DAIL IN COMMITTEE. - INDEMNITY BILL, 1923. THIRD STAGE RESUMED.

I beg to move an amendment in Sub-section (2) of Section 3, on line 2, to insert before the word "judicial" the word "high." As the sub-section stands there is nothing to compel an Executive Minister who appoints a Board of Commissioners to appoint to it judges of the highest status. The section, as a whole, is a fulfilment of the promise made some time ago by the Minister for Home Affairs on one of the stages of the Public Safety Bill, that the Ministry would appoint a Court to review and, if necessary, to revise the sentences passed by military courts. In south Africa, when a similar Court was set up, the decision there was that the Court should consist of three Judges of the Supreme Court. I think all the argument is in favour of the appointment of the highest judicial officers that are available in the Saorstát. The duty of the Board of Commissioners will involve many legal and other questions, and I think it would be much better if the members of the Board were the highest judicial officers in the land. Indeed, it would be well, I think, though it is perhaps outside the scope of the amendment, if there were three Judges instead of two, because with two there may be differences of opinion, and in that case I do not know what would happen. I formally move the amendment.

I would like to know if the Deputy has anybody in mind. There are certain persons at present in the country who have held high judicial office in Saorstát Eireann. I would like to know if he has any of these in mind?

Surely it is not the President's desire that a Deputy moving an amendment should name the person that ought to be appointed to this office.

An amendment is put down which has a very vague meaning. Very few reasons are given for it, and no case is made out for its acceptance. I have asked a simple question. I am a plain man, as the Deputy knows, and I am entitled to know whether or not that is the intention or the meaning of the amendment.

The intention of the amendment is not to name any judicial officers at all. It is a mat ter of indifference to me who they are in personnel, but their judicial standing is a matter of very great concern, and the reputation and the experience of judicial officers is a matter of very great concern. Now, as the President admitted yesterday evening, the sentences imposed by the Courts mentioned in the Bill were imposed by men acting under great difficulties; they must have been imposed in many cases by men who had little or no legal experience. The intention of the amendment is that in the review of these sentences, if the review is to be a genuine one, and if it is to be not merely a simple reconsideration of the case, but a review conducted in times of peace, it should, I submit, be conducted by the most competent people whose services the State can call upon. If the President thinks that the amendment as I put it is too indefinite, I shall ask him if he will accept an alternative amendment that the members of this Court shall be Judges of the High Court of Justice.

The amendment is not accepted.

As the sub-section stands, the Court to be established, or the Commissioners who may be established under this, which is virtually a Court of Appeal, may be persons who hold or have held any judicial office, even the most minor. The office of Peace Commissioner would, I suppose, hardly be held to be a judicial office, but the office of a District Justice would certainly be held to be a judicial office under this section. A District Justice may be a man who may not have had very much experience as a Judge, though he may have had a good deal of experience at the Bar or as a solicitor. But what is required, in my view, is judicial experience, and it is surely not an extravagant request that the persons who are to be appointed as Commissioners should have that judicial experience. They will hear appeals from the Committee of which one had to be a lawyer, and it is not, I suggest, too much to ask that that Court of Appeal should be composed of men who have held high judicial office, not merely judicial office, because of the fact that they had been appointed District Justices and had no experience beyond the last two or three months. Surely the President is not going to say that that is an extravagant or an unreasonable amendment to propose. The term "judicial office" would cover the veriest novice. This Court of Appeal will have imposed upon it the duty of trying cases, and these are alleged to be criminal cases. It is not asking too much that the Court of Appeal, which in effect this Court will be, should be composed of men who have had considerable experience in the trying of cases.

I desire to support the amendment, but I take it that the section as a whole will be open to discussion presently, and therefore I shall defer till then one or two observations that I wish to make on the section. I merely say now that I fail to understand how any human being can object to this particular amendment if this review performance is intended to be serious.

It is not meant that the Deputy should understand it.

The President's earlier observation shows something that we have observed from time to time on the Ministerial side, and that is that there is a profound distrust of the High Courts in this country. I have not moved, though I might well have moved, that the appointment of these Commissioners might be taken out of the hands of a member of the Executive Council, but I did not move that. I have moved that the Executive member, in appointing Commissioners, should appoint Commissioners of a certain judicial standing, and it is not either the mover of the amendment or the supporter of it who is asking to be allowed to nominate these officials, but the Ministry is asking that an Executive member should make the nomination. I want to see that the officials nominated will be the most competent people who can be got.

Amendment put.
The Dáil divided: Tá, 13; Níl, 37.

  • Tomas de Nógla.
  • Riobárd O Deaghaidh.
  • Liam de Róiste.
  • Darghal Figes.
  • Tomás Mac Eoin.
  • Seoirse Ghabhain Uí Dhubhthaigh.
  • Aodh O Cúlacháin.
  • Séamus Éabhróid.
  • Liam O Daimhín.
  • Cathal O Seanáin.
  • Domhnall O Muirgheasa.
  • Risteárd Mac Fheorias.
  • Domhnall O Ceallaghain.

Níl

  • Liam T. Mac Cosgair.
  • Donchadh O Guaire.
  • Seán O Maolruaidh.
  • Seán O Duinnín.
  • Micheál O hAonghusa.
  • Seán O hAodha.
  • Séamus Breathnach.
  • Pádrig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd O Maolchatha.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Liam Mag Aonghusa.
  • Pádra c O Málle.
  • Fionán O Loingsigh.
  • Séamus O Cruadhlaoich.
  • Criostóir O Broin.
  • Risteárd Mac Liam.
  • Caoimhghin O hUigín.
  • Proinsias Bulfin.
  • Tomás Mac Artúir.
  • Séamus O Dóláin.
  • Liam O hAodha.
  • Proinsias Mag Aonghusa.
  • Eamon O Dúgáin.
  • Peadar O hAodha.
  • Séamus O Murchadha.
  • Liam Mac Sioghaird.
  • Tomás O Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Micheá O Dubhghaill.
Amendment declared lost.

