asked the President whether it is intended to introduce proposals for legislation to repeal any laws in force in Saorstát Eireann imposing disabilities on Catholics by reason of their religion.
Ceisteanna—Questions. Oral Answers. - Removal of Religious Disabilities.
No enactment whatever whereby any penalty, disadvantage or disability is imposed on account of religious belief or religious status has the force of law in Saorstát Eireann at the present time.
Statements have recently been published in the Press of this country and in the Press of the United States to the effect that the Penal Code is still technically operative in Saorstát Eireann. The questions raised in these statements are of great public importance, and it is a matter of serious concern that wide circulation should have been given to views which raise doubts in the public mind here and elsewhere as to the state of the law in this country in a matter which so vitally affects the religious life and liberty of the citizens of Saorstát Eireann.
The Executive Council, at the earliest possible moment after the establishment of the State, examined the fundamental constitutional issues involved in the considerations raised in the question on the Order Paper, and I am able to inform the Dáil that never at any time has the exact legal position under the Constitution and the statutes been in doubt.
Article 8 of the Constitution is based upon Article 16 of the Treaty and falls into two parts, the first guaranteeing (subject to public order and morality) to every citizen freedom of conscience and the free profession and practice of religion; the second enacting that no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status. The guarantee of freedom of conscience and of the free profession and practice of religion contained in the first part of the Article would, of itself, and without reference to the second part of the Article, destroy the effect of enactments imposing disabilities by reason of religious status or belief, and would render their operation in Saorstát Eireann constitutionally impossible. If at the time at which the Constitution became law any enactment was in force imposing disabilities upon any person by reason of religious status or belief, the effect of such enactment did not survive the moment in which Article 8 of the Constitution became law.
The statements in the newspaper Press to which attention has been drawn refer to Article 73 of the Constitution as an authority for the proposition that the Penal Code is still at least technically in force in Saorstát Eireann. Article 73 is as follows:—
"Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in the Irish Free State (Saorstát Eireann) at the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas."
It will be observed that there are two fundamental reservations in the Article just quoted. The first reservation is that it continues in force in Saorstát Eireann only such laws as are not inconsistent with the Constitution; and the second reservation is that it continues only such laws as were actually in force at the date on which the Constitution came into operation. I have already adverted to the fact that the operation in this State of any law imposing disabilities on any person by reason of his religious beliefs or status is wholly inconsistent with the constitutional guarantee given by Article 8. The invocation of Article 73 as an authority for continuing in force a code of coercion directed against a particular religious body or organisation in this country amounts to a fundamental misconception of the meaning of that Article; it is in effect an attempt to construe Article 73 as derogatory to and destructive of Article 8, one of the substantive Articles of the Constitution which Article 73, by its very terms, carefully safeguards.
But the second reservation in Article 73 to which I have called attention, has a decisive bearing upon the issues raised in the Deputy's question. Article 73 continued in force (subject to the Constitution) such laws as were in force on the date on which the Constitution came into operation. An examination of the British Statute Book will disclose beyond any doubt that no enactment of the kind under consideration was in force on the date on which the Constitution came into operation. The Government of Ireland Act, 1920, was passed on the 23rd day of December, 1920, and sub-section (2) of Section 5 of that Act is as follows:—
"(2). Any existing enactment by which any penalty, disadvantage, or disability is imposed on account of religious belief or on a member of any religious order as such shall, as from the appointed day, cease to have effect in Ireland."
It is clear, therefore, that sub-section (2) of Section 5 of the Government of Ireland Act, 1920, formally repealed the entire Penal Code throughout the whole of Ireland. That repeal took effect as from the appointed day referred to in the sub-section and the appointed day for that purpose was the 3rd day of May, 1921. The effect of the repeal of an enactment is to obliterate it from the Statute Book as if it had never been passed. The subsequent repeal of the Statute by which such enactment was repealed does not operate to revive the enactment in the first instance repealed. That is an elementary rule of the interpretation of statutes which is embodied in Section 11 of the Interpretation Act, 1889, and the Interpretation Act, 1889, applies to the interpretation of the Government of Ireland Act, 1920, and also to the Irish Free State Constitution Act, 1922, the statute by which the Government of Ireland Act, 1920, was formally repealed in so far as it related to the area now comprised in Saorstát Eireann.
It will be obvious from the foregoing reply to the question on the Order Paper that the proposition stated at the beginning represents the exact legal position, namely, that no enactment whereby any disability is or can be imposed on any person by reason of religious belief or status is at present in force in Saorstát Eireann. No steps are, therefore, necessary of the kind suggested in the last part of the Deputy's question.
Arising out of the President's reply, I should like to put two questions (1) what is the position regarding the Act of Succession; (2) does the President state that no case has been decided in the Courts since 1922 which would indicate that any religious community suffers any disability under the laws as they now stand?
As regards the first part, I do not know, and the Deputy had better put that down as a separate question; as regards the second, I should say no, not arising out of this question—no such decision could have been given. The Deputy is probably confusing two different items as one, which are not one. I know what the Deputy is at.