Acts & Statutes

jmck87

It is my understanding that acts, statutes, legislation etc. must be consented to. Consent being in way of action, signature or no complaint.

How far wrong am I ?

dats_right

I haven't a clue what you are talking about. The consent of who?

The very, very simplistic answer is that our Constitution provides that the sole and exclusive law making body is the Oireachtas, which consists of both the Dail and Seanad, once proposed legislation i.e. a Bill is passed by the Oireachtas it is sent to the President who signs it into law and it becomes an Act[which is the name given to particular statutes and legislation]. No further consents are required and the Act is legally binding on all citizens, regardless of whether they consent to the particular Act or not.

dermot_sheehan

Statutes, which are acts of the oireachtas must be made and promulgated in the manner provided for in the constitution,

Statutory instruments must be made in accordance with their parent statute and the statutory instruments act 1948

jmck87

Thanks for replies, v interesting.

So seeing as though statutes must be made in accordance with the constitution, what about when they conflict with the constitution?

Examples:

Constitution: You have the right of trial by jury of peers
Criminal Justice Act: Gang members can now be trialed without jury

Constitution: You have the right to privacy
Road Traffic Act: You must provide licence ID to Gardai if requested

Constitution: You have the right to travel freely
Act: Allows use of mandatory breath testing

McCrack

Those are unenumerated (unspecified) rights under Art 40.3 and I'm sure youre aware that pretty much every right specified or not (except right to life) can be limited in some way in the interests of the common good.

There is an article somewhere in the Constitution stating that.

nuac

jmck - do not try those theories out on Gardai on a checkpoint.

Tom Young

jmck87 wrote: »

Thanks for replies, v interesting.

So seeing as though statutes must be made in accordance with the constitution, what about when they conflict with the constitution?

Examples:

Constitution: You have the right of trial by jury of peers
Criminal Justice Act: Gang members can now be trialed without jury

Constitution: You have the right to privacy
Road Traffic Act: You must provide licence ID to Gardai if requested

Constitution: You have the right to travel freely
Act: Allows use of mandatory breath testing

All three examples are limited in nature and conditional, depending on the circumstances. The issue you raise re. Gang members is most likely to be subject to a constitutional challenge at some stage.

The doctrine of proportionality is something which comes into play in many cases.

Jury Trials are not allowed in certain civil actions e.g., Personal Injuries, Privacy, Contract.

Privacy is not a specified right under the constitution.

Tom

dats_right

jmck87 wrote: »

Thanks for replies, v interesting.

So seeing as though statutes must be made in accordance with the constitution, what about when they conflict with the constitution?

That's a fair question and it happens reasonably regularly. The first thing to say that is all legislation enjoys a presumption of constitutionality, which means that if somebody is claiming that a particular statutory provision is unconstitutional it is up to them to bring the appropriate action in the High Court seeking to have the consitutionality or otherwise of the legislation determined. This is due to the fact, save with very limited exception, the High Court is the only court entitled to rule on constitutionality in the first instance, of course after such High Court ruling an appeal is usually available to the Supreme Court for a final ruling.

Regarding most of your examples, Gabhain quite rightly points out that most, but especially the unenumerated, constitutional rights are not absolute and can be restricted in certain circumstances. The incursions on such rights are legally justifiable in the circumstances in those examples. However, in relation to:

jmck87 wrote: »

Examples:

Constitution: You have the right of trial by jury of peers
Criminal Justice Act: Gang members can now be trialed without jury

Trial without jury has been upheld as constitutional by the Supreme Court in certain types of limited cases previously i.e. certain offences involving subversive organisations are routinely tried in the non-jury Special Criminal Court. But that said, I think it quite likely that a constitutional challenge will be made at some point in the future to the statutory provision you are referring to.

