Constitution - Bill passed by both Houses of Oireachtas - Validity - Repugnancy to Constitution - Detention without trial - Preventive justice - Right tohabeas corpus.
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.
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.
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.
 In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940. 471 1 I.R. Supreme Court
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.
Martin Maguire K.C. (with him, Kevin Haugh K.C. and Kevin Dixon ) for the Attorney-General:—
There are twelve ample safeguards against the misuse by the Executive of the powers given to them by Part II of this Bill, which provides for special powers of arrest and detention, viz., 1, This Part can only come into operation by a proclamation of the Government duly made; 2, The Government may publish a further proclamation revoking the previous one, and this Part thereupon ceases to be in force; 3, The Dail may, by resolution, revoke the proclamation; 4, Any Minister may order the release of a person interned; 5, Every person arrested must be furnished with a copy of the warrant under which he is arrested and of the provisions of s. 8 of the Bill; 6, There is an immediate appeal to a Commission appointed under the Bill; 7, In the personnel of the Commission there is ample safeguard that it will do its duty—the Commission is to consist of three persons of whom one is to be a barrister or solicitor of not less than seven years standing, or be, or have been, a Judge of the Supreme Court, the High Court, or the Circuit Court, or a Justice of the District Court; 8, It is the duty of the Commission to investigate and make a report; 9, The Commission has the right to call on the Minister for Justice for such information and documents as it may require; 10, If the Commission report to the Government that there is no reasonable ground for his continued detention, the prisoner must be released with all convenient speed; 11, Returns showing the number of persons interned under this Part of the Act must be laid before both Houses of the Oireachtas every six months; 12, The Bill preserves the right to habeas corpus. Detention without trial is not contrary to the Constitution, and is, in fact, provided for by numerous laws. For example, there are certain common law powers of arrest and detention given to police and to
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||472|
|1 I.R.||Supreme Court|
There is a presumption of constitutionality in favour of this Bill: Pigs Marketing Board v. Donnelly (5). [He referred also to Willoughby, Constitution of the U.S.A. , 2nd edn., Vol. I, p. 33; Owners of S.S. "Kalibia" v. Wilson (6);and Waterside Workers' Federation of Australia v. Commonwealth Steamship Owners' Association (7).]
A. K. Overend K.C. and C. Lavery K.C. (with them Art O'Connor ) of counsel assigned by the Court:—
The cases cited on behalf of the Attorney-General on the question of presumption of constitutionality are all concerned with statutes. There is no presumption one way or another in the case of this Bill. The terms of reference, following Art. 26, clause 1, par. 1, are to consider whether"the Bill is repugnant to the Constitution or to any provision thereof." A provision may be repugnant to the whole spirit of the Constitution although it might be difficult to point to any Article to which it was plainly contrary It is, however, only necessary to satisfy the Court that there is some repugnancy in the Bill to the Constitution.
(1)  1 K. B. 268.
(2)  A. C. 260.
(3)  2 I. R. 104; on appeal,  I. R. 247.
(4)  I. R. 170.
(5)  I. R. 413.
(6) 11 Commonwealth L. R. 689.
(7) 28 Commonwealth L. R. 209.
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||473|
|1 I.R.||Supreme Court|
This Bill is not intended to be a temporary enactment, nor does it purport to come within the terms of Art. 28 as amended by the First Amendment of the Constitution Act, 1939 (1) as an Act to secure public safety and the preservation of the State in time of war or armed rebellion. Apart from the exception contained in Art. 28 there is an express prohibition against enacting any law which is in any respect repugnant to the Constitution: Art. 15, clause 4. [They referred in detail to the provisions of the Bill.]
The Constitution provides by Art. 38 that no person may be tried on a criminal charge save in accordance with law, this being expressed to mean trial by a Judge and jury except in the case of the exceptions set out expressly in that Article: Art. 38, clauses 2, 3, 4. The Constitution clearly does not contemplate a person being detained without trial on a criminal matter. This Bill is of the nature of a criminal jurisdiction. Art. 34 provides that justice shall be administered in public Courts. The protection of the personal and fundamental rights of individuals as between themselves and in relation to the State involves the idea of justice. It involves also that any person thought guilty of an infringement of the law should be charged and tried by the public Courts. These provisions would be a mockery if the Executive could refuse to charge and try such persons, and could arbitrarily imprison them instead.
