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GAZETTE
AUGUST/SEPTEMBER
and on the other, supervening demands of public safety
and the preservation of the State. The compaction of
individual rights in the Constitution is balanced against
the devolution upon the Houses of the Oireachtas of the
ultimate power of the Irtish State, contained in Article
28.3.3 ot the same document. As amended by ordinary
legislation, it reads as follows:
"Nothing in this Constitution shall 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 . . . In this sub-
section "time of war" includes a time when there is
taking place an armed conflict in which the State is
not a participant but in respect of which each of the
Houses of the Oireachtas shall have resolved that,
arising out of such armed conflict, a national
emergency exists affecting the vital interests of the
State . .."
The expanded definition of "time of war" was inserted to
provide for contingency legislation during World War II.
A resolution of both Houses is not a condition precedent
to the enactment of any law for the purpose of securing
the public safety and preservation of the State "in time of
war or armed rebellion", and therefore any legislation
prefaced by that formula will be protected from challenge
on constitutional grounds so long as the emergency
continues, the same protection attaches to legislation
passed to secure the public safety and preservation of the
State in the period of an armed conflict in which the State
is not a participant but which affects the vital interests of the
State, and here a resolution ofbot Houses
is
a condition
precedent to eventual constitutional immunity. Article
28.3.3 withdraws every constitutional restraint from, the
Oireachtas so that the integrity of the State can be
adequately defended, and makes the question of what is
"a time of war or armed rebellion" entirely one for the
Oireachtas. The general proposition that when the
resolutions referred to in Article 28.3.3 have been passed,
the Supreme Court has no jurisdiction to review their
contents, no longer stands unquestioned. In the
Emergency Powers Bill, 1976, decision, the Court
expressly reserved for future consideration the issue
whether judicial review of such resolutions may be
permissible.
The Emergency Powers Act, 1939, was prefaced with
the appropriate immunity formula in its long title and was
therefore excluded from the domain of judicial review. It
provided in S.2 for the making of emergency orders in
respect of a lengthy list of subjects, including the arrest
and detention of persons (other than natural-born Irish
citizens) where such detention was, in the opinion of a
Minister, necessary or expedient in the interests of the
public safety or the preservation of the State. The only
safeguard included was the specification that all
Emergency Orders should be laid before the Oireachtas
for the period of 21 sitting days after they were made, and
both Houses had authority within that time to pass a
resolution to annul any such Order. That, of course, did
not provide detainees with any effective remedy once the
Order for internment cleared the annulment obstacle. An
amending Act was passed in 1940 to delete the
expression "other than natural-born Irish citizens" from
the authorising section of the principal Act. A blanket
power of indeterminate detention without trial was thus
conferred on the Executive by the Emergency Powers
Acts, and was never judicially considered, it did not need
to be; Article 28.3.3 reposes absolute authority in the
Houses of the Oireachtas, suspending the great doctrine
of the separation of powers upon which the monument of
the Constitution rests in peacetime. I discussed earlier the
substratum
that undergirds the operation of internment in
our law. The Emergency Powers Acts 1939-40,
illustrates the principle in action.
In addition to invoking Article 28.3.3, the Government
in 1939 attempted to erect a permanent legislative
circuitry which would activate in the appropriate
circumstances, firstly, a Special Criminal Court or Courts
as envisaged in Article. 38 of the Constitution, and
secondly, a codified procedure of internment without trial,
nowhere sanctioned or provided for by the Constitution.
Part VI of the eventual Offences Against the State Act,
1939, set forth in six sections the framework of the new
internment process, and by November 1939 over 50
persons were detained under the pre-eminent S.55:
"Whenever a Minister of State is satisfied that any
particular person is engaged in activities calculated
to prejudice the preservation of the peace, order, or
security of the State, such Minister may by warrant
under his hand order the arrest and detention of
such person under this section."
END OF PART I.
APPENDIX
1. Gandhi, "Non-Violence in Peace and War" (1948)
2. Dail Debates, 31 Aug 1976, col 37
3. Dail Debates, 31 Aug 1976, col 5
4. Dail Debates, 31 Aug 1976, col 11
5. Kelly, "Fundamental Rights in the Irish Constitution", p.77
6. (1924) 2 I.R. 104
(To be concluded in the next issue)
SOLICITORS ACCOUNTS
(AMENDMENT)
REGULATIONS, 1977
(S.I. No. 242 of 1977)
The effect of these regulations is to withdraw the
authority given to solicitors under the Solicitors Accounts
(Amendment) Regulations, 1976 (S.I. No. 125 of 1976),
to open designated client accounts for clients' monies with
the named London or Scottish clearing banks or any
branch in the United Kingdom or in Northern Ireland of
an Irish Associated Bank and also, to designate Allied
Irish Banks Ltd. as the successor to certain of the Banks
deleted from the First Schedule.
It is confirmed that the making of Solicitors Accounts
Regulations do not constitute a warranty or represen-
tation by the Incorporated Law Society of Ireland as to
the suitability of any or all of the banks named in any
Schedule to such Regulations and the Incorporated Law
Society of Ireland does not accept any liability whatever
for any loss incurred through any act, neglect or default
of any such bank.
137