The Gazette 1976

G A Z E T T E

N O V E M B E R

1976

The next submission by Counsel, in argument aga-nst

the validity of the Bill, was that the immunity granted

to the legislation contemplated by Article 28 (3) (3)

against invalidation by any provision of the Constitu-

tion applies only to a law, which becomes so by virtue

of being signed by the President. It is contended that

when a reference of a Bill is made under Article 26

of the Constitution to the Supreme Court, then Article

28 (3) (3) should not be taken into account. If Article

26 stood alone, ihis submission would undoubtedly be

correct. Unless Article 26 expressly excludes a par-

ticular type of Bill from reference to this Court, Bills,

including those intended to be enactments in con-

formity with Article 28 (3) (3) may be considered by

this Court. If a Bill enacted under legislation conform-

ing to Article 28 (3) (3) is not referred to this Court,

it must be signed by the President, and thereupon

becomes law. Consequently this submission is invalid,

and fails. When a Bill is validly referred to this Court

under Article 26, the test of its repugnancy or in-

validity is what its force and effect will be if and when

it becomes law. If it is shown that the preliminary re-

quirements and resolutions for the passing of the Bill

under Article 28 (3) (3) have been complied with it

ipso facto

incapable of being struck down on the

ground of repugnancy to any provision of the Con-

stitution.

It was then contended that the long title of the Bill

— which expresses the purpose of the Bill — fails to

conform to Article 28 (3) (3), in that the purpose of

the Bill is not expressed to be for the preservation of

the State

"in time of war".

It is contended that, even

though it is the existence of

"an armed conflict"

that

is relied upon, nonetheless, the expression

"time of

war"

must be used, because the latter includes the

former. As against this the Attorney General sub-

mitted that in the Subsection it is indicated that

time of war", "an armed rebellion",

"an armed

conflict"

in which the State is not a participant, are

to be regarded as separate and distinct. Resolutions of

both Houses of the Oireachtas are necessary to declare

that a national emergency exists affecting the vital

interests of the State when the occasion is one of

"armed conflict"

in which the State is not a participant,

and such armed conflict is actually taking place.

Such

Oireachtas resolutions are not required "in time of

war or armed rebellion".

The very existence of a

"time

of war or armed rebellion"

is sufficient to bring into

operation any law which is expressed to be for the

purpose of securing the public safety and the preser-

vation of the State. The Attorney General's submission

that different formalities are required for the enactment

of legislation for

'an armed conflict"

in which the

State is not a participant, as distinct from legislation

for

"a time of war or armed rebellion"

is well-founded.

This submission fails.

What is the existence of the state of affairs necessary

to permit the application of Article 28 (3) (3)? These

are matters or statements of fact which are contained

in the resolution of the two Houses of the Oireachtas.

How far can the Court examine the correctness of

these statements? The Court accepts the existence of

the presumption submitted by the Attorney General

that the facts stated in such resolutions are correct;

consequently this presumption should be acted upon

unless and until it is displaced.

The Court reserves for a future date the question

whether, when the resolutions referred to in Article

28 (3) (3) have been passed, the Court would have

jurisdict

on to review the contents of these resolutions.

For all these reasons, the Court decides that the Bill

is not repugnant in any respect to any provision of

the Constitution.

Editor

Note:

No detailed examination appears to have been

ma de of the contents of the Bill, although the constitutionality

of the Bill was upheld "in every rcspect". For the uninitiated

an i mp o r t a nt safeguard in Section 1 is that the powers con-

tained in Section 2 may only he exercised in the first instance

for a period of 12 months, but may he renewed thereafter for

periods of 12 months. An order may he m a de at any time

that Section 2 shall cease to be in force. Section 2 states that

a G u a r d, even if not in uniform, may without w a r r a nt stop,

search, question and arrest any person, if he suspects with

reasonable cause that an offence is about to he committed

u n d er the Offences against the State Act, 1939, and m ay

u n d er the same circumstances stop and search any vehicle

or vessel. In the lirst instance the person arrested may be

detained for 48 hours and may further, on the direction of

any Chief S u p e r i n t e n d e n t, he detained for an additional 5

days — total 7 days; this follows closely Section 7 of the

British Prevention of T e r r o r i sm Act 1974, save that, u n d er

British legislation, it is the Secretary of State w ho gives the

direction, a nd not a police officer. It seems odd that this

drastic provision docs not a p p e ar to have been mentioned

save indirectly in the j u d gme n t.

In Re the Constitution of Ireland and in Re the

Emergency Powers Bill, 1976

— Supreme Court

(O'Higgins, C.J., Walsh, Henchy, Griffin and Kenny,

J J.) per the Chief Justice — unreported — 15th

October, 1976.

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