The Gazette 1975

Part VI of the Offences against the State Act 1939. A bare majority of the Supreme Court held that the Bill did not confer power to administer justice; that the detention of persons envisaged by the Bill, was not in the nature of punishment, but of preventive justice; and that the Bill did not take away the right to habeas corpus. The Court accordingly advised the President that the Bill was not repugnant to the Constitution. The President signed the Bill and it became law. The Constitution provides since the 1941 Amend- ment in Art. 34(3) (3), that no Court whatever shall have jurisdiction to question the validity of any law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the Presi- dent, under Art. 26. This would appear to mean that interment can never again be challenged on the grounds of unconstitutionlity because of Art. 34 ( 3) (3). It can undoubtedly be submitted that the Court which considered the Offences against the State Amend- ment Bill, 1940, had no authority to do so, because the Courts mentioned in the Constitution were not established until 1961. In the State (Quinn) v Ryan (1965) I. R. 70 the Supreme Court declared uncon- stitutional a statutory provision which was held to be valid in The State {Duggan) v Tapsley (1952) I. R. 62; in taking this course it relied on the fact that it was technically a "new Court and might therefore lay down new principles for itself. A few months later in A. G. and Minister for Defence v Ryans Car Hire Ltd. (1965) I. R. 642 Kingsmill Moore J. said that the Court was a new Court set up by the Courts (Establish- ment and Constitution) Act 1961, pursuant to the Constitution, and that it seemed clear that there could be no legal obligation on the Court to accept stare decisis as a rule binding upon it, just because the House of Lords accepted it as a rule binding on their Lordships' House. He went on to say that the decis- ion of the "old" Supreme Court could only have bound that Court and was not necessarily binding on the "new" Supreme Court. The effect of both of these cases reported in 1965 Irish Reports, may perhaps be open to doubt. Art. 50, one of the transitory Articles of he Constitution pro- vides, inter alia, that on and after the coming into op- eration of the Constitution, and until otherwise deter- mined by law, the Supreme Court, the High Court, the Circuit Court and the District Court in existence immediately before the coming into operation of the Constitution, i.e. 29 December 1937, shall, sub- ject to the provisions of the Constitution relating to the determination of questions as to the validity of any law, evercise the same jurisdictions respectively as theretofore. The interpretation of Art. 58 of the Constitution was considered by O'Byrne J. in delivering the unanimous judgment of the Supreme Court in Sullivan v Robinson 1954 I. R. O'Byrne J. pointed out that the effect of Art. 58 was to carry over the existing Courts with their pre-existing jurisdictions, subject (and sub- ject only) to the provisions of the Constitution re- lating to the determination of questions as the validity of any pre-existing law. Under the Constitution of 1922 the jurisdiction of the High Court extended in a limited way to the

question of the validity of any law having regard to the provisions of that Constitution. It was provided by Art. 34 ( 4) (4) of the present Constitution, that no law should be enacted excepting any such case from the appellate jurisdiction of the Supreme Court. A New power is conferred on the Supreme Court by Art. 26 of the 1937 Constitution. Under that Article the President may, after consul- tation with the Council of State, refer any Bill to which the Article applies, to the Supreme Court for a decis- ion on the question as to whether such Bill or any specific provision thereof is or are repugnant to the Constitution or to any provisions there- of. Article 26 then sets out detailed provisions as to what is to be done when such reference has been made, and Art. 34 ( 3) (3) provides that no Court shall have jurisdiction to question the validity of a law, or any provision of a law, the Bill for which shall have been referred to the Supreme Court by the Presi- dent under Art. 26. It is to be noted in a space of 38 years, references of Bill by the President have only been made five times. O'Byrne J. pointed out, and rightly so, that (1) the power of the Courts to determine the validity of a law having regard to the provisions of the Constitution, was supplanted, the jurisdiction of the Supreme Court to determine the provisions of the Constitution, and (3) the jurisdiction of the Supreme Court with reference to a bill referred to it by the President under Article 26, are quite separate and distinct. However, he then states that, although they rre separate and are distinct, they are, nevertheless, intimately connected, and that the Courts are of the opinion that they are both included in the qualifying clause in Article 58, "subject to the provisions of this Constitution relating to the validity of any law". The point is made by O'Bryne J. that a Constitution is to be liberally construed, so as to carry into effect the intentions of the people as embodied therein. Rul- ings under Article 26 seemed to O'Byrne J. to be a pro- vision of the Constitution relating to the determin- ation of questions as to the validity of a law, and to come within the verba ipsissima of the executive clause of Article 58. It follows, according to the view of O'Byrne J., that the reference of Bills to the Supreme Court was contemplated as something that might be done during the transition period, before Courts were set up under the Constitution. It must be remembered that on the whole O'Byrne J. was a conservative Jawyer. The effect of the judgment of O'Byrne J. is that both "laws" and "bills", are included in the word "law" in Art. 58. I do not believe they are. The drafters of the Constitution could, if they had so wished, provided in Article 58, that the Supreme Court which existed prior to the enactment of the Con- stitution, and which continued in existence until the Courts contemplated by the Constitution were estab- lished in 1961, was to have jurisdiction to consider any provision or provisions of a Bill referred to it by the President under Article 26. The drafters of the Con- stitution did not so provide, and it might be unreas- onable to assume that the definition of the word "law" in Article 58 encompasses both Bills and Laws. If my submission should prove acceptable to the .188