The Constitution was accepted by plebiscite at the end of 1937. It replaced the Free State Constitution, which had been made very heavily amended.
Emergency type provisions for non-judicial trial which had in effect been written into the Free State Constitution following continuing IRA activity. Article 2A of the Free State Constitution inserted in 1931 supported a very draconian Public Safety Act.
That Act provided for a Military Tribunal to deal with unlawful organisations. It had power to accept unsworn testimony and could impose the death sentence. The 1931 Act provided for the prohibition of public meetings, banning of unlawful organisations and special Garda powers.
Apart from the civil emergency caused by the outbreak of War in Euroope in 1939, , there continued to be threats to State security from unlawful organisations, in particular, various strands of the IRA. Article 38 of the 1937 Constitution provided for the establishment of special criminal courts in certain circumstances. In addition, Article 28.3.3 provided for a state of emergency.
Three separate pieces of legislation were quickly passed in 1939, an Emergency Powers Act, a Treason Act and the Offences Against the State Act establishing the Special Criminal Courts Act.
Article 28.3.3 of the Constitution as originally adopted allowed for wide-ranging governmental powers in the event of that the State was party to or directly involved in the war. It did not allow for emergency powers while Ireland is not a participant.
The Constitution provided for power of amendment by the Dail during a transitional period. It could be amended by ordinary legislation up to 25 June 1941. Thereafter a referendum was required. This was used to amend the Constitution to provide for the provision of emergency powers during times of war, without the State necessarily being a belligerent.
The amended Article provided that a time of war included a time when there is taking place an armed conflict, in which the State is not a participant but in respect of which each house of Oireachtas shall have resolved that arising out of such armed conflict, a national emergency exists affecting the vital interest of the State.
The Offences against the State Act, 1939 replaced the Public Safety Act,1931 and the Treasonable Offences Act 1925. It provided for the Special Criminal Court for the trial of subversive type offences. This was specifically provided for, by Article 38 of the Constitution.
The legislation did not provide for internment as such. However, under the Offences against the State Act, a person could be arrested and detained for a period. There were provisions for conviction of a person for membership of an unlawful organisation based on the opinion evidence of a senior Garda.
The accused could be remanded while evidence was being prepared and ultimately remanded to the Special Criminal Court for trial. The original proposal for detention for up to one month, was reduced to seven days and later reduced a 48-hours.
In September 1939, the first amendment to the Constitution was enacted together with the Emergency Powers Act. The Offences against the State Act had been enacted in May 1939. Emergency Powers Orders were immediately made giving extensive powers to the Gardai to arrest and search.
Amongst many charged before the Special Criminal Court were members of the IRA and persons involved in protests, including Members of the Milk Producers Association who were involved in a campaign of withholding milk supplies in protest against costs and government action.
Internment was introduced. A December 1939, habeas corpus challenge to internment by detainees, found that the Minister had acted unconstitutionally, purporting to exercise the judicial power in ordering internment. The Supreme Court ordered all internees were released.
The Government took steps following a raid on an Army Magazine Fort when a quantity of arms was taken by members of the IRA. The Emergency Powers Act was amended to provide for internment.
The Offences against the State (Amendment) Act 1940 reenacted with slight amendments, the earlier legislation. The Minister did not need to be satisfied that a person was engaged in criminal activities calculated to prejudice the preservation of peace, order and security. He must form that opinion, rather than being satisfied.
The President submitted the Bill to the Supreme Court and the Supreme Court accepted that internment was not punitive but preventative justice. It accepted that the Court could not question the validity of the Minister’s opinion on the matters mentioned. Referring to the Preamble, the Court emphasised that the dignity and freedom of individual members of the State could not be attained unless social order is maintained.
An all-party Defence Conference was established in May 1940 to assist with the emergency. It involved key members of the opposition and gave support for internment.
Provision was made for martial law in the event of invasion. This would include death penalty for a wide range of firearms, sabotage, espionage and membership of unlawful organisation It provided for the creation of a Special Military Court with full control over procedures with provision for death sentence without appeal and execution within 24 hours.
Further draft emergency powers
Following the linking of the IRA with German authorities and disclosure of German plans to invade Northern Ireland with the IRA involved, over 400 persons were interned. By the end of the World War, 1130 persons were interned. By that stage, over one thousand had been prosecuted in the Special Criminal Court. convicting over 90% of them.
The Emergency Powers (Amendment) (2) Act 1940 was passed with all party support following the German invasion of France, the Low Countries and the rapid defeat of France. The first Military Court under the 1949 No. 2 legislation provided for a small number scheduled serious offences, providing for death penalty unless the government commuted it to penal servitude or imprisonment. The Military Court was created first in August 1940 and was staffed by members of the Special Criminal Court.
Several members of the IRA were sent to death. Some were executed. Some death sentences dealt with by the Special Criminal Court were ultimately commuted. Two who were convicted of the murder of Gardai were convicted and sentenced to death by a Military Court. The validity of the Military Tribunal and convictions were contested on technical grounds. They were upheld ultimately by the Supreme Court, including their retrospective nature was upheld.
A number of further trials were held before the Military Court under the Emergency Powers (No 41) Order 1940, and five persons were executed.
The Emergency Powers Order provided for acceptance for retroactive action, to allow retracted evidence as admissible. The High Court and Supreme Court rejected challenges to the legality of the provision. The constitutional foundations were upheld. The Supreme Court accepted that emergency legislation of a temporary character passed for securing public safety and preservation of State during an emergency was consistent with the Constitution. It accepted that determining what provisions were necessary lay with the government, with protection that the Oireachtas could annul orders laid before it.