Читать книгу The New Irish Constitution: An Exposition and Some Arguments - Various - Страница 6

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The Irish Parliament is given a general power to make laws for “the peace, order, and good government” of Ireland. The words are those usually employed in the grant of legislative power in colonial constitutions, and they have been interpreted as authorising “the utmost discretion of enactment for the attainment of the objects appointed to them.”21 No considerations of policy or equity or repugnancy to the common law would avail to challenge an Irish statute on the ground that it was ultra vires. Within the limits assigned to it the Irish Parliament will have authority [pg 016] as plenary and as ample as the Imperial Parliament itself possesses or can bestow, and it may, if it so pleases, delegate this authority.22 The Irish legislature will, however, have no power to legislate extra-territorially.23 It could not, for example, pass a law to punish the Irish subjects of the Crown for offences committed outside Ireland.

Now, these powers are undeniably large—larger, indeed, than is usually the case even in Federal systems where the unenumerated or “residuary” powers are left to the State. It is conceivable that they might be exercised to the prejudice of the Imperial Government and of the union of the two kingdoms, and there is nothing in these clauses of the Act to prevent them being so exercised. Treating it as a statute on the ordinary principles of the interpretation of statutes, the Judicial Committee would have no option but to regard as valid any legislation of the Irish Parliament that did not come within the exempted powers. With policy they are not and would not be concerned. But then it must be remembered that there is the possibility of the exercise of the veto of the Imperial Government in cases where legislation, though intra vires, is inequitable, inexpedient, or contrary to Imperial interests. This executive veto is really a juristic fact of great importance—it has always been present to their lordships'24 mind as a reason for refusing to apply to the interpretation of the Federal constitutions of Canada and Australia the restrictive principles of the Supreme [pg 017] Court, as laid down in Marshall's famous doctrine of “implied restraints.”25 When no such veto is in the hands of the Central Government, it becomes necessary to restrict, either in the text of the constitution, or in judicial interpretation of it, with considerable precision, the powers of the local legislatures. This is why a true Federal system always involves a very large amount of litigation. But litigation is a thing to be avoided, if possible. It encourages political parties to carry test cases into the courts.