The Gazette 1973

Neutrality which the Irish Government had declared as

official policy was always in danger during the Second

World War, and that it was necessary to adopt strong

measures to preserve it. But it can hardly justify a Case

such as

The State (Walsh v.

Harte—

(1942)

I.R., where

an Executive Direction given to a Special Military

Court dispensing with all the Rules of Evidence was

held valid. It would seem that the Courts in the midst

of a world war were broadly prepared to uphold emer-

gency decrees of the Executive, but would not analyse

them in depth and decide whether they in fact con-

flicted with Natural Law. This was largely due to the

literal construction given to Article 28, Section 3, Sub-

Section 3, of the Constitution which stated that "No-

thing in the Constitution shall be invoked to invalidate

any law enacted by the Oireachtas which is expressed

to be for the purpose of securing the public safety

and the preservation of the State in time of war or of

armed rebellion, or to nullify any act done or purport-

ing to be done in pursuance of such law. It will be

recalled the expression

Time of War was extended by

the First Amendment

to the Constitution Act, 1939,

include "a time when the State was not actively en-

gaged in war, but specifying that a resolution of both

Houses of the Oireachtas declaring that a National

Emergency would bring the emergency into force and

that a similar resolution would terminate it."

It is gratifying to note that the

Constitution

Com-

mittee

in their Report issued in December 1967 re-

cognised that

this permanent period of national emer-

gency had outlived its usefulness

and suggested that an

amendment be passed to the effect that a

Declaration

of National Emergency

is deemed to last for a

maximum period of three years

unless specifically re-

newed for further periods not exceeding three years

by resolutions of each House of the Oireachtas. This

proposal recognizes at least that the problem of declar-

ing a permanent National Emergency should be over-

come, but is is doubtful whether it will be ever sub-

mitted to a referendum. Professor Kelly has recently

suggested that the problem could be tackled by an

application to a High Court Judge, provided different

grounds which had not been considered in the 1940

judgment could be advanced. Doubtless, in any event,

there would be an appeal to the Supreme Court for

a final decision.

Reference of Bills to Supreme Court

The procedure by which the

President refers a Bill

to the Supreme Court

for a decision as to its con-

stitutionality under Article 26 of the Constitution is

unsatisfactory, inasmuch as the Supreme Court has to

judge the legislation in vacuo in advance, and cannot

foretell how the law will be administered in practice.

Furthermore Article 34, Section 5 provides for a com-

pulsory single judgment in Constitutional cases which

is unfortunate from the point of view of jurisprudence

the alleged certainty of the single judgment is nebulous

and doubtful particularly

now that unlike here dissent-

ing judgments

are allowed in

Britain in the Privy

Council and the Court of Appeal—Criminal Division.

It is unfortunate that the Second Amendment to the

Constitution Act 1941 introduced many amendments

into the Constitution which were contrary to the

alleged democratic concept upon which the State was

founded, and it is unlikely that most of these totali-

tarian amendments would have been accepted by the

people in a Referendum. When the Oireachtas declared

the Emergency in September, 1939, it would not appear

to have been in the contemplation of the Deputies

and Senators of that period that such an Emergency

was to last, not merely during the actual period of the

Second World War up to May, 1945, but right up to

this present day. There is always a danger that a

phony Emergency Powers Act could be passed relating

to a distant war which would not concern us. The

restrictions contained in the First and in the Second

Amendments of the Constitution had not to be sub-

mitted to popular referendum. There was undoubtedly

a crisis in September, 1939, when the Second World

War started and it was impossible to predict what

would happen, but provision should have been made

for the National Emergency to cease within twelve

months of the actual ending of hostilities unless the

Oireachtas determined otherwise.

The present position is that the Houses of the

Oireachtas alone can determine by means of a resolu-

tion whether this present national emergency is at an

end, but successive Governments have urged that it

would be safer to retain it. If the Constitution is to

be amended, it would seem essential that a provision

similar to Article 40, Section 4, Sub-Section 1, should

be made mentioning specifically that no

citizen shall

be deprived of his personal liberty save in accordance

with the provisions o fthe Constitution and the laws

to be determined strictly in accordance with the prin-

ciples of Natural Law and Natural Justice.

The Right of the Free Exercise of Religion

This appears to be fully guaranteed in Article 44,

Section 2, which reads as follows:

Sub-Section

1 "Free-

dom of Conscience and the free profession and practice

of religion are subject to public order and morality

guaranteed to every citizen."

Sub-Section

2 "The State

guarantees not to endow any religion."

Sub-Section

"The State shall not impose any disabilities or make

any discriminations on the ground of religious pro-

fession, belief or status. There cannot be much conflict

save perhaps amongst atheists about Article 44, Section

1, Sub-Clause 1, which reads as follows: "The State

acknowledges that the homage and public worship is

due to Almighty God. It shall hold his name in

reverence and shall respect and honour religion." One

cannot but agree with the Constitutional Committee of

December 1967 in regard to Sub-Section 2 where the

State recognises the special position of the Catholic

Church as the guardian of the Faith professed by the

great majority of the citizens; this statement does not

confer any special benefits upon that Church as such

and the Constitution (Amendment) (No. 5) Act, 1972,

has finally deleted it. In the same way, Sub-Section 3

in which the State recognises various denominations

existing at the time of the coming into operation of

the Constitution, such as the Church of Ireland, the

Presbyterian Church, the Methodist Church, the Society

of Friends, and the Jewish Congregation appears to be

unnecessary, as this recognition does not give any of the

denominations listed any special privileges and any

denomination can in fact be recognised provided it in

fact conforms to the norms of public order and morality;

this subsection has also been deleted by the same Con-

stitution (Amendment) Act.

[to

be concluded]

199