War shall not be declared, and the State shall not participate in the war save with the assent of Dail Eireann. In the case of actual invasion, however, the Government may take whatever steps may be considered necessary for the protection of the State. Dáil Eireann, if not sitting, shall be summoned to meet at the earliest practicable date.
Article 28.3.2 empowers the government to take whatever steps may be necessary for the protection of the State where there is a state of war or armed rebellion.
Article 38.4 permits Military Tribunals to be established. The habeas corpus provisions of the Constitution by Article 40.1.5 are not to apply to actions of the Defence Forces in these circumstances. Actions taken during that time of war or armed rebellion may not be challenged on constitutional grounds under Articles 28.3.3.
The State may not involve itself in war without the consent of the Dail.
The Constitution as passed by the people referred to a time of war or armed rebellion. An amendment to the Constitution during the transitional period (1938-41) provides that a time of war includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses shall have resolved that arising out that conflict, a national emergency exists, affecting the vital interest of the State.
A time of war or armed rebellion includes a time after termination of any war, or any such armed conflict as may elapse until each House shall have resolved that the national emergency occasioned by the war, armed conflict or armed rebellion has ceased.
The Government declared a state of emergency on 2 September 1939 following the German invasion of Poland. That state of emergency technically continued until 1976 when a renewed state of emergency based on the armed conflict in Northern Ireland was declared, which in turn continued until February 1995.
Laws enacted for the purpose of dealing with the emergency are immunised from a challenge on constitutional grounds.
Nothing in the Constitution may be invoked to invalidate any laws enacted by the Oireachtas which is expressed to be for the purpose of securing public safety and the preservation of the State in time of war or armed rebellion or to nullify any act done or purporting to be done in a time of war or armed rebellion in pursuance of such law.
There are various powers that may be employed by the State in the event of an emergency. The control of the Defence Forces is vested in the Minister for Defence. The State may take control of public broadcasting in the event of a major emergency. It may suspend licences and operate services itself.
There are provisions for declaring an emergency in relation to the supply of goods and services and for fixing prices. Persons may be deported under the immigration legislation if justified having regard to considerations of national security and public policy.
Many European Union rights themselves are afforded exceptions in the interest of public security.
State (Walsh) v Lennon (1942) indicated that fundamental rights may not be invoked in a declared state of emergency. This would appear to include Habeas Corpus.
Military tribunals may be established. Article 38.4.1 provides, that military tribunals may be established to deal with the state of war or armed rebellion. This is not necessarily the same as a time of emergency, in the above sense. It would appear there must be an actual war or attempted rebellion. The provision does not apply to the extended definition of time of war or rebellion, in the amended Constitution.
Challenges to military tribunals established under the Emergency Powers Act 1940 failed. The Emergency Powers (Amendment) (No.2) Act 1940, permitted the Government to establish military tribunals. The Supreme Court in two cases where the military tribunal sentenced persons to death for murder, was unwilling to intervene, in view of the wording of Article 28.3.3.
However, in the Emergency Powers Bill reference, the Supreme Court was prepared to review the powers and procedures as provided under the relevant legislation.
In the State (Walsh) v Lennon, the Supreme Court regarded it as clear that the declaration of emergency under Article 28.3.3 precluded it from reviewing the convictions in question with reference to constitutional standards. In another case, a challenge on the grounds of retroactivity was not accepted.
Under Article 38.4.1 where because of a state of war or armed rebellion, tribunals that may be established do not appear to be subject to habeas corpus.
It was provided under Article 40.4.5 that nothing in the provisions regarding habeas corpus in the Constitution shall be invoked to prohibit control or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion. Martial law tribunals of this nature have not been established.
It is argued that they are not in the nature of judicial tribunals but are military committees. It appears that in the instances of the exercise of such powers that a state of war or armed rebellion must exist to the satisfaction of the court.
Emergency Powers Act 1976
The Emergency Powers Bill 1976 was adopted under the emergency provisions of the Constitution set out below. It was infamously the subject of a reference to the Supreme Court by the President. The criticism of the President led to his resignation. The Act was found to be constitutional. The Act provided for the detention of suspects for up to seven days for the purpose of the investigation of subversive offences. The Act lapsed and has not been renewed.
The reference on the 1976 Emergency Powers Bill, Supreme Court indicated that there should be some basis in fact, for the resolutions. They would however be presumed valid until the contrary was proved.
The Act allows for initial detention of two days, which may be prolonged by an officer of the rank of Chief Superintendent or above for up to a further five days. Persons must be suspected, with reasonable cause to have committed certain scheduled offences, generally offences against the State type and terrorist offences.
The Supreme Court in upholding the Bill did indicate that courts would ensure the constitutional protection to persons arrested, to secure that the power was not abused. A person arrested may question the legality of his detention if there was noncompliance with the requirements of the Act. He may also rely on the Constitution in interpreting the provisions and testing their legality. Statutory provisions of this nature make such inroads into the liberty of the person that it must be strictly construed. Any arrest sought to be justified must be in strict conformity with the legislation.
The Act may not be read as an abnegation of the arrested person’s constitutional rights, in respect of matters such as rights to communicate and the right to legal and medical assistance and the right of access to the courts.
The assistance of other States
In a challenge to assistance to the US war in Iraq approved by Dail resolution, the High Court did not consider the issues of participation, given that the Dail had approved assistance. It was alleged that the State’s assistance amounted to participation in the war and went outside the scope of the Dail resolution. The court held that the matter was primarily one for the Dail, which was better able to judge the position save in exceptional circumstances.