The Gazette 1975

Part VI of the Offences against the State Act 1939. A

bare majority of the Supreme Court held that the Bill

did not confer power to administer justice; that the

detention of persons envisaged by the Bill, was not in

the nature of punishment, but of preventive justice;

and that the Bill did not take away the right to

habeas

corpus.

The Court accordingly advised the President

that the Bill was not repugnant to the Constitution.

The President signed the Bill and it became law.

The Constitution provides since the 1941 Amend-

ment in Art. 34(3) (3), that no Court whatever shall

have jurisdiction to question the validity of any law,

or any provision of a law, the Bill for which shall

have been referred to the Supreme Court by the Presi-

dent, under Art. 26. This would appear to mean that

interment can never again be challenged on the

grounds of unconstitutionlity because of Art. 34 ( 3) (3).

It can undoubtedly be submitted that the Court

which considered the Offences against the State Amend-

ment Bill, 1940, had no authority to do so, because

the Courts mentioned in the Constitution were not

established until 1961. In the

State (Quinn)

v Ryan

(1965) I. R. 70 the Supreme Court declared uncon-

stitutional a statutory provision which was held

to be valid in The

State {Duggan) v Tapsley

(1952) I.

R. 62; in taking this course it relied on the fact that it

was technically a

"new Court

and might therefore lay

down new principles for itself. A few months later

and Minister for Defence v Ryans Car Hire

Ltd.

(1965) I. R. 642 Kingsmill Moore J. said that the

Court was a new Court set up by the Courts (Establish-

ment and Constitution) Act 1961, pursuant to the

Constitution, and that it seemed clear that there could

be no legal obligation on the Court to accept

stare

decisis

as a rule binding upon it, just because the

House of Lords accepted it as a rule binding on their

Lordships' House. He went on to say that the decis-

ion of the "old" Supreme Court could only have bound

that Court and was not necessarily binding on the

"new" Supreme Court.

The effect of both of these cases reported in 1965

Irish Reports, may perhaps be open to doubt. Art. 50,

one of the transitory Articles of he Constitution pro-

vides, inter alia, that on and after the coming into op-

eration of the Constitution, and until otherwise deter-

mined by law, the Supreme Court, the High Court,

the Circuit Court and the District Court in existence

immediately before the coming into operation of the

Constitution, i.e. 29 December 1937, shall, sub-

ject to the provisions of the Constitution relating to

the determination of questions as to the validity of any

law, evercise the same jurisdictions respectively as

theretofore.

The interpretation of Art. 58 of the Constitution was

considered by O'Byrne J. in delivering the unanimous

judgment of the Supreme Court in

Sullivan v Robinson

1954 I. R. O'Byrne J. pointed out that the effect

of Art. 58 was to carry over the existing Courts

with their pre-existing jurisdictions, subject (and sub-

ject only) to the provisions of the Constitution re-

lating to the determination of questions as the validity

of any pre-existing law.

Under the Constitution of 1922 the jurisdiction of

the High Court extended in a limited way to the

question of the validity of any law having regard

to the provisions of that Constitution.

It was provided by Art. 34 ( 4) (4) of the present

Constitution, that no law should be enacted excepting

any such case from the appellate jurisdiction of the

Supreme Court. A New power is conferred on the

Supreme Court by Art. 26 of the 1937 Constitution.

Under that Article the President may, after consul-

tation with the Council of State, refer any Bill to which

the Article applies, to the Supreme Court for a decis-

ion on the question as to whether such Bill or any

specific provision

thereof

is or are

repugnant

to the Constitution or to any provisions there-

of. Article 26 then sets out detailed provisions

as to what is to be done when such reference has

been made, and Art. 34 ( 3) (3) provides that no Court

shall have jurisdiction to question the validity of a

law, or any provision of a law, the Bill for which shall

have been referred to the Supreme Court by the Presi-

dent under Art. 26. It is to be noted in a space of 38

years, references of Bill by the President have only been

made five times.

O'Byrne J. pointed out, and rightly so, that (1) the

power of the Courts to determine the validity of a law

having regard to the provisions of the Constitution,

was supplanted, the jurisdiction of the Supreme Court

to determine the provisions of the Constitution, and

(3) the jurisdiction of the Supreme Court with reference

to a bill referred to it by the President under Article 26,

are quite separate and distinct. However, he then states

that, although they rre separate and are distinct, they

are, nevertheless, intimately connected, and that the

Courts are of the opinion that they are both included in

the qualifying clause in Article

58, "subject to the

provisions of this Constitution relating to the validity

of any law".

The point is made by O'Bryne J. that a Constitution

is to be liberally construed, so as to carry into effect

the intentions of the people as embodied therein. Rul-

ings under Article 26 seemed to O'Byrne J. to be a pro-

vision of the Constitution relating to the determin-

ation of questions as to the validity of a law, and to

come within the

verba ipsissima

of the executive clause

of Article 58. It follows, according to the view of

O'Byrne J., that the reference of Bills to the

Supreme Court was contemplated as something that

might be done during the transition period, before

Courts were set up under the Constitution. It must

be remembered that on the whole O'Byrne J. was

a conservative Jawyer. The effect of the judgment of

O'Byrne J. is that both "laws" and "bills", are included

in the word "law" in Art. 58. I do not believe they are.

The drafters of the Constitution could, if they had

so wished, provided in Article 58, that the Supreme

Court which existed prior to the enactment of the Con-

stitution, and which continued in existence until the

Courts contemplated by the Constitution were estab-

lished in 1961, was to have jurisdiction to consider

any provision or provisions of a Bill referred to it by

the President under Article 26. The drafters of the Con-

stitution did not so provide, and it might be unreas-

onable to assume that the definition of the word "law"

in Article 58 encompasses both Bills and Laws.

If my submission should prove acceptable to the

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