The Gazette 1975

Lapse of Emergency Considering these relevant factors, would it not be reasonable to seek an amendment to the Constitution, to the effect that a Bill, which contains the words prescribed by Art. 28 ( 3) (3), when promulgated as law, shall have effect for a specified period, and lapse unless re-enacted. Such amendments would certainlv lessen the possibility of abuse of Art. 28 ( 3) (3) by the Oircachtas. In the absence of an amendment to that effect, the Government could avail of Art. 2 8 ( 3) (3) to derogate from the rights of the citizen and to estab- lish military tribunals which are not authorised by that Art. of the Constitution. The Constitution provides for the establishment of Supreme Courts and Military Tribunals under certain circumstances. To allow the establishment of another type of military tribunal would be to go against the express terms of the Constitution. This Amendment to Art. 28(3) (3) was in fact sug- gested by the Oireachtas Constitution Committee of 1967, which would have reduced the emergency to 3 years in its first instance. In 1939, shortly before the outbreak of the Second World War, and apparently because of the resumption of illegal activity by the I.R.A., the Oireachtas passed the comprehensive Offences against the State Act which repealed and replaced the Public Safety (Emergency Powers) Act 1926. Part VI of the Offences against the State Act, 1939, dealt with "Powers of Internment", and section .55 of the Act empowered a Minister of State (after that part VI of the Act had been brought into force in accordance with section 54) to order the arrest and indefinite detention of a person, where the Minister was "satisfied" that such person was "en-

gaged in activities calculated to prejudice the preser- vation of the peace, order or security of the State". The validity of the interment provisions in Part VI of the Offences against the State Act 1939, wrs chal- lenged successfully in the well-known case of the State (Burke v Lennon, 1940 I.R. 136. Mr. Justice Gavan Duffy held that the administration of Justice from it's essential nature, did not fall within the ex- ecutive power and was not properly incidental to the performance of the appropriate functions of the Ex- ecutive. Consequently, a law, endowing a Minister of State, any Minister, with these powers, as section 55 did, was an invasion of the judicial domain, and as such was repugnant to the Constitution. Mr. Justice Gavin Duffy then went on to point out that the Constitution, with it's impressive Preamble, was the Charter of the Irish People and he would not whittle it away. Therefore, Gavan Duffy J. made absolute the conditional order of habeas corpus which the bro- ther of the interned person had obtained on his behalf. The State appealed against this decision, but the Supreme Court held that no appeal lay against the granting of an order of habeas corpus. In consequence of this, the Government had no option but to release James Burke, together with over 50 other prisoners likewise interned under a Minister's warrant. As a result of a raid by dissidents on the Maga- zine Fort, Phoenix Park, when much ammunition was stolen and later recovered, the Offences against the State (Amendment) Bill, 1940, was passed by both Houses of the Oircachtas and was referred to the Sup- reme Court by the President under Art. 26, presum- ably because the Bill was substantially the same as

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