Laurentiu v Minister for Justice
Jurisdiction | Ireland |
Judge | Denham J.,Keane, J.,Lynch, J. |
Judgment Date | 01 January 2000 |
Neutral Citation | [1999] IESC 47 |
Court | Supreme Court |
Docket Number | [1998 No. 127 J.R.; S.C. No. 40 of 1999] |
Date | 01 January 2000 |
BETWEEN
AND
[1999] IESC 47
Hamilton C.J.
Denham J.
Barrington J.
Keane J.
Lynch J.
THE SUPREME COURT
Synopsis
Constitutional Law
Aliens; constitutional validity of Aliens Act, 1935; interpretation of Article 15.2 of the Constitution; power of legislature to delegate; executive powers; legislative powers; a deportation order was made against the plaintiff under the Aliens Order, 1946; appeal against finding of unconstitutionality; whether s.5(1)(e) of the 1935 Act infringes Article 15.2; whether s.5(1)(e) sets out the policies and principles which are to be given effect to by the respondent; whether the legislature could delegate to the respondent the power to deport aliens; whether the provision for annulment would save an enactment otherwise in breach of Article 15.2.
Held: S. 5(1)(e) is inconsistent with Article 15.2 of the Constitution.
Laurentiu v. Minister for Justice, Equality and Law Reform - Supreme Court: Hamilton C.J., Denham J., Barrington J.*, Keane J., Lynch J.* - (*dissenting) - 20/05/99 - [1999] 4 IR 42 - [2000] 1 ILRM 1
Section 5(1)(e) of the Aliens Act 1935, insofar as it delegated the power to deport aliens to the Minister for Justice without setting out principles and policies upon which that power was to be exercised, was not carried over by Article 50 of the Constitution of Ireland 1937 and did not form part of Irish law. Article 15.2.1 of the Constitution provides that "the sole and exclusive power of making laws for the State is vested in the Oireachtas..." As such, it requires that, where legislation delegates powers to the executive, it must specify principles and policies which will govern the exercise of those powers by the executive. Section 5(1)(e) of the Aliens Act neither expressly or implicitly admitted of any guidelines to the making of delegated legislation or deportation orders, and as such was not valid. Appeal of the respondents/appellants dismissed.
Barrington and Lynch JJ dissenting found that, while the Aliens Act 1935 did not enjoy the presumption of constitutionality, the onus rested on the applicant to prove that the impugned section was inconsistent with Article 15.2.1 of the Constitution. The rationale of the 'principles and policies' test was to strike a balance between the rights of the citizen and the exigencies of the common good. The circumstances in which the Aliens Act 1935 operates are somewhat exceptional, in that aliens are not citizens and do not enjoy the full spectrum of rights that citizens do. That is the premise of the Act, and accordingly the general power to exclude aliens should remain.
