View/Open - CORA - University College Cork

Article 73 under the designation of “laws”. Moreover, the practice continued for the next
fifteen years and was constitutionally carried forward into Irish domestic law by virtue of
Article 50.
At the sub-constitutional level, the operation of Article 50 of the 1937 Constitution of
Ireland can be seen to work with particular effect. Consider for example, the formulation
of a mini codification of the law (Expert Group 2004:22) relating to offences under the
Non-Fatal Offences against the Person Act 1997. In that legislation, the common law
offences of assault and battery, assault occasioning actual bodily harm, kidnapping and
false imprisonment were abolished bySection 28 and replaced bynewstatutoryoffences in
the same Act under Sections 2, 3, 4, 5 and 15. This is an example of “the laws in force”
being repealed or amended pursuant to Article 50 of the 1937 Constitution although the
word used in the Non-Fatal Offences Against the Person Act 1997 is “abolished”. One
expects the words “repealed or amended” to apply only to statute law, but no issue has
been taken by the use of the word “abolished” which was applied to certain former
common law offences in the 1997 Act. This may be interpreted as the Oireachtas
exercisingits legislative function pursuant to Article 15.(2)(i) which provides:
The sole and exclusive power of making laws for the State is hereby vested in the
Oireachtas; no other legislative authorityhas power to make laws for the State.
The Oireachtas has the power, not only to repeal or amend previous statutory enactments,
(including any enactment carried forward from the Imperial Parliament at Westminster or
the old Irish Parliament up to the Act of Union of 1800), but also has and does exercise,
subject to the Constitution, plenipotentiary powers to abolish where it considers necessary
common lawoffences or anystatutoryor common lawrule of law. 154
154 The Oireachtas on occasion has reformulated andadjustedcommon lawrules in legislation, an example of which can be foundin the common lawrule of doli incapax where the law
presumes that a child under seven years of age is incapable of committing a criminal act and a child between seven years and fourteen years of age benefits from a rebuttable
presumption that s/he is incapable of crime (Monagle –v- Donegal County Council 1961 Ir.Jur.Rep.37). Section 52 of the Children Act 2001 as replaced by Section 129 of the
Criminal Justice Act 2006 provides:-
(1) Subject to sub-section (2) achildunder 12 years of age shall not be chargedwith an with an offence.
(2) Sub-Section (1) does not apply to a child aged 10 or 11 years who is charged with murder, man-slaughter, rape, rape under Section 4 of the Criminal Law(Rape) (Amendment)
Act 1990 or aggravatedSexual Assault.
(3) The rebuttable presumption under anyrule of law, namely, that achild who is not less than 7 but under 14 years of age is incapable of committingan offence because the childdid
not have the capacityto knowthat the act or omission concernedwas wrong, is abolished.
Thus the rule of lawof doli incapax is expresslyrepealedbythis statutoryprovision, an improvement on Section 52 of the Children Act 2001 which reliedupon astronginference that
such repeal was effectedbythat section.
357