With two exceptions, the examples of detention without trial given on behalf of the Attorney-General fall within the terms of Art. 40, clause 1, being persons such as lunatics, children, etc., who are being protected and cared for by the State (2).
The first example given of detention without trial not falling within Art. 40, clause 1, relates to the powers given under the Defence of the Realm Consolidation Act, 1914, and the decision in The King (Zadig) v. Halliday (3),was relied on. But that decision is not relevant to our Constitution. That decision was solely concerned with the question whether the Regulations made were authorised by the Act. The constitutionality of the Act could not be questioned, the dominant feature of English constitutional law being the sovereignty of Parliament. Under our
(1) This Act is not numbered like other Acts. It is an amendment of the Constitution made in pursuance of Art. 51.
(2) "Article 40.
1. All citizens shall, as human persons, be held equal before the law.
This shall not be hold to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function."
(3)  A. C. 260.
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||474|
|1 I.R.||Supreme Court|
The second example of detention without trial, not falling within Art. 40, clause 1, relates to the power of detention conferred by the Income Tax Act, 1918, but it may be doubted whether this power of detention is valid under our Constitution. In any event, the person liable to detention in that case has had an opportunity of being heard and of defending himself, by means of the provisions for appeal against assessment. Preventive justice is of the nature of justice, and Art. 34 provides that "justice shall be administered in public Courts established by law by Judges appointed in the manner provided by this Constitution." The maintenance of public peace is inherently a function of the Courts, exercised by means of its powers of taking sureties and directing persons to enter into recognizances to be of good behaviour. But in all such cases there must have been a judicial determination that a state of facts existed which justified the prisoner's imprisonment and punishment: The King (Boylan) v. Justices of Londonderry (1), per Palles C.B. at p. 380. The necessity of arriving at any judicial determination is removed by this Bill. Art. 40, clause 4, par. 1 provides that no person may be deprived of his liberty"save in accordance with law." The expression, "in accordance with law," means in accordance with law which is not repugnant to the Constitution. Can it be suggested that if this Bill be enacted, detention under it will be "in accordance with law?" [They referred to Story on the Constitution of the United States of America, Vol. II, 5th edn., ss. 1338, 1778-9, 1858, 1860-66, 1938, 1941, on the subjects of habeas corpus, trial by jury, and the meaning of the phrase, "due process of law"; and to Marbury v.Maddison (2).] Art. 38 provides for the trial of persons on a criminal charge. This Bill proposes to punish without trial for breach of regulations made under it, and s. 5 of the Bill creates four specific offences. It cannot be held that because the word "contravention" is used in place of"offence" that the provisions of Art. 38 can be nullified.
Martin Maguire K.C. replied.
The remaining arguments of counsel are referred to in the course of the opinion of the Court.
Cur. adv. vult.
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||475|
|1 I.R.||Supreme Court|
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 of the Offences against the State Act, 1939, and to make other provisions in relation to the detention of certain persons."
Sect. 2, which is contained in Part I of the Act, repeals Part VI of the Offences Against the State Act, 1939. The Part of the Act of 1939 so repealed is substantially to the same effect as Part II of the Bill now before this Court.
Part II of the Bill consists of seven sections.
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||476|
Sect. 4 provides as follows:—
"4—(1) Whenever a Minister of State is of opinion that any particular person is 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.
(2) Any member of the Garda Siochana may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act.
(5) Every warrant issued by a Minister of State under this section shall be in the form set out in the Schedule to this Act or in a form to the like effect."
Sect. 5 confers on any member of the Garda Siochana power, in respect of any person arrested and detained under this Part of the Act:—(a) to demand his name and address, (b) to search him or cause him to be searched, (c) to photograph him or cause him to be photographed, and (d) to take or cause to be taken his fingerprints. It also provides that any person who obstructs or impedes a member of the
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||477|
Sect. 6 provides that a Minister of State may, by writing under his hand, order the release of any person who is being detained and such person shall forthwith be released.
