News Comment

Tuesday 23 September 2014

It's not so far fetched to declare state of emergency for Garth

Fergal Davis

Published 10/07/2014 | 02:30

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Delighted:  Fans Eimear Jordan and Sarah Kidd
Delighted: Fans Eimear Jordan and Sarah Kidd

A spokesperson for the Taoiseach has ruled out the enactment of any emergency laws to resolve the Garth Brooks crisis. But Ireland was in a permanent state of emergency from 1939 to 1995.

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We have a long history of employing emergency powers in unexpected ways. We are entitled to ask: can nothing be done to secure five nights in Croker for the man from 'the Yukon'?

This long and sometimes undistinguished history of emergency law began with the Irish Free State. Although it had an extremely liberal constitution it rapidly succumbed to the lure of draconian emergency powers. In 1931, the Free State Constitution was amended to insert Article 2A. For all intents and purposes this was a sweeping counter-terror statute posing as a constitutional clause.

Article 2A was predominately designed to counter the increasing threat of IRA-related violence. Ultimately, it was also employed against the Blueshirts. However, when introducing the legislation, WT Cosgrave highlighted a different threat: the threat of communism. Members of Saor Eire, a republican group, were said to have been trained in the "communist gospel" in Soviet Russia.

Cosgrave seemed to think this peril was real. He instructed that a joint pastoral letter from Irish Catholic Bishops on the dangers of communism be included with his own statement to demonstrate the necessity for Article 2A.

The period from 1939 to 1946 is known in Ireland as "the Emergency". Unsurprisingly it was characterised by the development of emergency law. The Irish government used internment, trial by Special Criminal Court and trial by military tribunal to counter the risk to Irish neutrality of the IRA.

The IRA threat was potentially significant: "Operation Dove" was an attempt by Nazi Germany to train IRA operatives for sabotage missions operating out of Ireland.

When the Special Criminal Court was created, Justice Minister Patrick J Ruttledge argued that the measures were needed to tackle the subversive threat. But between 1939 and 1946, the core concern of the court was the black market. The non-jury Special Criminal Court targeted offences ranging from the export of watches without a licence to the sale and distribution of tea, flour and sugar.

The surprising transition from terrorism to tea lead to tensions within government: the Department of Defence became unhappy at being forced to pay for a court when it was not really conducting military business. By 1951, Defence was proposing that the court be paid for by the Department of Justice.

Saddam Hussein's invasion of Kuwait in August 1990 resulted in the recalling of the Dail to debate emergency legislation: the Companies (Amendment) Act 1990.

This act was, in part, a response to the possible liquidation of Larry Goodman's "Goodman Group". Goodman was hugely exposed when his Iraqi customers defaulted following the invasion of Kuwait.

The official state of emergency, which had begun with World War II in 1939, finally ended in April 1995. From a legal point of view, this meant that any laws that relied on Article 28.3.3 of the Constitution for their validity were no longer operative. That article is a little complicated. In essence it contains a broad-ranging exemption from constitutional review for laws which are enacted for public safety in time of war or armed rebellion.

Other emergency (or extraordinary) laws survived the end of the formal emergency. The Special Criminal Court, for instance, can be employed when the "ordinary courts are inadequate". It does not require a formal state of emergency.

The emergency paradigm is evident in the way new laws are adopted in response to a crisis, most notably the murder of Veronica Guerin. In terms of emergency law responses, organised criminals became the heirs to the terrorists. The distinction between gangland violence and the threat to the State from the IRA was blurred.

In fact, since 1995, a series of crime control measures have been enacted. We have the Criminal Justice (Drug Trafficking) Act 1996; the Bail Act 1997; the Proceeds of Crime Acts 1996 and 2005; and the Criminal Justice Act 2006.

The litigation following the Omagh bombings of August 15, 1998, demonstrate that emergency powers are, in and of themselves, insufficient. Convictions are thin on the ground. The civil courts have done more to hold the alleged perpetrators to account.

Since independence, Ireland has enacted a broad range of emergency powers. Those laws have often been adopted in response to surprising events.

Passing emergency legislation to allow Garth Brooks strut his stuff in Croke Park would just add another twist to an already intriguing tale.

Dr Fergal Davis is a senior lecturer in law at UNSW, Australia. He is author of 'The History and Development of the Special Criminal Court: 1922-2014'. Available from Bloomsbury Professional.

Irish Independent

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