But another principle of judicial review (the name given to High Court proceedings to strike down legislation as unconstitutional) is that the person who is seeking to have a statutory provision ruled as unconstitutional must have 'locus standi' to bring the proceedings in the first place, again in simple terms this means that the person is in someway must be directly affected by the legislation. In practice this means that Joe Bloggs couldn't even bring a challenge to that legislation unless he was charged under it. But I think it is a fairly safe bet that as soon as the Gardai/DPP use this non-jury trial for suspected 'gangland' offences statutory provision, that we will very shortly thereafter see a constitutional challenges being brought.

Tom Young

PS: Mary McAleese was Reid Professor of Criminal Law at Trinity College and an eminent lawyer. Her council of state and that review of the legislation, to my mind delivered the correct conclusion in both the Defamation Bill and new Criminal Justice Bill. The Article 26 procedure can have the effect of fracturing legislative intent. I am always surprised how many people forget that the president was a lawyer.

dats_right

Tom Young wrote: »

PS: Mary McAleese was Reid Professor of Criminal Law at Trinity College and an eminent lawyer. Her council of state and that review of the legislation, to my mind delivered the correct conclusion in both the Defamation Bill and new Criminal Justice Bill. The Article 26 procedure can have the effect of fracturing legislative intent. I am always surprised how many people forget that the president was a lawyer.

I concur with m'learned friend. But whatever about 'fracturing legislative intent', which I wouldn't be particularly concerned with as it would always be open for the legislature to revisit the legislation post Supreme Court determination and make any constitutionally permissable amendments. Of more concern in my opinion, is that I feel that such a Presidential referral to the Supreme Court under art.26 involves a decision being made by the Supreme Court on the constitutionality of the legislation in a vacuum, in that the the Supreme Court don't have the benefit of having real life cases or examples of the working of the provisions; and with the best will in the world the learned Judges cannot possibly conceive of every possibility of how the legislation will work in practice. This one might say is an inconvenience but should not be determinative, but when one considers that once legislation referred to the Supreme Court by the President pursuant to art. 26 is upheld it is thereafter 'bullet-proof' in constitutional terms. By this I mean that it is never again possible to challenge the legislation once the green light is given by the Supreme Court. It is therefore very likely that such considerations have and continue to weigh heavily on all Presidents' minds, as historically art 26. referrals have been few and far between, if I'm not mistaken the last such referral was well over ten years ago when the Employment Equality Bill was so referred.

In my humble opinion, if and when a challenge is made to this legislation it is far better that the Courts have real life cases before them to decide upon and assist them in making their decision and the actual workings of the legislation become clearer. And of course, if one challenge fails there always exists the possibility of another challenge on differing grounds or rationale.

Our man in Havana

In my humble opinion, if and when a challenge is made to this legislation it is far better that the Courts have real life cases before them to decide upon and assist them in making their decision. And of course, if one challenge fails there always exists the possibility of another challenge on differing grounds or rationale.

And I would be sure that the President was fully aware of this when making her decision.

dats_right

Bond-007 wrote: »

And I would be sure that the President was fully aware of this when making her decision.

I would certainly imagine so and I suggested as much in my post.

jmck87

Thanks all, you obviously know your stuff!

Was just asking as I remember reading a leaflet "know your rights" of some sort and it dawned on me that, if you take the rights at face value, most of them are infringed upon for everybody.

'Probable cause' gets spouted around a lot in USA, am I right in saying the gardai here too need 'reasonable suspicion' that you may have commited an offence under the RTA? If so, how can they lawfully do 'a routine stop' to check your details?

Our man in Havana

jmck87 wrote: »

Thanks all, you obviously know your stuff!

Was just asking as I remember reading a leaflet "know your rights" of some sort and it dawned on me that, if you take the rights at face value, most of them are infringed upon for everybody.

'Probable cause' gets spouted around a lot in USA, am I right in saying the gardai here too need 'reasonable suspicion' that you may have commited an offence under the RTA? If so, how can they lawfully do 'a routine stop' to check your details?

S109 RTA 1961.

jmck87

Bond-007 wrote: »

S109 RTA 1961.

