191 / 336
Lapse of Emergency
Considering these relevant factors, would it not be
reasonable to seek an amendment to the Constitution,
to the effect that a Bill, which contains the words
prescribed by Art. 28 ( 3) (3), when promulgated as
law, shall have effect for a specified period, and lapse
unless re-enacted. Such amendments would certainlv
lessen the possibility of abuse of Art. 28 ( 3) (3) by the
Oircachtas. In the absence of an amendment to that
effect, the Government could avail of Art. 2 8 ( 3) (3)
to derogate from the rights of the citizen and to estab-
lish military tribunals which are not authorised by that
Art. of the Constitution. The Constitution provides
for the establishment of Supreme Courts and Military
Tribunals under certain circumstances. To allow the
establishment of another type of military tribunal would
be to go against the express terms of the Constitution.
This Amendment to Art. 28(3) (3) was in fact sug-
gested by the Oireachtas Constitution Committee of
1967, which would have reduced the emergency to 3
years in its first instance.
In 1939, shortly before the outbreak of the Second
World War, and apparently because of the resumption
of illegal activity by the I.R.A., the Oireachtas passed
the comprehensive Offences against the State Act which
repealed and replaced the Public Safety (Emergency
Powers) Act 1926. Part VI of the Offences against the
State Act, 1939, dealt with "Powers of Internment",
and section .55 of the Act empowered a Minister of
State (after that part VI of the Act had been brought
into force in accordance with section 54) to order the
arrest and indefinite detention of a person, where the
Minister was "satisfied" that such person was "en-
gaged in activities calculated to prejudice the preser-
vation of the peace, order or security of the State".
The validity of the interment provisions in Part VI
of the Offences against the State Act 1939, wrs chal-
lenged successfully in the well-known case of the
State
(Burke v Lennon,
1940 I.R. 136. Mr. Justice Gavan
Duffy held
that
the
administration of
Justice
from it's essential nature, did not fall within the ex-
ecutive power and was not properly incidental to the
performance of the appropriate functions of the Ex-
ecutive. Consequently, a law, endowing a Minister of
State, any Minister, with these powers, as section 55
did, was an invasion of the judicial domain, and as
such was repugnant to the Constitution. Mr. Justice
Gavin Duffy then went on to point out that the
Constitution, with it's impressive Preamble, was the
Charter of the Irish People and he would not whittle
it away. Therefore, Gavan Duffy J. made absolute
the conditional order of
habeas corpus
which the bro-
ther of the interned person had obtained on his behalf.
The State appealed against this decision, but the
Supreme Court held that no appeal lay against the
granting of an order of
habeas corpus.
In consequence
of this, the Government had no option but to release
James Burke, together with over 50 other prisoners
likewise interned under a Minister's warrant.
As a result of a raid by dissidents on the Maga-
zine Fort, Phoenix Park, when much ammunition was
stolen and later recovered, the Offences against the
State (Amendment) Bill, 1940, was passed by both
Houses of the Oircachtas and was referred to the Sup-
reme Court by the President under Art. 26, presum-
ably because the Bill was substantially the same as
m
Insurance
problem
/olver/
COYLE HAMILTON
Coyle Hamilton Hamilton Phillips Group,
Incorporated Insurance Brokers,
Phoenix House, Sth. Lelnster St., Dublin 2.
Telephone 687211.
Coyle Hamilton, through specialised com-
panies, provides the complete range of
insurance services from a single source.
We specialise in industrial and commer-
cial insurance; offer risk management
and valuation services. Life and Pensions;
International Insurance; Bloodstock; Re-
insurance; Regional services and tailor-
made services for the smaller business-
man — all are provided.
With Coyle Hamilton you get the best of
both worlds — personal service by expert
executives, backed by the resources of a
big professional organisation.
.187