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

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 hEireann 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.