I move that this Bill be received for final consideration.
PUBLIC SAFETY (EMERGENCY POWERS) BILL, 1923. - FOURTH STAGE.
Mr. O'HIGGINS
I move Amendment 1:—"In Section 1 (b), page 2, lines 50 and 51, to delete the words in the present emergency or, and to insert in lieu thereof arising out of the existence of a state of war or armed rebellion, whether local or general or.' " The object of the amendment is to ensure that the powers given to the Military Authorities by Clause (b), Section 1, will only be exercised in areas in which a state of war exists. This is introduced pursuant to an undertaking given while the Bill was in Committee.
Agreed.
I move Amendment 2:—"In Section 1 (c), page 3, line 2, to delete the word `the' immediately before the word `responsible,' and to insert in lieu thereof the word `a.' " This is merely the correction of a misprint.
Agreed.
I beg to move an amendment in Sub-section (2) of Section 2, line 11, to insert immediately after the word "Minister," the words "subject to the provisions of this Act."
The object is to ensure that a person cannot be detained after the period limited for the operation of the Act has expired.
It is doubtful whether the object stated here will be attained by this amendment. The intention is, of course, to ensure that persons detained under an Order cannot be detained beyond the period for which the Act is timed to expire. I suggest that it would be much more likely or much more certain to achieve the object aimed at if some such words as these were inserted in addition to the amendment "for any period not extending beyond the period of the duration of this Act"—if these words were inserted after the word "custody" in line 12. It will be noted that there is a provision in the Bill which will certainly detain people longer than the period during which the Act is continued. There is provision in the Bill for sentences for 12 months or longer. Now, there is no provision in the Bill which says that the Executive Minister shall not order for any period longer than six months. If perchance an Executive Minister were to order the detention of a prisoner or an internee for 9 or 12 months stating the period in his order, there is nothing in the Bill to prevent him doing so. The suggestion I make is that some such words as I have mentioned should follow the word "custody" in line 12. It would then read:—"It shall be lawful for the Executive Minister subject to the provisions of this Act, to order the detention in custody for any period not extending beyond the period of the duration of the Act," and so on.
This object, the Minister explained in moving the amendment, would be safeguarded. Otherwise there is nothing in the Bill to ensure, even after the introduction of these words, "subject to the provisions of this Act," that the Act shall only prevail for a period of six months in respect to detained prisoners. In view of the declared intention of the Minister I think the amendment, in the form I suggest, would more thoroughly secure the end he seeks.
Mr. O'HIGGINS
I think that the statement which the Deputy has made shows his failure to appreciate the difference between "internment" and "imprisonment," because the difference lies just in the fact that internment is not ordered for a period. There is no period specified. It is detention by the Executive in the interest of public safety, and no period is stated for that detention. It is not proposed to arrest people and order one man to be detained for a period of a month and another for a period of six weeks, but it is simply a decision on the part of the Executive that the public safety requires that A.B. be detained, and the powers, under which such detention takes place, will be the powers conferred by this Bill, and will, I submit, expire automatically with this Bill. I do not hold, and neither do the officials of my Department hold, nor does the Attorney-General, nor the draftsman, that this particular amendment, which has been moved, would be necessary to secure that a person would not be detained for a longer time than six months—that is the life-time of the Bill. But Deputy Gavan Duffy professed uneasiness on the matter, and it was a small thing to soothe his mind by inserting the words "subject to the provisions of this Act," and that is simply painting the lily. Deputy Johnson goes further and speaks of a period that it would be lawful to order the detention— for a period not extending beyond the period of the existence of the Act. I think that takes away from the whole point and purpose of detention. A decision is come to that the public safety requires the detention of A.B. and when a decision is come to that the public safety does not require the detention of A.B. then A.B. will be released. It is inadvisable to speak of periods of detention. The Bill gives power to the Executive to detain for a period of six months, any person whose liberty they believe to endanger the public peace, and the public safety, and that power of detention would not survive the Bill. No other lawyer, I believe, but Deputy Gavan Duffy, would suggest that a Bill giving special powers of this kind, brought in in an emergency situation, and conferring special powers upon the Executive, would confer these powers for any longer period than the lifetime of the Bill. The draftsman and the Attorney-General were completely satisfied with the wording of the Bill as it stood, but it was a small cost to soothe Deputy Gavan Duffy's mind by inserting these few words which we believed, and still believe, to be absolutely superfluous. No one would think of quoting in nine months' time, as a reason for the detention of persons without charge or trial, the Public Safety (Emergency Powers) Act which expired three months before.
