and those in authority in a political community when goods held in common for the benefit of the entire community fall to be distributed and allocated.Apart from the power of the superior courts to reconsider acts of the Oireachtas on constitutional principle; the courts may also- review subordinate legislation on criteria of vires both substantive and procedural. In addition, law-making functions are in practice often exercised by organs-such as Ministers- whose activity is mainly executive, in making regulations and orders of general application, though of course under the authority of the Oireachtas: and again, though no specific notice is taken of the fact in the Constitution, the commencement of legislation is for practical purposes exclusively in the hands of the executive.Some cases have affirmed certain borders between executive and judicial functions in relation to the trail of offences. In Director of Public Prosecutions v O Suilleabhain Carroll J cited Attorney General (McDonnell) v Higgins in support of the proposal that a judge is not entitled to prefer charges. At the other hand of this legal process, the protective effect of Article 6 on the executive power to decide on the duration of imprisonment or detention has also been considered by the courts on a number of occasions. In the case Director of Public Prosecution v Tiernan it was for the executive to decide to serve, and, accordingly, the courts could not take that period into account in imposing sentence in a rape case. A recent series of cases has focused attention on the constitutionality of the power given to the executive, pursuant to 2(2) of the Trial of Lunatics Act 1883, to settle on the duration of detention of an accused person who had been found guilty but insane. Doubts about the constitutionality of this agreement arose because of the verdict in The State (O) v O’Brien in which a majority of the Supreme Court ruled that the power to decide the durat...
