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Could the Irish Military suspend the constitution? (Egypt)

  • 03-07-2013 09:29PM
    #1
    Dubwat
    Registered Users, Registered Users 2 Posts: 429 ✭✭


    I'm not a lawyer but I'm watching what's happening in Egypt on TV. The Egyptian military seem to have suspended their constitution and are moving to impose their own leaders/Government.

    I guess I have three questions:
    1. Most countries are supposed to be governed by the rule of law but, surely, 'suspending' the constitution is a polite way of ignoring the law? Is there a legal way of suspending our (or any) constitution?

    2. Is there any mechanism for the Irish Military to suspend the Irish constitution?

    3. I am absolutely NOT suggesting anything but I believe a new Chief of Staff got appointed today. What if he went mad and started getting ideas... (again I'm not implying anything - just curious).


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  • #2
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Dubwat wrote: »
    I'm not a lawyer but I'm watching what's happening in Egypt on TV. The Egyptian military seem to have suspended their constitution and are moving to impose their own leaders/Government.

    I guess I have three questions:
    1. Most countries are supposed to be governed by the rule of law but, surely, 'suspending' the constitution is a polite way of ignoring the law? Is there a legal way of suspending our (or any) constitution?

    2. Is there any mechanism for the Irish Military to suspend the Irish constitution?

    3. I am absolutely NOT suggesting anything but I believe a new Chief of Staff got appointed today. What if he went mad and started getting ideas... (again I'm not implying anything - just curious).

    The constitution and the rule if law only have power as long as the people can protect the constitution. If I seize power and say this is the new law and these are the new judges and this is the way as long as I am powerful enough then that's it.

    In my belief the single biggest attack on our rights is underway, the giving if the Dail sole power to legislate the giving the Dail sole power to remove judges the giving to the Dail the power to make findings of guilt against citizens without resource to courts and when I say Dail I really mean 3 people those people who control the Government which in turn controls the Dail. BTW I'm not in to tin foil hat stuff and I don't for one moment believe that any person is doing this for gain now but who is to say what will happen in 20 or 50 years when some nut job gets into power and there are no safe guards.


  • #3
    Manach
    Moderators, Society & Culture Moderators Posts: 9,816 Mod ✭✭✭✭Manach


    Offhand there used to be clauses within the original constitution to allow the State to go to state very close to martial law. Then it is just a short step to the actual thing. However, since the Curragh incident Irish Officers have been completely apolitical in this regard so the chances of this happening are very remote.


  • #4
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    Dubwat wrote: »
    I'm not a lawyer but I'm watching what's happening in Egypt on TV. The Egyptian military seem to have suspended their constitution and are moving to impose their own leaders/Government.

    I guess I have three questions:
    1. Most countries are supposed to be governed by the rule of law but, surely, 'suspending' the constitution is a polite way of ignoring the law? Is there a legal way of suspending our (or any) constitution?

    2. Is there any mechanism for the Irish Military to suspend the Irish constitution?

    3. I am absolutely NOT suggesting anything but I believe a new Chief of Staff got appointed today. What if he went mad and started getting ideas... (again I'm not implying anything - just curious).

    Bit rusty on Constitutional, but I'll give it a shot.

    1. Under Article 28.3 of the Constitution, in times of war or armed rebellion, the Oireachtas may declare a state of emergency which will limit how the Constitution will operate. During such state of emergency, nothing in the Constitution can invalidate any law which is passed for public safety or preservation of the State (apart from A.15.5.2 - prohibition of laws imposing the death penalty).

    2. I suppose that during a state of emergency as outlined above, the Oireachtas could pass an Act imposing martial law, passing powers to the Defence Forces. I can't see the wisdom in that measure though.

    There is no legal or Constitutional mechanism for the Defence Forces to suspend the Constitution, as matters stand. However, legal niceties may not be sufficient deterrent to people who are determined enough to stage a coup d'état.

    3. This question might be better answered in the military forum, but I suspect that a rogue Chief of Staff would have a short lived term of office. I don't know a lot about military procedure, but I assume that if he started subversive activity, his immediate subordinates would have him quickly arrested and detained pending appearance before a court-martial.


