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law". A majority decided that by virtue of this phrase a
person who was detained under the Act was being
detained in accordance with the provisions of a statute
duly passed by the Oireachtas, and therefore he could
not question the constitutionality of the Act. It was, I
respetfully submit, a bad decision and one which would
not be arrived at today. The narrow interpretation of
the phrase "save in accordance with law" could have
led to a situation where the other guarantees in the
Constitution would have become meaningless.
A far more liberal and, I think, more just interpre-
tation was given to the same phase by Gavan Duffy P.
In
The State (Burke) v Lennon
(1940, I.R.), where he
said : "Article 40, if I understand it, guarantees that no
citizen shall be deprived of liberty save in accordance
with a law, which respects his fundamental right to
personal liberty and defends and vindicates it, as far as
practicable, and protects his person from unjust attack;
the Constitution clearly intends that he shall be liable
to forfeit that right under the criminal law on being
duly tried and found guilty of an offence." However,
the decision in the
Offences Against the State
case has
not yet been modified though I think that Gavan Duffy
P.'s interpretation of the phrase "without accordance
with law" would be preferred by our present Supreme
Court, in view of some of their more recent decisions.
An interesting comparison exists between the 1940
interpretation of the phrase in the Irish Constitution
a
nd its counterpart in the United States Constitution
which is "save in due process of law", which to many
Hy people, and indeed to law students, would appear
to be one and the same. The American Supreme Court
has interpreted it in a far more liberal fashion in a
number of cases. The Supreme Court in the United
States has assumed that "due process of law" should
be considered as both a safeguard of procedural rights
and
a safeguard of substance
and that any action
undertaken by the Federal Authority or a State Auth-
ority should not violate "fundamental fairness".
Supreme Court should have power to review judgments
The obvious question which must now be put is how
are we to overcome the
Offences Against the State Bill
decision ? By virtue of Article 34 (3) (iii) which states
that "No Court shall have jurisdiction to question the
validity of a law, or any provision of a law, the Bill for
which shall have been referred to the Supreme Court
fiy the President . . ." the Superior Courts cannot over-
l i e their earlier decision. It is therefore suggested that
this provision be amended so that the Supreme Court
should be entitled to review after a certain number of
V^ars, say five, judgements given by that Court on a
fiill referred to it by the President. The section in the
Article should be amended rather than deleted alto-
gether, as there may be occasions when the President
Would have good reasons to refer a Bill to the Supreme
Court.
This recommendation would be in line with present
Supreme Court policy with respect to decisions where
the Constitution is not pleaded. In Ryan's case and
Wuinn's case, both of which are reported in the 1965
Irish Reports, the Court decided that the common law
uoctrine of
stare decisis,
by which a Court was bound
hy its own former decisions, no longer applied, as it
had heretofore. There were alleged good reasons for
u
pholding the old doctrine of
stare decisis,
the main
°ue being, of course, that it guarantees certainty in
the law. Despite this, I consider that on balance, the
.upreme Court's 1965 decisions and the recommenda-
tlQ
ns made in regard to Article 34 (3) (3) would ensure
the preservation of our accepted standards and yet take
ognisance of the evolution of society in general.
European Convention of Human Rights to be part of
municipal law
In order to clarify the situation so that we would
know exactly what our rights are, I strongly recommend
that a suggestion made by the Chief Justice, in
March of this year, and by Professor O'Hanlon, Professor
of Criminal and Constitutional Law in this college,
some years ago, be adopted. They suggested that the
European Convention of Human Rights and Funda-
mental Freedoms be made part of our municipal law.
The Chief Justice said that personal rights in Ireland
might be more clearly stated and in some important
fields extended if we were to do this. Though Ireland
was one of the first signaturies of the Charter, we are
not bound by it as Article 29 (6) of our Constitution
states that "no international agreement shall be part of
the doestic law of the State save as may be determined
by the Oireachtas". The Oireachtas has failed to do
this with respect to the European Convention as was
shown by the Lawless case in 1960.
The present position in Ireland is best summed up by
the Chief Justice. "In looking at this part of Ireland
today (warts and all) it is a matter for congratulations
that the fundamental law not alone protects personal
rights but acknowledges certain inalienable rights ante-
cedent and superior to all positive law." This has only
become clear in recent years. The Chief Justice con-
tinued : "This is not to say that personal rights would
not be more clearly stated and, in important fields,
considerably extended by the enactment, as part of our
municipal law, of the European Convention of Human
Rights and Fundamental Freedoms." These are senti-
ments which, I feel, all of us should endorse.
A State, which has accepted the Convention as
binding on it, is under very strict obligations and can
only derogate from the Convention "in time of war or
other public emergency threatening the life of the
nation . . . to the extent strictly required by the exigen-
cies of the situation, provided that such measures are
not inconsistent with its other obligations under inter-
national law". Article 15 of the Convention would per-
mit a member State to intern without trial if the neces-
sity really arose, only as a last resort.
Trends of recent decisions
Our Superior Courts are undoubtedly to be praised
for some recent decisions in cases which involved consti-
tutional rights other than personal liberty. In
Ryan v
A.G.
(the "fluoridation case"), Kenny J. held that there
were other rights to be protected besides those guaran-
teed by the Constitution.
The State (Quinn) v Ryan
and Others
showed that the Supreme Court had no
hesitation in holding the police authorities in contempt
of Court when they removed Quinn from the juris-
diction unlawfully. In the case of
A.G. v O'Brien,
Kingsmill-Moore J. and Walsh J. stated quite decisively
that the rules of evidence must conform to the Consti-
tution. Indeed it would appear from the dicta in this
case, that the right to personal and bodily inviolability
is better protected by the Courts in Ireland than in the
United States where, in the case of
Schomber v Cali-
fornia
, the American Supreme Court held that evidence
of a blood test on an unconscious defendant was admis-
sible despite the fifth amendment in the U.S. Consti-
tution, which says that no person shall be compelled
to be a witness against himself in a criminal case. After
A.G. v O'Brien
it is doubtful if the Irish Courts would
37