Thanks!

Interesting though that the wording is "a person". I'm not a person...I have one...my fictional entity created to secure national debt :pac: ....Lets not go there though ey lads?

Carawaystick

jmck87 wrote: »

Constitution: You have the right to privacy
Road Traffic Act: You must provide licence ID to Gardai if requested

If you drive on your own private property, this won't happen...
If you're a passenger in a car this won't happen
If you're a pedestrian this won't happen.
if you're controlling a potentially lethal weapon in a public place, the right to privacy is balanced by the public good of controlling who is allowed drive

jmck87 wrote: »

Constitution: You have the right to travel freely
Act: Allows use of mandatory breath testing

same points as above. the balance of the common good vs the right to privacy here.

Victor

jmck87 wrote: »

It is my understanding that acts ... must be consented to.

Sorry, an act is something done to you. :pac:

Cróga

Legally speaking here isnt must synonymous with may? So then speaking in common english its "you may provide licence ID to Garda if requested" where you can deny the Gardas request. Legally speaking again, licence means permission? because without it a person cant do it right?

Carawaystick wrote: »

If you drive on your own private property, this won't happen...
If you're a passenger in a car this won't happen
If you're a pedestrian this won't happen.
if you're controlling a potentially lethal weapon in a public place, the right to privacy is balanced by the public good of controlling who is allowed drive

Are you speaking in legalese here or common english? I dont understand what the meaning of the words drive, passenger, pedestrian are? What if you're a man travelling in your private conveyance? How can a policy enforcing agent working for a legal entity have any jurisdiction over a man who is only second to God, especially if he/she doesnt consent?

jmck87

Croga wrote: »

Legally speaking here isnt must synonymous with may? So then speaking in common english its "you may provide licence ID to Garda if requested" where you can deny the Gardas request. Legally speaking again, licence means permission? because without it a person cant do it right?



Are you speaking in legalese here or common english? I dont understand what the meaning of the words drive, passenger, pedestrian are? What if you're a man travelling in your private conveyance? How can a policy enforcing agent working for a legal entity have any jurisdiction over a man who is only second to God, especially if he/she doesnt consent?

That's what I was getting at with the OP...

Why cant I have a private car (not vehicle ), drive down the road (that no one owns) without being stopped by another man who claims to have a right to stop me? I dont think god gave him this right??? The state did....but maybe Im not a person of the state or society? Sure I have a person....but me the man is a law unto himself...

The above is all a hypothetical situation of course...not my attempts at annoying the men and women of the gardai.

nuac

Croga

Drop your attitude. Statute law applies to everyone.

If stopped by a Gárda, do not start arguing along those lines

Victor

Croga wrote: »

Legally speaking here isnt must synonymous with may? So then speaking in common english its "you may provide licence ID to Garda if requested" where you can deny the Gardas request. Legally speaking again, licence means permission? because without it a person cant do it right?

I think you'll find the legislation says "shall".

jmck87

nuac wrote: »

Croga

Drop your attitude. Statute law applies to everyone.

If stopped by a Gárda, do not start arguing along those lines

By what reasoning do you give that advice?

Jev/N

jmck87 wrote: »

By what reasoning do you give that advice?

Common sense I'd imagine

Trojanwolf

Victor wrote: »

Sorry, an act is something done to you. :pac:

You should be sorry because if you're going to be like that - an Act is also something done by you is it not?

'act of the law' - The creation, extinction, or transfer of a right by the operation of the law itself, without any consent on the part of the persons concerned.

'Person' - An entity such as a corporation.

Blacks Law Dictionary


Statutes apply to Persons or Corporations. The person is the Remedy you see! It's there to protect you - they cannot LAWFULLY enforce statutes as they remove your Rights!

For all of those who are confused reading any of this and to all the so called law experts i ask - What is the Difference between Lawful and Legal? When you grasp that i think you'll get where jmck is coming from.

Peace and love...

