The Gazette 1975

Supreme Court, and I am aware that this is not un-

known in judicial circles, the result would be that

the Supreme Court which considered the Offences

against the State (Amendment)) Bill 1940 had no

jurisdiction to do so, and, consequently, it would be

°pen to the present Supreme Court to decide anew

whether or not to declare the Offences against the

State (Amendment) Act 1940 unconstitutional.

Article 4 0 ( 4) (1) of the Constitution, states that

'no citizen shall be deprived of his personal liberty

save in accordance with law". The effect of In re

Art.

and the Offences against the State

(Amend-

ment)

Bill

1940, 1940 I. R. 470, in which it

was declared that the

Offences against the State

(Amendment) Bill 1940, which provided for the in-

ternment of people without trial, was constitutional,

was to equate the phrase "in accordance with law"

with "in accordance with an act of the Oireachtas",

thus not taking into consideration that the Constitut-

ion is the fundamental law of the land.

An attempt was made in 1940 to show the repugnance

of the Bill in question with reference to Art. 4 0 ( 3) (1)

which proclaims that "the State guarantees in it's

laws to respect and as far as practicable by its laws

to defend and vindicate the personal rights of the cit-

izen", but the Court strangely held that the duty or

determining the extent to which the rights of any par-

ticular citizen, or class of citizen, can properly be har-

monised with the rights of the citizens as a whole

seems to be a matter which is peculiarly within the

province of the Oireachtas in the exercise of this funct-

ion. Consequently any attempt by this Court to control

the Oireachtas would be a usurpation of it's authority,

thus completely ignoring the principles of Natural Law.

Professor Kelly in his book "Fundamental Rights"

points out that the position might thus seem to have

been reached that the liberty of the citizen was at the

mercy of the Oireachtas. He further points out that if

this was so, the Irish citizen, despite his written Con-

stitution, would enjoy no better constitutional pro-

tection against legislative encroachment on his per-

sonal liberty, than does the subject of the British

Crown.

Since 1940 there have been two decisions which, even

though neither is concerned with public order, provide

some sign that the virtual equation of "law" i

Art.

4 0 ( 4) (1) with simple legislation, may not commend

itself to the Irish Courts in future. In the first of these,

In R

Philip Clarke,

I, R. 235 (1950), section 165 of

the Mental Treatment Act 1945, was attacked on the

grounds that its powers of placing physical restraint on

mentally infirm persons represented an infringement of

the personal rights of a citizen guaranteed by Art. 40

(3) (1). The Supreme Court expressly repudiated that

proposition that the part of the Court's judgement in

toe Offences

against the State Bill

(Amendment)

(1940) quoted above meant that "the Court could not

consider that a guarantee containel in the Con-

stitution has been infringed by an Act of the Oireach-

tas", and went on to test section 165 in the light of

Art. 4 0 ( 3) (1), thus impliedly (though not expressly)

departing from the notion that any Art. of the Oireach-

tas could, as much suffice to reduce the area of the

citizen's personal liberty.

More recently, the vitally important case of

Ryan v

A-G (1965) I. R. 294 has reinforced the status of Art.

40 (3) (1) as a general standard for the testing of

legislation, so that, although there has not yet been

a judical declaration in so many words that "in ac-

cordance with law" in Art. 40 (4) (1) does not give

the Oireachtas a free hand to abridge personal liberty,

it seems that the principle observed in In re Art. 26 and

the Offences against the State (Amendment) Bill 1940

has been effectively undermined.

Therefore we can see that a Supreme Court, if it so

wishes, may express disatisfaction with the judgement

of O'Byrne J. in

Sullivan v Robinson

and declare that

the Supreme Court, which decided in 1940 that the

Offences against the State (Amendment) Bill 1940

was not unconstitutional, had no jurisdiction to do. Leg-

islation providing for interment could accordingly be

declared unconstitutional.

Surely it is clear that a re-appraisal of the provisions

of the Constitution, could result in dramatic changes in

what has hitherto been regarded as the proper evaluat-

ion of the constitutional personal liberty of the in-

dividual. Art. 28 ( 3) (3) could be abused by the Oireach-

tas and such possibility of abuse should be guarded

against, even by amendment to the Constitution if

necessary. Bearing in mind what appear to be the

political realities it would possibly be more expedient

to enact a new Constitution with the proper safe-

guards against possible abuse rather than to attempt

to amend the present Constitution. In any event it

would probably be foolish to consider the provisions

of the Constitution relating to the establishment of

Special Courts and Military Tribunals in vacuo. The

attitudes and opinions of judges do, presumably,

change; and this change could well be mirrored in the

way in which they interpret a Constitution and deal

with the individual's fundamental right to personal

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