McAleese Signs Criminal Justice and Blasphemy Bills into Law
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President McAleese has signed the Criminal Justice Bill and Defamation Bill into law. Last night the Council of State discussed the bills in what many interpreted to be a symbolic, or tokenistic, meeting. This morning they were signed into law.
Step in which direction? I know one or two regular participants on this website thought the blasphemy bill was simply proposed to close a constitutional loophole, as Dermot Ahern has been saying since it made landfall. Have more joined that side of the debate since?
One of the problems with referring a bill to the SC (I understand) is that if upheld, it can’t be challenged again. Not defending the bill in anyway, but just one of the things the Council may have taken into consideration.
did the president actually do something by calling the council or did she do nothing as usual….?
the citizenship referendum was a cheap trick cost isn’t an issue
I am entirely against the Criminal Justice Act and was one of the signatories to the ‘lawyers letter’ in the Irish Times a few weeks ago. I am convinced that a significant number of the provisions are unconstitutional. However, I’m glad that the Bill has not been referred under Article 26. Barratree is correct that if the Bill was upheld it would be immune from further challenge. I think that this risk would be too great and I would far prefer for challenges to be taken in the context of individual cases. It is much easier to strike something down when someone is in custody having had their detention extended by a secret hearing than to argue the merits of that in a vacuum.
In respect of the Defamation Bill I can’t see how the Supreme Court could rule the blasphemy laws unconstitutional as the offence originates in the Constitution itself. The issue now becomes whether it will ever be used and whether it can then be successfully argued that a person’s freedom of expression rights outweigh the constitutional provision for the offence of blasphemy. Again this is an issue better argued with a factual context.
So a step forward in relation to the Criminal Justice Act and as you were with the Defamation Act would be my read of the current situation
More troubled by the Criminal Justice ammendments to be honest.
Agree with Baratree. Happier to see that bill pass and be challanged later, rather than upheld. It should never have got this far.
whats the point of the council considering the laws if they think it too risky to implement their conclusion and send it straight to the SC?
Say it is challanged in by some “gangland” person and deemed unconstitutional does that result in them going free? Or do they simply get a jury trail?
Aoife,
I’m no barristor or solicitor but surely your argument renders the president totally redundant in the process of creating new law. By your logic surely every bill passed by the houses of the Oireachtas should go straight into law where it will eventually be challenged if it is necessary? Why make any act immune from challenge?
Like i said, I’m no solicitor but a legal degree has given me some understanding of the importance of the presidents role in this particular area. Although her role is largely ceremonial day to day the one role she does have with some significance, and its very significant, is ensuring that no law is enacted that is contrary to the constitution. And this morning she failed in that task.
First, its clear to the dogs in the street that these acts, especially Criminal Justice are borderline Constitutionally at best so it was her duty to refer them!
Second, because they are borderline there are going to be numerous challanges on large aspects of each of these bills. This will cost the state a fortune and make the legal profession a fortune in challenging them. Brilliant!
Third, it is surely preferable for the law to be black and white constitutional without the need for individual cases and the emotion and sentiment attached?
Fourth, we have a vaccum now. What happens if somebody is tried in the Special Criminal Court without a Jury and is convicted with Garda opinion evidence both of which happen to be deemed unconstituional several years down the line but that person cant afford to challenge the law to the Supreme Court at the time? Or when some gang member eventually challenges these, and they will, we risk the case collapsing on a technicallity in the Supreme Court?
This is why we have a system in place to make sure that laws are constitutionally sound before they are enacted to stop injustices like that from happening as much as possible.
The President failed the country in her most important duty this morning.
As for the Defamation Bill, blasphemy was already a crime so the whole needed for the constitution point is moot.The sad thing about it is the several good points about the act, removing the libel slander distinction for example, have been completely forgotten.
As for the Criminal Justice Act, it is yet another step down the road of removing centuries of law using high crime levels as an excuse. All I can say is thank god death penalty is prohibited by the constitution because it seems that will be what they’ll introduce next
As an opponent of both bills, I support Aoife’s argument, that it will be more effective to challenge the constitutionality, while a person is in custody, and I am glad the President did not refer the Criminal Justice Bill to the Supreme Court for that reason, but I can’t help wondering, if there was another more pressing reason, why someone with her track record took this position.
