Article 26 of the Constitution and the Offences Against the State (Amendment) Re Bill, 1940
Jurisdiction | Ireland |
Court | Supreme Court |
Judgment Date | 09 February 1940 |
Date | 09 February 1940 |
Supreme Court.
Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy to Constitution - Detention without trial - Preventive justice - Right tohabeas corpus.
Reference of a Bill, passed by both Houses of the Oireachtas, to the Supreme Court for a decision on the question as to whether the Bill or any specified provision thereof was repugnant to the Constitution.
The terms of reference were as follows:—
"To the Hon. Timothy Sullivan, Chief Justice.
In pursuance of the provisions of Article 26 of the
Constitution, I, Douglas Hyde, President of Ireland, after consultation with the Council of State,. do hereby refer the annexed Bill: Offences Against the State (Amendment) Bill, 1940, to the Supreme Court for a decision on the question as to whether the said Bill is repugnant to the Constitution or to any provision thereof.Given under my hand and seal this 8th day of January, 1940."
The terms of reference were signed by the President.
The Court, in accordance with Art. 26, clause 2, par. 1, of the Constitution, heard arguments on behalf of the Attorney-General and by counsel assigned by the Court.
The President having referred to the Supreme Court, under Art. 26 of the Constitution, a Bill entitled "An Act to repeal Part VI of the Offences Against the State Act 1939, and to make other provisions in relation to the detention of certain persons," for a decision on the question whether the said Bill was repugnant to the Constitution or to any provision thereof,
The Court (by a majority) was of opinion:—
1. That s. 4 of the Bill, which provides, inter alia, that "whenever a Minister of State is of opinion that any particular person in engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section," does not confer upon the Minister power to administer justice, and is not repugnant to Art. 34 of the Constitution, which provides that justice shall be administered in public Courts.
2. That the detention of persons provided for in the Bill is not in the nature of punishment but of preventive justice, being a precautionary measure taken for the purpose of preserving the public peace and order and the security of the state, and did not contravene the provision of Art. 38 of the Constitution providing that no person be tried on any criminal charge save in due course of law.
R. (Zadig) v. Halliday, [1917] A. C. 260; and The King (O'Connell) v. The Military Governor of Hare Park Camp, [1924] 2 I. R. 104, on appeal [1935] I. R. 247, applied.
3. That the provisions of the Bill are not repugnant to the provisions of Art. 40, clause 3, of the Constitution by which the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
4. That the Bill does not take away the right to habeas corpus.
5. That the provisions of s. 5 of the Bill, as to the interrogation and searching of persons, and of s. 7, authorising the making of regulations as to the place and mode of detention of persons arrested under the Bill, and other matters incidental thereto, and as to the punishment of persons so detained who contravene the regulations, were made necessary by reason of the provisions of s. 4, and that there is nothing in these sections to suggest that any regulation made thereunder would contravene any Article of the Constitution.
The Court accordingly advised the President that the said Bill was not repugnant to the Constitution or to any provision thereof.
Cur. adv. vult.
Sullivan C.J. :— |
In pursuance of the provisions of Art. 26 of the Constitution, the President of Ireland, on the 8th January, 1940, after consultation with the Council of State, referred to this Court a Bill, entitled "Offences Against the State (Amendment) Bill, 1940," for a decision on the question whether the said Bill is repugnant to the Constitution or to any provision thereof.
The said Article admittedly refers to a Bill such as this, which had been duly passed by both Houses of the Oireachtas. Under the Article it is provided that the Court, consisting of not less than five Judges, shall consider every question referred to it by the President and, having heard arguments by or on behalf of the Attorney-General and by counsel assigned by the Court, shall pronounce its decision in open Court as soon as may be, and in any case not later than sixty days after the date of reference.
The Article further provides that the decision of the majority of the Judges of this Court shall, for the purposes of this Article, be the decision of the Court (clause 2, par. 2).
It is further provided that, in every case in which this Court decides that any provision of a Bill, so referred to the Court, is repugnant to the Constitution or to any provision thereof, the President shall decline to sign such Bill, and that, in every other case, the President shall sign the Bill as soon as may be after the date on which the decision of this Court shall have been pronounced.