Trojanwolf

nuac wrote: »

Croga

Drop your attitude. Statute law applies to everyone.

If stopped by a Gárda, do not start arguing along those lines

Drop your attitude? THATS your contribution?!? We're all adults here so try to show a little respect - I don't see anything wrong with crog's comment - if there is something im missing please go ahead and clarify?

I agree with you though - don't argue with the gaurds. Why argue? Just smile and be freindly but stand up for your Rights! It's our duty to ensure they exist for future generations!

Read the Gardai Communique nuac - it says quite clearly that they police by consent! If you have nothing productive to contribute or add to the discussion why bother posting?

Trojanwolf

Victor wrote: »

I think you'll find the legislation says "shall".

Good work victor! You got as far as the statute! now what does shall mean?

Lets consult the Legal Dictionary shall we?

1.Has a duty to; more broadly, is required to
2.Should
3.May
(synonymous with Must)
4.Will
5.Is entitled to

Hope that helped.

Trojanwolf

Jev/N wrote: »

Common sense I'd imagine

Imagining things is fun huh? However knowledge is a lot more useful! Do you not beleive you can exert your rights peacefully? If not what sort of a society are you living in?

Trojanwolf

Hey Croga! Thanks for taking the time to elaborate! Much respect!

Croga wrote: »

Legally speaking here isnt must synonymous with may? So then speaking in common english its "you may provide licence ID to Garda if requested" where you can deny the Gardas request. Legally speaking again, licence means permission? because without it a person cant do it right?



Are you speaking in legalese here or common english? I dont understand what the meaning of the words drive, passenger, pedestrian are? What if you're a man travelling in your private conveyance? How can a policy enforcing agent working for a legal entity have any jurisdiction over a man who is only second to God, especially if he/she doesnt consent?

Tom Young

You consulting a US Legal Dictionary:

Irish Law:

Person. “Person” shall be read as importing a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons, as well as an individual, and the subsequent use of any pronoun in place of a further use of “person” shall be read accordingly

A word or expression used in a statutory instrument has the same meaning in the statutory instrument as it has in the enactment under which the instrument is made.

Statutory Interpretation: http://www.irishstatutebook.ie:80/2005/en/act/pub/0023/print.html

There are also modes of interpretation which I am not going to go into here but an example might be: Historical.

What the OP above is confused over is rights versus laws, simple as that.

I don't think you're correct with this analogy:

Statutes apply to Persons or Corporations. The person is the Remedy you see! It's there to protect you - they cannot LAWFULLY enforce statutes as they remove your Rights!

Explain arrest and detention then? If and unlawful act is perpetrated and an arrest made under statute or common law this theory fails, in fact it falls flatly. Laws are there to protect, but also to be complied with and the are fully applicable to those to whom they specifically apply or generally to the populous.

**They (the state) can and do lawfully enforce statutes as they remove your rights. Arrest being the simplest of examples (Liberty), a driving ban (Freedom of Movement) maybe another, contempt of court (Freedom of Expression). **

For all of those who are confused reading any of this and to all the so called law experts i ask - What is the Difference between Lawful and Legal?

In the context of this thread: Lawful would be an act or mode of operation within the ambit of the known statutory law, common law and constitution of Ireland. Legal can be used in a number of ways, but it may be described as the collective noun for all matters pertaining to the law.

Trojan - Be careful please.

Dublin_Gunner

I think Croga is completely missing the point of statute / legislation.

They are there to protect your rights, not impair them.

When such a statute or piece of legislation is thought to be fundamentally flawed, or unconstitutional, there is generally a challenge made to have the particular piece of legislation removed / amended - usually after said piece of legislation has been used to support a particular case, and the defence challenges the legality of the legislation.

The laws in place also assume that the people who are to adhere to them have some sense of intelligence, and idiocy or ignorance would not be deemed reasonable for non-compliance of said law.

You live in our state, you abide by our laws, same as any other country.