Amendment put and agreed to.
I beg to move Amendment 4:—To delete in Sub-section (1), Section 3, page 3, lines 25 and 26 the words "the custody of or held in internment by the Military Authorities," and to insert in lieu thereof the words, "military custody or held as a military prisoner or captive."
It is a purely drafting amendment which does not alter the sense of the Section in any way.
Amendment put and agreed to.
I beg to move Amendment 5: To delete in Sub-section (1) of Section (3) (a) on page 3, lines 30 and 31 the words, "certify in writing that for stated reasons they——"
This was an amendment of an amendment inserted on the Committee Stage, and the Minister indicated then that it would require a further amendment.
Mr. O'HIGGINS
I would like to say a word on this amendment. I accepted an amendment moved by Deputy Morrissey on the Committee Stage which provided that a person should not be interned without a certificate from a particular officer to the effect that he believed that, for reasons which he would set out, the arrest and detention of A.B. was necessary. I accepted that amendment in a purely lay-minded way, and having accepted it was later informed by technical and professional people that, where in an Act it is set out that something is to be done for stated reasons, the use of these words makes it competent for a Court to inquire into the reasons, and to pronounce on their validity or sufficiency. That entirely altered the complexion of the amendment to my mind, and also altered it in the view of my Department, because, on that basis, the amendment would be contrary to the spirit of the Bill which confers extraordinary power on the Executive, the power of detention without trial. To say that the Court may inquire into the sufficiency of the reasons for A.B.'s detention, was to say something which would be equivalent to making it competent for the Court so to inquire as to be a departure from the spirit and purport of the Bill. I could not, therefore, with safety, I am advised, accept that wording of the amendment which Deputy Morrissey moved, making it by the Bill itself incumbent on the officer to state the reasons for detention, because once you insert that provision there is no means by which you could make it outside the jurisdiction of the Court to inquire into the sufficiency of these reasons. But I do give this undertaking, on my own behalf, and on behalf of the Executive Council, that in all cases the reasons will be insisted on, and will be certified, but I cannot agree to the insertion of this provision in the Bill for the technical reasons I have stated. I think the main object Deputy Morrissey wished to secure was simply that such a precaution would be taken, and that in practice the duty should lie on someone to set out clearly the reasons why a particular citizen's liberty was being interfered with; and he accepted my view that that ought to be merely a departmental, confidential record. He went further and stated, that there was no intention whatever of laying a trap, and no intention whatever of inserting in the Bill something that would, in fact, enable the Court to try the whole question of the rightness or wrongness of A.B.'s detention, or the whole question of the sufficiency, or otherwise, of the reasons for it. Therefore, I think on that basis Deputies will agree that I am not departing from the spirit of any promise or undertaking I have given, in asking that these words be deleted from the Bill, because I do undertake that in all cases a record of that kind, a confidential departmental record, will be insisted on, and that in all cases the duty will lie on the officer who is taking on himself a responsibility for interfering, or recommending interference, with a citizen's liberty, to set out clearly and fully for the information of the Minister concerned, the grounds for that recommendation.
The section in question deals with the continued detention of those at present in custody. The Minister has not given us an assurance that there are in the archives of his Department, or in any other Department, written reasons why A.B. or X.Y.Z., are in detention. In that case, if these words are removed it will be within the competence of the military authorities to continue the detention of persons, if they are of opinion that the detention of these persons is a matter of military necessity. In that case no reasons will have been stated even confidentially to the Department, and no one will have had imposed upon him the duty of finding out whether there was a reason for the detention of any prisoner or internee. The object of the amendment, which was accepted on the last occasion, was to ensure that somebody at least would have imposed upon him the duty of considering whether A.B. or C.D. ought to be detained, even though the reasons to be stated were only to be submitted for the Departments concerned; that at least somebody would have to consider the question, and give some reasons to a superior authority. Now, the Minister desires that that duty, which was imposed upon the military authorities on the last Stage of the Bill should be removed, and that no such liability should lie upon the military for their continued detention of prisoners. The Minister again tries to persuade the Dáil that because he gives an assurance that their intention is to do a certain thing, that there is no need to insert in the Bill a requirement that such a thing should be done. One could imagine such a plea at the beginning of a Parliament, but one can only smile when one hears such a plea at the end of a Parliament. Suppose Deputy Gorey were to be Minister for Home Affairs——
Mr. O'HIGGINS
Will the Deputy allow me to intervene? I can, of course, only give an undertaking on my own behalf and on behalf of the Executive Council for our period of office. It will be for the next Dáil and those who are in the next Dáil to ask for any undertaking that they require from the next Executive Council.
