I am encouraged in moving this measure by a remark which Deputy Esmonde passed on the Bill we have just considered. He says he resents temporary measures, and considers that it is high time we should have evolved to the stage of permanent legislation. I agree with that remark. Temporary measures, emergency or occasional legislation, is to be avoided, where possible. For the last two years the safety, peace, order and dignity of the State depended on legislation of a temporary character which has either now expired or will shortly expire. The Public Safety Acts which were before the Dáil two years ago, and which were renewed by the Dáil, constitute practically the only statutory power the State had to defend itself against challenge. With the expiry of those Acts, the State simply places enemies, actual or potential, on the physical plain. If it is struck at, it can strike back, and can hope to strike harder, but there is, as I say, with the expiry of those temporary Acts, only the physical plain on which to meet a challenge.
I consider that an eminently undesirable state of affairs. Every modern civilised State, as far as I know, equips itself with powers to meet a challenge at an earlier stage than when the matter would come to one of actual physical combat. It reserves the right to note and deal with tendencies, and Governments ask for, and receive from, the Parliaments to which they are responsible, full powers to deal with the challenge of enemies, whether from within or without. It has been represented to me that it is unwise to relinquish, at so early a stage in the growth and development of the State, certain of the temporary powers which the Public Safety Acts give. The question of seeking from the Dáil a renewal for a further period of those Acts was urged upon me.
We have preferred not to take that course. Unquestionably, certain of the powers that the Public Safety Acts gave the Executive were most valuable in preserving order and security, and some inconvenience will, no doubt, be experienced from the lapsing of those Acts. It was useful to have the power when there was a moral certainty that there was everything, short of legal proof, to intern persons without trial and detain them without trial. And it is true that the release of some of those persons so detained has led, in places, to an outbreak of, and the renewal of, disorders in connection with which the persons were originally arrested and detained. But you must sometimes make the experiment of doing without exceptional powers of that kind, and it was thought better, having regard to the conditions of comparative peace, at any rate, and security that prevailed through the country, not to come to the Dáil and seek a renewal of very exceptional legislation of that nature. We come now with a set of provisions embodying what we consider ought to be the permanent powers of the Executive to deal with dangers, disorders and challenges whether actual in the present or potential in the future, affecting the peace, order and dignity of the State.
I ask the Dáil to consider this Bill, which is now before you, not in any party spirit, but in a serious, responsible way, remembering that whatever Government is in office, at whatever time, there will be upon it the duty of safeguarding the State and safeguarding the elementary and fundamental rights of the State's citizens. I have read comment and criticism of this Bill, and it did strike me that such comment and criticism as has been offered was of a short-sighted nature. We were told that we should forget the past and that anything calculated to provoke or revive bitterness should be avoided. This Bill has nothing to do with the past. It is not retrospective or retroactive in its provisions. It looks entirely to the future. I agree devoutly and emphatically that it is to the future we should look and the less advertence there is to the past the better, unless it be for the purpose of drawing from the past useful lessons and experience with a view to the better conduct of our future. The Government of every State seeks powers from its Parliament substantially similar to the powers asked for here in this short Bill. It is a mistake to suggest, as has been suggested, that unless in the actual present conditions of the country there is something which calls for these provisions legislative sanction should not be asked for provisions of this kind. We are not legislating now, at any rate, for this week, or next week, for this month, or next month, but we are purporting to place before the Dáil the kind of provisions with which an Executive here in this country ought to be equipped so that there may be here that stability, that order, which the citizens of this State are entitled to expect. Consequently, it is not entirely, or not solely, actual present conditions that we are purporting to deal with, but we have tried to visualise any possible trouble or any possible challenges that might at any time arise and to determine what powers the State, or those immediately and primarily responsible for the peace, order and safety of the State, ought to have to deal with any such challenge. It is in that light and in that way that I ask Deputies to approach the Bill and to consider it in its various sections and sub-sections.