Sect. 7 empowers a Minister of State to make regulations for all or any of the following purposes, that is to say:—
(a) Prescribing the prisons, internment camps, and other places in which persons may be detained under this Part of this Act;
(b) providing for the efficient management, sanitation, control, and guarding of such prisons, internment camps, and other places;
(c) providing for the enforcement and preservation of discipline amongst the persons detained in any such prison, internment camp, or other place as aforesaid;
(d) providing for the punishment of persons so detained who contravene the regulations;
(e) prescribing or providing for any other matter or thing incidental or ancillary to the efficient detention of persons detained under this Part of this Act.
Sub-s. 2 of the said section provides that:—
"Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of any thing previously done under such regulation."
Sect. 8 provides for the setting-up of a Commission to which any person detained under this Part of the Act may apply in writing to consider the continuation of his detention, and requires the Minister for Justice to furnish to the Commission such relevant information and documents, in the possession or procurement of the Government or of any Minister of State, as shall be called for by the Commission, and further provides that, if the Commission reports that no reasonable grounds exist for the continued detention of such person, he shall, with all convenient speed, be released.
Sect. 9 provides that the Government shall, once at least in every six months, furnish to each House of the Oireachtas certain particulars therein specified with reference to persons detained.
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||478|
Counsel, so assigned by the Court, contended that the Bill was repugnant to the Constitution and, in particular, they relied upon the Preamble and on Article 34, clause 1, and Articles 38 and 40.
We propose to deal specifically with the aforesaid Articles, but in arriving at our conclusion we have had regard not only to those Articles but also to all such other Articles as seemed to us material to the question which we have to determine.
Before dealing, however, with the said Articles, we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering. The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and, nevertheless, there is no express prohibition in the Constitution against such legislation. This is a matter to which we are bound to attach considerable weight in view of the fact that many Articles of the Constitution prohibit the Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.
Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.
The material portion of the Preamble is that which declares that, in enacting the Constitution, the People of Ireland are
"Seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations."
In dealing with the Preamble counsel laid great stress on the words "dignity and freedom of the individual" and focussed their attention upon those words exclusively. This does not seem to us to be the correct method of arriving at the true meaning and effect of the Preamble. The main object aimed at is the promotion of the common good, which, it is contemplated, will assure the dignity and freedom of the individual, the attainment of social order, the restoration of the unity of our country and the establishment of concord with other nations. Apart from the grammatical construction of the words of the Preamble, it seems to us difficult to understand how the dignity and freedom of the individual member of a State can be attained unless social
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||479|
Article 34 deals with the establishment of Courts and the administration of justice therein, and the particular Clause on which reliance was placed, is Clause 1, which provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by the Constitution. In order to rely upon this Article it would be necessary to establish that the Minister, in exercising the powers conferred upon him by the Bill, is administering justice within the meaning of the Article. This proposition seems to us to be wholly unsustainable.
Article 38 deals with the trial of offences and provides, in clause 1, that no person shall be tried on any criminal charge save in due course of law. The remaining clauses of the Article prescribe the methods in which criminal charges may be tried and specify various Courts for this purpose. The argument necessarily proceeds upon the basis that the Minister, in performing his functions under the Bill, is engaged in the trial of a criminal charge and that the detention contemplated by the Bill is punishment in respect of a criminal offence.
In the opinion of this Court neither s. 4 nor s. 5 of the Bill creates or purports to create a criminal offence. The only essential preliminary to the exercise by a Minister of the powers contained in s. 4 is that he should have formed opinions on the matters specifically mentioned in the section. The validity of such opinions is not a matter that could be questioned in any Court. Having formed such opinions, the Minister is entitled to make an order for detention; but this Court is of opinion that the detention is not in the nature of punishment, but is a precautionary measure taken for the purpose of preserving the public peace and order and the security of the State. This distinction has been recognised in several cases.
