LAST UPDATE | 17 Jul
THE PRESIDENT HAS signed the controversial Defence (Amendment) Bill into law having met with the Council of State to discuss its constitutionality.
President Michael D Higgins had called the meeting to consider the constitutionality of the Defence (Amendment) Bill 2024, which could preclude the Defence Forces from publicly questioning or commenting on government defence policy.
The new legislation has been greeted with opposition from both PDFORRA, which represents non-commissioned ranks in the Defence Forces and from the Representative Association of Commissioned Officers (RACO).
In a statement this afternoon a spokesperson for Áras an Uachtaráin said the President had made the new legislation law.
“Michael D. Higgins, having given careful consideration to all constitutional and other aspects of the Defence (Amendment) Bill 2024, and having considered all the options available to him, has today signed the Bill.
“The President followed the passage of this Bill through both Houses of the Oireachtas, and has listened carefully to the debate and the issues raised.
“The President has also considered the views expressed by the members of the Council of State at the meeting convened at Áras an Uachtaráin on Monday, 15 July, regarding the constitutionality of the Bill, in relation to two sections in particular,” he said.
It is understood that if the President had sent the new legislation to the Supreme Court to test its constitutionality that if the judges had declared it legally sound then it would have precluded any future challenges.
The statement went onto say that his decision to make the legislation law does not close off an avenue to challenge the Defence Amendment Act in court.
“When considering any piece of legislation, the President must be cognisant of Article 34.3 of Bunreacht na hÉireann, which provides that no Court can question the validity of any legislation following a referral by the President to the Supreme Court, and the capacity of a putative litigant on a fact-based rather than abstract grounds has to be taken into account.
“The President’s decision to sign this legislation thus does not close off any actions sought by any member of the Defence Forces, or their representative association, to challenge the provisions of the Bill in the future,” the statement concluded.
The development has been welcomed by Tánaiste and Minister for Foreign Affairs Micheál Martin.
Speaking to reporters this afternoon in Nairobi, Kenya , Martin said the law is important, particularly in terms of the external oversight body which he described as a “key mechanism for the transformation of culture within the Defence Forces”.
“That is a significant change in innovation that is important in terms of modernising our Defence Forces into the future. And also it’s positive in terms of facilitating the association of PDFORRA and RACO with ICTU too, which was the original objective of the legislation,” he said.
A statement from RACO thanked the President for his examination of the the legislation but strongly criticised Government.
“The lack of meaningful consultation with Defence Forces representative associations throughout this process has been a source of significant concern to our members, but we take solace in the repeated assurances by the Tánaiste that our rights to represent our members will not be diminished, but rather enhanced by this legislation.
“Our members note in particular that the President’s decision to sign this legislation does not close off any actions sought by any member of the Defence Forces, or their representative association, to challenge the provisions of the Bill in the future, should that be required,” the statement said.
A statement from PDFORRA also thanked the President for “ensuring comprehensive oversight” but said that they will continue to fight for the right to represent their membership.
“Following the detailed ruling of Justice Sanfey in the Bright case, PDFORRA had intended, and remains committed to, engaging with the Department in order to ensure that there is no ambiguity with respect to the rights of our members.
“As always, our Association will seek to ensure that our members enjoy, to the largest extent possible, their constitutional and fundamental rights and will not be found wanting should they be infringed.
“In the foregoing regard, we note the comments made by the President with respect to potential future challenges- should they be necessary,” the statement said.
With reporting from Jane Matthews in Nairobi
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