Madam, – The President Mary McAleese’s decision not to refer the Criminal Justice Bill to the Supreme Court has left us in an uncomfortable position. There were those who speculated that the Bill would not be referred for fear that if it were deemed constitutional it would be unchallengable in the courts due to Article 34.3.3 of our Constitution. The logic being that it would be safer to pass this Bill into law and allow for decisions on its constitutionality to be made in “real time” by applying it to actual cases as opposed to theoretical arguments.
The cowardly part of this is that an Irish citizen would have to suffer or at the very least be threatened with imminent injustice before these laws will be challenged or judicially reviewed. Relying on citizens to “take one for the team” and be a test case is a huge derogation of duty. We have the Article 26 procedures (under which the President may, after consultations with the Council of State, send any Bill to the highest court for a ruling on whether all or parts of it are “repugnant” to the Constitution) to ensure that bad laws never make the statute books.
In a world without Article 34.3.3, I suspect that this Bill would have been referred, the pressure of a Bill either being thrown out or made immune from future challenge is too high it seems. The need for the laws to be unchallengeable was live during the early years of this nation state. The institutions of State need authority and the law of the land needed certainty.
There is also an argument that the gravity of a decision either way sharpens the focus of the court and forces it to take it seriously. The idea that the Supreme Court might not take its duties seriously is, however, a little insulting.
Whatever the original justification, the unspoken truth seems to be that the immunity that attaches to a Bill examined under Article 26 discourages the President, her advisers and lobby groups and the media from seeking to have questionable Bills examined at all. The rule of thumb seems now to be “if in doubt, sign into law and see what happens” This renders Article 26 almost useless. We need to jettison article 34.3.3 (perhaps at the same time as our referendum on blasphemy?) and allow questionable laws to be reviewable before and after they are signed into law.
Continuing as we are puts liberty and justice in jeopardy. – Yours, etc,
Madam, – It was very heartening to see that the President Mary McAleese, after consulting the Council of State, has signed the Criminal Justice Amendment [2009] Bill into law and that it is now an Act of the Oireachtas.
It is to be hoped that the same tactics will be used against the leaders of these criminal gangs as was used very successfully against leaders of the IRA in the 1950s when they were perceived to be a threat to the security of the State.
An immediate early morning swoop should be carried out and these well-known criminals brought before the Special Criminal Court, swiftly sentenced and all their possessions declared forfeit to the State.
The lesser gang members could be dealt with shortly afterwards. – Yours, etc,