The Gazette 1973

Neutrality which the Irish Government had declared as official policy was always in danger during the Second World War, and that it was necessary to adopt strong measures to preserve it. But it can hardly justify a Case such as The State (Walsh v. Harte— (1942) I.R., where an Executive Direction given to a Special Military Court dispensing with all the Rules of Evidence was held valid. It would seem that the Courts in the midst of a world war were broadly prepared to uphold emer- gency decrees of the Executive, but would not analyse them in depth and decide whether they in fact con- flicted with Natural Law. This was largely due to the literal construction given to Article 28, Section 3, Sub- Section 3, of the Constitution which stated that "No- thing in the 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 of armed rebellion, or to nullify any act done or purport- ing to be done in pursuance of such law. It will be recalled the expression Time of War was extended by the First Amendment to the Constitution Act, 1939, to include "a time when the State was not actively en- gaged in war, but specifying that a resolution of both Houses of the Oireachtas declaring that a National Emergency would bring the emergency into force and that a similar resolution would terminate it." It is gratifying to note that the Constitution Com- mittee in their Report issued in December 1967 re- cognised that this permanent period of national emer- gency had outlived its usefulness and suggested that an amendment be passed to the effect that a Declaration of National Emergency is deemed to last for a maximum period of three years unless specifically re- newed for further periods not exceeding three years by resolutions of each House of the Oireachtas. This proposal recognizes at least that the problem of declar- ing a permanent National Emergency should be over- come, but is is doubtful whether it will be ever sub- mitted to a referendum. Professor Kelly has recently suggested that the problem could be tackled by an application to a High Court Judge, provided different grounds which had not been considered in the 1940 judgment could be advanced. Doubtless, in any event, there would be an appeal to the Supreme Court for a final decision. Reference of Bills to Supreme Court The procedure by which the President refers a Bill to the Supreme Court for a decision as to its con- stitutionality under Article 26 of the Constitution is unsatisfactory, inasmuch as the Supreme Court has to judge the legislation in vacuo in advance, and cannot foretell how the law will be administered in practice. Furthermore Article 34, Section 5 provides for a com- pulsory single judgment in Constitutional cases which is unfortunate from the point of view of jurisprudence the alleged certainty of the single judgment is nebulous and doubtful particularly now that unlike here dissent- ing judgments are allowed in Britain in the Privy Council and the Court of Appeal—Criminal Division. It is unfortunate that the Second Amendment to the Constitution Act 1941 introduced many amendments into the Constitution which were contrary to the alleged democratic concept upon which the State was founded, and it is unlikely that most of these totali- tarian amendments would have been accepted by the

people in a Referendum. When the Oireachtas declared the Emergency in September, 1939, it would not appear to have been in the contemplation of the Deputies and Senators of that period that such an Emergency was to last, not merely during the actual period of the Second World War up to May, 1945, but right up to this present day. There is always a danger that a phony Emergency Powers Act could be passed relating to a distant war which would not concern us. The restrictions contained in the First and in the Second Amendments of the Constitution had not to be sub- mitted to popular referendum. There was undoubtedly a crisis in September, 1939, when the Second World War started and it was impossible to predict what would happen, but provision should have been made for the National Emergency to cease within twelve months of the actual ending of hostilities unless the Oireachtas determined otherwise. The present position is that the Houses of the Oireachtas alone can determine by means of a resolu- tion whether this present national emergency is at an end, but successive Governments have urged that it would be safer to retain it. If the Constitution is to be amended, it would seem essential that a provision similar to Article 40, Section 4, Sub-Section 1, should be made mentioning specifically that no citizen shall be deprived of his personal liberty save in accordance with the provisions o fthe Constitution and the laws to be determined strictly in accordance with the prin- ciples of Natural Law and Natural Justice. The Right of the Free Exercise of Religion This appears to be fully guaranteed in Article 44, Section 2, which reads as follows: Sub-Section 1 "Free- dom of Conscience and the free profession and practice of religion are subject to public order and morality guaranteed to every citizen." Sub-Section 2 "The State guarantees not to endow any religion." Sub-Section 3 "The State shall not impose any disabilities or make any discriminations on the ground of religious pro- fession, belief or status. There cannot be much conflict save perhaps amongst atheists about Article 44, Section 1, Sub-Clause 1, which reads as follows: "The State acknowledges that the homage and public worship is due to Almighty God. It shall hold his name in reverence and shall respect and honour religion." One cannot but agree with the Constitutional Committee of December 1967 in regard to Sub-Section 2 where the State recognises the special position of the Catholic Church as the guardian of the Faith professed by the great majority of the citizens; this statement does not confer any special benefits upon that Church as such and the Constitution (Amendment) (No. 5) Act, 1972, has finally deleted it. In the same way, Sub-Section 3 in which the State recognises various denominations existing at the time of the coming into operation of the Constitution, such as the Church of Ireland, the Presbyterian Church, the Methodist Church, the Society of Friends, and the Jewish Congregation appears to be unnecessary, as this recognition does not give any of the denominations listed any special privileges and any denomination can in fact be recognised provided it in fact conforms to the norms of public order and morality; this subsection has also been deleted by the same Con- stitution (Amendment) Act. [to be concluded]

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