The next amendment on the paper has been altered to read: "In Section 3, Sub-section (3), after the word "review" to insert "(including power to compel the attendance of and to examine any person whom the Board of Commissioners may desire to give evidence)." I think we will take that as a separate matter from the question of inserting the word "annul."

I formally move the amendment. The sub-section enables the Board of Commissioners to be set up under the Act to review, and at such review to confirm or to reduce, but not to increase, a sentence of penal servitude or imprisonment imposed by one of the Courts. Remarkably enough, it omits to enable the Commissioners to annul or to reverse a decision of one of these Courts. I do not know whether the Minister will claim anything like infallibility for the Courts that have been operating for the last nine or ten months. I do not think he will. The Courts and the officers comprising the Courts have had a very difficult job indeed. Their work has now to be reviewed by the Commissioners, and if they have made mistakes in the length of sentence, the Commissioners will have power to reduce that sentence. If, in the judgment of the Commissioners, they have not made a mistake in a particular case, the Commissioners will have power to confirm the sentence, but if the Commission comes to the conclusion that, as a matter of fact, a prisoner found guilty and sentenced was not in fact guilty, the utmost the Commissioners can do, according to the sub-section, is to reduce that sentence.

Would not it be better if the Deputy took the question of power to examine witnesses first, and leave the matter of annulling the sentence, which is a different matter, to be taken later?

The Courts that have been operating have been sitting in secret. In many cases, with the exception of military witnesses, if there were such, there have been no witnesses called. The Commissioners now set up, so far as the sub-section goes, do not seem to have the power to call witnesses, not even to call military witnesses. It seems to me that the powers given to them by the Court will be very illusory if they have not the ordinary rights of Courts. It may be that the intention of the Minister is not to make them Courts in the proper sense of the word at all, but to be merely advisory bodies, such as the bodies set up under the previous Act. Their appointment will merely be a sham if they are not in every sense of the word Courts. If they are Courts, they ought to have the power to call witnesses, whether military witnesses or civilian witnesses, when they are reviewing any particular case, and they ought to have the power to compel the attendance of those witnesses and to examine those witnesses.

All the sentences passed by these military tribunals have been, as I understand, submitted to the Judge Advocate-General or some other military or quasi-legal official, and have been passed by that dignitary. Therefore, if the present clause is merely intended to provide that some other dignitaries ought to do precisely the same work which the Judge Advocate-General has already done, the section is nothing but a vote of censure upon that dignitary. As we cannot assume that the Government desire to pass such a vote of censure, their intention must be to allow —if they are consistent—a proper review of these cases. Now, merely to read a document sent up from a Court-martial as a record of proceedings is not a review in any true sense of the word. It is quite obvious that if it is seriously intended—as it should be seriously intended—to have the cases gone through by a competent legal authority, that authority must have power to call witnesses before it. I would ask the Dáil to remember that it frequently happened —and we all know it frequently happened—that owing to the circumstances under which these trials were held the accused were unable to get the witnesses whom they would have called had the circumstances been different. They were unable in many cases to put the case and prove the case which otherwise might have been proved. I have not the actual text of the amendment before me, but I would like to suggest to the mover that he should agree to the insertion of two words, "on oath," in the proper place, dealing with the giving of evidence. It is obvious that to ask people to give evidence otherwise than on oath is worse than useless; so much so that in the British Army code, when they are dealing with such a simple and informal matter as the summary of evidence that is taken at the preliminary inquiry before a Court-martial, the accused can insist on having the evidence given if he wishes to do so, on oath. I think the mover of this amendment would be well advised to agree that the words "on oath" should go in in the proper place, as it is not worth while giving these officials power to review anything if the evidence is to be given otherwise than upon oath.

No case has been put up for this amendment, and I do not propose to accept it.

Amendment put.
The Dáil divided: Tá, 11; Níl, 37.

  • Tom's de Nógla.
  • Riobárd O Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabhain Uí Dhubhthaigh.
  • Aodh O Cúlacháin.
  • Séamus Éabhróid.
  • Liam O Daimhin.
  • Cathal O Seanáin.
  • Domhnall O Muirgheasa.
  • Risteárd Mac Fheorais.
  • Domhnall O Ceallaghain.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid O Súileabháin.
  • Seán O Maolruaidh.
  • Micheál O hAonghusa.
  • Seán O hAodha.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Neill.
  • Liam Mag Aonghusa.
  • Pádric O Máille.
  • Piaras Béaslaí.
  • Fionán O Loingsigh.
  • Séamus O Cruadhlaoich.
  • Criostóir O Broin.
  • Próinsias Bulfin.
  • Tomás Mac Artúir.
  • Séamus O Dóláin.
  • Liam O hAodha.
  • Próinsias Mag Aonghusa.
  • Eamon O Dúgáin.
  • Peadar O hAodha.
  • Séamus O Murchadha.
  • Liam Mac Sioghaird.
  • Tomás O Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál O Dubhghaill.
Amendment declared lost.

In the next amendment I think that the words should be "or annul."

I think the word "or" should be inserted after the word "confirm," and after "reduce" the words "or to annul," so that it would read, "confirm, reduce, or to annul."

I formally move the amendment. The case has already been stated by me. So far as I can see, the sub-section does not enable the Commissioners to annul a sentence passed on a prisoner, even if the Commissioners are of opinion that such sentence should not have been passed—that, as a matter of fact, the particular prisoner was not guilty of the offence for which he was tried, convicted, and sentenced to a period of either penal servitude or imprisonment. I think it is necessary that this power should be given to the Commissioners, otherwise their job is very largely a sham.