That is quite true, but this Dáil has imposed upon it the responsibility of making law and the new Dáil will have to be responsible for introducing new measures. If all the Acts that have been passed, or are proposed to be passed, have to go through the small tooth comb during the first weeks of the new Dáil to correct any mistakes that have been made or any injustices that have been inserted in Bills passed by this Dáil you will be putting upon that body an impossible task. It is much better, I submit, to avoid the necessity, if you possibly can, for those mistakes being corrected. The Minister gives us an assurance, and as he says he can only give an assurance respecting his own conduct, or the conduct of the Executive Council, of which he is a member. But we are now asked to pass a Bill, and that Bill will be the law, and it is under that Bill, or Act when it becomes the law, that the military authorities will exercise their option. If they are of opinion that military necessity requires that a person should be detained this Bill, if it passes in the form in which the Minister desires it, gives authority to these military powers to detain those persons simply by virtue of their opinion that such a person should be detained. They are not even to be asked to put down in writing for future reference why such a person is to be detained. The Minister explains his change of front in this matter because the phraseology in the amendment which he then accepted seems to carry with it certain legal liabilities. When the amendment was proposed there was no hidden reading or understanding of legal technicalities of what was embodied in the words "for stated reasons." But it should be, I think, plain commonsense that if an officer of State has to have power to detain a citizen for such time within six months as he desires, that at least he should have imposed upon him the responsibility of writing down to somebody, or setting down in a book or in a document, reasons why he thinks such continued detention is necessary. The Minister asks us to trust whoever may be the responsible Ministers for the next six months. When we are dealing with Acts of Parliament I think it is very unsatisfactory to be asked to trust to the wisdom and discretion of Executive Officers or Ministers for Defence, or even military captains. If the military authorities are of opinion that a person should be detained then they may detain him. I do not think there is any definition of military authority. It may even be that a subordinate officer would be deemed to be a military authority, and unless his act was brought before the notice of his superiors then he would be acting quite lawfully in detaining without reason. Somebody would have imposed upon him or her the responsibility of reporting the fact of the detention of a prisoner to the higher authority of the Army before the subordinate authorities of the Army could be brought into question. Subordinate officers are not to be asked to state any reason even for the information of their superior as to why a prisoner is to be detained. The explanation given by the Minister that the insertion of these words would bring the whole question of military detention under the purview of the Courts no doubt is serious from his point of view, and it is a credit to the law that that is the case. It shows how much more sane the law is than the mere opinion of a military authority. I am sorry that I cannot suggest any other method of ensuring at the very least before a citizen is detained that somebody would have imposed upon him the duty of saying, even to his superior officer, the reason why such a person is being detained. If the civil power is to have control of the military powers, and that is the justification that was originally adduced for the introduction of this Bill—that it was an attempt to bring the civil power into complete authority—surely it ought to be provided that the military authorities should say why they are detaining a prisoner and that they should have some reason for detaining a prisoner, and not merely be acting upon an opinion or a spite or a spleen or a grudge, as might well be under this Section. I submit that it is the smallest demand that the Dáil should make upon the Ministry, that the reasons for a prisoner's detention should at least be written down by the person primarily responsible for that detention.
Mr. O'HIGGINS
The Deputy has emphasised the fact, or fiction, that the pledges of Executive Ministers are of no value and that it is the wording of the Bill that counts and must count——
On a point of order, the Minister knows that I did not say anything of the kind. I said the pledges of the Ministers, as he himself admitted, only bound the Ministers who made the pledges and did not bind their successors.
