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.

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

In the Matter of ARTICLE 26 OF THE CONSTITUTIONand In the Matter of the OFFENCES AGAINST THE STATE (AMENDMENT) BILL, 1940 (1)

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...