Article 28.3.3⁰: Terrorism, Democracy, Supra-Legality and the ‘State of Emergency’ in the Irish Constitution

Eoin Carolan (ed) The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional, 2012).

Posted: 26 Jun 2012 Last revised: 13 Feb 2013

See all articles by Fergal F. Davis

Fergal F. Davis

University of New South Wales - ARC Laureate Fellowship: Anti-terror laws & the democratic challenge

Christopher Thornhill

Independent

Date Written: June 26, 2012

Abstract

Ireland remained in a permanent state of emergency from 1939 to 1995. While there were significant existential threats to the Irish State throughout its history, it would be disingenuous to argue that an emergency existed for the entirety of that period. Rather Article 28.3.3: failed to facilitate a return from the state of exception to the constitutional norm. Furthermore, the permanence of the emergency contributed to a process of normalization – facilitating a culture of crime control – which has persisted post 1995.

This chapter shall take its lead from the Constitutional Review Committee of 1934. The crises which had engulfed the Irish Free State provided the context within which the emergency provisions of Bunreacht na hÉireann were drafted. The 1934 Committee proposals for emergency provisions will be characterized as an attempt at navigating a path between Commissarial and Sovereign Dictatorship; between Verfassung and Verfassungsgesetze.

If Article 28.3.3: had been more reflective of the 1934 Committee proposal Ireland might have avoided becoming a nation of Hiroo Onodas: a land where the exception became the norm.

Keywords: constitutional law, Ireland, Irish free state, emergency powers, terrorism, political theory

JEL Classification: K00

Suggested Citation

Davis, Fergal F. and Thornhill, Christopher, Article 28.3.3⁰: Terrorism, Democracy, Supra-Legality and the ‘State of Emergency’ in the Irish Constitution (June 26, 2012). Eoin Carolan (ed) The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional, 2012)., Available at SSRN: https://ssrn.com/abstract=2092294 or http://dx.doi.org/10.2139/ssrn.2092294

Fergal F. Davis (Contact Author)

University of New South Wales - ARC Laureate Fellowship: Anti-terror laws & the democratic challenge ( email )

Kensington, New South Wales 2052
Australia

Christopher Thornhill

Independent

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