In accordance with the provisions of the Article the Court assigned counsel and, subsequently, the Court heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned by the Court, and at the conclusion of the said arguments reserved its decision.
The decision now announced is the decision of the majority of the Judges and is, within the meaning of clause 2, par. 2 of the said Article, the decision of the Court.
The long title of the Bill, so referred to this Court is "An Act to repeal Part VI...
To continue reading
Request your trial-
Kelly v Minister for Environment
...AG 2000 3 IR 1 REDMOND V MIN FOR ENVIRONMENT, IRELAND & AG UNREP HERBERT 31/7/2001 ART 26 & OFFENCES AGAINST THE STATE (AMDT) BILL, IN RE 1940 IR 470 MCDONALD V BORD NA GCON & ANOR 1965 IR 217 EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317 PURCELL V AG & ANOR 1995 3 287 CO......
-
The Employment Equality Bill, 1996
...OF INFORMATION (TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1 ART 26 & THE OFFENCES AGAINST THE STATE (AMDT) BILL 1940, IN RE 1940 IR 470 EAST DONEGAL CO-OPERATIVE V AG 1970 IR 317 EMPLOYMENT EQUALITY BILL 1996 PART III CONSTITUTION ART 29.4.5 EMPLOYMENT EQUALITY BILL 1996 PAR......
-
O'Callaghan v Attorney General
...The Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413 and In re the Offences Against the State (Amendment) Bill, 1940[1940] I.R. 470 applied. 2. That the essence of trial by jury was that the decision as to the guilt or innocence of the accused was made by a group of the accuse......
-
Kelly v Minister for Environment, Ireland and Attorney General
...1997 SCH PAR 2(A) ELECTORAL (AMDT) (NO 2) ACT 2002 S1 ELECTORAL ACT 1997 S26 ARTICLE 26 & THE OFFENCES AGAINST THE STATE (AMDT) BILL, RE 1940 IR 470 MCDONALD V BORD NA GCON & ANOR 1965 IR 217 ELECTORAL ACT 1997 SCH PAR 2(c) BOYLE, STATE V GOVERNOR OF CURRAGH MILITARY DETENTION BARRACKS 19......
-
Catholicism and the Judiciary in Ireland, 1922-1960
...the author examined were: Pigs Market Board v Donnelly [1939] IR 413, Re Article 26 and the Offences Against the State (Amendment) Bill, [1940] IR 470, State (Walsh) v Lennon [1941] IR 68, Re McGrath and Harte [1941] IR 68, Re Article 26 and the School Attendance Bill , 1943 IR 334, Nationa......
-
The Case for an Originalist Approach to Constitutional Interpretation in Ireland
...in the Constitution to more 20 [2004] 1 IR 591, at 638. See eg Re Article 26 and the Offences Against the State (Amendment) Bill, 1940 [1940] IR 470, at 478. See also Maguire v Ardagh [2002] 1 IR 385, at 504, per Keane CJ dissenting. 21 Oran Doyle, Constitutional Law: Text, Cases, and Mater......
-
The Referendum, the Courts and Representative Democracy in Ireland
...19741 IR 284; 109 ILTR 29. '' Reference cases include: Ref. Art. 26 and the Offences Against the State (Amendment) Bill 1940 [ 19401 IR470; 74 ILTR 61 (upheld); Ref. Art. 26 and the School Attendunce Bill 1942 [I9431 IR 334; 77 lLTR 96 (rejected); Ref. Art. 26 andthe Electoral (Amendment) B......
-
Ireland's divorce bill: traditional Irish and international norms of equality and bodily integrity at issue in a domestic abuse context.
..."usurpation of [legislative] authority." Id. at 745 (quoting In re Article 26 and the Offences Against the State (Amendment) Bill, 1940, [1940] I.R. 470)). (98.) See HOGAN & WHYTE, supra note 24, at (99.) Generally, the specified rights are found in the second clause of Article 40.3. Th......