Cróga

Dublin_Gunner wrote: »

I think Croga is completely missing the point of statute / legislation.

They are there to protect your rights, not impair them.

So what about someone who is peacefully smoking a joint getting swat teamed by the policy enforcers who enforce these statutes? not exactly protecting peoples god given rights is it? Can a corporation, a legal fiction (something thats not even real), have power over something that is real such as a flesh and blood man with invincible and unalienable rights or can it only impose its statutes over other corporations aka persons?

You live in our state, you abide by our laws, same as any other country.

I live on the Land known as Ireland, how can i, the man, live in your state when your state only exist as words on paper? And if anything, the state you claim is on our land and would only exist through the consent of the people on this land. WHo says i have to abide by its statutes? Are you advocating the force of a corporation ( a fiction) on a man(a truth)?
Do you know the difference between lawful and legal?

Cróga

nuac wrote: »

Croga

Drop your attitude. Statute law applies to everyone.

If stopped by a Gárda, do not start arguing along those lines

Are you speaking in common english here? If not whats your definition of everyone? If you are i will accept that if you can provide me proof of claim?

If stopped by the Garda i wouldnt see any reason to argue with them, i'd treat them with respect. I'd make them aware of their oath and if they have none i'd give them one so that I can allow them to act in the capacity of a peace officer and allow them to uphold the law of the land (and not allow them to enforce the "law" (statutes) of government, to act in the capacity of a policy enforcer (aka revenue collector) for the corporation known as Ireland).

Dublin_Gunner

Croga wrote: »

So what about someone who is peacefully smoking a joint getting swat teamed by the policy enforcers who enforce these statutes? not exactly protecting peoples god given rights is it? Can a corporation, a legal fiction (something thats not even real), have power over something that is real such as a flesh and blood man with invincible and unalienable rights or can it only impose its statutes over other corporations aka persons?

Whether you agree with it or not, they're the laws. The laws are imposed and enforced by the Government who have been legally, and democratically elected by the people of the state to govern our land.

Your state is on our land. Who says i have to abide by its statutes? Are you advocating the force of a corporation ( a fiction) on a man(a truth)?
Do you know the difference between lawful and legal?

Once again, read my reply above.

If you don't like / agree with / wish to abide by our laws, go somewhere who's laws are more appealing to you.

Or don't get caught doing anything unlawful / illegal.

Seriously, is your argument just to state that you would prefer if we had an anarchic state? Some type of utopian society where you can do whatever you like?

You do understand that for society to exist and function, laws and rules must be created and adhered to.

Some people, like yourself, are not going to like them all. But that's just really tough. The same Garda that arrests you for possession, could be the very same one that saves your a$$ when being mugged / attacked.

jmck87

Dublin_Gunner wrote: »

Whether you agree with it or not, they're the laws. The laws are imposed and enforced by the Government who have been legally, and democratically elected by the people of the state to govern our land.

Once again, read my reply above.

If you don't like / agree with / wish to abide by our laws, go somewhere who's laws are more appealing to you.

Or don't get caught doing anything unlawful / illegal.

Seriously, is your argument just to state that you would prefer if we had an anarchic state? Some type of utopian society where you can do whatever you like?

You do understand that for society to exist and function, laws and rules must be created and adhered to.

Some people, like yourself, are not going to like them all. But that's just really tough. The same Garda that arrests you for possession, could be the very same one that saves your a$$ when being mugged / attacked.

You make valid points, but I think you still miss croga's main point. What croga is saying (apols if I'm wrong) is that if you wish, you can work away and live as part of a society with rules/acts, but you should not be forced/tricked into taking part. If croga harms nobody...how can you say he HAS to follow the rules of the country???

Cróga

Dublin_Gunner wrote: »

Whether you agree with it or not, they're the laws.

The laws are imposed and enforced by the Government who have been legally, and democratically elected by the people of the state to govern our land.

Once again, read my reply above.

