The Gazette 1975

More recently, the vitally important case of Ryan v A-G (1965) I. R. 294 has reinforced the status of Art. 40 (3) (1) as a general standard for the testing of legislation, so that, although there has not yet been a judical declaration in so many words that "in ac- cordance with law" in Art. 40 (4) (1) does not give the Oireachtas a free hand to abridge personal liberty, it seems that the principle observed in In re Art. 26 and the Offences against the State (Amendment) Bill 1940 has been effectively undermined. Therefore we can see that a Supreme Court, if it so wishes, may express disatisfaction with the judgement of O'Byrne J. in Sullivan v Robinson and declare that the Supreme Court, which decided in 1940 that the Offences against the State (Amendment) Bill 1940 was not unconstitutional, had no jurisdiction to do. Leg- islation providing for interment could accordingly be declared unconstitutional. Surely it is clear that a re-appraisal of the provisions of the Constitution, could result in dramatic changes in what has hitherto been regarded as the proper evaluat- ion of the constitutional personal liberty of the in- dividual. Art. 28 ( 3) (3) could be abused by the Oireach- tas and such possibility of abuse should be guarded against, even by amendment to the Constitution if necessary. Bearing in mind what appear to be the political realities it would possibly be more expedient to enact a new Constitution with the proper safe- guards against possible abuse rather than to attempt to amend the present Constitution. In any event it would probably be foolish to consider the provisions of the Constitution relating to the establishment of Special Courts and Military Tribunals in vacuo. The attitudes and opinions of judges do, presumably, change; and this change could well be mirrored in the way in which they interpret a Constitution and deal with the individual's fundamental right to personal

Supreme Court, and I am aware that this is not un- known in judicial circles, the result would be that the Supreme Court which considered the Offences against the State (Amendment)) Bill 1940 had no jurisdiction to do so, and, consequently, it would be °pen to the present Supreme Court to decide anew whether or not to declare the Offences against the State (Amendment) Act 1940 unconstitutional. Article 4 0 ( 4) (1) of the Constitution, states that 'no citizen shall be deprived of his personal liberty save in accordance with law". The effect of In re Art. 26 and the Offences against the State (Amend- ment) Bill 1940, 1940 I. R. 470, in which it was declared that the Offences against the State (Amendment) Bill 1940, which provided for the in- ternment of people without trial, was constitutional, was to equate the phrase "in accordance with law" with "in accordance with an act of the Oireachtas", thus not taking into consideration that the Constitut- ion is the fundamental law of the land. An attempt was made in 1940 to show the repugnance of the Bill in question with reference to Art. 4 0 ( 3) (1) which proclaims that "the State guarantees in it's laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the cit- izen", but the Court strangely held that the duty or determining the extent to which the rights of any par- ticular citizen, or class of citizen, can properly be har- monised with the rights of the citizens as a whole seems to be a matter which is peculiarly within the province of the Oireachtas in the exercise of this funct- ion. Consequently any attempt by this Court to control the Oireachtas would be a usurpation of it's authority, thus completely ignoring the principles of Natural Law. Professor Kelly in his book "Fundamental Rights" points out that the position might thus seem to have been reached that the liberty of the citizen was at the mercy of the Oireachtas. He further points out that if this was so, the Irish citizen, despite his written Con- stitution, would enjoy no better constitutional pro- tection against legislative encroachment on his per- sonal liberty, than does the subject of the British Crown. Since 1940 there have been two decisions which, even though neither is concerned with public order, provide some sign that the virtual equation of "law" i n Art. 4 0 ( 4) (1) with simple legislation, may not commend itself to the Irish Courts in future. In the first of these, In R e Philip Clarke, I, R. 235 (1950), section 165 of the Mental Treatment Act 1945, was attacked on the grounds that its powers of placing physical restraint on mentally infirm persons represented an infringement of the personal rights of a citizen guaranteed by Art. 40 (3) (1). The Supreme Court expressly repudiated that proposition that the part of the Court's judgement in toe Offences against the State Bill (Amendment) (1940) quoted above meant that "the Court could not consider that a guarantee containel in the Con- stitution has been infringed by an Act of the Oireach- tas", and went on to test section 165 in the light of Art. 4 0 ( 3) (1), thus impliedly (though not expressly) departing from the notion that any Art. of the Oireach- tas could, as much suffice to reduce the area of the citizen's personal liberty.

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