Section 1 is, of course, of a rather obvious nature, and probably I would not be expected to indulge in very much argument about it. It reads:
(1) Every person who commits in Saorstát Eireann any of the following Acts, that is to say:—
(a) levies war against Saorstát Eireann, or
(b) assists, encourages, harbours or comforts, any state or person engaged in levying war against Saorstát Eireann, or
(c) conspires with any person (other than his or her wife or husband) or incites any person to levy war against Saorstát Eireann, or
(d) attempts or takes part or is concerned in an attempt to overthrow by force of arms or other violent means the Government of Saorstát Eireann as established by or under the Constitution, or
(e) assists, encourages, harbours, or comforts any person engaged or taking part or concerned in any such attempt, or
(f) conspires with any person (other than his or her wife or husband) or incites any person to make or to take part or be concerned in any such attempt,
shall be guilty of treason and shall be liable on conviction thereof to suffer death.
(2) Every person who, being a citizen of or ordinarily resident in Saorstát Eireann, commits outside Saorstát Eireann any of the acts mentioned in the foregoing sub-section (other than levying war against Saorstát Eireann) shall be guilty of treason and shall be liable on conviction thereof to suffer death.
(3) Every person charged under this section with treason shall and may be indicted, arraigned, and tried in the same manner and according to the same course and order of trial in every respect and upon the like evidence as if such person stood charged with murder, and if such person is found guilty of treason he shall be convicted and sentenced in the same manner as if he had been found guilty of murder.
That section is the State's answer, or is, what I submit to Deputies, ought to be the State's answer to those who challenge its life. It is not merely the right but the duty of the State to answer that challenge fully and sternly. There are those—and the point of view is probably represented in the Dáil— who deprecate in any circumstances capital punishment, but probably even such persons will admit, even from their own standpoint, that if there is a set of circumstances which warrants capital punishment it is such a set of circumstances as is visualised in the first section of this Bill. Persons who precipitate war upon the State, with all the consequent loss of life, all the consequent moral and material havoc in the country, must be met by the State with the most drastic punishment in its code. To argue for or against capital punishment in the abstract is one thing, but taking it, as we have so far taken it, that the State is justified in certain circumstances in taking life and in inflicting capital sentence upon its citizens, I submit that the set of circumstances set out there constitute a justification, the strongest possible justification. When we were, so to speak, starting business, when we were enacting our Constitution, there were those who held that in taking on at one and the same time adult suffrage and proportional representation the first Government in this State was adding considerably to the difficulties and delicacies of its task. It may be argued, and it may be admitted, that the task over the immediate period through which we have passed would have been less difficult without that very, very broad franchise and without proportional representation. We figured that, however that might be, in principle these two things were right and sound and would prove ultimately beneficial to the country. We have adhered to proportional representation and we have adhered to adult suffrage, and I put it to the Deputies that just because we have adhered to these two things, just because we have a franchise open to every man and woman in the State of 21 years of age and upwards, and just because we have a system of voting specifically provided to ensure absolute representation for minorities there is the less excuse that men should go out to do violence, to impose their will upon their fellow citizens, and to subject the Government of this State to unconstitutional pressure. It is, of course, an easier thing, or it seems at first sight an easier thing, to coerce the bodies of your fellow citizens than to convince their minds, and men undertook a course of coercion rather than the other methods, which are slower perhaps and more tedious, the method of convincing the people of the rightness of the particular political course which they advocate.
It seems common case that the need of the hour is stability. It seems common case that the social and economic evils that are pressing on the people cannot be remedied otherwise than by stability. It is idle to admire stability in the abstract and preach the need of it, as so many preach, and then object to provisions which place the Government and the Executive of this State in a position to ensure stability and to grapple with such factors as menace it.
Section 2 of the Bill deals with misprision:
Every person who, knowing that any act the commission of which would by virtue of this Act be treason, is intended or proposed to be, or is being, or has been committed, does not forthwith disclose the same together with all particulars thereof known to him to a Justice of the District Court, or an officer of the Dublin Metropolitan Police or the Gárda Síochána, or other person lawfully engaged on duties relating to the preservation of peace and order shall be guilty of the felony of misprision of treason and shall be liable on conviction thereof to suffer penal servitude for any term not exceeding ten years or imprisonment with or without hard labour for any term not exceeding two years.