Mr. O'HIGGINS
The Deputy will, I am sure, allow me to retort that it is not the benevolent intentions of the mover of an amendment that counts, but the legal effect of the amendment that is moved. I have pointed out that when, by the provisions of a Bill, a legal duty is imposed on any person to state reasons for the course he has taken, that it thereupon automatically comes within the competence of the Courts to inquire into the question of the sufficiency or insufficiency of those reasons. Because of that, I am unwilling to accept an amendment placing the legal duty upon an officer to set out the reasons for the arrest and detention of any person under this Bill. I submit that to bring within the purview of the Courts the question of the necessity or otherwise for the detention of a person is contrary to the spirit of the Bill I did undertake that, as a matter of practice, in exercising the powers conferred by this Bill, such a precaution would be observed. I undertook that on my own behalf and on behalf of the Executive Council.
The Deputy in considering this amendment should advert to Amendment 6, which proposes to substitute for the words "in the present emergency or" the words "arising out of the existence of a state of war or armed rebellion, whether local or general or." In point of fact, the change is not material because action cannot be taken based on military necessity otherwise than in a condition of war or armed revolt. Action cannot be justified as a military necessity save in those conditions. The power of arresting persons without charge and without reason stated is inherent in the military when conditions of war or armed revolt prevail. If we were to set out in this sub-section that reasons should be stated, then you would have a two-fold result. You would have the result that, as I have stated, you would place it within the competence of the Courts to enquire into the sufficiency of those reasons and you would have the result that you would be hampering, or attempting to hamper, the military in the exercise of powers which are inherent in them by virtue of a state of war or armed revolt. This Bill was introduced largely to deal with a situation that would arise when the Courts refuse to take the view of the military authorities that a state of war or armed revolt prevails. We were simply facing the fact that you have throughout the country the elements of serious trouble. The question of releasing the very large number of internees that are on hands at the moment must be approached guardedly and cautiously. To hold any of these the day or the week after the Courts decide that a state of war or armed rebellion no longer exists, it is necessary to obtain powers to hold all, and then proceed to use that discretion, that judgment, that knowledge of the situation which an Executive Council presumably possess as long as they hold the confidence of the representatives of the people. I have, with regard to this amendment, no concession to make. We have not been able to devise any form of words that would at one and the same time impose a legal duty on people to state their reasons for a particular course and at the same time exclude the consideration of those reasons by the Courts. Consequently, I have no alternative but to take the line set out in Deputy Duggan's amendment and to ask for the deletion of those words, on the understanding and on the undertaking I have given, that as a matter of practice, in the exercise of the powers which this Bill proposes to confer, that precaution will be taken of insisting that officers responsible for the arrest and detention of citizens will, in point of fact, be asked to set out their reasons for such recommendation.
I hope that the Dáil, unlike the Minister, will not go back on its acceptance of the amendment that was introduced in Committee, but that it will insist on keeping those words in the sub-section. The Minister this evening, and repeatedly has shown what may be, from his point of view, justifiable distrust of the law, or rather of the Courts. That is not a position which I think the Dáil should take up. If there is a conflict between the legislative assembly and the military arm of the Executive, ordinary citizens, except there is something very extraordinary in it, should support the legislative assembly. One is tempted, when one hears a Minister arguing as he argued this evening, to wish that there were more professorial Deputies in the Dáil, because one feels that it would be good for the Dáil, occassionally, to be told that there are certain relations between the different branches of legislation—between that branch which makes laws, that branch which administers laws, and that branch which interprets the laws when so made, and whose function is to keep a check on the administration. The Minister, I think, has made it as clear as it can be that his intention really is to subordinate the Courts to the military arm. That is not a position which we, as a legislative Assembly, can support or ought to support.
