Constitution of The Irish Free State - Civil Rights in Practice

Civil Rights in Practice

The constitution empowered the courts to strike down laws they found to be unconstitutional. However judicial review of legislation was made largely meaningless by the ease with which the Oireachtas could alter the constitution. Furthermore, as the state had only recently seceded from the UK, Irish judges were trained in British jurisprudence. To this tradition, founded on deference to the legislature and parliamentary sovereignty, constitutional review was an alien concept. This meant that despite the adoption of a new, more rigid constitution in 1937, constitutional review did not become a significant feature of Irish jurisprudence until the 1960s. During the entire period of the Free State, only two pieces of legislation were declared by the courts to be unconstitutional.

The Free State had significant problems with public order in early years. It was founded during the Irish Civil War which did not come to an end until May 1923, and thereafter there were continuing problems of public disorder and subversive activities by the IRA. This situation led to an erosion of civil rights in the new state. During the Civil War a law provided the death penalty for the crime of unlawful possession of a firearm, and more than seventy people were executed for the offence. Draconian measures continued to be used after the war's conclusion; these included internment of former rebels and the punishment of flogging for arson and armed robbery, introduced in 1924. In 1931, acting in response to IRA violence, the Oireachtas adopted Amendment No. 17 of the constitution. This added a new draconian set of provisions called Article 2A to the constitution. Article 2A was very large, consisting of five parts and 34 sections. Among other provisions it granted powers of arrest, detention and trial of people before military tribunals not bound by normal rules of evidence, despite the fact that many crimes triable before the tribunals carried a mandatory death sentence. In order to protect itself from being undermined by the courts, Article 2A was drafted to state that it took precedence over all other provisions of the constitution (save Article 1).

The provisions for military tribunals were challenged in 1935 in the case of The State (Ryan) v. Lennon. In this case the majority of the Supreme Court reluctantly held that, because Amendment No. 17 had been duly adopted in accordance with the correct procedure, it was not open to the judges to strike it down. However Chief Justice Kennedy disagreed, arguing, in a dissenting opinion, that the Article 2A violated natural law.