If you don't like / agree with / wish to abide by our laws, go somewhere who's laws are more appealing to you.

Or don't get caught doing anything unlawful / illegal.

Seriously, is your argument just to state that you would prefer if we had an anarchic state? Some type of utopian society where you can do whatever you like?

You do understand that for society to exist and function, laws and rules must be created and adhered to.

Some people, like yourself, are not going to like them all. But that's just really tough. The same Garda that arrests you for possession, could be the very same one that saves your a$$ when being mugged / attacked.

You mean statutes? Governments cant makes laws as laws come from the land and the people on the land. Without the law you cant have government as this is where government comes from. God/divine/energy created man, man created government, and government created persons.

You mean statutes come from the government? Do you know what the Law is? Do you know the difference between lawful and legal? For example its illegal for persons to smoke cannibas in your state right? Is it illegal to kill? NO! killing someone is unlawful. Government, which is a legal fiction with no conscience, cannot make or change law. It might be illegal for persons to smoke cannabis but is it unlawful for men to do it? How can a legal fiction have any power or jurisdiction over a man, especially if he doesnt consent? THey only have jurisdiction over persons because they created persons - do you think you're John Doe on your birth cert when its property of your state... but you still stand up in court when called by this name thus already given up jurisdiction? lol

No i dont have to go anywhere. I love the law, this is my land and law of this land is brehon law. If you dont like it you go and take your legal system back to britain. :P Im not for anarchy as anarchists dont want law. I do, law is already inherent, it comes from the land into you. Im not anti government, im pro government, when they do their job and thats to govern and not rule, but i also have the freedom to reject governance.

Yes! people should be able to do what they want aslong as they dont hurt or damage anyone else? When you say the gardai save my ass when im mugged, yes thats their job - to uphold the law! They're peace officers they took an oath to keep the peace. This is different because they dont need your persons name in this situation as this is between men. They also act in another capacity called policy enforcers and thats to collect revenue for the state by enforcing statutes onto persons. If you're "caught" smoking a joint where is the crime? There is none because there's no substance/no corpus delecti/ no injured party. So they enforce their statutes onto that person so that the courts can get revenue from them (thats if you consent to being that person).

I thought your state was a republic? In a republic if something if being voted on it only applies to those persons who voted on it! In a democracy its mob rule because if 51% vote for it applies to all persons of that state. WHich is it?

Cróga

Dublin_Gunner wrote: »

You do understand that for society to exist and function, laws and rules must be created and adhered to.

Do you know what a society is? Its a group of people from a community united together by mutual consent for a common purpose. Not everyone from the community has to be a member of this society and there can be many societies in a community. Now which society do you claim you're a member of? If you cannot provide the name or ID card to prove you're a member then does it really exist? For example, if you're a member of the Law Society they can produce an ID card to prove it. if i told u i had the best night of my life last night with this chick and you asked me her name and i didnt know, did she really exist?

dermot_sheehan

Two other posters in the past have made comments similar to the above.

They assert that the legal system is not valid, and that a historical way of resolving disputes in Ireland before the English arrived is still valid law.

This argument has been gone through before and I am growing weary of it.

The acceptance of the political institutions of this state, and the constitution and laws that establish them, by the population is one of objective fact that is readily ascertainable.

To argue with this is akin to coming on here and arguing that the sky is not blue, or that water is not wet, and seeking others to prove these readily ascertainable facts.

Though there is a jurisprudential argument that laws by their nature result from a social contract, that is not what this and other posters have argued. They have sought to engage in arguments in relation to a fact that is objectively readily ascertainable, that the irish legal/political system has general popular acceptance.

These arguments become tiresome. Also one of the previous posters with this mindset gave quite incorrect advice regarding debt collections and the validity of contracts.

I'm closing this thread because this has been argued twice before, and if the poster is not ready to accept to objective fact that the political system of this state is generally accepted, then there is no point arguing further. It's akin to arguing whether the sky is blue.