I was in some hopes that the President would tell us that his draftsman was responsible for the oversight whereby these Boards are not given power to do what they consider to be justice when they have re-examined a case. That hope is diminishing as I see the President's reluctance to meet the amendment, and I fear that we shall be told that it is seriously proposed to put up Boards which will be asked anew to go through the cases, and will be told that, having done so, they have no power whatever to let out people who are wrongfully imprisoned. Words fail one to criticise that kind of thing.

You are not short of them.

If this is carried by the automatic votes of the Ministry, it is an absolute disgrace. To put up Boards—the word "Court" is carefully not used for fear that the Courts would have to be public under the Constitution—which will pretend to review cases, and, when they find an innocent man is in prison, will have no power to let him out or annul the wrongful proceedings, is nothing less than a scandal

Apparently the Minister is accepting this amendment, inasmuch as he has not deigned it worth his while to say one word in opposition to it, or any other member of the Government or supporter of the Government. There has been talk of setting up of a Court of Criminal Appeal. Whether one exists at present or not I am not sure, but apparently the judgment of the Ministry is that the Courts set up by the military authorities were so perfect in their judgments that they cannot make a mistake respecting the guilt of a person. They might make a mistake respecting the amount of a sentence, but they cannot make a mistake respecting the guilt. It is very pleasant, I am sure, to the Ministry to be able to think that their work, having looked upon it, could be pronounced so good as not to require any qualms as to the perfect lucidity and sound judgment of the several military courts, with whose composition we are not very well acquainted. It would be only fair to those men and to the public to know the names of those perfect judges of those very perfect tribunals, who cannot make a mistake, and whose judgments cannot be varied, but whose sentences may be. This is an Indemnity Bill, and the proposition is not only to indemnify the courts or tribunals, or the persons constituting those tribunals, but to say that they were perfect in their judgments, and that no Court of Appeal or Board of Commissioners established to review a sentence could possibly determine that a judgment was against the weight of evidence, or that the prisoner should not have been convicted. All that they can say is that the judgment was sound, but that the sentence was too severe. One would like, if possible, to understand or get some idea from the Minister as to what explanation could be given of his refusal to allow the Board of Commissioners to annul the sentence. Perhaps the Minister is doubtful of the wisdom of this Bill at all; perhaps he has no confidence in these Courts, and is pushing forward this Bill against his will and better judgment, because he is compelled to do so, and perhaps he dare not express his views about the amendment for fear he might state his own views. I wonder if that is the explanation of his silence on this amendment? Surely a Court of this kind, that has power to review sentences, and to be composed of persons holding, or who have held, judicial office, are not to be restricted to saying "ditto" to a secret military court or tribunal.

I can better understand now why the Minister refuses to certify or ensure that these Commissioners should be men who held high judicial office. He knows any person having held high judicial office would be less liable to accept a position which would only allow him to reduce a sentence, and would carefully confine him to reduction of sentences or confirming of sentences, but would not allow such a judicial person to say that the judgment of the Court was a bad one. That explains the attitude of the Minister in regard to the persons who may be appointed to this Board of Commissioners. They must be people who cannot decide that the judgment of the secret tribunal was an unsound one, and they must be of a character which will confirm the judgment of those earlier Courts, and confine their reviewing to whether the sentences were excessive or not. We will be able to form a judgment of the character of the men who will form these Boards of Commissioners under these circumstances. They will certainly not enhance their reputations if they accept office under these extraordinary conditions, that they as a Board of Commissioners who have held judicial offices, may review sentences, and may reduce sentences, but they may not say that the sentences of the Court were invalid. It certainly is an extraordinary state of mind to be revealed. I have no doubt the Minister does not really believe in this clause, but he has been obliged to put it forward, and dare not justify it for fear he might be tempted to reveal his own mind.

Is the President going to make any answer to the case that has been put?

I am waiting for the case.

I must protest against the way in which the minority in this House is treated by the President, who relies upon his automatic majority to troop in here at the sound of the division bell and vote upon a subject on which they know nothing whatever, without having even listened to the arguments, pro or con, and simply do what the President tells them to do. The President himself now does not condescend to answer a very serious matter set out by Deputies in this House. I hope the country will show him where he stands.

If it does not, it will not be your fault, I am sure of that. I wonder if Deputies take the pains to read these Bills, or do Deputies really consider their position seriously at all? Was the Deputy who has just spoken here yesterday evening or not? Perhaps he had a more important engagement, and perhaps he only comes in here to amuse himself. If I were gifted with the same amount of verbosity as the Deputy I would not confine myself to the words in the section, but I think the Deputy has not read it carefully. He has certainly not studied it, but he is contenting himself with rhetoric and with firing incense at himself, and when he had too much for himself he distributed some of it to the benches opposite. What is meant by reviewing or reducing sentences? Cannot one reduce a sentence of five years, of which six months has run, by four years and six months, or must we put into a Bill an interminable list of words in order that Deputies would have an opportunity of airing their views. Last evening we spent two and a half hours on this Bill. I entered into a very long and very careful explanation of its provisions, but that was all useless, because Deputies had not read it and were not interested enough in it. There are two orders in the community so far as I can see which appeal to the Deputies opposite, themselves and the Irregulars. They will deny that, but they are endeavouring here to secure, as far as possible, and as far as their ability suggests, means of escape for these men. They hold up to ridicule the courts that have been established, or the tribunals that have been established, by the resolutions of this Dáil. In a sentence, they discount and they discredit, and they show their lack of confidence in the Army, and Deputy Gavan Duffy joins and assists them in that. We are asked, when we say that these tribunals have done their work well, to say if they are infallible. They are not infallible, and I have never claimed infallibility for them, but I do claim honesty for them, and I claim as much honesty for them as there is in this House, or as there is on the far benches amongst the minority in this House. I claim that they have done their work well, because I know of some cases in which guilty persons came before them, and because certain technicalities had been neglected, these persons were found "not guilty." The Deputy says I have not much faith in this Bill. I have a lot more faith in it than he has. I have read it, and studied it carefully, and I believe everything that I have said about it, which is a good deal more than I would be in a position to say for those who have spoken against it.