Speaking frankly, and from experience, I do not trust the general body of officers in whose hands will really lie the decision on matters such as are dealt with in this sub-section. I have in my pocket a reply from the Military Authorities, dealing with a prisoner whose case I took up five or six months ago along with two others. While they agreed two or three months ago to release one or two of those prisoners, they still detain the third, and they tell me now that arrangements will be made for the release of the third. People who carry things over so long as that have got a peculiar conception of their duties in matters of that kind, and are not to be trusted when they merely express an opinion. No matter how much we appreciate the Minister's intentions it is not enough. We must have something more than Minister's intentions. Even his apparent concession in inserting earlier in the Bill, in the first Section the words "Arising out of the existence of a state of war or armed rebellion whether local or general," does not go far enough. It does not go as far as to be satisfactory, because this sub-section deals with people who are at present in military custody. Now, if he gets the declaration from the military that in a certain area, there is a state of war or of armed rebellion, and, on that, confines or continues to keep in confinement, certain prisoners, what about the prisoners who are not from that area? What about the prisoners who are from the area in which there is not a state of war or armed rebellion? He can still keep them in spite of this provision about a state of war or armed rebellion locally. He can keep prisoners drawn from areas in which there is no state of war or armed rebellion recognised even by the military, not to speak even of the Courts, and he can do that without any stated reason being given by the military. The Bill does not require that reason to be given at all. It merely requires an expression of opinion on the part of the military. If there is anything like logic in the position, of course there would be nothing for him to do but to release all those who did not happen to hail from that disturbed area. He will not do that. He does not want to do that. Merely on the opinion of a military officer of certain rank he is going to detain them. The Dáil, I think, should not accept that amendment. It should insist on the position accepted by the Minister on the previous occasion, and agreed to by the Dáil, and leave these words as they were passed on the Committee Stage.
I am sorry these words have been left out, because I do not share the apprehension of the Minister that they could be used in the way in which he fears they could be; but as he has been so advised, I would certainly like to say that I am quite clear he is not going back in any way on anything that he said on a former Stage of this Bill. When he did intimate that he was prepared to consider the acceptance of this amendment, he made it perfectly clear, to me at any rate, and I think to everybody else, that he could only do so on the assurance that the certificate which he agreed should be given, should not be capable of being investigated, and the reasons should not be advanced by anybody except himself or the military authority, or, in certain ceses, the tribunal that would deal with the case later on if it happened to come before them. If this amendment is pressed to a division I would consider myself bound to support it, because the amendment is giving effect to the undertaking the Minister himself gave, and he is carrying out the bargain made between himself and the Dáil when he said that he would consider whether this amendment could be introduced or not, and that he would only agree to it on the understanding that the certificates could not be used in the manner in which he is now advised they might be. If he has that apprehension I think that he is perfectly entitled to have it removed. although I think it is ill-founded.
Amendment put.
The Dáil divided: Tá, 31; Níl, 8.
Tá
- Liam T. Mac Cosgair.
- Gearóid Ó Suileabháin.
- Seán Ó Duinnín.
- Mícheál Ó hAonghusa.
- Peadar Mac a' Bháird.
- Deasmhumhain Mac Gearailt.
- Seán Ó Ruanaidh.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Mícheál de Staineas.
- Domhnall Mac Cárthaigh.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Eoin Mac Néill.
- Pádraig Ó hÓgáin.
- Pádraic Ó Máille.
- Seoirse Mac Niocaill.
- Caoimhghin Ó hUigín.
- Fionán Ó Loingsigh.
- Criostóir Ó Broin.
- Seán Mac Eoin.
- Próinsias Mag Aonghusa.
- Eamon Ó Dúgán.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
Níl
- Riobárd Ó Deaghaidh.
- Tomás Mac Eoin.
- Liam O Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Ceallacháin.
Amendment declared carried.
I beg to move the following Amendment, which is identical with Amendment No. 1.
In Section 3 (1) (a), page 3, lines 32 and 33, to delete the words "in the present emergency or" and to insert in lieu thereof the words "arising out of the existence of a state of war or armed rebellion, whether local or general, or."
Amendment agreed to.
I beg to move the following amendment, which is identical with No. 5.
In Section 3 (1) (b), page 3, line 35, to delete the words "certifies in writing that for stated reasons he."
The reasons against this amendment, I admit, are not quite so strong as against the last. There is more reason for expecting a sense of responsibility in an Executive Minister than in a military officer. Nevertheless, the principle is a bad one, and I must oppose it.
Amendment put.
The Dáil divided: Tá, 35; Níl, 8.
Tá
- Séan Ó Duinnin.
- Liam T. Mac Cosgair.
- Geariód Ó Súileabháin.
- Mícheál Ó hAonghusa.
- Séamus Breathnach.
