190 / 336
when submitted to him. However, the possibility that
the Oireachtas could abuse the powers, - conferred on
it by Art. 2 8 ( 3) (3), does exist. The Government
could try try to avail of Art 28 ( 3) (3) to establish a
military tribunal, and thus avoid the requirement of
Art. 38(4), that a state of war or armed rebellion
must in actual fact exist, before a military tribunal
may be est?blished under Art. 38(4) for the trial of
non-military people.
The Emergency Powers Acts
Let us consider legislation which was enacted in
accordance with the requirements of Art. 2 8 ( 3) (3).
The legislation in question is the Emergency Powers
Acts of 1939 and 1940. Section 3 of the Emergency
Powers (Amendment) (No. 2) Act 1940, provided that
the Government could, by an order under Section 2 of
the Emergency Powers Act, 1939, make provision for
the trial in a summary manner, by commissioned
officers of the Defence Forces, of any person alleged
to have committed any offence specified in such Order.
In case of conviction of such person of such offence S.2
provided for the imposition and carrying out of the
sentence of death. Section 3 further provided that no
appeal could lie in respect such conviction or sentence.
This draconian Act of 1940 was enacted at a dangerous
period of the war when the Germans occupied France.
The case of Re
McGrath
and Harte
(1941) I.R.68
was concerned with 2 persons who were convicted of
murder before a Court Martial set up under the Em-
ergency Powers Acts 1939 and 1940. Both of them were
sentenced to death. The validity of this Court Martial
was challenged unsuccessfully before the High Court,
and, on appeal, before the Supreme Court. Both Courts
held that since the Acts were expressed in their long
titles to be for the purpose of securing the public safety
and preservation of the State in time of war, it was not
necessary that this purpose should be stated in the
enacting portion of the Acts. The Courts also held
that since the Acts had been passed in accordance
with the provisions of Art. 2 8 ( 3) (3), no further articles
of the Constitution could be invoked to invalidate
them. The application of the two accused for an order
of
Habees Corpus
failed, and they were subsequently
executed.
It has been argued that the Court Martial set up
by the Emergency Powers Acts of 1939 and 1940 could
have been declared unconstitutional by the Supreme
Court, if the Emergency Powers Bills had been re-
ferred to the Supreme Court by the President after
consultation with the Council of State, but President
Hyde, a non lawyer, was unlikely to accede to this.
The Court Martial was not a Special Court under
Art. 38(3), because it was not determined in accord-
ance with the law establishing it that "the ordinary
Courts were inadequate to secure the effective admin-
istration of justice and the preservation of peace and
order".
Nor was it a military tribunal under Art. 38 (4),
because a military tribunal may try a civilian only
when it is established to deal with a "state of war or
armed rebellion". As has already been pointed out "a
state of war or armed rebellion" has never been held
to have existed since the enactment of the Constitution
in 1937, although the conditions existing during the
Emergency from 1939 tot 1945 were somewhat similar
to this.
It has accordingly been suggested that McGrath and
Harte and the other persons (totalling 13 in all) who
were tried by the Court Martial established under the
Emergency Powers Acts were dealt with under legisla-
tive provisions which ran directly counter to the ex-
press terms of the Constitution.
Surely it is clear to us that one of the possible ways
in which abuse by the Government of Art. 28 (3) (3)
can be avoided, is the reference by the President of
Bills, to which Art. 28. 3. 3 applies, to the Supreme
Court, under the provisions of Art. 26.
Art. 26 does not apply to a Bill, the time for the
consideration of which by Seanad Eireann has been
abridged under Art. 24 of the Constitution. A Govern-
ment could try to prevent the President from availing
of the power conferred on him by Art. 26, by having
the time for the consideration of the Bill by Seanad
Eireann, abridged. However, the time for considerat-
ion of the Bill by the Seanad can be abridged only
with the concurrence of the President. It would be
unreasonable to suppose that a President, who intends
to refer a Bill to the Supreme Court, would consent
to the abridgement of the time for consideration of
the Bill by the Seanad, and thus deprive himself of
the power to refer that Bill to the Supreme Court under
Art. 26. In fact Article 24 has never been used in
practice.
Reference by President as to Constitutionality
Art. 2 8 ( 3) (3) could be abused by the Government,
and, under present circumstances, it would be open
to the President to refer a Bill containing the so-called
'magic formula' of Art. 2 8 ( 3) (3) to the Supreme
Court. There is always a possibility that the President
would not refer such a Bill to the Supreme Court be-
cause of his allegiance to a particular political party,
which could well be in power at the time of the passing
of the Bill.
Let us now dwell for a moment on the manner in
which the Supreme Court could treat a Bill contain-
ing the words prescribed by Art. 2 8 ( 3) (3), where
such a Bill has been referred to it by the President
under Art. 26. The Supreme Court could say that they
must consider the Bill as if it were an Act, and, be-
cause of that approach, the Bill could not be declared
unconstitutional, because, if it were an Act, no pro-
visions in the" Constitution could be invoked to invali-
dote it. By availing of that line of argument, the
Supreme Court could in effect emasculate the power
conferred on the President by Art. 26, so far as Bills
containing the Art. 28 (3) (3) formula are concerned.
Admittedly, it is unlikely that the Supreme Court
would adopt such a line of argument because by doing
so, it would be decreasing it's own powers and in-
creasing those of the Oireachtas. Far be it from me to
suggest that judges would be swayed by their own pol-
itical persuasions but it is conceivable that they might
be adversely influenced because of a sense of party
loyalty. One need only cite the example of how the
American Supreme Court treated the New Deal Legis-
lation in the 1930's.
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