Amendment put.
The Dáil divided: Tá, 11; Níl, 39.

  • Tomas de Nogla.
  • Riobard O Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabhain Uí Dhubhthaigh.
  • Aodh O Cúlacháin.
  • Séamus Éabhróid.
  • Liam O Daimhín.
  • Cathal O Seanáin.
  • Risteárd Mac Fheorais.
  • Domhnall O Muirgheasa.
  • Domhnall O Ceallachain.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid O Súileabháin.
  • Seán O Maolruaidh.
  • Micheál O hAonghusa.
  • Seán O hAodha.
  • Séamus Breathnach.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Risteárd O Maolchatha.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Earnán Altun.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Neill.
  • Liam Mag Aonghusa.
  • Piaras Béaslai.
  • Fionán O Loingsigh.
  • Séamus O Cruadhlaoich.
  • Criostóir O Broin.
  • Risteárd Mac Liam.
  • Caoimhghin O hUigín.
  • Proinsias Bulfin.
  • Tomás Mac Artúir.
  • Séamus O Dóláin.
  • Liam O hAodha.
  • Proinsias Mag Aonghusa.
  • Eamon O Dúgáin.
  • Peadar O hAodha.
  • Séamus O Murchadha.
  • Liam Mac Sioghaird.
  • Tomás O Domhnaill.
  • Earnán de Blaghd.
  • Uinseann de Faoite.
  • Séamus de Burca.
  • Micheál O Dubhghaill.
Amendment declared lost.
An Leas-Cheann Comhairle took the Chair at this stage.

I beg to move Amendment No. 3:—To add to Sub-section (4) of Section 3, the words, "provided that such rules shall not prevent such Board of Commissioners from holding any of its sittings in public, and that nothing in this Act shall permit such Board to sit and hear in secret such case for review.

The proviso that I desire to insert provides that such rules as are made shall not prevent the Board of Commissioners from holding any sittings in public, and that nothing in this Act shall permit such a Board to hear in secret such cases for review.

The intention of the amendment is to secure that the sittings of these Commissioners shall be, at all events, not in secret, and that in that respect, at least, their proceedings shall be brought into conformity with the Constitution. As the section stands, it is quite open to the Minister, when making the rules bearing on the Board of Commissioners, to provide that the Commission sit in camera: that, in fact, its procedure in that respect should just be the same as the procedure of the military courts whose decisions it is bringing under review. The amendment would prevent a Minister from allowing or compelling Commissioners to sit in secret, and would not allow the Commissioners themselves to decide to sit in secret. A good deal could be said on the Boards as such, but if they are to be merely secret then they are even a greater sham than they have appeared on the face of it to be. I move the proviso.

Is it possible that this amendment also fails to meet with the approval of the President? I recall the Dáil in its ironical mood, somewhere about last October, solemnly pretending to pass in this Assembly a Constitutional Article which said justice—justice mark you—shall be administered in the Public Courts established by the Oireachtas. I suppose it would be letting the cat out of the bag to point out that the reason why these Boards are called Boards is that it is hoped to wriggle out of that Article of the Constitution. If they were called Courts they would have to sit in public. We will call them Boards. We will give them no power except a nominal power, that is worth nothing, and then, perhaps, the Courts will say they are not Courts at all and may sit in camera. If the President is so proud, as he says he is, of the work of the Tribunals in question— for aught I know he may have excellent reason to be proud of it, but none of us know if he is as proud as he says—he ought to be delighted to let a little day, light into this whole performance. The whole proceedings have been in secret. Has the Executive any reason against allowing the review, such as it is, to be published, or the results of the review to be published? Even one authorised Dublin Pressman was not allowed to attend a trial. Apparently, no Dublin Pressman may attend the new performance. If the Executive wishes the country to have any confidence in proceedings which were secret originally, they must allow them to be reviewed openly, now that the war is over, now that their own Courts have officially declared that there is not a state of war. What have they to be afraid of? They are proud of the magnificient work of these Courts.

Are they afraid of the comments or of the decisions of the somewhat knock-kneed Boards that will be allowed to review but not to annul? What is the reason for this extraordinary inclination to secrecy, which is so prevalent in the Ministerial mind, and which, if Ministers knew their own minds is very much against the interests of the Free State and of the Executive of the Free State. It is quite obvious to anybody reading this draft Bill that the document has been expressly and purposely drawn in such a way that the review should be held by a body which cannot be described as a court, and that this is done for the purpose of enabling the Executive, which appoints this Board, to have its further performance in secret likewise.

The object of this Bill is to provide indemnities. Its object is not to review or set up an inquisitorial system into military courts. If that is to be done it should be the subject of a special measure.

Nobody wants that.

No doubt the Deputies who have argued as we have heard would be jointly capable of producing such a measure, but the object of this Bill is to provide indemnities. Incidentally it provides means for reducing sentences. The argument is that it should not only provide means for reducing sentences, but also provide an inquisition into the character and conduct of the military courts and committees. It may be desirable to impeach those committees. It may be desirable to review their conduct, but if it is so desirable it is perfectly obvious that the place for bringing forward a proposal of this kind is not in this Bill of Indemnity.

Amendment put.
The Dáil divided: Tá, 10; Níl, 38.

