Retroactive Lawmaking by constitutional amendment

mountainyman · 24-03-2009 11:28AM #1

In your opinion is it possible to create laws retroactively by constitutional amendment? Would such an amendment be contrary to natural law?

r14 · 24-03-2009 11:48AM

No such thing as natural law in Ireland. In Re Art 26 and the Abortion Information Bill 1995 the Supreme Court said definitively that when it comes to the law the Constituion is supreme and whatever the people decide by way of referendum is king. Natural Law does not trump the Constitution.

Also there is nothing to prevent retrospective legislation in general. The government cannot retrospectively create criminal offences but there is nothing wrong with retrospective civil legislation (like the nursing home charges - although those violated property rights).

Basically if there was a referendum that amended the Constitution to allow retrospective criminalisation of conduct the ECHR would not be too happy but there would be absolutely nothing arguments based on natural law could do about it.

Edit: Here's a link to the Abortion Information case - http://www.bailii.org/ie/cases/IESC/1995/9.html

partyguinness · 24-03-2009 11:51AM

I believe there are prohibitions in European law against such laws. I dont have a citation to hand.

Dandelion6 · 25-03-2009 07:01AM

r14 wrote: »

Basically if there was a referendum that amended the Constitution to allow retrospective criminalisation of conduct the ECHR would not be too happy

A little more than "not too happy", I think. Retrospective criminal legislation is specifically prohibited under Article 7 of the Convention.

r14 · 25-03-2009 03:54PM

Dandelion6 wrote: »

A little more than "not too happy", I think. Retrospective criminal legislation is specifically prohibited under Article 7 of the Convention.

True but there's nothing that they could actually do to stop us. They can fine us all they want but we don't have to pay. The only real difficulty would be with the EU who could start sanctioning us under Art 6 and 7 EU.

Short answer, if we really want to go down that route with a constitutional amendment no-one can stop us.

partyguinness · 25-03-2009 04:27PM

r14 wrote: »

True but there's nothing that they could actually do to stop us. They can fine us all they want but we don't have to pay. The only real difficulty would be with the EU who could start sanctioning us under Art 6 and 7 EU.

Short answer, if we really want to go down that route with a constitutional amendment no-one can stop us.

1. The ECHR was fully transposed into Irish law in 2003. Therefore a private citizen has rights under this Act.

2. The EU and ECHR (Convention) are completely separate entities. The ECHR is governed by the Council of Europe not the EU so there are no fines that way.

3. We have this minor thing called international obligations and law which Ireland signed up to and ratified.

4. Having a Constitutional Referendum would need to be ratified by the people and I cant see that happening.

r14 · 25-03-2009 04:50PM

partyguinness wrote: »

1. The ECHR was fully transposed into Irish law in 2003. Therefore a private citizen has rights under this Act.

2. The EU and ECHR (Convention) are completely separate entities. The ECHR is governed by the Council of Europe not the EU so there are no fines that way.

3. We have this minor thing called international obligations and law which Ireland signed up to and ratified.

4. Having a Constitutional Referendum would need to be ratified by the people and I cant see that happening.

1. The ECHR Act 2003 is inferior to the constitution and so a constitutional amendment, as the OP suggested, would override it.

2. The EU recognises rights which are separate to the ECHR rights but which give the same protections as those rights. This is why the Charter of Fundamental Rights in the Lisbon Treaty is a big deal.
Also I never said the EU could fine us, I said they could use Art 7 EU to impose sanctions on us such as suspending our voting rights in the Council. You may remember this happened to Austria a few years ago.

3. International obligations aren't worth the paper they're written on. For years Ireland ignored the Norris decision and retained the criminal prohibition against homosexuality in breach of our international obligations under the ECHR. Similar is happening now with he Lidia Foy case and the rights of transexuals.

4. Agreed that it wouldn't actually happen. But the OP asked a hypothetical question and the answer is that yes we could amend the constitution to allow retrospective criminalisation.

partyguinness · 25-03-2009 05:08PM

r14 wrote: »

1. The ECHR Act 2003 is inferior to the constitution and so a constitutional amendment, as the OP suggested, would override it.

