constituion, if it were not saved by Article 28 (3) (3). The Court does not find it necessary to express an opimon on this question, as the matter was not discussed further. It may be noted however that, when a law is saved from invalidity by Article 28 (3) (3), the prohibition against invoking the Constitution in reference to it, is only effectve if the invocation is for the purpose of invalidating it. It follows that a person detained under Section 2 of the Bill may not only question the legality of his detention, if there has been express non-com- pliance with Sect'on 2, but may also rely on any pro- visions of the Constitution for the purpose of con- struing that section, and of testing the legality of what has been done in purported operation of it. A statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed. Any arrest sought to be justified by the Section must be in strict conformity with it. No such arrest may be justified by importing into the Section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by that Section. The Section is not to be read as an abnegation of the arrested person's rights, constitutional or otherwise, in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the Section were used in breach of such rights, the High Court might grant an order for his release under the Habaes Corpus provisions of the Constitution. Editor's Note: These last two paragraphs appear to run counter to the views prevailing heretofore, namely that once Article 28 (3) (3) of the Constitution was invoked, it and any legislation arising from it could no longer be questioned in any Court. No distinction had previously been made between "time of war and armed rebellion" and "armed conflict".