In a decision with major implications for police control of the movements of non-nationals, the High Court has declared unconstitutional a new law enacted by the Government to make lawful provisions of the Aliens Order 1946.
Section 2.1 of the Immigration Act 1999 was not enacted within the framework for enacting laws as set out in the Constitution, the court found.
The decision by Ms Justice Finlay Geoghegan has significant implications for the operation of immigration laws.
Ms Justice Finlay Geoghegan also declared unconstitutional provisions of the Aliens Order 1946 under which conditions may be placed by an immigration officer on aliens arriving here and provisions under which aliens are required to produce registration certificates, passports and other documents on demand from a garda or immigration officer.
She further held that Section 5.1.h of the Aliens Act 1935, which requires aliens to comply with provisions regarding registration, change of abode, travelling, employment and other matters, is unconstitutional.
In light of her findings, Ms Justice Finlay Geoghegan granted an order restraining the prosecution of a Chinese man, Mr Liu Chang, for failing on May 1st, 2003, to produce identification to a garda when requested to do so. Mr Chang was detained in Cloverhill Prison on that charge.
The judge also granted an order quashing the prosecution of a Latvian woman, Ms Ilona Leontjava, who was charged with remaining within the State in contravention of the Aliens Order 1946 as provided for by Section 2 of the Immigration Act 1999.
A senior legal source described yesterday's judgment as "a major constitutional decision of fundamental importance in terms of how laws may be passed". The source said the judgment would also have practical implications for police control of non-nationals and would affect hundreds of cases. Another source said the effect of the decision was that the Government would not be able to "short-circuit" the law- making process.
Yesterday Ms Justice Finlay Geoghegan said the clear meaning of Section 2.1 was that the substantive provisions of the Aliens Order 1946 are to have statutory effect as if they are an Act of the Oireachtas but whilst not being contained in an Act of the Oireachtas. She found the Oireachtas is constitutionally constrained over how it exercises its law-making power.
The democratic scheme as established by the Constitution was that the law-making power vested in the Oireachtas by Article 15.2 was constitutionally procedurally constrained and could be exercised only by the enactment by the Oireachtas of an Act, initiated by a Bill, which was then passed or deemed to be passed by both Houses of the Oireachtas and signed by the President and promulgated as a law.
Article 25 of the Constitution required that the text of any provision which was to be treated as a law or as an Act of the Oireachtas must be contained in the Bill signed by the President and promulgated by her as a law and must be enrolled in the office of the Registrar of the Supreme Court, the judge held.
She said the Aliens Orders referred to in Section 2.1 of the 1999 Act were made by the Minister in accordance with powers purported to have been conferred on him by statute. What the Oireachtas was seeking to do in Section 2.1 was to give to such orders made by the Minister legal status as if it were an Act of the Oireachtas, without such provisions having been made by the Oireachtas as provided in Articles 20 to 25.
There was nothing in the Constitution which authorised the Oireachtas to determine that a provision which was, and continues to be, secondary legislation made by a person other than the Oireachtas in accordance with the power conferred by him by statute should henceforth be treated in the legal order of the State "as if it were an Act of the Oireachtas", the judge said.
The only provisions which might be treated as a "law" as defined by the Constitution were laws made by the Oireachtas such as provisions contained in a Bill passed by both Houses of the Oireachtas, signed by the President and promulgated into law.
Such a constitutional scheme appeared to be further confirmed by the scheme providing that any Bill may be referred by the President to the Supreme Court for a decision on constitutionality.
Neither Articles 5.6 or 15 of the Aliens Order 1946 nor any other provisions of the Aliens Orders referred to in Section 2.1 of the 1999 Act could have been referred by the President, Ms Justice Finlay Geoghegan said.
