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the Minister for Justice to exercise such powers of remission in the absence of any formal
endowment. Surprisingly, no formal order appointing the Minister for Justice was made
until the 20 th October 1998 under S.I. 416 of 1998. Arguably, the Minister for Justice did
not have the power to remit a fine or a sentence from the time of the passing of the
Constitution until the 20 th October 1998.
Prior to the coming into force of the Constitution of Ireland in 1937, clear provision had
been made to allow the Minister for Justice the power to remit sentences pursuant to S.I.
No. 224 of 1937 - Executive Powers (Remission of Sentences) Order 1937 and made
pursuant to the Executive Powers (Consequential Provisions) Act 1937 which order came
into force on the 11th December 1936. These provisions pre-date the Constitution of
Ireland 1937 which came into force on the 27 th day of December 1937. Is it possible that
these provisions continued in force by virtue of Article 50 of the Constitution 1937 and
remained in force up to the 20 th October 1998 when the Minister for Justice was formally
grantedthe power to remit sentences bystatutoryinstrument?
On the effect of Article 50 Byrne and McCutcheon (1996:558) state:
“Like Article 73 of the 1922 Constitution, Article 50 of the 1937 Constitution
provided that the laws in the Irish Free State continuedto have full force andeffect
unless they were inconsistent with the 1937 Constitution or were repealed by the
Oireachtas established bythe 1937 Constitution…”
Thus if the delegation was not inconsistent with the Constitution itself it may have
survived with the Minister’s powers intact. However, the power of remission should not be
regarded as something “already out there now” in 1937. Instead a newand specific power
was created under Article 13.6 and was given specificallyto the President as Head of State.
As the power derives from the Constitution itself it may be erroneous to hold that the
delegation of that power whether to the Government or to the Minister for Justice could
exist prior to the 27 th December 1937. Moreover the passing of Section 23 of the Criminal
Justice Act 1951 and the amendment thereof by Section 17 of the Criminal Justice
(Miscellaneous Provisions) Act 1997 and the Statutory Instrument 416 of 1998 can hardly
be seen as restatements of the pre-constitutional powers enjoyed bythe Minister for Justice
before the 27 th December 1937. Significantly, these latter sections and statutoryinstrument
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