The ISSUING of deportation orders remains effectively suspended after the Supreme Court yesterday rejected the State's appeal against a finding that part of the Aliens Act is unconstitutional.
Mrs Justice Denham said one had "to search in vain to find principles and policies regarding deportation of aliens in the [Aliens] Act". In delegating its power over aliens to the Minister for Justice, the legislature had abdicated that power, she said.
Mr Justice Keane said the Oireachtas could not assign its policy-making role regarding aliens to a body or person such as the Minister.
By a majority of three to two, the Supreme Court dismissed an appeal by the Minister for Justice against the decision of Mr Justice Geoghegan that Section 5.1.e of the Aliens Act, 1935, from which the power to make deportation orders derives, is unconstitutional because of the failure to set out policy or principles on foot of which such orders are issued.
The High Court made consequential declarations that Article 13.1 of the Aliens Order, 1946, and a deportation order regarding a Romanian football player, Mr Sorin Laurentiu (32), who has been living in Dublin since 1994, were invalid.
The Chief Justice, Mr Justice Hamilton, Mrs Justice Denham and Mr Justice Keane dismissed the State's appeal against the High Court findings. Mr Justice Barrington and Mr Justice Lynch dissented.
In her judgment, Mrs Justice Denham said it was for the Oireachtas to establish the principles and policies of legislation.
The case turned on the issue as to whether the legislature could, in the terms of Section 5.1.e of the Aliens Act, delegate to the Minister power to deport aliens, or whether it was an impermissible delegation of legislation contrary to Article 15.2 of the Constitution (which states the sole and exclusive power of making laws for the State is vested in the Oireachtas).
She said the nature of sovereignty was not at issue, nor was the ambit of the State's executive powers. The legislature had legislated for the matter and its power to delegate, as it purported to do to the Minister for Justice, was the kernel of the case.
"The legislature grasped the power over aliens from the executive and then delegated inadequately to the Minister [for Justice]. It abdicated its power.
"Analysed in accordance with Article 15.2 of the Constitution, as must be done, the Act was an abdication of the legislature's duty to set policies and principles.
"The power of the legislature must be protected. The power is for that body for the benefit of democratic government and may not be surrendered," she said.
Afterwards Mr Laurentiu, who was present in court, said he was very happy with the outcome. He paid particular tribute to his solicitor, Ms Noeleen Blackwell, and his entire legal team.
The State's appeal against the High Court decision was originally heard by a Supreme Court including the former judge, Mr Hugh O'Flaherty. It had to be reheard by a differently constituted court earlier this month and judgment was reserved.
During the appeal hearing, the court was told an Immigration Bill was before the Oireachtas. That Bill is now at the Committee Stage. The Chief Justice remarked that the Bill was "a back-up" in the event of the Supreme Court dismissing the State's appeal.
In his judgment, Mr Justice Keane said Article 15.2 set out in emphatic language the exclusive law-making role of the national parliament which was "an essential component in the tripartite separation of powers which is the most important feature of our constitutional architecture".
The Aliens Act, "not in the slightest degree unclear or unambiguous", empowered the Minister for Justice to exclude and deport, not merely particular aliens but whole categories of aliens determined by their nationality or class.
When the Act was enacted, the power of Saorstat Eireann to expel or deport aliens was, in the absence of legislation, vested in the Crown acting on the advice of the Executive Council.
The change effected in the law by Section 5.1.e of the Act was not a conferring on the State of an absolute power to deport aliens. It already had that power. But it was now to be exercised by the Minister.
The objective of Section 5.1.e was to enable the Minister to exercise, at his absolute and uncontrolled discretion, the power of deporting individual aliens or categories of them subject only to some restrictions regarding diplomats and aliens resident here for at least five years.
The effect was that the Minister, not the Oireachtas, was to determine what aliens and classes of aliens could be deported and what modifications there should be of the exercise of that power. The Oireachtas had effectively determined that policy in the area should be the Minister's responsibility.
Mr Justice Keane said it could not be too strongly emphasised that no issue arose in the case as to whether the sovereign power of the State to deport aliens was executive or legislative. It was clearly executive but that was not to say its exercise could not be controlled by legislation.
The Oireachtas could properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question was to be exercised, but what it could not do was assign its policy-making role to a specified person or body such as the Minister.
He was satisfied that the power which Section 5.1.e gave to the Minister to determine the policies and principles under which the State's power to deport aliens should be exercised was inconsistent with the exclusive role in legislation conferred on the Oireachtas by Article 15.2.
The Chief Justice agreed with the judgments of Mrs Justice Denham and Mr Justice Keane.
In his minority judgment, Mr Justice Barrington said the Aliens Act reflected the philosophy of the nation-state. Its unspoken major premise was that aliens, in general, have no right to be on the national territory and it could not be compared with normal legislation designed to reconcile the rights of the citizen with those of the State in the interests of the common good.
He said the Act did not regard aliens as having any right to be in Ireland, although it allowed the Minister a discretion to make exceptions. The important point was that the Oireachtas had seen fit to regulate this sphere of life and to do so on the basis of making distinctions between citizens who have a right to reside here and aliens who have not.
Whether this system suited the needs of the modern world was another question. The increased movement of people today might demand a different system, but this was a matter for the Oireachtas, not the court.
In his dissenting judgment, Mr Justice Lynch said the State has virtually absolute power regarding whether aliens might or might not enter the national territory. The Government was logically the organ to exercise that power and the Oireachtas, as legislative organ of Government, could nominate a member of Government to exercise the power. It had done this in the Aliens Act when it nominated the Minister to fulfil that role.