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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,
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
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