If the 21st amendment is passed in the referendum on June 7th, the Constitution will prohibit the passing of any law providing for the death penalty, including in time of war or armed rebellion.
The death penalty has already been abolished in this State since the Criminal Justice Act of 1990, and it has not been used since 1954. In 1964 it was abolished for all offences other than treason, capital murder and certain military offences. Capital murder was defined as the murder of a member of the Garda Siochana, the prison service or representatives of foreign states.
The last time it was imposed was on Noel and Marie Murray, convicted of the capital murder of Garda Michael Reynolds in June 1976. Garda Reynolds was shot dead by Marie Murray during a bank robbery in Dublin.
However, they successfully appealed against the capital element in this offence, as Garda Reynolds was off duty and out of uniform at the time, and they said they did not know he was a member of the Garda. They were then sentenced to life imprisonment for his murder.
Despite the abolition of the death penalty in law, references to it remain in the Constitution. Article 13.6 sets out the right of the President to pardon or commute sentences, and states that "except in capital cases", this right may be conferred by law on other authorities.
Article 40.4.5 deals with the habeas corpus provisions of the Constitution, providing for a person in custody to be produced to a court, and describes how it should operate when the person concerned is under sentence of death.
As well as removing these references to the death penalty, the proposed amendment will insert a new article 15.5.2 into the Constitution stating: "the Oireachtas shall not enact any law providing for the imposition of the death penalty".
Article 28.3.3, dealing with a state of emergency, will also be amended to exclude the reintroduction of the death penalty. Otherwise its provision that "nothing in this Constitution shall be invoked to invalidate any law enacted . . . in time of war or armed rebellion" would allow the repudiation of the death penalty elsewhere in the Constitution to be overridden.
These changes to the Constitution have been urged by the Constitution Review Group and the All-Party Oireachtas Committee on the Constitution.
They also arise out of a number of international undertakings made by the State. Protocol 6 to the European Convention on Human Rights, ratified by Ireland on June 24th, 1994, abolished the death penalty, though it allowed for a derogation in time of war.
The Government also ratified the Second Optional Protocol of the UN International Covenant on Civil and Political Rights in June 1993. That also abolished the death penalty, and also allowed for a reservation in time of war.
The amendment is likely to have an easy passage through the Oireachtas, as the Opposition parties have indicated support for all three proposed amendments, following the withdrawal of the amendment on the judiciary.