The Gazette 1975

LAW SOCIETY, U.C.D. Some reflections on Personal Liberty and the Constitution" Auditorial address by Ciaran Lawlor This paper comments upon some of the

In the case of R ( Garde and othersi v Strickland and others (1921) I. R. 317, Molony C. J. rejected the contention that the Court was not competent to decide whether or not war was raging within the jurisdiction. Although these are pre-1937 decisions they may not necessarily be devoid of our fundamental law authority now, despite the enactment of the Constitution of 1937. We may reasonably conclude that a military tribunal has not so far been established under Act (38)4 to deal with a state of war or armed rebellion. A military Tribunal or Court may also be set up by virtue of the provisions of Art 28(3) sub. 3. This Article could be used to circumvent the provision in Art 38 (4) set out above. A Court or Tribunal which is in fact a military one under Art 28 subsection 3 may be established once the law establishing such Court or Tribunal 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. Art. 28(3) (3) In fact Art 28 ( 3) 3 was availed of to establish pre- cisely such a Court or Tribunal. It has been argued that the state of war or armed rebellion referred to in Art. 2 8 ( 3) (3) is substantially different from that re- ferred to in Art. 38 ( 4) because of an artificial meaning which has been given to the phrase "a state of war or armed rebellion" in Art. 28 ( 3 ) ( 3 ). The Constitutional definition of "Time of War and armed rebellion con- tained n Art. 2 8 ( 3) (3) is fully set out. On 3rd September 1939, in view of the outbreak of the Second World War, both Houses of the Oireachtas resolved that a National Emergency existed affecting the vital interests of the State. That National Emergency is stiill in existence to this day. By virtue of the fact that this "state of emergency" is still in existence, no article of the Constitution can 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, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of such law. If the Oireachtas were to enact an unlikely law providing for the killing of every child aged between 1 and 2 years on a certain date, such a law might pos- sibly be constitutional, provided, of course, that it was enacted in accordance with Art. 2 8 ( 3) (3), and, that the necessary manner and form of enactment were observed. Admittedly it would seem to be most unlikely that the members of the House of the Oireachtas would pass such a law, or that the President would sign it .185

provisions of the Constitution which, either dir- ectly or indirectly, affect the liberty of the individual. One is concerned with what might be considered an improper use of a particular article of the Constit- ution to establish a Court or tribunal where such a Court or tribunal could be established by virtue of an- other article of the Constitution, only upon specified conditions. The possibility has also been considered of internment being declared unconstitutional. The Constitution of Ireland provides in Art. 38 ( 3) for the establishment by law of Special Courts which may try people summarily provided that it is deter- mined in accordance with the law establishing such Courts that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order. It is contended that it is not necessary that it be proved that these con- ditions should apply in fact—the only requirement is that it should be stated in the preamble of leg- islation establishing the Special Court that these con- ditions in fact apply. The Constitution, powers, juris- diction and procedure of such special Courts are to be prescribed by law according to Art. 3 8 ( 3) subsection 2; this could be availed of to set up a Court comprised of people with little or no conception of justice of Mil- itary Officers with no legal training. Art. 38(4) Art. 38 ( 4) on the other hand provides for the estab- lishment of military tribunals. Such military tribunals could take the following forms under the Defence Act 1954. (i) A tribunal established by law for the trial of offences against Military Law alleged to have been com- mitted by persons while subject to military lrw e.g. an army officer. ii) a tribunal established by law, which tribunal is to deal with a state of war or armed rebellion. (iii) an ad hoc tribunal established to deal with a state of war or armed rebellion. It is contended that, with the exception of (i) above a military, tribunal may not be established under Art. 55 (4) to try non members of the Defence Force unless a war or armed rebellion is actually raging within the jurisdiction. In R v Allen (1921). 2-IR. 241 Molony C. J. accep- ted an affirmation made on affidavit by General Mac- ready, who was the Commanding Officer of the British Forces in Ireland from 1918 to 1920, that war was rag- ing in certain counties in Munster which were under martial law, even though the ordinary courts were still functioning.