A bill extending the grounds for gardai to detain unsuccessful asylum-seekers prior to deportation has been held by the Supreme Court to be constitutional.
The Supreme Court had examined two sections of the Illegal Immigrants (Trafficking) Bill 1999 after the President, Mrs McAleese, referred them to it to decide on their constitutionality.
At a sitting of the five-member court yesterday, the Chief Justice, Mr Justice Keane, said none of the provisions of sections 5 or 10 of the Bill was repugnant to the Constitution. He said the President would be informed of the court's decision. The court also held that part 5 of the Planning and Development Bill referred to it was constitutional.
Copies of the court's judgment were then distributed and the court rose. The Attorney General, Mr Michael McDowell, was present for the three-minute sitting.
Section 10 of the Illegal Immigrants (Trafficking) Bill 1999 allows immigration officers to detain for up to eight weeks asylum-seekers against whom a deportation order has been made if they reasonably suspect the person has forged or destroyed identity documents or intends to leave the State or avoid deportation.
Under earlier law, gardai could detain failed asylum-seekers due to be deported only if they reasonably suspected they had not complied with a deportation order. Failed asylum-seekers are people whose claim for refugee status and the right to live permanently in the State, on the grounds n they are fleeing persecution, has been rejected.
Section 5 of the Bill curtails the time within which a failed asylum-seeker can legally challenge a deportation order in the High Court by way of judicial review. The Bill grants a failed asylum-seeker 14 days to seek a judicial review, unless there is "good and sufficient" reason to extend this. Irish citizens have six months to seek judicial reviews.
Mrs McAleese had referred the Bill's two sections to the Supreme Court to decide on their constitutionality last June after consulting the Council of State. It was the first time she had exercised her power under the Constitution to refer Bills to the Supreme Court. The court held hearings last month, with submissions by counsel assigned by the court and counsel for the Attorney General.
In its 74-page written judgment on the Illegal Immigrants (Trafficking) Bill released yesterday, the court outlined the arguments presented by counsel for both sides.
The legal team assigned by the court had argued that certain provisions of section 5 of the Bill - relating to judicial reviews - violated the constitutional right of access to the courts and were in breach of the constitutional guarantee of equality before the law.
Counsel for the Attorney General had argued that there was nothing inherently unconstitutional about legislative regulation of a litigant's rights to access to the courts and had cited examples of other laws which contained restrictions on the right to apply for judicial review.
In its judgment, the court said it was "satisfied that the discretion of the High Court to extend the 14-day period is sufficiently wide to enable persons who, having regard to all the circumstances of the case including language difficulties, communication difficulties, difficulties with regard to legal advice or otherwise, have shown reasonable diligence, to have sufficient access to the courts for the purpose of seeking judicial review in accordance with their constitutional rights.
"The court does not therefore consider the limitation period to be unreasonable as such and its repugnancy to the Constitution has not been established." On Section 10 of the Bill - extending the grounds for gardai to detain failed asylum-seekers - counsel for the court had argued that it introduced an objectionable form of preventative detention.
The court ruled, however, that the safeguards are "perfectly adequate to meet the requirements of the Constitution in the context of the particular form of detention relevant to this reference".
It stated it would be an abuse of power to detain people if it was quite clear deportation could not be carried out within eight weeks. It also outlined the safeguards available to a person detained under the extended grounds. The judgment said the aggregate detention period of eight weeks was "a relatively narrow time-limit and in all the circumstances there would appear to be adequate safeguards".
It also held it had not been demonstrated by counsel for the court that the proposed extended grounds for detention would contravene Article Five of the European Convention on Human Rights and Fundamental Freedom.