The Gazette 1976

GAZETTE

NE/J

1976

THE CONSTITUTIONALITY OF THE

CRIMINAL LAW (JURISDICTION) BILL

1975

The President of Ireland, the Hon. Cearbhall

O'Dalaigh, having first consulted the Council of State,

referred the whole of the Criminal Law (Jurisdiction)

Bill 1975, under Article 26 of the Constitution for an

opinion as to its constitutional validity to the Supreme

Court. The Supreme Court heard arguments against

the constitutionality of the Bill by Mr. Colm Condon,

S.C., and Mr. Donal Barrington, S.C., and in favour

of the constitutionality of the Bill by the Attorney

General (Mr. Declan Costello, S.C.) and Mr. Rory

O'Hanlon, S.C. from 26th April to 30th April, 1976,

inclusive. On 6th May, 1976, in accordance with Article

26, a single judgment was delivered by the Chief

Justice on behalf of the Supreme Court which advised

the President that all provisions of the Bill were in

full accord with the Constitution. The President sub-

sequently signed the Bill, which has now become an

Act. On 25th May, 1976 the Minister for Justice (Mr.

Patrick Cooney) and the British Secretary of State

for Northern Ireland (Mr. Merlyn Rees) signed a

Convention whereby the British Criminal Jurisdiction

Act 1975 and the Irish Criminal Law (Jurisdiction)

Act 1976 were to come into force on 1st June, 1976.

In the course of a 41 page judgment, the following

submissions were considered :-

I General Principles

As the Bill had been passed by the two Houses of

the Oireachtas, the Court adopted the dictum of

Sullivan, C. J., in re the

Offences against the State

(.Amendment)

Bill 1940

- (1940)

I.R.

178 - that

"if it is sought to establish that a law is repugnant to

the Constitution by reason of some implied prohibition

or repugnancy, we are of opinion that such repugnancy

must he clearly established". The Court rejects the

contention that a distinction should he drawn between

an Act passed by the Oireachtas and a Bill referred by

the President under Article 26.

II Extra-Territorial Effect of Irish Legislation

It was submitted that pending the re-integration of

the National Territory under Article 3 of the Con-

stitution, the Oireachtas was debarred from passing

legislation which had territorial effects in Northern

Ireland. It is to be noted that Articles 1 to 3 of the

Constitution refer to "The Nation", whereas Article 10,

which relates to natural resources, refers to "The State".

The Court stated that Articles 2 and 3 could only be

appreciated in relation to a knowledge of the back-

ground of law and politics. Up to 1920, the Imperial

Parliament at Westminster claimed sole legislative

power over the whole of Ireland. The Government of

Ireland Act 1920 made provision for a Parliament of

Northern Ireland with limited legislative jurisdiction

over the six North Eastern Counties and a Parliament

of Southern Ireland with the same limited jurisdiction

over the remainder of Ireland. Articles 11 and 12 of

the Treaty of 1921 made provision for the area then

known as the Irish Free State, and now described as

the Republic of Ireland. The Treaty was ratified by the

Imperial Parliament on 31st March, 1922, and by Dail

Eireann, sitting as a Constituent Assembly, on 25th

October, 1922. The effect of the said Articles 11 and

12 of the Treaty was that, if within one month of the

ratification of the Treaty, an address was presented to

the King by both Houses of the Parliament of Northern

Ireland to the effect that the powers of the Parliament

and Government of the Irish Free State were no longer

to extend to Northern Ireland, then this provision

would take full effect, and the powers given to the

Parliament of Northern Ireland under the Government

of Ireland Act 1920 would also be of full effect.

The Irish Constitution of 1922 was ratified by an

Act of the Imperial Parliament on 5th December, 1922,

and the Proclamation issuing the Constitution was

signed by the King on 6th December, 1922. In accord-

ance with Article 12 of the Treaty, the Parliament

of Northern Ireland presented a resolution that the

powers of the Government and Parliament of the

Irish Free State should not extend to Northern Ireland

on 7th December, 1922.

The Irish Constitution of 1922 derived its authority

not from any British Act, but essentially from the Act

of Dail Eireann establishing that Constitution, which

was passed on 25th October, 1922. The Constitution

was in fact enacted as a Schedule to the Constituent

Act passed on 25th October, 1922 by the Third Dail

Eireann. The existing boundaries of the Irish Free

State with Northern Ireland were duly confirmed by

the Treaty (Confirmation of Amending Agreement)

Act 1925.

The correct meaning of any constitutional document

is to he construed with regard to the historical circum-

stances in which it came into being. The Constitution

is a fundamental document which establishes the

State, and expresses not only legal norms, but in Article

5 of the present Constitution, which declares Ireland

as a sovereign, independent and democratic State, and

also contains basic doctrines of political belief.

One of the basic theories held in 1937 was that the

Nation, as distinct from the State, has rights, and that

the Irish people in the whole island of Ireland formed

the Irish Nation as a unitary or federal State and

that a nation has a right to unity of territory; it was

consequently felt that the provisions of the Govern-

ment of Ireland Act 1920, though legally binding,

were a violation of the right to national unity (which

had been superior to positive law).

The claim to national unity is stated in Article 2 of

the present Constitution. The effect of Article 3 is that,

until the division of Ireland is ended, the laws enacted

by the Oireachtas are to apply to the same area as was

formerly the Irish Free State and is now described as

the Republic of Ireland. The laws enacted by the

Oireachtas under the present 1937 Constitution were

to have the same territorial effect as the laws of Saorstat

Eireann. It is clear that the natural resources belonging

to the State under Article 10 of the Constitution only

applies to the natural resources "within the jurisdiction

of the Parliament and Government established by this

Constitution".

Article 3 does not prohibit the Oireachtas from

legislating with extra-territorial effect in relation to

Northern Ireland, as long as the division of the country

lasts, as long as the Parliament of Saorstat Eireann

was enabled to do so. Section 3 of the Statute of

Westminster 1931 had declared that the Parliaments of

British Dominions had full power to make laws having

extra-territorial operation. Since the Constitution of

1922 had been enacted in 1922 by a Dail sitting as a

Constituent Assembly, Saorstat Eireann had full power

to legislate with full extra-territorial effect.

In the Lotus case (1927), the Permanent Court of

International Justice held that every sovereign State had

power to legislate with extra-territorial effect; conse-

quently it may enact that acts or omissions done outside

its borders may apply to its own citizens; this is techni-

cally called a "jurisdiction to prescribe", particularly if

121