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The First Amendment: 'Time of War'
Article 28
28.3.2 Within the constraint/scope of the provisions of this Constitution, it is the Government that will operate, or it is with the authority of the Government that will be
operated, the implemental power of the State.
28.3.3 original It is not permitted to plead anything that is in this Constitution to invalidate any law which the Oireachtas enacts if it is stated in it that it is a law to ensure the security of the people and to preserve the State in time of war or armed revolt, nor to nullify any act which is done or which gives to understand that it is an act done in time of war or armed revolt in pursuance of any such law.
Article 28 was the 1st Article to be amended. In 1939 an additional one hundred and thirty-seven words were added. See amendment below.
Article 28.3.3
As per the article, "each House of the Oireachtas will have decided by resolution in regards to it that, because of that armed conflict, a state of national emergency exists"
"Armed revolt” covers that period of time which there will be between the time any war, or any armed conflict of the aforementioned kind, or armed revolt is put to an end and the time that each House of the Oireachtas decides by resolution that the state of national emergency which that war, or that armed conflict, or that armed revolt caused, no longer exists."
While the Emergency Powers Act lapsed in in 1946, the "State of Emergency" was not rescinded until 1976.
A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other bio security risk.
While the validity of the Act could be queried because of Ireland's neutrality and not being at war, there are definitely concerns that it was never repealed.
Note that it is the State that it is to be protected, and it does not mention for "the good of the people".
The First Amendment: 'Time of War'
Article 28 was amended on September 2nd & 3rd 1939, by adding subsection 28.3.3 which "gave to the expression 'time of war' an artificially extended meaning, and was regarded as the root of the immunity of the 1939 - 1946 emergency legislation from challenge; it was equally seen as part of the armour of the '1976 Emergency Powers Act'. The Bill for this Amendment of the Constitution Act was passed in English only." ~ JM Kelly, The Irish Constitution
"It remains, however , a question whether a bilingual text can be effectively amended anyway by a purported amendment which is unilingual; and if on that ground the purported 1939 amendment was ineffective, the purported 1941 supplementary amendment was equally so." ~ JM Kelly, The Irish Constitution
The 1st Amendment to An Bunreacht is the root cause of the problems that Éire and her people face today.
An "artificially extended" meaning of 'time of war' is explained in the official supporting literature on this page.
First Amendment of the Constitution
Bill, 1939 - Second Stage
Extract below is taken from Seanad Eireann Parliamentary Debates Volume XXIII 5th July to 25th October 1939 - see right.
At the time of enactment of the legislation, An Taoiseach Éamon De Valera stated that "any act that might be taken would be ultra vires and the powers that we would seek would also be ultra vires".
According to www.lawyersnjurists.com "'Ultra vires' in company law is used to indicate an act of the company which is beyond the powers conferred on the company by the objects clause of its memorandum. An ultra vires act is void and cannot be ratified even if all the directors wish to ratify it."
On September 2nd 1939 the first amendment to An Bunreacht 1937 was to change the definition of "time of war and rebellion" so that it not only covered a war in which Ireland was engaged to one where it "makes a difference to the basis of the life of the State".
"Sir, – Diarmaid Ferriter ("Exiting a new emergency, 75 years on (https://www.irishtimes.com/opinion/diarmaid-ferriter-seventy-five-years-on-another-emergency-to-exit-1.4247790)", Opinion & Analysis, May 8th) notes that the emergency powers introduced on the outbreak of the second World War continued to be used for some time afterwards, and wonders how long the present emergency legislation will be kept.
The 1939 state of emergency was only repealed in 1976 – and was immediately replaced by a fresh state of emergency invoking conflict in Northern Ireland. That situation lasted until 1995, so at least we had some break from emergencies before the current pandemic. – Yours, etc,
BARRY DOHERTY,"
Q. Where did M O'Cearuil get the following translation from Clo Gaelach to Translate as it was never written in our native script, but rather in standardised Irish?
Official 1999 Literal English translation of this section above where the origin of the text that was translated is under query.
Article 28.3.3 amendment
In this subsection, “time of war” covers a time when armed conflict in which the State is not participating will be in progress but that each House of the Oireachtas will have decided by resolution in regards to it that, because of that armed conflict, a state of national emergency exists which makes a difference to the basis of the life of the State and “time of war or armed revolt” covers that period of time which there will be between the time any war, or any armed conflict of the aforementioned kind, or armed revolt is put to an end and the time that each House of the Oireachtas decides by resolution that the state of national emergency which that war, or that armed conflict, or that armed revolt caused, no longer exists.
Seanad Eireann Parliamentary Debates Volume XXIII 5th July to 25th October 1939
Points to consider:
In "JM Kelly The Irish Constitution" (extract above) it questions the validity of the first amendment, and in doing so brings the second (and subsequent amendments) into doubt.
It was issued on March 25th 1942, during World War II, as an emergency measure, despite the fact that Ireland was neutral and not engaged in the war.
Note that the title was written in capital letters which denotes it's corporate or legal status. This is a working definition of the rule of law, and not the law itself.
Below is the 2nd version of the Constitution, and was called 'BUNREACHT NA hÉIREANN (CONSTITUTION OF IRELAND)'.
28.3.3 1st amendment of the Irish constitution added in English text only in this original next version of the constitution in 1942
The aim of this website is to educate Irish men and women on their rights and to have them question their preconceived ideas on their powerlessness in this regard, when in essence it is the people of Éire (Ireland) who truly hold the power. It is not legal or lawful advice.
Maxim of Law:
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