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G A Z E T T E
N O V E M B E R
1976
THE CONSTITUTIONALITY OF THE
EMERGENCY POWERS BILL, 1976
The Facts
On 1st September, 1976, Dail Eireann passed a
resolution in the following terms:— "That Dai.l
Eireann hereby resolves, pursuant to Article 28 (3) (3)
of the Constitution,
(a) That the National Emergency created by the armed
conflict referred to in the Resolution, pursuant to
Artile 28 (3) (3), of Dail Eireann and of Seanad
Eireann of the 2nd September, 1939, had ceased
to exist.
(b) That, arising out of the armed conflict now taking
place in Northern Ireland, a National Emergency
exists affect'ng the vital interests of the State.
On 1st September, 1976, Seanad Eireann passed a
resolution in identical terms. On 16th September, the
Emergency Powers Bill, 1976, was passed by both
Houses of the Oireachtas. On 24th September, President
O'Dalaigh, having consulted the Council of State,
referred the Bill to the Supreme Court under Article
26 of the Constitution to decide whether any provision
of the Bill was repugnant to the Constitution. The
Court duly heard arguments on behalf of the Bill
by the Attorney General, Mr. Declan Costello, S.C.,
and Mr. Kevin Liston, S.C., and against the Bill by
Counsel assigned by the Court, Mr. Niall McCarthy,
S.C., and Mr. Hugh O'Flaherty, S.C. from 11th to 13th
October, 1976.
Preamble
The Preamble of the Bill is entitled "An Act for
the purpose of securing public safety and the preser-
vation of the State in time of an armed conflict in
respect of which each House of the Oireachtas has
adopted a resolution on 1st September, 1976, pursuant
to Article 28 (3) (3) of the Constitution. The full text
of Article 28 (3) (3) of the Constitution which was
passed in September, 1939, at the beginning of the
Second World War, is then quoted. The effect of this
Sub-Section is:
(1) Nothing in this Constitution shall be invoked to
invalidate any law enacted by the Oireachtas which
is stated to be for the purpose of securing the pub-
lic safey and the perservation of the State in time of
war or armed rebellion.
(2) Nothing in this Constitution shall be invoked to
nullify any act don? or purporting to be done in
time of war or armed rebellion in pursuance of
such law.
(3)
"Time of war"
includes a time when there is taking
place an armed conflict in which the State is not
a participant, but in respect of which each of the
Houses of the Oireachtas shall have resolved that,
arising out of such armed conflict, a national emer-
gency exists affecting the vital interest of the State.
(4)
"Time of war or armed rebellion"
includes such
time after the termination of any war, or of any
previously mentioned armed conflict, or of an
armed rebellion as may elapse until each of the
Houses of the Oireachtas shall have resolved that
the national emergency ocacsioned by such war,
armed conflict, or armed rebellion has ceased to
exist.
Editor's Note: The definition of "Time of War" was passed
to emphasise the neutral status of the State declared at the
beginning of the Second World War, and is contained in
2 1 8
the First Amendment to the Constitution Act, 1939. The
definition of "Time of War and armed rebellion" was one
of the amendments passed in the Second Amendment to the
Constitution Act, 1941, when it was uncertain when the war
would end. While most emergency legislation was repealed
in 1946, the resolution ending the state of emergency declared
in 1939 was only passed by the Oireachtas on 1st September,
1976, before the enactment of the present Bill, although the
all-party Committee on the Constitution had recommended
that such a resolution should be passed in 1967.
The Chief Justice, speaking on behalf of the whole
Court, at this stage made the important distinction,
that, unless an
armed conflict
is taking place in which
the State is not a participant, and that a law is passed
for the purpose of securing the public safety and the
preservation of the State in time of such armed conflict,
such a resolution by the Oireachtas is not a condition
precedent for the passing of a law for the purpose of
securing the public safety in
time of war or armed
rebellion.
The Oireachtas resolution leading to the enactment
of this Emergency Powers BiJl states that there is an
armed conflict
taking place in Northern Ireland, and
that a
national emergency
arising out of that armed
conflict exists affecting the vital interests of the State.
This Bill must therefore be confined to such armed
conflict. There is no doubt that the President has
power to refer this BiJl to this Court. If the Court
decides that any provision of this Bill is repugnant to
the Constitution, the President would be obliged,
according to Article 26 (3) (1) of the Constitution, to
decline to sign this Bill.
The Attorney General contended that Section 2 of
the Bill would be repugnant to the Constituion, if it
were not saved by Article 28 (3) (3). The Court does
not find it necessary to express an opimon on this
question, as the matter was not discussed further.
It may be noted however that, when a law is saved
from invalidity by Article 28 (3) (3), the prohibition
against invoking the Constitution in reference to it, is
only effectve if the invocation is for the purpose of
invalidating it. It follows that a person detained under
Section 2 of the Bill may not only question the legality
of his detention, if there has been express non-com-
pliance with Sect'on 2, but may also rely on any pro-
visions of the Constitution for the purpose of con-
struing that section, and of testing the legality of what
has been done in purported operation of it. A statutory
provision of this nature which makes such inroads upon
the liberty of the person must be strictly construed.
Any arrest sought to be justified by the Section must
be in strict conformity with it. No such arrest may be
justified by importing into the Section incidents or
characteristics of an arrest which are not expressly or
by necessary implication authorised by that Section.
The Section is not to be read as an abnegation of the
arrested person's rights, constitutional or otherwise, in
respect of matters such as the right of communication,
the right to have legal and medical assistance, and
the right of access to the Courts. If the Section were
used in breach of such rights, the High Court might
grant an order for his release under the Habaes Corpus
provisions of the Constitution.
Editor's Note: These last two paragraphs appear to run
counter to the views prevailing heretofore, namely that once
Article 28 (3) (3) of the Constitution was invoked, it and
any legislation arising from it could no longer be questioned
in any Court. No distinction had previously been made
between "time of war and armed rebellion" and "armed
conflict".