  • Riobard O Deaghaidh.
  • Tomás Mac Eoin.
  • Seoirse Ghabhain Uí Dhubhthaigh.
  • Aodh O Cúlacháin.
  • Séamus Éabhróid.
  • Liam O Daimhín.
  • Cathal O Seanáin.
  • Domhnall O Muirgheasa.
  • Risteárd Mac Fheorais.
  • Domhnall O Ceallaghain.

Níl

  • Liam T. Mac Cosgair.
  • Gearóid O Súileabháin.
  • Uáitéar Mac Cumhaill.
  • Seán O Maolruaidh.
  • Seán O Duinnín.
  • Seán O hAodha.
  • Séamus Breathnach.
  • Pádraig Mag Ualghairg.
  • Peadar Mac a' Bháird.
  • Deasmhumhain Mac Gearailt.
  • Micheál de Duram.
  • Seán Mac Garaidh.
  • Pilib Mac Cosgair.
  • Domhnall Mac Cárthaigh.
  • Maolmhuire Mac Eochadha.
  • Earnán Altun.
  • Gearóid Mac Giobúin.
  • Liam Thrift.
  • Eoin Mac Neill.
  • Liam Mag Aonghusa.
  • Piaras Béaslai.
  • Fionán O Loingsigh.
  • Séamus O Cruadhlaoich.
  • Criostóir O Broin.
  • Caoimhghin O hUigín.
  • Proinsias Bulfin.
  • Tomás Mac Artúir.
  • Séamus O Dóláin.
  • Liam O hAodha.
  • Proinsias Mag Aonghusa.
  • Eamon O Dúgáin.
  • Peadar O hAodha.
  • Liam Mac Sioghaird.
  • Tomás O Domhnaill.
  • Earnán de Blaghd.
  • Séamus de Burca.
  • Micheál O Dubhgaill.
  • Uinseann de Faoite.
Amendment declared lost.

I should like the Dáil to consider this section very seriously before it passes. To my mind this section is by far the most objectionable feature of the Bill, much more objectionable than the Indemnity Clause that precedes it. The Minister for Education just now told us that what was wanted was indemnity, not inquisition.

No; I said that the object of this Bill was indemnity, not inquisition.

Well, the object of this Bill was indemnity not in quisition. I think that that phrase shows a strange confusion of mind in such an eminent Minister as the Minister for Education, for this particular section does two very distinct things. First of all it validates the courts in order to put right the officers who manned these courts, and I have no quarrel with that. Secondly, it validates what the officers did, for the purpose of justifying sentences which may or may not have been right. These two things are very distinct. Upon the first, upon providing a legal sanction for the actions of men taken under these difficult circumstances, I am quite at one with the idea underlying the Bill. One knows that officers have an intense dislike to sit on courts-martial of this kind. One knows that they do their duty very reluctantly, and that they are only doing their duty. One knows they often do that duty at great risk, and, therefore, so far as giving them a personal indemnity goes, I have not a word to say against this section. But the Ministry does not stop there. Nobody wants an inquisition, to use the word of the Minister for Education, if that means an attack upon the particular men whose duty it was to man these courts-martial. But the Bill, although it is miscalled an Indemnity Bill, contains this most important proviso, the second part of this clause, which asks this Dáil to say that all and everyone of the sentences passed were perfectly right, although the whole thing was done in secret, although the officers, however excellent their intentions, were men unversed in legal matters, unused to sifting evidence, with only one legal person present at the court, and although they were acting at a time of considerable excitement when no man could entirely divorce his feelings from the subject matter of the case. No ordinary man could entirely divorce the fact that this conflict was going on from the judgment of a court-martial of that kind. Therefore, while I have no objection at all to giving any indemnity you like to the men who simply did their duty, I have the strongest objection to registering in an Act of Parliament that these sentences, passed in such circumstances, were necessarily right, that the verdict was right, and the sentence was right, and that all that can be done is to allow the Board appointed by the Executive to look through the documents, without calling witnesses, to see whether or not it might be well to reduce sentences.

I do not think that is treating the matter seriously. It seems to me that the very first duty of an Executive which wants to have these sentences reviewed is to come before the Dáil with a Schedule containing all and every sentence passed since these Courts were instituted, to tell us how many there were, who were the men convicted, and what they were convicted for. There may be life sentences; there may be sentences of ten years penal servitude; we have no assurances, no knowledge, of what it is we are asked to say was necessarily right. That kind of special pleading that objects to attacks on a section of this kind on the ground that it is an attack on the Army, will not do. I have no doubt that nine-tenths of these men did their duty to the very utmost of their ability and that there were very few or no abuses, but they were not men qualified for this kind of work, and they were acting in times of great difficulty. Therefore, the proper course to have adopted was surely to have appointed a legal tribunal which would be a court in the true sense of the word, and which would be manned by people accustomed to weighing evidence, to examine all the evidence in these cases, and also to bring in a law dealing with the matter, for the Dáil will observe that this Court of Review is given no indication whatever as to the basis on which it is to proceed, what code it is going to administer. It is not told what code it is to administer. There is, of course, no legal code. There ought to have been. There is only that very vague Resolution of the Provisional Parliament, which is not law. Instead of bringing in an Act on the analogy of the Botha Act, the Ministry apparently proposes to leave the matter at that—that we intend to appoint men to only look through the whole proceedings, and it will be quite enough to say that such and such a sentence should be reduced. It is not treating the country fairly. The country is entitled to know that these sentences, particularly if they are to be carried out, as the Public Safety Bill provides, are beyond all possibility of question; that they have been investigated by people accustomed to administering the law, and investigated on the basis of a law of this country. A special law may be necessary. Very well, introduce it, but to ask courts or boards with no real power, secretly to investigate these secret performances and tell them that all they may do is to review sentences and give a little less, or a good deal less, is not treating the country as the country is entitled to say that it should be treated. It is not only sentences, but judgments and orders passed by these courts, which we are asked to validate, completely in the dark, and if Deputies turn to the second part of the section they will see that in the reviewing sub-section you are dealing with men who, if they defended themselves at all, were defending themselves under circumstances of considerable difficulty. It is no use saying that 99 per cent. of them are guilty. They may be. Those who are not are entitled to a fair show. I do not think that anybody with any experience of law would say that they are sure to get justice under the scheme proposed now, by merely allowing the sentences to be examined with a view to reduction. The whole proceedings from beginning to end ought to be examined by competent people. I ask that in the interests of justice in this country, and in the interests of settled conditions, as long as you have people smarting under a sense of injustice you are not going to have settled conditions, and I do not think it is fair to ask the Dáil, because the present Government happens to have a large majority, to pass a law in the dark stating that everything that is being done in the way of sentences is quite right, except that the Board may possibly reduce the sentences. It is not treating the matter seriously, and it is too grave a matter to be treated in this way.