- Peadar Mac a' Bháird.
- Deasmhumhain Mac Gearailt.
- Seán Ó Ruanaidh.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Mícheál de Staineas.
- Domhnall Mac Cárthaigh.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraig Ó hÓgáin.
- Pádraic Ó Máille.
- Paras Béasla.
- Fionán Ó Loing igh.
- Criostoir Ó Broin.
- Caoimhghin Ó hUigin
- Aiedriú Ó Laimhin.
- Seán Mac Eoin.
- Próinsiag Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
Níl
- Riobárd Ó Deaghaidh.
- Tomás Mac Eoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Seán Ó Laidhin.
- Cathal Ó Seánáin.
- Domhnall Ó Ceallacháin.
Amendment declared carried.
I move:—"In Section 3 (2), page 3, line 42, to insert after the word `unexpired' the words or discharged.' " The object of the amendment is to ensure that the power of pardoning a prisoner is preserved. When a prisoner is pardoned he is technically stated to be discharged.
Agreed.
I move:—"In Section 4 (4), (a), page 3, line 65, to insert after the word `act' the word `or.' " This is to correct a clerical error.
Agreed.
I move Amendment No. 10:—"In Section 5 (4), page 4, line 56, to insert after the word `court' the words is satisfied that there are special circumstances in the case which constitute a mitigation of the offence, or.' " The object is to prevent the provision for the introduction of corporal punishment to be made compulsory and to give the judge discretion.
Agreed.
I move:—"In Section 7, lines 63, 64, 65, page 5, to delete all from the word `repay' to the word `him,' inclusive, and to insert in lieu thereof the words `before such stolen property is actually restored to him, repay or return to the Minister for Finance such compensation or such lesser sum as may be deemed by such Minister to be the fair value of such stolen property at the time of the restoration thereof.' " The purpose of this amendment is that when a person has received compensation for property stolen and such property is subsequently returned to him in a damaged condition he will not have to return the whole of the compensation, but only as much as represents the property in its damaged condition.
Agreed.
Amendment 12, by
"In Section 7, page 5, line 64, to insert after the word `compensation' the words `or such lesser amount as may be deemed by the Minister for Finance to be the fair value of such stolen property at the time of restoration."'
Amendment 11 contains all that there is in Amendment 12.
Amendment not moved.
took the Chair at this stage.
Amendment by
"In Section 10 (1), page 7, to delete from the word `unless,' line 13, to the word `untrue,' line 15, inclusive, and substitute therefor the words `if he is satisfied that such allegation is true.' "
I formally move the amendment.
Mr. O'HIGGINS
The effect of the Deputy's amendment is to shift the onus of proof in the matter which the Section covers from the person who was suspected of having acquired the property wrongfully to the Executive. It would substantially alter the effect of the Section and it is not acceptable. This particular Section is, as I explained on the Committee Stage, an extension and adaptation of provisions that already exist in the Dublin Metropolitan Police Acts and the wording is taken from these Acts. It provides that application may be made by "An Executive Minister to a District Justice alleging that land, investments or other property in the possession or control of any person was bought by such person with, or otherwise represents, or is directly or indirectly derived from any stolen property or funds, or any public funds, or funds which ought to be in the custody of a Minister or a Government Department." It goes on to say that in such an event "The District Justice shall, unless the person having possession or control of such lands, investments or property satisfies him that such allegation is untrue, order the transfer of such property in so far as it consists of land, to the Irish Land Commission, and in so far as it consists of investments or other property to the Minister for Finance." The Deputy may consider that this amendment is a small matter, that it simply has the effect of putting the matter positively rather than negatively, but in point of fact, it does definitely shift the onus of proof. In times like the present, when there has been so much promiscuous robbery and looting as there has been within recent months, it is not a hardship to provide that an individual may be called upon to clear himself of the suspicion of having come by certain property wrongfully, and that is the aspect that we wish to preserve, that it is within the power and within the province of the Executive to put an individual citizen on proof of having come by property within his possession honestly and rightfully. The prima facie case will be placed before the District Justice. The onus of rebutting that suspicion is placed on the individual citizen, and this provides that in the event of his failing to rebut the suspicion on which the Executive moves, that the District Justice shall order the transfer of such property, if it be land to the Land Commission, and if it consists of investments to the Minister for Finance. Further on, Sub-section 5 provides for an appeal from the District Justice to the County Court Judge, and it provides that “an order of the County Court Judge on the hearing of any such appeal shall have the same operation as a like order by a District Justice.” The Deputy's wording puts on the State practically the burden of proof, and practically demands that conclusive evidence, evidence with which a District Justice will be entirely satisfied, shall be produced by the Executive. What is asked is that where reasonable suspicion rests, the onus should lie on the citizen to clear himself of that suspicion, and to show, in fact, what it ought to be easy for any citizen to do, that the particular piece of property in his possession came honestly and justly into his possession.