The principle embodied in that section is this, that citizens owe a duty to the State. We hear much, and rightly hear much, of the duties of the State and of the Government, to the citizens. That obligation is admitted fully and freely. There is a corresponding obligation on the part of the citizen to the State, and one such obligation is the obligation of loyalty. In this section a penalty is imposed on persons who knowing of a challenge to the life of the State, knowing of a challenge to the peace and order and safety of the State, withhold that information from those who are responsible to the people for the State's safety and welfare. That, of course, is, I grant, a new principle here, and may strike people as a very real and very startling departure from all that code and outlook which were traditional here. But because there has been a very real and striking departure in our circumstances, there must be a corespondingly real and striking change in our outlook, and such a change is demanded under Section 2 of this Bill.
Section 3 defines certain offences against the State. The Acts are set out as follows:
(a) attempts or takes part or is concerned in an attempt by force of arms or other violent means to overawe or intimidate in any way either the Governor-General or the Executive Council or any member thereof or any other minister duly appointed under and in accordance with the Constitution, or the Oireachtas or either House thereof, or any lawful court or any judge of any such court with a view to influencing their or his actions, or
(b) assists, encourages, harbours or protects any person engaged or taking part or concerned in any such attempt as aforesaid, or
(c) conspires with any person (other than his or her wife or husband) or incites any person to make or to take part or be concerned in any such attempt, or
(d) sets up or holds or purports to set up or hold any court of justice or court-martial (not being a court or court-martial duly established and maintained according to law) or assists or takes part in or is present at the proceedings of any such pretended court or court-martial, or
(e) incites any member of a military or police force lawfully maintained by the Government of Saorstát Eireann to mutiny, or to desert from such force, or to refuse to obey orders given to him by a superior officer, or to absent himself from or to refuse, neglect, or omit to perform any of his duties, or to commit any other act in dereliction of his duty, or
(f) incites any person in the civil service (other than a police force) of the Government of Saorstát Eireann to refuse, neglect, or omit to perform his duty or to commit any other act in dereliction of his duty.
It is an elementary principle that the chief functionaries of the State, duly appointed by the people and answering to the people through the Dáil, and the courts of the State should be free from any intimidations and should be protected from any attempt by force of arms to influence them or their decisions. Sub-heads (a), (b) and (c) are an adaptation of the Treason Felony Act of 1848, and the provisions of Section 3 have been simply altered to suit altered conditions in the State. There is just this difference, that under the Treason Felony Act the punishment is penal servitude for life or not less than 3 years' imprisonment without hard labour or not less than 2 years with hard labour, whereas under the Section we are considering, the maximum penalty is penal servitude for 20 years.
Section 4 of the Bill has received a certain amount of criticism both in the Press and on the public platforms and I would like Deputies to consider it.
(1) Every person who commits any of the following acts, that is to say:—
(a) falsely represents himself or holds himself out as being or styles himself as the President or the Vice-President or a lawfully appointed Minister or other officer of State of Saorstát Eireann, or
(b) acts or purports to act as, or styles himself or allows himself to be styled or addressed as, or represents himself to be, or holds himself out as being the President or Vice-President, or a Minister or other officer of a pretended government purporting to be established in Saorstát Eireann otherwise than under and by virtue of the Constitution, or
(c) acts or purports to act, or styles, represents or holds himself out as a member of a pretended military, police, or civil service purporting to be established in Saorstát Eireann otherwise than under and in accordance with the Constitution or as a member of the military, police, or civil service of a pretended government purporting to be established in Saorstát Eireann otherwise than under and by virtue of the Constitution, or
(d) is knowingly employed in, by, or under any such government or any such military, police, or civil service as aforesaid, or
(e) not being a member of any military or police force lawfully maintained by the Government of Saorstát Eireann acts or purports to act as a policeman, or purports to perform any of the functions of the police,
shall be guilty of a misdemeanour and on conviction thereof shall be liable to a fine not exceeding five hundred pounds or, at the discretion of the court, to suffer penal servitude for any term not exceeding five years or imprisonment with or without hard labour for any term not exceeding two years, or to both such fine and such penal servitude or imprisonment.