2. The EU recognises rights which are separate to the ECHR rights but which give the same protections as those rights. This is why the Charter of Fundamental Rights in the Lisbon Treaty is a big deal.
Also I never said the EU could fine us, I said they could use Art 7 EU to impose sanctions on us such as suspending our voting rights in the Council. You may remember this happened to Austria a few years ago.

3. International obligations aren't worth the paper they're written on. For years Ireland ignored the Norris decision and retained the criminal prohibition against homosexuality in breach of our international obligations under the ECHR. Similar is happening now with he Lidia Foy case and the rights of transexuals.

4. Agreed that it wouldn't actually happen. But the OP asked a hypothetical question and the answer is that yes we could amend the constitution to allow retrospective criminalisation.

1. I know that. My point was simply that the ECHR was transposed into Irish law and can be relied on in Irish Courts. But you see the EU has also signed up to the ECHR and EU law overrides irish law. But then again it depend on what area we are talking about. In effect, a Constitutional amendment would invalidate that legislation which in turn would have knock on effects back to Europe.

2. Sorry it wasnt clear who you meant by "they can fine us" so I assumed it was the EU you were referring to as there is not provision to fine under the ECHER.

3. I wldnt say Ireland ignored the Norris judgment really. The ECHR judgment came in 1988 and homosexuality was decriminilised in 1990 and in terms of how the legislative process works that was record timing.

4. Granted we can do anything in theory but even if it is a hypothetical question we should use the facts to answer it.:)

partyguinness · 25-03-2009 05:13PM

mountainyman wrote: »

In your opinion is it possible to create laws retroactively by constitutional amendment? Would such an amendment be contrary to natural law?

Its about 10 yrs since i studied natural law...its not a law as such its more of a theory used to justify or expalin why certain behaviour is unacceptable

E.g- If there was no prohibtion against murder, would we all start killing people? No. Beacuse natural law dictates that killing someone is not acceptable..not natural if you will. Its like a primative understanding that we have.

Sparks · 13-05-2009 07:56PM

On this general theme, can folks see anything glaringly out-of-whack with the following paragraphs (taken from a new Bill published this morning)?

As and from the date of commencement of this section, no application for a firearm certificate in respect of a short firearm shall be considered by an issuing person other than for—
(a) a device capable of discharging blank ammunition and to be used as a starting gun or blank firing gun;
(b) a short firearm of a type specified at paragraph 4(2)(e) of the Firearms (Restricted Firearms and Ammunition) Order 2008 (S.I. No. 21 of 2008) and designed for use as so specified;
(c) a short firearm for which the applicant for the firearm certificate held a firearm certificate on or before 19 November 2008.

Any firearm certificate in respect of a short firearm, other than one to which paragraphs (a) to (c) of subsection (1) relates, granted between 19 November 2008 and the date of commencement of this section and in force shall stand revoked.

McCrack · 13-05-2009 08:44PM

Yes the new Criminal Justice Bill. I had a look over it earlier. It is only at introductory stage so a lot of it is hot water at the minute. The bit you have quoted is an attempt to limit the number of legally held handguns.

Basically it is proposing to cut off the issuing of new licenses and the number will be capped at November 2008 levels (I don't know why that date was picked).

I guess the practical reasoning to back-date it would be to control any surge in applications for new licenses between the publication of the Bill (which gives people a heads-up) and eventual enactment.

I don't see any legal difficulties with this provision insofar as it could be tested.

Sparks · 14-05-2009 03:20PM

McCrack wrote: »

The bit you have quoted is an attempt to limit the number of legally held handguns.

It's not a good attempt so, because it does not limit the number of legally held handguns. What it is, is a bad attempt to ban Glocks because they're Bad and Wrong in the eyes of the media.

Basically it is proposing to cut off the issuing of new licenses and the number will be capped at November 2008 levels (I don't know why that date was picked).

Because that's when the Minister announced (following the shooting of Shane Geoghegan in Limerick) that he was going to Do Something About It. (Excuse the tone here, by the way, but every target shooter in the country is a bit angry about that whole episode - we were in effect blamed for Geoghegan's death because our sport is apparently responsible for the drug gangs smuggling in firearms with narcotics :rolleyes: )

I don't see any legal difficulties with this provision insofar as it could be tested.

I was afraid of that.

Retroactive Lawmaking by constitutional amendment

Comments