Amendment put.
The Dáil divided: Tá, 9; Níl, 30.
Tá
- Riobárd Ó Deaghaidh.
- Tomás Mac Eoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Domhnall Ó Ceallacháin.
Níl
- Liam T. Mac Cosgair.
- Gearóid Ó Súileabháin.
- Mícheál Ó hAonghusa.
- Séamus Breathnach.
- Peadar Mac a' Bháird.
- Deasmhumhain Mac Gearailt.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Domhnall Mac Carthaigh.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraig Ó hÓgáin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Criostóir Ó Broin.
- Caoimhghin Ó hUigín.
- Aindriú Ó Laimhin.
- Seán Mac Eoin.
- Próinsias Mac Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodhe.
- Séamus Ó Murchadha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Tomás Ó Domhnaill.
- Uinseann de Faoite.
- Darghal Figes.
Amendment declared lost.
I beg to move in Sub-section (2) of Section 11, on page 8, to delete all from the words, "and is not mine," line 13, to the word "Department," inclusive, on line 18.
Mr. O'HIGGINS
The effect of the Deputy's amendment would be simply to place the onus on an individual to show that certain money belonged to him, that, in fact, he could operate on it and might lodge it to his credit, and that he could draw on it and exercise all the prerogatives of proprietorship. The whole object of this Section is to enable stolen property or stolen funds to be traced and forfeited to the Ministry of Finance. The Section says: "Any stolen property or funds, or any public funds, or funds which ought to be in the custody or under the control of a Minister or a Government Department."
There have been robberies on the grand scale inside the last ten or twelve months. Banks were held up and large sums of money stolen; Post Offices have been raided and valuable property has been looted throughout the country. If these, or any considerable proportion of them, are to be successfully traced, we must have power to ask more from an individual than simply to show that he has actual possession and control of money and can operate with it. He must be in a position to show that it came honestly into his possession, and that it is not stolen property or funds or the proceeds of stolen property. That is the power that is asked for. It was difficult to find the exact form of words to cover that. In a Bill of this kind power is to be given, and power is to be asked for, with some appreciation of the fact that it will be used with due discretion, and used in such a manner that hardship will not ensue. The Minister for Finance, if he is to be at all successful in tracing all or any of the large sums that are being stolen throughout the country, must get more power than the Deputy's amendment leaves. He must get power of following up stolen property, and of asking an individual, reasonably suspected of having property or funds wrongfully in his possession, to show that these are not the proceeds of robbery or the proceeds of theft, and not merely that they belong to him, but that he came rightfully and lawfully by them, and that he is not merely a middleman or an accomplice in the robbery of property or of funds which are not his. If you had no power of tracing funds after they had actually passed from the hands of the robber, then the Executive would be in a very helpless condition; if you had no power of tracing the proceeds of property after the robber would have succeeded in liquidating it, then you, would be practically helpless, because it is not to be supposed that people having committed a robbery, or people having conspired to plunder, will remain for any very long period in actual possession of the proceeds of that crime. They will take steps to pass it on, to have it in someone else's name, as has been done to our knowledge with the proceeds of bank robberies in Cork and elsewhere. The powers asked here are not excessive, if we are to have any hope of achieving the end at which the Bill aims, the end of following up and, as far as possible, restoring to the lawful owner property or funds that have been stolen through the country.
Amendment put.
The Dáil divided: Tá, 9; Níl, 34.
Tá
- Riobárd Ó Deaghaidh.
- Tomás Mac Eoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Seán Ó Laidhin.
- Cathal Ó Seaáin.
- Domhnall Muirgheasa.