Whatever may be said of the exact wording of that section and some of its sub-sections, the principle is clear that we cannot tolerate in this State a usurpation of the functions of Government. If there is agreement on that general principle, agreement can easily be found on questions of detail. I submit that it is an impossible and intolerable position to have persons usurping the proper functions of Executive Government, holding themselves up as Ministers, purporting to act as Ministers, claiming to possess Executive authority, obviously not derived from the source of authority— the electorate. I put that principle in a general way to Deputies and I ask them to think on it. Up to a stage, pretensions of that kind may be smiled at. But a stage does come when they cease to be just funny. You have persons writing here and there through the country styling themselves Ministers for this and Ministers for that. Probably very few people in the country are inclined to take that kind of thing seriously. It becomes, perhaps, a little more serious when people outside the country, who are not so familiar with the fatuity of pretensions of that kind as people here on the spot, receive letters of that kind. Lately I met a Senator who had received a letter purporting to come from a Minister for Agriculture and the Minister for Agriculture was not Mr. Hogan, who we know as such Minister. That, of course, in itself is not a very serious incident, but one can imagine that if correspondence were sent to persons resident in England or France, or any other country abroad—persons who might possibly own property here —by a person claiming to possess Executive authority and claiming some legislative or Executive authority over their property, the matter would become somewhat more serious. One could, of course, enlarge along that line and quote possible instances but I simply put generally to the Dáil that it does not become the Parliament of the country to tolerate any usurpation of executive functions by persons who recognise no responsibility to the Dáil or, through the Dáil to the people. Neither is it right or proper that persons should be in a position to act through the country as military or as police who do not hold themselves responsible to the duly constituted Government of the country and, through them, to the Dáil. Activities of that kind and tendencies of that kind will need to be met and countered and will need to be brought to a standstill. I simply want to stress to Deputies that with the expiring of the temporary Acts of which I spoke, the power to grapple with abuses of that kind does not exist. The statutory authority to end abuses of that kind does not exist short of the Dáil now giving legislative sanction to these provisions.
Section 5 states:
(1) Any person who commits any of the following acts shall be guilty of the misdemeanour of seditious libel, that is to say:—
(a) declares or publishes by speech or writing that the Constitution is not the lawful Constitution of Saorstát Eireann, or
(b) declares or publishes by speech or writing that the executive council, or the president, or the vice-president, or a Minister duly appointed under and in accordance with the Constitution is not the lawful executive council, president, vice-president, or minister (as the case may be) of Saorstát Eireann, or
(c) declares or publishes by speech or writing that the Oireachtas is not the lawful legislature of Saorstát Eireann, or that the Oireachtas has not power to make valid laws for Saorstát Eireann, or
(d) declares or publishes by speech or writing that any lawfully established court duly functioning under and in accordance with the Constitution is not a valid and lawful court, (e) utters or publishes any speech or writing with a seditious intention as defined by this section.
(2) Any person who agrees with any person (not being his or her wife or husband) to do any act for the furtherance of a seditious intention common to both such persons shall be guilty of the misdemeanour of seditious conspiracy.
"Seditious intention" is defined by the section.
Deputies have read, no doubt, of people who have stated their intention to break every section and sub-section of this Bill the day after it becomes an Act. That may be regarded as very heroic or it may be regarded as a tribute to the humanity of our prison system. But Deputies should ask themselves whether in a well-ordered State —and I assume that we aspire to be a well-ordered State—people should be allowed to make declarations of the kind set out in Section 5. It is, of course, a matter of opinion. It is arguable and will, no doubt, be argued at length. I will be interested in hearing the case for liberty to do any of the things set out under the various heads in this section.
