CONTROVERSIAL PROPOSED legislation on gangland crime is likely to be sent this evening or tomorrow to President Mary McAleese who will have a week in which to decide whether to sign it into law or refer the Bill to the Supreme Court.
The Criminal Justice (Amendment) Bill is expected to pass all stages in the Seanad today, although the possibility that the debate could run into tomorrow has not been ruled out.
The President has the authority, after consultation with the Council of State, to refer the Bill to the Supreme Court to test its constitutionality.
The court is allowed up to 60 days to consider the matter.
In the event that the court deems the Bill to be in accordance with Bunreacht na hÉireann, the legislation cannot be challenged further on constitutional grounds.
Although the President is required to consult the Council of State before referring a Bill to the court, the decision on referral is a matter for her sole discretion.
Criticising the speed with which the legislation was processed in the Dáil, Fine Gael justice spokesman Charles Flanagan TD said yesterday: “The debate was curtailed: only one-third of the Bill was discussed. That was a bad day’s work.
“Whatever about the merits or demerits of the Bill, the fact that there was no debate in the Dáil on amendments of some importance, means that the Dáil, acting as a mere rubber stamp for the Government, has done a disservice to the legislation.
“We had a number of amendments that would have improved the Bill from a constitutional point of view. Some were shot down and some not even debated. I would expect that the President will take that into consideration in the context of her thoughts on the matter,” Mr Flanagan said.
It is understood some opponents of the Bill would prefer if it was not referred by the President and that a constitutional challenge would be brought before the Supreme Court in the course of a trial instead, although this could be politically embarrassing for the Government.
The 22 members of the Council of State include Taoiseach Brian Cowen; Tánaiste Mary Coughlan; the Chief Justice, Mr Justice Murray; former president Mary Robinson and former taoisigh Garret FitzGerald, Liam Cosgrave, Albert Reynolds, John Bruton and Bertie Ahern; and seven presidential appointees.
There have been 26 meetings of the Council of State, the first one taking place in January 1940, on the Offences against the State (Amendment) Bill, and the most recent in May 2007, on the Criminal Justice Bill 2007.
Following the expected completion of report and final stages of the Bill in the Seanad, it will go to the Bills Office of the Oireachtas for final proofreading before being sent to the Department of the Taoiseach for delivery to Áras an Uachtaráin.
If enacted, the Criminal Justice (Amendment) Bill will make it illegal to direct or participate in the activities of a criminal gang.
It will also limit the right to trial by jury, so that suspects charged with certain offences are automatically sent to the Special Criminal Court.
A letter from 133 criminal lawyers to The Irish Times said it was “astounding” that society would jettison ancient rights under the new legislation.
Although Fine Gael has voted for the Bill in the Dáil, the party’s justice spokesman in the Seanad, Senator Eugene Regan, said last night: “The very fact that the Minister makes a virtue of the system being ineffective to deal with gangland crime is an admission of the failure of his Government and previous Fianna Fáil-led governments in law enforcement. We’ve gone from the Fianna Fáil slogan of ‘Zero Tolerance’ to a breakdown of the system, which the Minister himself has acknowledged.”