I wish to remind the Deputy that his ten minutes have expired.

The Deputy three or four times in the course of his address asked the Dáil to believe that the object of this section was to declare that the sentences passed were quite valid and perfectly right. No one here will accuse the Deputy of stupidity. The Deputy is a lawyer; he is accustomed to reading legal documents, and he knows as well as anyone knows, that what this section declares is that certain things which have been done are to be validated. That does not say anything as to whether they were right or wrong. It declares them to have been valid. The Deputy knows very well the difference between being valid and being right and wrong, and at the moment of making his speech he knew the difference between the word "valid" and the words "perfectly right." Nevertheless, he has talked to us about voting down by a majority. He endeavours to create the impression, either here or wherever else his words go, that this section purports to do something which he knows perfectly well it does not purport to do. It declares these things to have been valid. He knows perfectly well that it is said to be artificial validity for these cases whether they were in the first instance valid or not valid. That is the meaning of indemnity. The Deputy also knows perfectly well that indemnification of that kind is a usual thing following the state of suspended law and military action, such as this particular measure is dealing with.

I expressly stated that I did not object to the indemnification.

Very well. I hope we have disposed of that four-times repeated statement.

I am coming back to it.

That the object of this was to declare that the sentences passed were perfectly right. It simply makes them valid, valid for a particular purpose, that is, so valid that the persons who were engaged in holding these tribunals cannot be impeached for what they have done. But if they cannot be impeached in one way they are to be impeached in another way. They are to be indemnified. The Bill is declaring their actions valid, and provides indemnity, but, nevertheless, it is to hold an inquisition, and that was distinctly demanded in the last statement of the Deputy, though disclaimed in his previous one—that is an inquisition into the character and conduct of these tribunals. That is not the object of the Bill. As I said before, if it is desirable to review the actions of the various military tribunals, and to set up a court of inquisition for that purpose, a measure should be produced for that purpose, and the thing should not be done under the cover of this measure of validation and indemnity.

I remain absolutely unrepentant. The special pleading of the Minister who has just sat down, in his last statement has gone beyond anything I have heard for a long time in the Dáil. He says that the object of this Bill is to give an artificial validity to the sentences. I thank him for the phrase, "artificial validity of the sentences." What I said was we were asked to declare these sentences perfectly right, subject to the provision of the Board reviewing them. No arguments or misuse of words can alter the fact that the effect of this Act, taken with the Public Safety Act, in which it was declared that sentences were to be served until they expired or were discharged, the effect of which, coupled with this very limited and inadequate power of review, means that men will continue in prison whether they are rightly sentenced or not unless this Board, looking at their papers, chooses to think that their sentences ought to be reduced. Therefore, it is true to say, that we are asked to give approval of sentences of which we know nothing. If not, I think the Minister rather makes the case worse by talking about artificial validity, or sentences that are not deemed right, are to be deemed valid. If that is of any use to the Minister I make him a present of it.

I make you a present of it.

If I understand this argument, it is that the courts we set up are to be validated, every sentence is deemed to have been valid and within the lawful jurisdiction of the tribunal. So far, so good. The Minister says that this is not intended to be anything more than a validation Bill, an indemnity Bill, validating the actions of these courts. There is to be a Board of Commissioners to review these valid sentences, sentences which may not have been right, or just, or well-founded, but were within the jurisdiction of the courts. But the Board of Commissioners which may review the sentences may not review the verdict of these valid courts. They were considered to have been within the jurisdiction of the military courts, and though they may have been wrong, ill-founded, against the weight of evidence, and entirely beyond the judgment of trained judges, nevertheless they are to be not only valid, but the verdict is to be confirmed so far as this Bill is concerned. The Minister says you may introduce another Bill to give power to a court to annul the sentences, but the Ministry does not care about annulling sentences. They say that these courts that they set up were courts of sound judgment, infallible judgment, as a matter of fact.

Infallible judgment. They may have made mistakes in the sentences, but their judgment is infallible.

May I explain? On no occasion has any member of the Ministry made statements that the courts were infallible. Never at any time, in my recollection, have they done so.

No; no member of the Ministry has made that statement, but that is the only inference from the production of this Bill at the end of a session, at the end of a Parliament, at the end of the responsibility so far as legislation is concerned, of the Ministry. They say, "under our initiative we set up courts, and these courts formed judgment as to the guilt or innocence of a prisoner."

