The Gazette 1977

GAZETTE

AUGUST/SEPTEMBER

to be; Article 28.3.3 reposes absolute authority in the Houses of the Oireachtas, suspending the great doctrine of the separation of powers upon which the monument of the Constitution rests in peacetime. I discussed earlier the substratum that undergirds the operation of internment in our law. The Emergency Powers Acts 1939-40, illustrates the principle in action. In addition to invoking Article 28.3.3, the Government in 1939 attempted to erect a permanent legislative circuitry which would activate in the appropriate circumstances, firstly, a Special Criminal Court or Courts as envisaged in Article. 38 of the Constitution, and secondly, a codified procedure of internment without trial, nowhere sanctioned or provided for by the Constitution. Part VI of the eventual Offences Against the State Act, 1939, set forth in six sections the framework of the new internment process, and by November 1939 over 50 persons were detained under the pre-eminent S.55: "Whenever a Minister of State is satisfied that any particular person is engaged in activities calculated to prejudice the preservation of the peace, order, or security of the State, such Minister may by warrant under his hand order the arrest and detention of such person under this section." END OF PART I. 2. Dail Debates, 31 Aug 1976, col 37 3. Dail Debates, 31 Aug 1976, col 5 4. Dail Debates, 31 Aug 1976, col 11 5. Kelly, "Fundamental Rights in the Irish Constitution", p.77 6. (1924) 2 I.R. 104 (To be concluded in the next issue) APPENDIX 1. Gandhi, "Non-Violence in Peace and War" (1948) SOLICITORS ACCOUNTS (AMENDMENT) REGULATIONS, 1977 (S.I. No. 242 of 1977) The effect of these regulations is to withdraw the authority given to solicitors under the Solicitors Accounts (Amendment) Regulations, 1976 (S.I. No. 125 of 1976), to open designated client accounts for clients' monies with the named London or Scottish clearing banks or any branch in the United Kingdom or in Northern Ireland of an Irish Associated Bank and also, to designate Allied Irish Banks Ltd. as the successor to certain of the Banks deleted from the First Schedule. It is confirmed that the making of Solicitors Accounts Regulations do not constitute a warranty or represen- tation by the Incorporated Law Society of Ireland as to the suitability of any or all of the banks named in any Schedule to such Regulations and the Incorporated Law Society of Ireland does not accept any liability whatever for any loss incurred through any act, neglect or default of any such bank. 137

and on the other, supervening demands of public safety and the preservation of the State. The compaction of individual rights in the Constitution is balanced against the devolution upon the Houses of the Oireachtas of the ultimate power of the Irtish State, contained in Article 28.3.3 ot the same document. As amended by ordinary legislation, it reads as follows: "Nothing in this Constitution shall 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 . . . In this sub- section "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State . .." The expanded definition of "time of war" was inserted to provide for contingency legislation during World War II. A resolution of both Houses is not a condition precedent to the enactment of any law for the purpose of securing the public safety and preservation of the State "in time of war or armed rebellion", and therefore any legislation prefaced by that formula will be protected from challenge on constitutional grounds so long as the emergency continues, the same protection attaches to legislation passed to secure the public safety and preservation of the State in the period of an armed conflict in which the State is not a participant but which affects the vital interests of the State, and here a resolution ofbot Houses is a condition precedent to eventual constitutional immunity. Article 28.3.3 withdraws every constitutional restraint from, the Oireachtas so that the integrity of the State can be adequately defended, and makes the question of what is "a time of war or armed rebellion" entirely one for the Oireachtas. The general proposition that when the resolutions referred to in Article 28.3.3 have been passed, the Supreme Court has no jurisdiction to review their contents, no longer stands unquestioned. In the Emergency Powers Bill, 1976, decision, the Court expressly reserved for future consideration the issue whether judicial review of such resolutions may be permissible. The Emergency Powers Act, 1939, was prefaced with the appropriate immunity formula in its long title and was therefore excluded from the domain of judicial review. It provided in S.2 for the making of emergency orders in respect of a lengthy list of subjects, including the arrest and detention of persons (other than natural-born Irish citizens) where such detention was, in the opinion of a Minister, necessary or expedient in the interests of the public safety or the preservation of the State. The only safeguard included was the specification that all Emergency Orders should be laid before the Oireachtas for the period of 21 sitting days after they were made, and both Houses had authority within that time to pass a resolution to annul any such Order. That, of course, did not provide detainees with any effective remedy once the Order for internment cleared the annulment obstacle. An amending Act was passed in 1940 to delete the expression "other than natural-born Irish citizens" from the authorising section of the principal Act. A blanket power of indeterminate detention without trial was thus conferred on the Executive by the Emergency Powers Acts, and was never judicially considered, it did not need