In the case of The King (Zadig) v. Halliday (1), a question arose as to the power of the Home Secretary in England to make an order for detention under the Defence of the Realm (Consolidation) Regulations, 1914, made under s. 1, sub-s. 1, of the Defence of the Realm Consolidation Act, 1914. In the course of his speech in that case Lord Finlay L.C. says at p. 265:—
"On the face of it the statute authorises in this sub-section
provisions of two kinds—for prevention and for punishment. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State."
 In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940. 480 1 I.R.
In a later passage he says, at p. 269:—
"One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that regulation 14B is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and, indeed, counsel for the appellant went so far as to contend that no regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the Secretary of State, and an advisory Committee, presided over by a Judge of the High Court, is provided to bring before him any grounds for thinking that the order may properly be revoked or varied."
Lord Atkinson, in the course of his speech in the same case, says at p. 273:—
"Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done, is no new thing in the laws of England."
"One of the most effective ways of preventing a man from communicating with the enemy or doing things such as are mentioned in s. 1, sub-s. 1 (a) and (c), of the statute is to imprison or intern him. In that as in almost every case where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm."
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||481|
Article 40 deals with personal rights. Clause 3 thereof provides that 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, and to protect from unjust attack and, in case of injustice done, to vindicate, the life, person, good name, and property rights of every citizen.
It is alleged that the provisions of the Bill are repugnant to the guarantee contained in this clause. It seems to us impossible to accede to this argument. The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority.
The People, by the Constitution, have provided for the setting-up of three great Departments of State—the Oireachtas, the Executive, and the Judiciary—and it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the Courts to construe and apply such law. Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law.
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||482|
Clause 4 of the said Article provides that no citizen shall be deprived of his liberty save in accordance with law, and makes provision for the release of any person who is being detained otherwise than in accordance with law.
The phrase "in accordance with law" is used in several Articles of the Constitution, and we are of opinion that it means in accordance with the law as it exists at the time when the particular Article is invoked and sought to be applied. In this Article, it means the law as it exists at the time when the legality of the-detention arises for determination. A person in custody is detained in accordance with law if he is detained in accordance with the provisions of a statute duly passed by the Oireachtas; subject always to the qualification that such provisions are not repugnant to the Constitution or to any provision thereof.
Accordingly, in our opinion, this Article cannot be relied upon for the purpose of establishing the proposition that the Bill is repugnant to the Constitution—such repugnancy must be established by reference to some other provision of the Constitution.
It was contended that the effect of the Bill is to take away the right to habeas corpus. There is no foundation for this contention. Notwithstanding the provisions of the Bill, a person who is detained is entitled under Article 40, clause 4, par. 2, to have the legality of his detention enquired into and to obtain an order for his release, unless the Court or Judge, enquiring into the matter, is satisfied that all the provisions of the Bill have been complied with and that the detention is legal.
No doubt the Bill, when enacted, will have the effect of altering the law and, to that extent, will justify a detention which might otherwise be unlawful. This, however, cannot rightly be described as taking away the right to habeas corpus.
The arguments based upon ss. 5 and 7 of the Bill can be disposed of very shortly. If, as this Court holds, the arrest and detention contemplated by s. 4 are lawful, it is obviously necessary that provision should be made as to the place and mode of detention and other matters incidental thereto. Sects. 5 and 7 seem to us to be framed with this object in view. The purposes for which regulations may be made are set out in s. 7 and, in framing the regulations, the Minister is bound by the terms of the section. There is nothing in the section to suggest that any regulation made thereunder could contravene any Article of the Constitution. It is not for us to assume that the Minister will exceed the powers conferred upon him by the section
|||In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.||483|
It was contended before us that the Bill is unnecessary and oppressive. This is not a matter for our consideration and we express no opinion upon it. The only question before us is whether it is within the power of the Oireachtas, consistently with the Constitution, to enact such legislation. In the opinion of this Court it is, and we shall advise the President accordingly.
Solicitor for the Attorney-General: The Chief State Solicitor.
Solicitors instructing counsel assigned by the Court:James O'Connor & Co.
 I.R. 470