Council of State to advise President on Bills


PRESIDENT MARY McAleese has called a Council of State meeting for next Wednesday to advise her on the quesion of referring two Bills to the Supreme Court. They are the Defamation Bill and the Criminal Justice (Amendment) Bill.

If either Bill is referred to the Supreme Court and found unconstitutional, it will fall. If found to be constitutional, the President will sign it into law and no further constitutional challenge can then be taken.

A spokeswoman for the President told The Irish Times that no further information was available on what her specific concerns about either Bill might be.

However, 133 lawyers signed a letter to The Irish Times two weeks ago questioning the constitutionality of the Criminal Justice (Amendment) Bill, referring to the provision that detention hearings be heard in the absence of the accused or his solicitor and the automatic referral of all cases relating to organised crime to the Special Criminal Court.

Late amendments to the Defamation Bill defining the crime of blasphemy and providing for its prosecution proved controversial. The amendments were defeated in an electronic Seanad vote and were eventually passed on a walk-through vote.

The Constitution does provide that blasphemy is a crime to be punished “in accordance with law”. However, the Law Reform Commission has stated that there is no place for a law of blasphemy in a modern Constitution guaranteeing freedom of speech.

Also of possible concern in the Defamation Bill is the balance between rights to privacy, to a good reputation and the right to freedom of expression. The President must consult the Council of State before considering referral of a Bill, but the decision to refer either or both Bills to the Supreme Court, provided for in Article 26 of the Constitution, is hers alone. Normally she makes the decision very quickly after consulting with the Council of State. The Supreme Court would have have 60 days to consider the matter

The court must sit with not fewer than five judges and a majority decision represents the decision of the whole court. The existence of a minority view cannot be revealed.

The Supreme Court must therefore meet quickly to assign counsel to prepare arguments on the constitutionality or otherwise of the Bills. The Attorney General will appoint counsel to defend the Bill.

It will then adjourn to allow the case to be prepared and meet later to hear the arguments. The hearing, if there is one, is therefore not likely to be before the end of August. The last time the Supreme Court was asked by the President to rule on the constitutionality of a Bill was in 2004, when the legislation intended to reintroduce fees for pensioners in residential care was referred on December 22nd.

The court heard the case over two days from January 24th and the court gave its ruling on February 16th. It found the Bill unconstitutional because it retrospectively ratified the charging of nursing home residents.

This was the third time the President had referred a Bill and on both previous occasions the legislation was found constitutional. If either of these Bills is referred to the Supreme Court and are found to be unconstitutional, the President will refuse to sign it.

The Government can then either amend the Bill (or Bills) to make it constitutional or, if it is found unconstitutional on a fundamental point, could amend the Constitution to accommodate it. The fact that there is a constitutional referendum on Lisbon on October 2nd could facilitate this.

On the other hand, the President could decide not to refer either Bill or, if they are referred, the court could find both constitutional. If this happens, no future constitutional challenge can take place.