The Gazette 1975

in 1937, although the conditions existing during the Emergency from 1939 tot 1945 were somewhat similar to this. It has accordingly been suggested that McGrath and Harte and the other persons (totalling 13 in all) who were tried by the Court Martial established under the Emergency Powers Acts were dealt with under legisla- tive provisions which ran directly counter to the ex- press terms of the Constitution. Surely it is clear to us that one of the possible ways in which abuse by the Government of Art. 28 (3) (3) can be avoided, is the reference by the President of Bills, to which Art. 28. 3. 3 applies, to the Supreme Court, under the provisions of Art. 26. Art. 26 does not apply to a Bill, the time for the consideration of which by Seanad Eireann has been abridged under Art. 24 of the Constitution. A Govern- ment could try to prevent the President from availing of the power conferred on him by Art. 26, by having the time for the consideration of the Bill by Seanad Eireann, abridged. However, the time for considerat- ion of the Bill by the Seanad can be abridged only with the concurrence of the President. It would be unreasonable to suppose that a President, who intends to refer a Bill to the Supreme Court, would consent to the abridgement of the time for consideration of the Bill by the Seanad, and thus deprive himself of the power to refer that Bill to the Supreme Court under Art. 26. In fact Article 24 has never been used in practice. Reference by President as to Constitutionality Art. 2 8 ( 3) (3) could be abused by the Government, and, under present circumstances, it would be open to the President to refer a Bill containing the so-called 'magic formula' of Art. 2 8 ( 3) (3) to the Supreme Court. There is always a possibility that the President would not refer such a Bill to the Supreme Court be- cause of his allegiance to a particular political party, which could well be in power at the time of the passing of the Bill. Let us now dwell for a moment on the manner in which the Supreme Court could treat a Bill contain- ing the words prescribed by Art. 2 8 ( 3) (3), where such a Bill has been referred to it by the President under Art. 26. The Supreme Court could say that they must consider the Bill as if it were an Act, and, be- cause of that approach, the Bill could not be declared unconstitutional, because, if it were an Act, no pro- visions in the" Constitution could be invoked to invali- dote it. By availing of that line of argument, the Supreme Court could in effect emasculate the power conferred on the President by Art. 26, so far as Bills containing the Art. 28 (3) (3) formula are concerned. Admittedly, it is unlikely that the Supreme Court would adopt such a line of argument because by doing so, it would be decreasing it's own powers and in- creasing those of the Oireachtas. Far be it from me to suggest that judges would be swayed by their own pol- itical persuasions but it is conceivable that they might be adversely influenced because of a sense of party loyalty. One need only cite the example of how the American Supreme Court treated the New Deal Legis- lation in the 1930's. .186

when submitted to him. However, the possibility that the Oireachtas could abuse the powers, - conferred on it by Art. 2 8 ( 3) (3), does exist. The Government could try try to avail of Art 28 ( 3) (3) to establish a military tribunal, and thus avoid the requirement of Art. 38(4), that a state of war or armed rebellion must in actual fact exist, before a military tribunal may be est?blished under Art. 38(4) for the trial of non-military people. The Emergency Powers Acts Let us consider legislation which was enacted in accordance with the requirements of Art. 2 8 ( 3) (3). The legislation in question is the Emergency Powers Acts of 1939 and 1940. Section 3 of the Emergency Powers (Amendment) (No. 2) Act 1940, provided that the Government could, by an order under Section 2 of the Emergency Powers Act, 1939, make provision for the trial in a summary manner, by commissioned officers of the Defence Forces, of any person alleged to have committed any offence specified in such Order. In case of conviction of such person of such offence S.2 provided for the imposition and carrying out of the sentence of death. Section 3 further provided that no appeal could lie in respect such conviction or sentence. This draconian Act of 1940 was enacted at a dangerous period of the war when the Germans occupied France. The case of Re McGrath and Harte (1941) I.R.68 was concerned with 2 persons who were convicted of murder before a Court Martial set up under the Em- ergency Powers Acts 1939 and 1940. Both of them were sentenced to death. The validity of this Court Martial was challenged unsuccessfully before the High Court, and, on appeal, before the Supreme Court. Both Courts held that since the Acts were expressed in their long titles to be for the purpose of securing the public safety and preservation of the State in time of war, it was not necessary that this purpose should be stated in the enacting portion of the Acts. The Courts also held that since the Acts had been passed in accordance with the provisions of Art. 2 8 ( 3) (3), no further articles of the Constitution could be invoked to invalidate them. The application of the two accused for an order of Habees Corpus failed, and they were subsequently executed. It has been argued that the Court Martial set up by the Emergency Powers Acts of 1939 and 1940 could have been declared unconstitutional by the Supreme Court, if the Emergency Powers Bills had been re- ferred to the Supreme Court by the President after consultation with the Council of State, but President Hyde, a non lawyer, was unlikely to accede to this. The Court Martial was not a Special Court under Art. 38(3), because it was not determined in accord- ance with the law establishing it that "the ordinary Courts were inadequate to secure the effective admin- istration of justice and the preservation of peace and order". Nor was it a military tribunal under Art. 38 (4), because a military tribunal may try a civilian only when it is established to deal with a "state of war or armed rebellion". As has already been pointed out "a state of war or armed rebellion" has never been held to have existed since the enactment of the Constitution