Unconstitutional legislation

MagicSean

Following on from the recent case involving the Immigration Act in which one section was declared unconstitutional I was wondering what the actual effects are of this. Can the government put forward a quick amendment to the section to make it constitutionally compliant or are they required to introduce brand new legislation? Also, how will it affect people already convicted under that section?

Tom Young

This happened in the cases of A v Governor of Arbor Hill Prison and CC v Ireland delivered on the 23rd May 2006. Both cases were linked and involved statutory provisions that were deemed unconstitutional. It took some time/weeks for new legislation to be enacted. I think the impugned legislation was the Section 1(1) of the 1935 Criminal Law Act.


“… The fact that a provision was held to be no longer in force since 1937 does not automatically carry the corollary that what has been done under and in pursuance of that provision after the Constitution came into force will necessarily be condemned for lack of validity”, Griffin J. in Murphy –v- Attorney General [1982] I.R. 241.

“… It does not necessarily follow that Court Orders lack binding force because they were made in proceedings based on an unconstitutional statute.” Henchy J. in The State (Byrne) –v- Frawley [1978] I.R. 326 at p. 349.

I think I won't be doing much more by way of homework here. The A decision is worth analysing and the above quotes are taken from the Judgment of Murray CJ in the Super Court.

Conclusion
In the light of the considerations outlined above, the judgments and dicta of this Court to which I have referred, I am satisfied that the Constitution permits, if not requires, a distinction to be made between a declaration of invalidity of an Act and the retrospective effects of such a declaration on previous and finally decided cases.

There are transcendent constitutional reasons why a declaration of constitutional invalidity as regards a statute should not in principle have retrospective effect so as to necessarily render void cases previously and finally decided and determined by the courts, which reasons include the interests of the common good in an ordered society, legal certainty and the need to avoid the incoherence and injustice which would be brought to the system of justice envisaged by the Constitution if the approach argued for were adopted.
I am reinforced in that view by the fact that such a principled approach is consonant with the general principles of constitutional adjudication and interpretation in other legal systems generally but particularly in those where a judicial declaration of invalidity of a law also applies ab initio.

In the context of the Act you mention, there was potential for Habeas Corpus applications at the weekend as a result of this legislation being found unconstitutional.

Tom

dermot_sheehan

As Tom indicated,

A v. Governor of Mountjoy states that the normal common law rules apply to declarations of unconstitutionality.

That is that a court order normally applies only interpartes, between the party that takes the claim and the state in this case. So it is determined in relation to the dispute at issue between the two parties that the legislation is unconstitutional.

Also due to the rules of stare decisis, such a declaration is binding in future cases involving lower courts, so if a case is taken in a lower court in future, the decision that the legislation was unconstitutional is binding on the lower court.

The decision however does not effect previous acts or decisions that were taken on foot of legislation that was presumed to be constitutional at the time the act or decision was taken. So for example a criminal conviction by a competent court in which all the appeals process have been exhausted is still good and a person is still liable to imprisonment pursuant to a detention warrant issued by such a court, even if in a subsequent case the legislation was found to be constitutional.

MagicSean

Thanks for the replies. I seem to recall there was a much bigger deal when the underage sex law was deemed unconstitutional a while back. There was talk of having to release a load of paedophiles. I presume that this was just journalistic tripe then?

k_mac

k_mac wrote: »

Thanks for the replies. I seem to recall there was a much bigger deal when the underage sex law was deemed unconstitutional a while back. There was talk of having to release a load of paedophiles. I presume that this was just journalistic tripe then?

murrayp4

k_mac wrote: »

There was talk of having to release a load of paedophiles. I presume that this was just journalistic tripe then?

I think that nightmare was sidestepped when the supreme court declared that a convicted person could not rely on the the declaration of unconstitutionality if it was not raised by counsel during the original trial .
Correct me if I'm wrong.

dermot_sheehan

in relation to your question

I imagine the Immigration (Amendment) Act 2011 will be quickly passed to amend the impugned section. The defects that Kearns P. found could be remedied by providing for administrative detention for any non national found without ID until their removal under s. 5 of the 1999 immigration act rather then conviction of a criminal offence under s. 12 of the 2004 act.

s. 12 was harsh as it allows someone to be detained potentially for ever. A non national released from a 12 month sentence under the act would still commit an offence and be liable to immediate rearrest and to be detained for up to 12 months again.

acme4242

dermot_sheehan wrote: »

in relation to your question

I imagine the Immigration (Amendment) Act 2011 will be quickly passed to amend the impugned section. The defects that Kearns P. found could be remedied by providing for administrative detention for any non national found without ID until their removal under s. 5 of the 1999 immigration act rather then conviction of a criminal offence under s. 12 of the 2004 act.

s. 12 was harsh as it allows someone to be detained potentially for ever. A non national released from a 12 month sentence under the act would still commit an offence and be liable to immediate rearrest and to be detained for up to 12 months again.

It was an Irish Citizen who was arrested on suspicion
of having committed an offence under Section 12 of the Immigration
Act, something it is impossible for an Irish citizen to do.
He was arrested because he looked foreign.

The Garda justified the arrest stating that he had formed a reasonable suspicion
at the time that the suspect was a non-national not carrying his papers.

