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LAW SOCIETY, U.C.D.
Some reflections on Personal Liberty
and the Constitution"
Auditorial address by Ciaran Lawlor
This
paper
comments
upon
some of
the
provisions of the Constitution which, either dir-
ectly or indirectly, affect the liberty of the individual.
One is concerned with what might be considered
an improper use of a particular article of the Constit-
ution to establish a Court or tribunal where such a
Court or tribunal could be established by virtue of an-
other article of the Constitution, only upon specified
conditions. The possibility has also been considered of
internment being declared unconstitutional.
The Constitution of Ireland provides in Art. 38 ( 3)
for the establishment by law of Special Courts which
may try people summarily provided that it is deter-
mined in accordance with the law establishing such
Courts that the ordinary Courts are inadequate to
secure the effective administration of justice and the
preservation of public peace and order. It is contended
that it is not necessary that it be proved that these con-
ditions should apply in fact—the only requirement is
that it should be stated in the preamble of leg-
islation establishing the Special Court that these con-
ditions in fact apply. The Constitution, powers, juris-
diction and procedure of such special Courts are to be
prescribed by law according to Art. 3 8 ( 3) subsection 2;
this could be availed of to set up a Court comprised
of people with little or no conception of justice of Mil-
itary Officers with no legal training.
Art. 38(4)
Art. 38 ( 4) on the other hand provides for the estab-
lishment of military tribunals. Such military tribunals
could take the following forms under the Defence Act
1954.
(i) A tribunal established by law for the trial of
offences against Military Law alleged to have been com-
mitted by persons while subject to military lrw e.g. an
army officer.
ii) a tribunal established by law, which tribunal is
to deal with a state of war or armed rebellion.
(iii) an
ad hoc
tribunal established to deal with
a
state of war or armed rebellion.
It is contended that, with the exception of (i) above a
military, tribunal may not be established under Art. 55
(4) to try non members of the Defence Force unless a
war or armed rebellion is actually raging within the
jurisdiction.
In
R v Allen
(1921). 2-IR. 241 Molony C. J. accep-
ted an affirmation made on affidavit by General Mac-
ready, who was the Commanding Officer of the British
Forces in Ireland from 1918 to 1920, that war was rag-
ing in certain counties in Munster which were under
martial law, even though the ordinary
courts were
still functioning.
In the case of R (
Garde and othersi v Strickland
and others
(1921) I. R. 317, Molony C. J. rejected the
contention that the Court was not competent to decide
whether or not war was raging within the jurisdiction.
Although these are pre-1937 decisions they may not
necessarily be devoid of our fundamental law authority
now, despite the enactment of the Constitution of 1937.
We may reasonably conclude that a military tribunal
has not so far been established under Act (38)4 to
deal with a state of war or armed rebellion.
A military Tribunal or Court may also be set up by
virtue of the provisions of Art 28(3) sub. 3. This Article
could be used to circumvent the provision in Art 38
(4) set out above. A Court or Tribunal which is in
fact a military one under Art 28 subsection 3 may be
established once the law establishing such Court or
Tribunal is expressed to be for the purpose of securing
the public safety and the preservation of the State in
time of war or armed rebellion.
Art. 28(3) (3)
In fact Art 28 ( 3) 3 was availed of to establish pre-
cisely such a Court or Tribunal. It has been argued
that the state of war or armed rebellion referred to in
Art. 2 8 ( 3) (3) is substantially different from that re-
ferred to in Art. 38 ( 4) because of an artificial meaning
which has been given to the phrase "a state of war or
armed rebellion" in Art. 28 ( 3 ) ( 3 ). The Constitutional
definition of "Time of War and armed rebellion con-
tained n Art. 2 8 ( 3) (3) is fully set out.
On 3rd September 1939, in view of the outbreak of
the Second World War, both Houses of the Oireachtas
resolved that a National Emergency existed affecting
the vital interests of the State. That National Emergency
is stiill in existence to this day. By virtue of the fact
that this "state of emergency" is still in existence, no
article of the Constitution can 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 armed
rebellion, or to nullify any act done or purporting to
be done in time of war or armed rebellion in pursuance
of such law. If the Oireachtas were to enact an unlikely
law providing for the killing of every child aged between
1 and 2 years on a certain date, such a law might pos-
sibly be constitutional, provided, of course, that it was
enacted in accordance with Art. 2 8 ( 3) (3), and, that
the necessary manner and form of enactment were
observed.
Admittedly it would seem to be most unlikely that
the members of the House of the Oireachtas would
pass such a law, or that the President would sign it
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