  • #5
    Dubwat
    Registered Users, Registered Users 2 Posts: 429 ✭✭Dubwat


    Edit: @ infosys

    What's the Egyptian word for 'comma'?

    If I'm reading you correctly, you're saying there's 3 elected TD's in control. We can vote them out in the next election. That's democracy, I guess.

    But what if the Military just said we're in charge now? Can they do that?


  • #6
    Sulla Felix
    Closed Accounts Posts: 2,442 ✭✭✭Sulla Felix


    Manach wrote: »
    Offhand there used to be clauses within the original constitution to allow the State to go to state very close to martial law. Then it is just a short step to the actual thing. However, since the Curragh incident Irish Officers have been completely apolitical in this regard so the chances of this happening are very remote.
    never heard of anything about this, any directions for further reading?


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  • #7
    LowKeyReturn
    Closed Accounts Posts: 934 ✭✭✭LowKeyReturn


    Well if they did here what they did in Egypt Susan Denham would be running things and I'd feel a lot happier to be honest.


  • #8
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Dubwat wrote: »
    Edit: @ infosys

    What's the Egyptian word for 'comma'?

    If I'm reading you correctly, you're saying there's 3 elected TD's in control. We can vote them out in the next election. That's democracy, I guess.

    But what if the Military just said we're in charge now? Can they do that?

    I'm on iPhone sorry for punctuation.,...

    The point is that the government (the cabinet) can be ruled by one person according to political gossip it is run by 3 members. The changes proposed to the constitution could allow a small group of people to controll the Dail. Yes we can vote them out but we are supposing they have not passed a law empowering all sitting TD's for life.

    Yes of course the military can say we are in charge it's called a coup, it happened in Greece not so long ago I assume they just took the rule of law or constitution and either suspended it or ignored it. As I said the constitution or rule of law is only as powerful as its people.

    "In a further effort to consolidate its power, the regime, after a perfunctory attempt at public consultation, organised a referendum in September 1968 on a new constitution to replace that of 1952. Given the regime's control over the media and the fact that martial law was still in force it is not surprising that there was a 92 per cent vote in favour (4,638,543 for, 391,923 against). The constitution was a highly authoritarian document, which sought to give the military a permanent voice in the government of the country."

    From http://www.cyprus-conflict.net/coup_in_athens.html


  • #9
    LowKeyReturn
    Closed Accounts Posts: 934 ✭✭✭LowKeyReturn


    Sulla Felix wrote: »
    never heard of anything about this, any directions for further reading?

    http://www.irishstatutebook.ie/1922/en/act/pub/0001/sched1.html


  • #10
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    Sulla Felix wrote: »
    never heard of anything about this, any directions for further reading?

    http://www.irishstatutebook.ie/1922/en/act/pub/0001/sched1.html


  • #11
    28064212
    Registered Users, Registered Users 2 Posts: 11,058 ✭✭✭✭28064212


    infosys wrote: »
    Yes we can vote them out but we are supposing they have not passed a law empowering all sitting TD's for life.
    They can't pass such a law, it would be against the constitution.

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  • #12
    Bluegrass1
    Banned (with Prison Access) Posts: 97 ✭✭Bluegrass1


    Manach wrote: »
    Offhand there used to be clauses within the original constitution to allow the State to go to state very close to martial law. Then it is just a short step to the actual thing. However, since the Curragh incident Irish Officers have been completely apolitical in this regard so the chances of this happening are very remote.

    The Curragh incident involved British officers. The nearest thing to a coup was the planned Blueshirts march in Dublin in 1933 which was banned.
    Recent changes in the defence forces have increased the risk of a coup (admittedly from a low base). All senior officers of the Defence forces are based South of a line between Dublin and Cork. There are now only two brigades so command of most troops is in the hands of only two officers. It would be a simple matter to surround leinster house and the TV stations and take the Government ministers and members of the Oireachtas prisoner and announce a coup. There would be nobody in a position to do anything much about it.