These Courts that sentenced prisoners were not legal Courts but it was essential that they should be given powers, and that their powers should be validated afterwards. The Ministry produced an Indemnity Bill and a Bill for validating these Courts, but it has not introduced a Bill which would provide a Court of Appeal. The omission in this Bill speaks as loudly as the things in it. The Minister refuses to allow the word "annul" to be inserted, so that the Commissioners must not be allowed to annul sentences. They must say that the verdicts of these secret Courts are valid. These secret Courts must be considered to be infallible in their findings, though they may be fallible in their sentences, and we are not going to introduce a Bill which gives the power of appeal. That means that men may have been sentenced against the weight of evidence, and even without evidence, and that an innocent man is confirmed in his guilt by these Commissioners. He must be considered guilty because he was sentenced. There may be a review of the sentence; the sentence may be confirmed or reduced, but there is no power given in this Bill, and the Minister refuses to add to the powers of the Court of Commissioners, to say that the verdict is against the evidence and that the man was wrongly convicted. I say that is by inference undeniable, an assertion or a plea, that the courts were infallible in their judgment, whatever they may have been regarding the sentences inflicted. I think the Minister is grievously at fault in not having made provision for the retrial if that were necessary, of those people who were convicted by these secret courts. Validate the Courts if you like. Indemnify the officers and the judges in these courts and tribunals for any act they committed by the authority of the Dáil but do not assert, or let it be thought that by your refusal to allow an appeal to a public court you believe in the infallibility in these tribunals you set up.

Listening to the two speeches that we have just heard, I was reminded very much of Mr. De Valera's mental acrobatics at the time when he was somersaulting in and out of the British Commonwealth of Nations. It reminded me of the entertainment produced here in Dublin—I think it was the pantomime of Cinderella—some years ago in which there were two ugly aunts or sisters, I forget which, of Cinderella. They were refused admittance into the ballroom by the old footman, and the Prince seeing them, came forward and introduced them, and they pirouetted, saying, "Now we are in, now we are out, and now we are neither in or out," with one foot on one side of the door, and the other on the other side. The Bill is, as the Minister for Education says, an Act of Indemnity. The Deputy who was there yesterday evening, and the Deputy who was not, are mixing up two Clauses, 1 and 3, of the Bill together. Yesterday we validated the sentences. They were declared valid. It is no compliment for us to do that. The officers concerned are under no obligation to us for having given them that indemnity. You asked them to do certain work, you provided they should do it, and put them on certain Committees. They have done that work, and the very least you can do is to give them that indemnity. How can you give them that indemnity? You must validate the sentences of their courts and the Committees. I have no hesitation in saying there was no miscarriage of justice as regards finding the men guilty on the evidence. I am not claiming infallibility for these courts, or saying that there may not have been mistakes, although I doubt it very greatly, and I believe the Deputy knows in his heart that that is so.

The Minister knows; we do not.

For the last six, seven or eight months every possible criticism that could be passed upon these officers has been passed. There are two points on which objection has been raised. One is the terminology of this Act, and its various clauses.

And the keeping of the sentences secret?

Yes; and the Deputy knows the reason why. It was in the interest of the lives of the officers that these things were kept secret, and now all this tomfoolery about having open courts in which people want to pose as champions of liberty is all very well for a headline; but it was not that that secured us our liberty in this country. It was these men who, without any guarantee from us did their duty, and it is now our duty to see that their sentences are validated, and that they get bare justice—nothing more.

Nothing is easier in the world than to say that because the court was secret the sentences were wrong and unjust. It has been the sport of political platforms in this country for generations to say the Executive Government or authority whatever it is, is wrong, unjust, unfeeling, unsympathetic and cruel. I have already said here in this Dáil that I know of at least one case, and I am sure I have heard of several others, but I have one prominently before my mind, in which a man guilty of murder was acquitted by one of these courts, because a mere technicality of the law was not complied with in connection with the prosecution. Deputies think when they come here and pour out their rhetoric that they alone are the guardians of the liberty in this country. You had officers who knew full well what they were doing in a case like that, and knew that they would be perfectly justified in finding that man guilty, but they emphasised their honour once a case of that kind was put before them just as a High Court judge might do in very difficult times, and in a manner that even a High Court judge might not do. I think it is an abuse of the rules of this Dáil that Deputy Gavan Duffy who had not time to come here yesterday when we were dealing with the section on the validation of sentences should come here and on another section show his form because he has been up against the Indemnity Act by raising questions on it. I think that not a scintilla of a case has been put up against the Indemnity Bill in the form in which it is submitted to the Dáil. I put it that it is to the honour of every man in the Dáil, whether he voted for it or not, but being a member of the Dáil, he was responsible for its passing, should now take responsibility for the action of these officers who carried out the duty when they had no guarantee except their sense of public duty to guide them—I say it is due to these officers that they should get the validation asked for here. It is another question altogether and apart from this whether the sentences should be reviewed, but the validation is a matter upon the honour of the Dáil, and the Dáil has no option but to grant what is asked for.

The Minister's logic is peculiar and wonderful. He quotes an instance of a court which, because of a technicality, refused to find guilty a person who was obviously guilty of murder. The court which he speaks of was strict in the observance of its duty, and strict to the point of stretching the law in favour of the prisoner. I am prepared to admit that that defence of the court will apply to every other court which was set up under this Act, and I am prepared to admit that every court acted in every case in the most honourable way possible. I am prepared to admit that, in the absence of proof to the contrary. But that does not for the moment affect the question that is at issue. We are not now considering the honour, the trustworthiness, the good faith of the officers who constituted these courts. You are not doubting the validity of the courts when you allow the prisoner the right of appeal to the High Court; you are not denying the validity of the lower courts when you allow an appeal to a higher court. You are not holding up the judges of the lower court to opprobrium simply because you say they may have been mistaken in their judgment, and you are not merely asking the higher court to review the sentence on a prisoner when you give him the right to appeal; you are throwing no slur on the lower courts because you doubt their wisdom and declare that they may have been fallible. The Minister's passion is quite uncalled for. He refuses to concede the suggestion that these courts may have been misguided or unwise in their verdicts; he refuses to admit that they could have been wrong and suggests to us the reason, and the reason is, because the courts were secret. He says we are to infer from that that the sentences were just. We say that we have no right to assume that because the courts were secret the sentences were just; we have no right to assume that because the courts had his confidence, and because they were set up by the Executive Council, their judgments were always wise, and their verdicts could never be upset by Superior Courts. That is the contention of the President, and he tried to hide that up by charging us with denying the uprightness, the straightforwardness or the honour of the officials who constituted the courts. The position the President is taking up is this: "we set up these courts; we were satisfied with the men who formed them, and, therefore, they could not make a mistake."

