AMENDMENTS TO ARTICLE 69.

AN LEAS-CHEANN COMHAIRLE

There are some new amendments which the leave of the Dáil has been asked to introduce.

Mr. E. BLYTHE

Yes, I ask the leave of the House to move amendments, of which notice has not been given, to Article 69. It is on the last line of page 12: "To insert after the word `war' the words `or armed rebellion,' that is `the jurisdiction of military tribunals shall not be extended to or exercised over the civil population save in times of war or armed rebellion, and for acts committed in time of war,' I move to insert again the words `or armed rebellion.' " Then in line 3, on page 13, to insert the word "all" in place of "the"—that is, that "Such jurisdiction shall not be exercised in any area in which all the civil courts are open or capable of being held, and no person shall be removed from one area to another"—that is, that there might be an area in which some civil court, perhaps a court not having any sort of criminal jurisdiction, or a court in a special area, or one local court in a small corner of the area, or something like that, might be able to be opened and might be capable of being held, whereas courts in general would not be capable of being held. This is simply that the test of whether or not such a state of war exists in any particular area as to justify the exercise of the jurisdiction of military courts in that area will be that all the civil courts are open or are capable of being held. With the leave of the Dáil I would like to move the amendments.

Mr. P. HOGAN

I second the amendments.

Professor MAGENNIS

I regret having to oppose one part of this formula. I quoted here before the famous decision of Coke that the test of whether a state of war exists in the country or not is, are the courts open? Now the tests put in here are, are all the civil courts open?

Mr. E. BLYTHE

Or capable of being opened.

Professor MAGENNIS

I think that that is an incautious departure. I would beg the Minister to reconsider it, because I think it goes beyond what he intends. I grasp the idea that is clearly behind it, but I think the words themselves are clearly in excess. It might be taken to refer to the closing of a particular civil court, whether it was a court under whose jurisdiction a particular matter would fall or not. After all, it seems to me that if the High Courts are open, and if the case can be brought before them, that satisfies Coke's great test. The country is not in a state of war where a High Court can be held. It might just be possible that in some little district the Resident Magistrate's Court would be impossible, and then it might be held that, inasmuch as this one was closed not all were open. It creates a practical difficulty, though I am in agreement substantially with the Ministry.

Mr. P. HOGAN

This matter was considered very carefully, and advisedly the word "all" was put in. I am afraid we could not accept the Deputy's suggestion, that because the High Courts are open, there is no state of war. I do not think that is sound law. I do not think it is sound teaching on the question. I do not think that holds in practice in any country. I think if you reduce the question to practice, you will find that in most countries where martial law has been proclaimed, it has been possible, at least at intervals, to open the High Court. There are difficulties in any possible wording of that clause, but I think we reduced them to a minimum by the word "all," and I think, after consideration, the Deputy will have agreed that putting one thing with another, we could not have done very much better.

Mr. E. BLYTHE

I might remark to the Deputy that the change was decided on as an alternative to omitting entirely the last sentence.

Professor MAGENNIS

Would the Minister accept an amendment, a verbal alteration: "In accordance with regulations prescribed by law." That omits "to be," and you will see at once the reason for the omission. As the wording now stands it leaves the door open for the misinterpretation that the regulations may be prescribed afterwards, whereas, of course, they should be prescribed regulations, and as we are dressing up the wording, making it clear and more watertight, it might read: "In accordance with the regulations prescribed by law."

Mr. E. BLYTHE

We could think over that. I think it is a matter that would be capable of being dealt with, as a verbal amendment, in the next stage.

AN LEAS-CHEANN COMHAIRLE

The amendment is carried.

Mr. KEVIN O'HIGGINS

Amendment No. 21, page 13, Article 70, line 9—after the word "martial," to insert the words, "or other military tribunal." Perhaps, we could take along with that, page 13, Article 70, line 11, after the words, "court-martial," to insert the words, "or other military tribunal."

These amendments were agreed to.

Mr. KEVIN O'HIGGINS

Article 71, No. 23:—I move at the end of line 19, to insert the words, "or other military tribunal." It is simply consequential on the other.

Agreed to.

Mr. KEVIN O'HIGGINS

Amendment 24 is purely one of those formal things—page 13, line 20, "to delete Section V," to omit the sub-heading, `Transitory Provisions.' "

Professor MAGENNIS

Don't you require that heading?

Mr. K. O'HIGGINS

That Amendment 24 is withdrawn. We leave in the reference to Transitory Provisions. Amendment 25, Article 23, line 29—to delete the word "fifth," and to insert instead of that the word "sixth."

Agreed to.

AN LEAS-CHEANN COMHAIRLE

There is an amendment here to delete Article 73 and substitute the following:—