  • #13
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    28064212 wrote: »
    They can't pass such a law, it would be against the constitution.

    BTW we are talking about a coup so the constitution we assume will be ignored. Again you assuming that persons who want to take over power won't get around the constitution. See how the Greek military validly enacted a new constitution in 1968. By removing the second house, by allowing trial by a one chamber house by removing judges then power can be taken from the people.


  • #14
    28064212
    Registered Users, Registered Users 2 Posts: 11,058 ✭✭✭✭28064212


    infosys wrote: »
    Again you assuming that persons who want to take over power won't get around the constitution. See how the Greek military validly enacted a new constitution in 1968. By removing the second house, by allowing trial by a one chamber house by removing judges then power can be taken from the people.
    Obviously in the case of a military coup, the constitution is irrelevant. But a legitimate government are not able to and never will be able to pass a law making the current TDs life-long positions. At least not without a majority of the people voting for such a change to the constitution

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  • #15
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    28064212 wrote: »
    Obviously in the case of a military coup, the constitution is irrelevant. But a legitimate government are not able to and never will be able to pass a law making the current TDs life-long positions. At least not without a majority of the people voting for such a change to the constitution

    My point is that the slow removal of the constitutional safe guards could lead to that. The referendum on judges pay (compliment judiciary the third arm of government) the removal of the Seanad so allowing one house or in reality the cabinet to make decisions, allowing the Dail to act as a court of inquiry with out any recourse to the courts. Over the past number of years the removal of automatic appeal to the SC in many areas of law.

    Only last year the Government was caught using tax money to promote an outcome in a referendum. I'm not saying it will happen but the constitution has been weakened over the past numer of years.


  • #16
    amen
    Registered Users, Registered Users 2 Posts: 2,781 ✭✭✭amen


    but I suspect that a rogue Chief of Staff would have a short lived term of office. I don't know a lot about military procedure, but I assume that if he started subversive activity, his immediate subordinates would have him quickly arrested and detained pending appearance before a court-martial.

    Planned exercise to gauge defence forces reaction to an invasion or terrorist attack. Troops to Guard Key installations (Dail, Airports, Media etc).

    Suddenly Military in control!

    If you have a party that was in control of both houses and there was a war somewhere in the world then could the party not use 28.3.3 to basically declare an emergency and abolish the constitution ?


  • #17
    Manach
    Moderators, Society & Culture Moderators Posts: 9,816 Mod ✭✭✭✭Manach


    Sulla Felix wrote: »
    never heard of anything about this, any directions for further reading?
    There was a mention of this in Forde's constitutional law, where he quotes various powers the state might invoke - including Art. 28.3.3 : to do with securing Public safety.
    "° Nothing in this Constitution other than Article
    15.5.2° shall be invoked to invalidate any law
    enacted by the Oireachtas which is expressed to be
    for the purpose of securing the 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 time of war or armed
    rebellion in pursuance of any such law"
    Again I think there was other stricter provisions in the original 1937, but they were effectively sunset.

    As for the Curragh incident- this was the one I meant : http://en.wikipedia.org/wiki/Army_Mutiny


  • #18
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    amen wrote: »
    Planned exercise to gauge defence forces reaction to an invasion or terrorist attack. Troops to Guard Key installations (Dail, Airports, Media etc).

    Suddenly Military in control!

    If you have a party that was in control of both houses and there was a war somewhere in the world then could the party not use 28.3.3 to basically declare an emergency and abolish the constitution ?

    That's why WWII was called the emergency here. Under the current constitution we have had special non jury court original in response to the troubles not in response to organised crime, not a pip out of the people and same has been held to be constitutional.


  • #19
    Cedrus
    Registered Users, Registered Users 2 Posts: 1,429 ✭✭✭Cedrus


    Manach wrote: »
    However, since the Curragh incident Irish Officers have been completely apolitical in this regard so the chances of this happening are very remote.
    Bluegrass1 wrote: »
    The Curragh incident involved British officers. The nearest thing to a coup was the planned Blueshirts march in Dublin in 1933 which was banned.
    .