Certainly not.

That is the position. The President denies it, but why did he refuse to accept the word "annul," giving these Boards of Commissioners the power to annul the sentences?

Because it is verbosity.

The President says the only way out is to introduce a new measure. He comes to us at the end of a Parliament and says, "Introduce another measure to allow these sentences, not merely the sentences to be reviewed, but the verdicts to be appealed against."

To keep the Deputy right, I desire to say that I said nothing of the sort.

The President's actions speak more loudly than his words, but that is what he said in effect; in effect he is refusing to allow any verdict of these courts to be appealed against. He says the men sentenced must serve their sentences; if the Board of Commissioners decides that the sentences should be reduced they may be reduced, but the verdicts must stand.

Certainly.

A prisoner who is tried before these courts in secret must bear the slur of guilt, even though this Board of Commissioners says that there was no justification for the sentence, and remember they have no right to declare that the verdict was wrong. I am not prepared to admit that these courts were infallible. I claim that there ought to be some opportunity for the people who were sentenced by these courts to appeal to a tribunal when times are more peaceful, and when some opportunity may be given for not only a review of the sentences, but a review of the judgments.

It is always edifying to see the President waving flags of distress, waving them wildly as he has just now being doing, and waving flags that we all have seen so often in this Dáil. He said, for instance, that I made an attack upon these unfortunate officers; whereas, in fact, I went out of my way to pay a tribute to men who had the doing of unpleasant duties. But one expects these things. Three times the President, in the typical way that he can meet an argument, asserted that I was not here yesterday. The President might have taken the trouble to acquaint himself with the facts. The Speaker knew that I had a more important engagement than attending upon the President rushing Bills through this House, and that I was unable to be here yesterday.

I can assure him that it was not through lack of interest in the subject matter of this particular performance. The President talked of people pouring forth torrents of rhetoric. That was rather good from the President. He should know what a torrent of rhetoric is. But when the President is not engaged in making election addresses to the Dáil he sometimes recollects his better feelings. There is one little matter in this section to which I desire to direct his attention, in the hope that, before this Bill finally becomes law, he may see that it is adding another injustice to the Bill by making it compulsory upon prisoners to apply to this Review Board. It is quite natural that men in their circumstances will be very reluctant to go before these Boards and quite natural that they should not have much confidence in these Boards, in view of the kind of Board that is set up here. Even if that were not the case I put it to the Dáil that it is obvious that the sentences, at least, from the President's own point of view, to say nothing about the verdict, should be re-examined, every one of them automatically and independently of whether the prisoner asks for re-examination or not. No man can honestly tell this Dáil that the sentences passed under the circumstances under which those sentences were passed are necessarily right. I think the President in his better moments would realise that it is only justice to have these matters reviewed, whether or not the review be specifically asked for by the individual concerned.

There is a fundamental difference between Deputy Johnson and myself on this question. Deputy Johnson wishes to give a sort of half whitewashing certificate of indemnity to those officers. I will have none of that, as far as I am concerned, and the Dáil will not have it. You have got either to stand over what these men have done or not to stand over it. You had no right to ask them to do those things unless you were prepared to back them. The only way you can back them is to say that the sentences of those courts were valid. The Deputy does not consider this necessary. A consideration that the comfort or perhaps the discomfort under which certain persons are suffering is a matter of the first importance with him. We differ there. The first consideration is for the people who were responsible for this Dáil setting up those courts.

My consideration is for justice.

You may call it justice. If that is your interpretation of what justice is, it is not mine. I believe it is not the interpretation of the majority of the people of the country.

As regards flags of distress, the only man I ever saw hoisting a flag of distress is the Deputy who mentioned the matter. He is the only one I ever saw who hoisted it both here and outside. When he was in the Executive Council he was always putting up one. I am sure when you get into the habit of that it is hard to get away from it. As far as those people having an objection to applying to these Boards, I am not going to facilitate people like these to live in this country, and always to be in the position of saying we are acting consistently. I am not going to afford them any facility for doing that. If they do not accept citizenship the sea is before them, and they can get out. If they do not get out and if they dispute the rights of the rest of us to have citizenship here they will go under, and they will go under rapidly. There is no use in telling us they will not accept our Board. They have accepted what they call the British courts; they were there yesterday, they were there to-day, and they will go there to-morrow. A few weeks ago they were in London and they went before these courts there.

Are these Boards Courts?

No, they are not, and the Deputy knows they are not. But perhaps they will give as just a decision as the courts to which the Deputy's friends went yesterday and to-day; perhaps more so. Perhaps the people who adjudicate here will have as much interest in the country—in the stability and security of the country—and will give just as honest decisions as the courts to which the friends of the Deputy went yesterday and to-day.

Is it in order for the President to refer to these gentlemen as my friends, or to refer to the Judges of the Courts as if they were not considering the public interest because they decided against his Executive.

In this Dáil, on more than one occasion the Deputy has thrown scorn on the Boards of Commissioners that we are going to set up.

Is he at liberty to do that, and am I not at liberty to say that these Commissioners will be as honest as friends of his? If the Deputy thinks I cannot do that I make him a present of the sort of discussion that he thinks we ought to have here.

Motion made and question put: "That Section 3, as amended, stand part of the Bill."

Agreed.

Motion made and question put: "That Sections 4 and 5 stand part of the Bill."

Agreed.

I move the Title.

Question put and agreed to.