The Gazette 1976

G A Z E T T E

N O V E M B E R

1976

jurisdict : on to review the contents of these resolutions. For all these reasons, the Court decides that the Bill is not repugnant in any respect to any provision of the Constitution. Editor 's Note: No detailed examination appears to have been ma de of the contents of the Bill, although the constitutionality of the Bill was upheld "in every rcspect". For the uninitiated an i mp o r t a nt safeguard in Section 1 is that the powers con- tained in Section 2 may only he exercised in the first instance for a period of 12 months, but may he renewed thereafter for periods of 12 months. An order may he m a de at any time that Section 2 shall cease to be in force. Section 2 states that a G u a r d, even if not in uniform, may without w a r r a nt stop, search, question and arrest any person, if he suspects with reasonable cause that an offence is about to he committed u n d er the Offences against the State Act, 1939, and m ay u n d er the same circumstances stop and search any vehicle or vessel. In the lirst instance the person arrested may be detained for 48 hours and may further, on the direction of any Chief S u p e r i n t e n d e n t, he detained for an additional 5 days — total 7 days; this follows closely Section 7 of the British Prevention of T e r r o r i sm Act 1974, save that, u n d er British legislation, it is the Secretary of State w ho gives the direction, a nd not a police officer. It seems odd that this drastic provision docs not a p p e ar to have been mentioned save indirectly in the j u d gme n t. In Re the Constitution of Ireland and in Re the Emergency Powers Bill, 1976 — Supreme Court (O'Higgins, C.J., Walsh, Henchy, Griffin and Kenny, J J.) per the Chief Justice — unreported — 15th October, 1976.

The next submission by Counsel, in argument aga-nst the validity of the Bill, was that the immunity granted to the legislation contemplated by Article 28 (3) (3) against invalidation by any provision of the Constitu- tion applies only to a law, which becomes so by virtue of being signed by the President. It is contended that when a reference of a Bill is made under Article 26 of the Constitution to the Supreme Court, then Article 28 (3) (3) should not be taken into account. If Article 26 stood alone, ihis submission would undoubtedly be correct. Unless Article 26 expressly excludes a par- ticular type of Bill from reference to this Court, Bills, including those intended to be enactments in con- formity with Article 28 (3) (3) may be considered by this Court. If a Bill enacted under legislation conform- ing to Article 28 (3) (3) is not referred to this Court, it must be signed by the President, and thereupon becomes law. Consequently this submission is invalid, and fails. When a Bill is validly referred to this Court under Article 26, the test of its repugnancy or in- validity is what its force and effect will be if and when it becomes law. If it is shown that the preliminary re- quirements and resolutions for the passing of the Bill under Article 28 (3) (3) have been complied with it is ipso facto incapable of being struck down on the ground of repugnancy to any provision of the Con- stitution. It was then contended that the long title of the Bill — which expresses the purpose of the Bill — fails to conform to Article 28 (3) (3), in that the purpose of the Bill is not expressed to be for the preservation of the State "in time of war". It is contended that, even though it is the existence of "an armed conflict" that is relied upon, nonetheless, the expression "time of war" must be used, because the latter includes the former. As against this the Attorney General sub- mitted that in the Subsection it is indicated that "a time of war", "an armed rebellion", or "an armed conflict" in which the State is not a participant, are to be regarded as separate and distinct. Resolutions of both Houses of the Oireachtas are necessary to declare that a national emergency exists affecting the vital interests of the State when the occasion is one of "armed conflict" in which the State is not a participant, and such armed conflict is actually taking place. Such Oireachtas resolutions are not required "in time of war or armed rebellion". The very existence of a "time of war or armed rebellion" is sufficient to bring into operation any law which is expressed to be for the purpose of securing the public safety and the preser- vation of the State. The Attorney General's submission that different formalities are required for the enactment of legislation for 'an armed conflict" in which the State is not a participant, as distinct from legislation for "a time of war or armed rebellion" is well-founded. This submission fails. What is the existence of the state of affairs necessary to permit the application of Article 28 (3) (3)? These are matters or statements of fact which are contained in the resolution of the two Houses of the Oireachtas. How far can the Court examine the correctness of these statements? The Court accepts the existence of the presumption submitted by the Attorney General that the facts stated in such resolutions are correct; consequently this presumption should be acted upon unless and until it is displaced. The Court reserves for a future date the question whether, when the resolutions referred to in Article 28 (3) (3) have been passed, the Court would have

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