    I think the first reference here should read Army Mutiny of 1924.

    Realistically, most countries which have undergone Coups have had much larger standing armies per capita, the Irish Military would have to be seizing the radio stations to launch a recruitment drive rather than to control the news.


  • #20
    28064212
    Registered Users, Registered Users 2 Posts: 11,058 ✭✭✭✭28064212


    infosys wrote: »
    allowing the Dail to act as a court of inquiry with out any recourse to the courts.
    You realise this didn't actually pass? Neither has the Senate referendum yet. And there are many reasons for the Senate to be removed (I'm not necessarily saying it's the right thing, only that there are other reasons than future dictatorship)

    And lastly, you can not jump from relatively minor tweaks to the constitution, to "TDs for life"

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  • #21
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    Cedrus wrote: »
    I think the first reference here should read Army Mutiny of 1924.

    Realistically, most countries which have undergone Coups have had much larger standing armies per capita, the IDF would have to be seizing the radio stations to launch a recruitment drive rather than to control the news.

    You mean the PDF. The IDF are the Israelis.


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  • #22
    Bluegrass1
    Banned (with Prison Access) Posts: 97 ✭✭Bluegrass1


    Manach wrote: »
    There was a mention of this in Forde's constitutional law, where he quotes various powers the state might invoke - including Art. 28.3.3 : to do with securing Public safety.
    "° Nothing in this Constitution other than Article
    15.5.2° shall be invoked to invalidate any law
    enacted by the Oireachtas which is expressed to be
    for the purpose of securing the 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 time of war or armed
    rebellion in pursuance of any such law"
    Again I think there was other stricter provisions in the original 1937, but they were effectively sunset.

    As for the Curragh incident- this was the one I meant : http://en.wikipedia.org/wiki/Army_Mutiny

    That had nothing to do with the Curragh.

    The Curragh incident was 10 years before that.

    http://en.wikipedia.org/wiki/Curragh_mutiny.


  • #23
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    28064212 wrote: »
    You realise this didn't actually pass? Neither has the Senate referendum yet. And there are many reasons for the Senate to be removed (I'm not necessarily saying it's the right thing, only that there are other reasons than future dictatorship)

    And lastly, you can not jump from relatively minor tweaks to the constitution, to "TDs for life"

    Yes it did not pass but hark there is talk after the Anglo tapes to run it again, and this time it might pass. I agree the Seanad is in many ways a lame duck house but we should be asking for it to be given real power not scrapped. I'm not saying and I have been clear there may never be a future dictatorship but a weakened constitution/rule of law could make a political coup easier of course weak or strong the constitution can not stop military force internal or external taking power.

    I do not consider the tweaks to be minor I believe that serious damage has been done to the institutions of Goverenment I do not think the judges pay referendum was a minor tweak nor do I think any rerunning of Dail Court to be a minor tweak to be clear I agree with similar committee hearings as in America as long as a person has recourse to the courts to vindicate rights.

    http://www.independent.ie/business/irish/anglo/coalition-wont-rule-out-rerun-of-oireachtas-inquiries-vote-29384914.html don't be surprised if the banking inquiry hits a wall and the refrain of I told you so rises up from the Dail, if only we had the power to stop these bankers wasting tax payers money running off to the courts.

    BTW we have a habit in this country of "doing the right thing" on the second referundum.


  • #24
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    amen wrote: »
    Planned exercise to gauge defence forces reaction to an invasion or terrorist attack. Troops to Guard Key installations (Dail, Airports, Media etc).

    Suddenly Military in control!
    While I accept that the Defence Forces could stage a coup, I think that it is most unlikely that a single rogue Chief of Staff could carry it off. That was the question which was asked.
    amen wrote: »
    If you have a party that was in control of both houses and there was a war somewhere in the world then could the party not use 28.3.3 to basically declare an emergency and abolish the constitution ?
    If the Defence Forces took power by some putsch, they could host the coronation of King Joffrey if they wanted.


