First Amendment of the Constitution of Ireland

Amendment on the definition of war

For the Irish Free State constitutional amendment, see Constitution (Amendment No. 1) Act 1925.

The First Amendment of the Constitution Act 1939 amended the Constitution of Ireland to extend the definition of "time of war" to include a period during which a war occurs without the state itself being a direct participant. It was introduced and signed into law on 2 September 1939, the day after the Invasion of Poland by Germany and allowed the government to exercise emergency powers during World War II (known in Ireland as The Emergency) although the state was neutral.

## Background

[edit]

Article 28.3.3° of the Constitution grants the state sweeping powers during a state of emergency, but in the form in which the article was adopted in 1937, they could be invoked only during a "time of war or armed rebellion". The First Amendment specified that "time of war" could include an armed conflict in which the state was not actually taking part.

The amendment was introduced by the Fianna Fáil government of Éamon de Valera on 2 September 1939, and passed swiftly through both houses of the Oireachtas. Unlike later amendments, the First and Second Amendments were not submitted to a referendum because under the terms of Article 51, one of the Transitory Provisions of the Constitution, the Constitution could be amended by a vote of the Oireachtas alone from 1938 to 1941.

## Changes to the text

[edit]

Addition of the text in bold to Article 28.3.3°:

> 3° Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in pursuance of any such law. In this sub-section "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State.

### Irish text

[edit]

The First Amendment was passed only in English. That created a constitutional difficulty, as the Irish text of the Constitution has legal precedence. The error was rectified by the Second Amendment, passed in 1941, which included in its provisions, at Reference No. 21, the Irish text of the First Amendment.[1]

## Legislation

[edit]

The Emergency Powers Act 1939 was passed and signed on the same day as the First Amendment. Further Acts were passed over the course of World War II. The Emergency Powers Act 1976 was passed in response to The Troubles.

## Later amendments

[edit]

Article 28.3.3° was amended on two further occasions. The Second Amendment, passed in 1941, also under Article 51, clarified that emergency provisions must be within the time of war or armed rebellion itself and added a clause at the end of the last sentence, which specified that a "time of war" could extend beyond the termination of hostilities. The Twenty-first Amendment, passed in 2001, prohibited the use of the death penalty in a new subsection in Article 15.5.2°, and provided that the emergency provisions of the Constitution could not be used to allow the death penalty. Those later changes are highlighted in bold:

> 3° Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this subsection "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and "time of war or armed rebellion" includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.

## See also

[edit]

* State of Emergency
* Politics of the Republic of Ireland
* History of the Republic of Ireland

## References

[edit]

1. ^ Gerard Hogan and Gerry Whyte, J. M. Kelly: The Irish Constitution, 4th ed., Tottel Publishing, 2003, p. 396.

### Oireachtas debates

[edit]

House | 1st stage | 2nd stage | Committee and final stage

|
|
|

Dáil  | 2 Sept 1939 | 2 Sept 1939 | 2 Sept 1939
Seanad  |  | 2 Sept 1939 | 2 Sept 1939

First Amendment of the Constitution Bill 1939 on the Oireachtas Beta website

### Legislation

[edit]

* First Amendment of the Constitution Act 1939
* Full text of the Constitution of Ireland
* Emergency Powers Act 1939
* Emergency Powers (Amendment) Act 1940
* Emergency Powers (Amendment) (No. 2) Act 1940
* Emergency Powers (Continuance) Act 1940
* Emergency Powers (Continuance) Act 1941
* Emergency Powers (Continuance and Amendment) Act 1942
* Emergency Powers (Continuance) Act 1943
* Emergency Powers (Continuance) Act 1944
* Emergency Powers (Continuance and Amendment) Act 1945
* Emergency Powers Act 1976

* v
* t
* e

Amendments to the Constitution of Ireland

Enacted|

* 1
* 2
* 3
* 4
* 5
* 6
* 7
* 8
* 9
* 10
* 11
* 13
* 14
* 15
* 16
* 17
* 18
* 19
* 20
* 21
* 23
* 26
* 27
* 28
* 29
* 30
* 31
* 33
* 34
* 36
* 37
* 38

Proposed|

* 41

Failed|

* 3 (1958)
* 3 (1968)
* 4 (1968)
* 10 (1986)
* 12 (1992)
* 22 (2001)
* 24 (2001)
* 25 (2002)
* 28 (2005)
* 28 (2008)
* 30 (2011)
* 32 (2013)
* 35 (2015)
* 39 (2024)
* 40 (2024)

See also|

* Adoption in 1937
* "Missing" amendment numbers
* Electoral Commission
* Constitutional Convention
* Citizens' Assembly
* Referendum Commission

*[v]: View this template
*[t]: Discuss this template
*[e]: Edit this template