If the President had sent either or both bills to the supreme court, then the court would have 60 days to make a decision, and that my friends, would bring us up to within a week of the second Lisbon Referendum.
What do you imagine would be the result of a negative decision, from the supreme court on two contentious pieces of legislation, with six days left to the referendum.
Also I realise that the President alone makes the decision, but the majority of the council of state have a stated preference for a yes vote.
Either way, thats democracy in action, and that’s the way it should be.
@Tuathal, I don’t mean to diminish the role of the President. She does have an important role in being the final arbiter as to whether Bills passed by the Oireachtas become actual laws. However, I dislike the finality of the Article 26 reference procedure and in particular the absolute immunity that it confers on Bills once upheld by the Supreme Court. Historically there was justification for this when the Constitution was first enacted but I don’t believe that this justification can be maintained now. The immunity from challenge has given rise to problems in other areas. For example the Planning and Development Act is immune. The Part V provisions in respect of Social Housing were correctly upheld by the Supreme Court but there are other aspects of the Bill which have since given rise to concerns but these cannot be challenged. It is the reality that in the context of an Article 26 reference not all the aspects of a Bill are properly considered or considered in precise detail. It would be almost impossible to do so. But the Bill rises and falls as one piece of legislation which can create difficult situations. I am surprised that she didn’t refer the Criminal Justice Bill given the significant and legitimate doubts about its constitutionality. However, as an opponent of the Bill I am glad she didn’t for the reasons I outlined above.
The scenario that you outline in respect of someone not being able to afford a Supreme Court challenge would never arise. Firstly, practitioners would always be willing to take such a case on a ‘no foal no fee’ basis. Believe it or not this happens all the time. Secondly, given the nature of these cases they would invariably be covered by Legal Aid or the Attorney General’s scheme.
I am of the view that the law in this area is black and white. The provisions of this Bill are entirely unconstitutional. But I know that it is far easier to argue this in the context of a factual scenario than as an artificial construct.
I Think That the very composition of the Council Of State makes it rather redundant. The politicians are those who brought the bill this far and the judges are those that will sit on the bench if the SC has to decide on a Bills legality. Still though some of the most important cases have originated in art 26 references much like EU Law has benefited immensely from references.
As for the two acts it is hard to find ways to find them unconstitutional in abstract. The Blasphemy provision for example does exactly as is (apparently) warranted by the Constitution.
As for the Criminal Justice Act it would be dubious for the SC to stand up and say it couldn’t allow gardai give evidence on something within their knowledge. It would have a profound effect on every level of Court Case if it stated only gardai of a certain rank could give evidence.
As for increasing the amount of crime’s which can go to the SCC, this power has been in since the 70’s(I think) as any offence could be declared a scheduled offence under the OASA. The criminal Gangs offence, again, already existed under the provisions of the OASA (member of an illegal organisation is quite wide under the act).
The problem I personally have is that the Questionable use of the SCC at all as it continually leads to acquittals, the UNHRC has discredited it and the main courts have never been found to have been inadequate. I Can only think of one case, the infamous Liam Keane trial, where a case actually collapsed.
In relation to Aoife’s point above about it being preferable to test constitutional validity in an actual criminal charge, it seems one is quick to forget that if the act were unconstitutional then the accused would simply go free. Bearing in mind the restriction that the act itself imposes it is most likely that such an accused is a criminal. Would it not be better to pass the bill by the article 26 reference procedure where prosecuters can trust in its validity and not be afraid to use it, bearing in mind that if the act does prove to be troublesome that the government can simply revoke or ammend it. Surely the certainty guaranteed by the article 26 reference is preferable to the enevitble streem of seperate constitutional challenges, and i may i note that each of these will be funded by the state where the state will end up paying the legal bills of both sides of solicitor, junior council and senior council. Better to cast it in stone and move on subject to the dails right to revoke it!