- Domhnall Ó Ceallacháin.
Níl
- Liam T. Mac Cosgair.
- Gearóid Ó Súileabháin.
- Uáitéar Mac Cumhaill.
- Seán Ó Duinnín.
- Mícheál Ó hAonghusa.
- Séamus Breathnach.
- Peadar Mac a' Bháird.
- Deasmhumhain Mac Gearailt.
- Seán Ó Ruanaidh.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Domhnall Mac Cárthaigh.
- Sir Séamus Craig.
- Gearóid Mac Giobúin.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraig Ó hÓgáin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Criostoir Ó Broin.
- Caoimhghin Ó hUigin.
- Aindriú Ó Laimhín.
- Seán Mac Eoin.
- Próinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Seasamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird.
- Tomás Ó Lomhnaill.
- Earnán de Blaghd.
- Uinseann de Faoite.
Amendment declared lost.
I beg to move the deletion of Section 12, page 8 (amendment 15).
Mr. O'HIGGINS
The Deputy will remember that this Bill has a life-time of only six months; that it is intended to deal with a very special set of circumstances, to deal with a situation in which we find ourselves emerging from a war-period, and in which we cannot afford to ignore the possibility of local recrudescences. The Deputy does us too much credit if he thinks we have so far succeeded in our task that such a thing as intimidation of jurymen would not be possible in any county at the moment, or would not be possible in the near future.
This Section faces the fact that conditions might well exist in a particular area, or might well even grow up about a particular place, which would render a fair and impartial trial of the case impossible in that particular area, and it asks power that the venue may be changed when an application by or on behalf of the Attorney-General——
"Shall be changed." There is no option left to the Judge.
Mr. O'HIGGINS
"Shall be changed when the Attorney-General enters his certificate to the effect that he believes that a more fair and more impartial trial can be had at a Court and in a County named in such certificate." We think that that is not an unreasonable request in all the circumstances of the country, in view of the fact that a very defiant and very criminal mentality has been created in the country, and in view of the fact that lethal weapons and explosives are secreted throughout the country. In the presence of all these elements which are calculated to weigh in the minds of jurymen and calculated to deter them from the proper and responsible discharge of their duties, the Executive itself is the best judge of the conditions in a particular area, and when the Attorney-General, on behalf of the Executive, enters his certificate to the effect that in his belief a more fair trial and a more impartial trial can be secured elsewhere than in the particular area and venue of the crime or of the case, then we see no reason why power should not be given by the Dáil for a change of venue of that kind.
Amendment put.
The Dáil Divided: Tá, 10; Níl, 32.
Tá
- Riobárd Ó Deaghaidh.
- Tomás Mac Eoin.
- Liam Ó Briain.
- Tomás Ó Conaill.
- Aodh Ó Cúlacháin.
- Seán Ó Laidhin.
- Cathal Ó Seanáin.
- Domhnall Ó Muirgheasa.
- Domhnall Ó Ceallacháin.
- Seoirse Ghabhain Uí Dhubhthaigh.
Níl
- Liam T. Mac Cosgair.
- Gearóid Ó Suileabháin.
- Uáitéar Mac Cumhaill.
- Seán Ó Duinnin.
- Mícheál Ó hAonghusa.
- Séamus Breathnach.
- Peadar Mac a' Bháird.
- Deasmhumhain Mac Gearailt.
- Seán Ó Ruanaidh.
- Mícheál de Duram.
- Seán Mac Garaidh.
- Pilib Mac Cosgair.
- Domhnall Mac Carthaigh.
- Sir Seámus Craig.
- Liam Thrift.
- Eoin Mac Néill.
- Liam Mag Aonghusa.
- Pádraig Ó hÓgáin.
- Seoirse Mac Niocaill.
- Fionán Ó Loingsigh.
- Criostóir Ó Broin.
- Caoimhghin Ó hUigín.
- Aindriú Ó Laimhín.
- Próinsias Mag Aonghusa.
- Eamon Ó Dúgáin.
- Peadar Ó hAodha.
- Séamus Ó Murchadha.
- Seosamh Mac Giolla Bhrighde.
- Liam Mac Sioghaird
- Earnán de aghd.
- Mícheál de Staineas.
- Alasdair Mac Caba.
Amendment declared lost.