I'd hope unlawful 'administrative detention' of an Irish Citizen is also unconstitutional.
But I suppose we'll have to wait for another high court case to know.

Its the same policy that caused a hullabaloo in Arizona
http://www.independent.ie/world-news/americas/us-outrage-over-nazi-law-for-migrants-in-arizona-2156981.html

MagicSean

acme4242 wrote: »

It was an Irish Citizen who was arrested on suspicion
of having committed an offence under Section 12 of the Immigration
Act, something it is impossible for an Irish citizen to do.
He was arrested because he looked foreign.

The Garda justified the arrest stating that he had formed a reasonable suspicion
at the time that the suspect was a non-national not carrying his papers.

I'd hope unlawful 'administrative detention' of an Irish Citizen is also unconstitutional.
But I suppose we'll have to wait for another high court case to know.

Its the same policy that caused a hullabaloo in Arizona
http://www.independent.ie/world-news/americas/us-outrage-over-nazi-law-for-migrants-in-arizona-2156981.html

The case in question did not involve an Irish citizen. It involved a Nigerian landing at the airport afaik.

acme4242

Its a violation of EU law as well
Passed into law by M McDowell no less.

2004/38/EC

Article 26 - Checks

Member States may carry out checks on compliance with any
requirement deriving from their national legislation for non-
nationals always to carry their registration certificate or resi-
dence card, provided that the same requirement applies to their
own nationals as regards their identity card. In the event of
failure to comply with this requirement, Member States may
impose the same sanctions as those imposed on their own
nationals for failure to carry their identity card.

acme4242

k_mac wrote: »

The case in question did not involve an Irish citizen. It involved a Nigerian landing at the airport afaik.

really ? any court report link for that, I'm going on what I read in the Irish Times

http://www.irishtimes.com/newspaper/ireland/2011/0326/1224293137954.html

Detention of an Irish citizen on “immigration grounds”

The man, who was born in China, was pulled over by gardaí in relation to a road traffic matter and asked to show his passport. Despite showing two other forms of identification and informing the officer he was an Irish citizen, he was taken to Kevin Street Garda Station, searched and placed in a cell until his wife came to the station with his passport. He was then released without charge.

The An Garda Síochána Press Office confirmed to RTE’s Liveline programme that the man was arrested on suspicion of having committed an offence under Section 12 of the Immigration Act, something it is impossible for an Irish citizen to do.

MagicSean

acme4242 wrote: »

Its a violation of EU law as well
Passed into law by M McDowell no less.

2004/38/EC

Article 26 - Checks

Member States may carry out checks on compliance with any
requirement deriving from their national legislation for non-
nationals always to carry their registration certificate or resi-
dence card, provided that the same requirement applies to their
own nationals as regards their identity card. In the event of
failure to comply with this requirement, Member States may
impose the same sanctions as those imposed on their own
nationals for failure to carry their identity card.

The legislation did not require EU nationals to carry a national ID card. It allowed for them to produce any form of ID.

acme4242 wrote: »

really ? any court report link for that, I'm going on what I read in the Irish Times

http://www.irishtimes.com/newspaper/ireland/2011/0326/1224293137954.html

That case wasn't the one in which the legislation was struck down. It was this one

http://www.irishtimes.com/newspaper/breaking/2011/0325/breaking31.html

acme4242

cheers, thanks for the Irish Times link

about the EU Directive, the important thing is ID checks are allowed

provided that the same requirement applies to their
own nationals as regards their identity card

As Irish Citizens don't need to carry passports within Ireland,
its not allowed to require EU citizens to carry them.

Am I reading it wrong ?

dermot_sheehan

You are right,

and I don't think the mandatory ID requirements of the immigration act applied to EU citizens.
s. 2(2) Immigration act 2004

Nothing in this Act shall derogate from—

(a) any of the obligations of the State under the treaties governing the European Communities within the meaning of the European Communities Acts 1972 to 2003,

(b) any act adopted by an institution of those Communities,

(c) section 9(1) of the Refugee Act 1996 ,

(d) the European Communities (Aliens) Regulations 1977 ( S.I. No. 393 of 1977 ), or

(e) the European Communities (Right of Residence for NonEconomically Active Persons) Regulations 1997 ( S.I. No. 57 of 1997 ).

Regarding the separate case of the irish citizen of chinese extraction who was detained under the immigration act for not having ID with him, he would have to show that the gardai did not have "reasonable suspicion" to arrest him. This is because s. 13(2) of the immigration act 2004 provides:

(2) A member of the Garda Síochána may arrest without warrant a person whom he or she reasonably suspects to have committed an offence under this Act (other than section 10 ) or section 2(1) of the Employment Permits Act 2003 .

Note that it says the gardai may with reasonable suspicion arrest a "person" suspected of committing an offence, rather then "non national". For the power of arrest to be available it is irrelevant as to whether the person was a citizen or nor, rather that the garda had a reasonable suspicion that they were not and therefore committing an offence under the act.

If the person brings a civil suit, it would be interesting what the gardai use to justify their reasonable suspicion, and whether a person's ethnicity can be used to ground such a "reasonable suspicion" (something that is expressly not allowed in the United States).

MagicSean

The GNIB identification card is not available to EU nationals so the requirement to carry it did not apply to them but the requirement to produce some ID on demand did.