  • #25
    Pro Hoc Vice
    Closed Accounts Posts: 6,087 ✭✭✭Pro Hoc Vice


    The Mustard wrote: »
    While I accept that the Defence Forces could stage a coup, I think that it is most unlikely that a single rogue Chief of Staff could carry it off. That was the question which was asked.


    If the Defence Forces took power by some putsch, they could host the coronation of King Joffrey if they wanted.

    Well he is from a distinguished irish legal and banking family, more legal than banking though.


  • #26
    amen
    Registered Users, Registered Users 2 Posts: 2,781 ✭✭✭amen


    Quote:
    Originally Posted by amen
    If you have a party that was in control of both houses and there was a war somewhere in the world then could the party not use 28.3.3 to basically declare an emergency and abolish the constitution ?
    If the Defence Forces took power by some putsch, they could host the coronation of King Joffrey if they wanted.

    I know that in a Coup the army is in control and can do what they want.

    What I meant was if a party was legal elected into power could then they then use 28.3.3 to declare an emergency (if a war anywhere in world) ala Hitler and the Nazi party in Germany ?


  • #27
    touts
    Registered Users, Registered Users 2 Posts: 6,692 ✭✭✭touts


    Could the militaty suspend the constitution. Well enough men with enough guns and enough motivation can always overthrow the government and impose their will.

    BUT the Irish army had neither enough men nor enough guns nor enough motivation.

    Even if some General got lucky and somehow managed to pull it off (probably because we were in a situation of national strikes and unrest and protests and he managed to get a couple of hundred lads riled up enough to get into trucks and head up to government buildings where there was no one to stop him because the guards were either on strike or couldn't be arsed dying for those tossers inside) how long do you think it would be before the EU stepped in with a threatening letter that made him **** himself and release the ministers?

    And as to the discussion on the constitutionality of such an action. Well without reading the constitution I'd hazard a guess it's always going to be illegal. I doubt any constitution in the world contains a clause that says it's OK for enough men with enough guns and enough motivation to seize power. That's just the sort of thing politicians and lawyers DONT put into a constitution


  • #28
    Manach
    Moderators, Society & Culture Moderators Posts: 9,816 Mod ✭✭✭✭Manach


    Offhand on Touts point, there was a similar type clause in the Weimar Constitution which allowed draconian action in the even of a national emergency. 1933.
    Also, from a reading of a Law Gazette article from last year the 1937 Irish constitution drew strongly from the Weimar's.


  • #29
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    amen wrote: »
    What I meant was if a party was legal elected into power could then they then use 28.3.3 to declare an emergency (if a war anywhere in world) ala Hitler and the Nazi party in Germany ?

    Link.
    28.3.3° Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the 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 time of war or armed rebellion in pursuance of any such law. In this sub-section "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 of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and "time of war or armed rebel-lion" includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.

    Unless the resolution of a state of emergency arises out of a conflict affecting the vital interests of the State, it would be unconstitutional.

    So if the Oireachtas resolved that there was a state of emergency solely arising out of the Syrian Civil War (as matters stand), then I doubt that it would be legal.

    The armed conflict would have to affect the vital interests of the State.


  • #30
    Zillah
    Registered Users, Registered Users 2 Posts: 17,369 ✭✭✭✭Zillah


    The entire concept of a coup is that military power supersedes law. There don't need to be any mechanisms by which they can depose a leader or suspend a constitution, they simply take control and say "This is how it is now and no one has the power to stop us, so there". That's what a coup is. What's happening in Egypt is completely illegal, but the military have the power and the support of the people so legality becomes somewhat academic.


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  • #31
    Pat Mustard
    Registered Users, Registered Users 2 Posts: 9,554 ✭✭✭Pat Mustard


    Zillah wrote: »
    The entire concept of a coup is that military power supersedes law. There don't need to be any mechanisms by which they can depose a leader or suspend a constitution, they simply take control and say "This is how it is now and no one has the power to stop us, so there". That's what a coup is. What's happening in Egypt is completely illegal, but the military have the power and the support of the people so legality becomes somewhat academic.

    This was pointed out by infosys in the second post of the thread, and is not disputed.


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