The 1937 Constitution was deliberately framed so as to ensure there would be no "secret or unacknowledged" participation in a war by this State without a resolution of the Dáil, the High Court was told yesterday.
In relation to the war in Iraq, there was no such resolution, Mr John Rogers SC said.
Mr Rogers was completing his submissions on behalf of retired army officer Edward Horgan, of Newtown, Castletroy, Limerick, who is challenging the facilitation of Iraq-bound US aircraft at Shannon.
It was significant, said Mr Rogers, that the 1922 Constitution had prohibited the State from "active" participation in a war without Dáil assent while Article 28 of the 1937 Constitution provides that war shall "not be declared and the State shall not participate in a war save with the assent of Dáil Éireann".
The fact that active participation was reduced in 1937 to mere participation lowered the threshold for participation in a war. It was his case that the facilitation of US military aircraft at Shannon Airport en route to the war in Iraq constituted aid and assistance and, therefore, participation in a war. This was in breach of the Constitution in that it had not received the assent of the Dáil.
In the world of international relations, a State could take, without acknowledging it, a position that it would assist, aid or abet a war or literally participate in it. The point of the provisions of Article 28 was to ensure that anything the Government did to assist a war was out in the open and endorsed by the Dáil.
In this case, the Government had put a resolution before the Dáil, which resolution was passed, on the basis of the Government's claim that the facilitation of the US military at Shannon did not constitute participation in a war. It was his case that these activities did amount to participation in the war, for which there was no Dáil assent.
The question of whether the activities at Shannon amounted to participation was an issue which could be determined by the courts, which had a duty to determine whether executive power was being lawfully exercised.
Mr Rogers said he was relying heavily on the international law provisions of Article 29 of the Constitution which "affirm Ireland's adherence to the principle of the peaceful settlement of international disputes by international arbitration or judicial determination". In facilitating the US military at Shannon, the Government was assisting the US in using force against Iraq without first concluding whether that use of force was lawful. The constitutional affirmation of our adherence to the peaceful settlement of international disputes must mean something. Here, the Government had taken no position on whether the attack on Iraq was lawful, and had said it was none of the courts' business. The case continues today.