Citations:
ALIENS ACT 1935 S5(1)(e)
CONSTITUTION ART 50
CONSTITUTION ART 15.2
ALIENS ORDER 1946 S R & O 395/1946 ART 13(1)
CONSTITUTION ART 15.2.1
ALIENS ORDER 1946 S R & O 395/1946 ART 13
CITYVIEW PRESS LTD V CHOMHAIRLE OILIUNA 1980 IR 381
HARVEY V MIN FOR SOCIAL WELFARE 1990 2 IR 232
CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD V MIN FOR TRANSPORT 1997 1 ILRM 241
CONSTITUTION ART 6
CONSTITUTION ART 28.2
CONSTITUTION ART 29.4.1
CONSTITUTION ART 34.1
ALIENS ACT 1935 S5(1)
PIGS MARKETING BOARD V DONNELLY (DUBLIN) LTD 1939 IR 413
CONSTITUTION SAORSTAT EIREANN ART 12
CONSTITUTION ART 15
CONSTITUTION ART 29.4.4
CONSTITUTION ART 29.4.5
GILLILAND, STATE V GOV OF MOUNTJOY PRISON 1987 IR 201
MCDAID V SHEEHY 1991 1 IR 1
EAST DONEGAL CO-OP LIVESTOCK MART LTD V AG 1970 IR 317
EUROPEAN COMMUNITIES ACT 1972 S3(2)
MEAGHER V MIN FOR AGRICULTURE 1994 1 IR 329
CONSTITUTION ART 29.4.3
TREATY OF ROME ART 189
EUROPEAN COMMUNITIES ACT 1972 S3
PANAMA REFINING CO V RYAN 1935 293 US 388
ALA SCHECHTER POULTRY CORP V UNITED STATES 1935 295 US 495
MISTRETTA V UNITED STATES 1989 488 US 361
FIELD V CLARK 1892 143 US 649
HAMPTON & CO V UNITED STATES 1928 276 US 394
OPP COTTON MILLS INC V ADMINISTRATOR WAGE & HOUR DIV OF DEPT OF LABOUR 1941 312 US 126
UNITED STATES V ROBEL 1967 389 US 258
AMERICAN POWER & LIGHT CO V SEC 1946 329 US 90
YAKUS V UNITED STATES 1994 321 US 414
NATIONAL BROADCASTING CO V UNITED STATES 1943 319 US 190
UNITED STATES V CHAMBLESS 1988 680 F SUPP 793
SUNSHINE COAL CO V ADKINS 1940 310 US 381
CHU KHENG LIM V MIN FOR IMMIGRATION 1992 176 CLR 1
CANADA, AG V CAIN & GILHULA 1906 AC 542
VATTEL LAW OF NATIONS BOOK 1 S231; BOOK 2 S125
QUINN, STATE V RYAN 1965 IR 70
KOHN CONSTITUTION OF IRISH FREE STATE (1932) 181
CONSTITUTION ART 6.1
CONSTITUTION ART 6.2
ALIENS ACT 1935 S5(8)
ALIENS ACT 1935 S5(5)
LYNCH, STATE V COONEY 1982 IR 337
O'KEEFFE V BORD PLEANALA 1993 1 IR 39
FAJUJONU V MIN FOR JUSTICE 1990 2 IR 151
ALIENS ACT 1935 S5(2)
ALIENS ACT 1935 S5(4)
EUROPEAN COMMUNITIES (ALIENS) REGS 1977 SI 393/1977
ALIENS ACT 1935 S11
R V BRIXTON PRISON (GOVERNOR) EX-PARTE SOBLEN 1963 2 QB 243
ALIENS ORDER 1916
SOCIAL WELFARE ACT 1952 S75
SOCIAL WELFARE ACT 1979 S7
WIRELESS & TELEGRAPHY ACT 1926 S5
O'NEILL V MIN FOR AGRICULTURE & FOOD 1997 2 ILRM 435
LIVESTOCK ARTIFICIAL INSEMINATION ACT 1947
KENNEDY, STATE V LITTLE 1931 IR 39
NORRIS V AG 1984 IR 36
IMPOSITION OF DUTIES ACT 1957
BLAKE V IRELAND 1982 IR 117
CAMPBELL V HALL 1774 1 COWPER 204
CONSTITUTION ART 51
WEBB V IRELAND 1988 IR 353
HOWARD V COMMISSIONERS OF PUBLIC WORKS 1993 ILRM 665
CONSTITUTION ART 17
ALIENS ACT 1935 S5(3)
ALIENS ACT 1905 S1
ALIENS ACT 1905 S3
ALIENS RESTRICTIONS ACT 1914
ALIENS RESTRICTIONS (AMDT) ACT 1919 S1
RYAN, STATE V LENNON 1935 IR 170
COONEY, R V CLINTON 1935 IR 245
CONROY V AG 1965 IR 411
MCMAHON V AG 1972 IR 69
AG V MCBRIDE 1928 IR 451
CONSTITUTION (AMDT NO 16) ACT 1929
SHANLEY V COMMISSIONER OF PUBLIC WORKS 1992 2 IR 477
TANG V MIN FOR JUSTICE 1996 2 ILRM 46
POK SUN SHUM V IRELAND 1986 ILRM 593
CONSTITUTION ART 41
ALIENS ACT 1935 S10
ALIENS ACT 1935 S10(1)
ALIENS ACT 1935 S11
CONSTITUTION ART 15.1
CONSTITUTION ART 5
OSHEKU V IRELAND 1986 IR 733
CONSTITUTION ART 1
CONSTITUTION ART 4
CONSTITUTION ART 9
Judgment of Denham J.delivered on the 20th day of May, 1999.
This is an appeal by the Respondents (hereinafter referred to as the State) against the decision of the High Court, Mr. Justice Geoghegan, delivered on the 22nd January, 1999. The Learned High Court Judge granted a declaration that Section 5 (1)(e) of the Aliens Act, 1935was not carried over by Article 50 of the Constitution of Ireland, was inconsistent with Article 15.2 of the Constitution of Ireland and does not form part of Irish law. The Learned High Court Judge also made consequential declarations that Article 13 (1) of the Aliens Order, 1946 and the Deportation Order regarding the Applicant/Respondent in this case were invalid.
The case turns on the issue as to whether the legislature could, in the terms of Section 5(1)(e) of the Aliens Act, 1935delegate to the Minister the power to deport aliens, or whether it is an impermissible delegation of legislative power contrary to Article 15.2.1 of the Constitution of Ireland.
Mr. John Finlay, S.C., on behalf of the State, submitted that s.5(1)(e) of the Aliens Act, 1935and Regulation 13 of the Aliens Order, 1946 are valid. He submitted that the right of the State to control the entry of aliens, their activity in the State and their departure, is part of the sovereign rights of the State. The exercise of that control is primarily an executive and administrative function. The entitlement of aliens is dependent on the consent of the appropriate authority. If that consent is refused or withdrawn the alien has no right to stay in the State. He submitted that what the Minister did was within the four corners of the Aliens Act, 1935. He submitted that the policy of the Act is clear: aliens are only allowed into the State and to remain in the State with the permission of the Minister for Justice. The relevantjurisprudence, he submitted, is to be found in Cityview Press Limited v An Chomhairle Oiliuna [1980] I.R. 381 which was developed and supplemented in Harvey v. The Minister for Social Welfare [1990] 2 I.R. 232. He submitted that the appropriate methodology is to see if the enabling legislation, that is, Section 5 of the Aliens Act, 1935, makes it inevitable and necessary that the Minister in making regulations under the Act would breach Article 15.2.1 of the Constitution. He submitted that applying that test the Act did not fail. He supported his argument by reference to the judgment of Keane J. in Carrigaline Community Television Broadcasting Co. Ltd. v. Minister for Transport, Energy and Communications [1997] 1 I.L.R.M.241.
Mr. Gerard Hogan, S.C., Counsel for the Applicant, submitted that s.5(1)(e) of the Aliens Act, 1935gave excessive legislative powers to the Minister for Justice in that it effectively left the Minister at large insofar as the making of a Ministerial Order was concerned and it did not set out principles and policies upon which deportation orders were to be made; consequently, it did not survive the enactment of the Constitution. Further, he submitted that Article 13 of the Aliens Order, 1946 is a form of legislation outside the powers of legitimate delegation and contrary to Article 15.2.1 of the Constitution of Ireland. In oral argument he considered that there were three issues for the Court:
1. What is the proper test to apply in relation to Article 15.2.1 of the Constitution of Ireland? Is it the "principles andpolicies" test of Cityview or has that been qualified by Harvey?
2. Is the executive power of the State to deport an alien free-standing or can it be exercised only through legislation?
3. Given that the Oireachtas has legislated, does Section 5(1)(e) of the Aliens Act, 1935meet the appropriate test, which he submitted is the principles and policies test set out in Cityview?
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