I move amendment number 48:—
In sub-section (1), line 16, to delete all words after the word "Council" to the end of the section and substitute therefor the words "a tribunal consisting of three members who shall be judges of the High Court."
The effect of the amendment would be to substitute one class of civil court for the proposed court consisting partly of military officers. As I said on Section 20, I would be prepared to give powers to the Executive by way of the institution of special courts, even by proclamation, if that proclamation was subject to ratification, or had to be preceded by ratification by the Oireachtas. But I would not be in favour, in any circumstances, certainly not in circumstances which seem to me to present themselves to-day, of granting the powers set out in this section.
The amendment reads:—
To delete all words after the word "Council" to the end of the section and substitute therefor the words "a tribunal consisting of three members who shall be Judges of the High Court."
That means that the whole section should be deleted after the word "Council," that one court shall be established as a special court, and that that court shall consist of Judges of the High Court. While putting forward Judges of the High Court as members for this special court, I want it to be understood that if it is considered wiser to make the whole judiciary available for this purpose I would not stand in the way. If the Judges of the High Court were not easily available, owing to the pressure of their normal business, I would be inclined, in the first place, to ask them specially to act in these courts, and to set up some substitute for the conduct of ordinary business, because, to my mind, this is more important than the conduct of the ordinary business of the State. But, even if that would not suit the desires of the Executive, I would be prepared to have any other judges, whether they be Supreme Court or Circuit Court Judges, available for a similar purpose. It might be said that this proposal of mine may place the judges in a particularly awkward —shall I say dangerous—position. As I said on the Second Reading, I have no doubt that the judges in the Free State are willing to take the responsibility, and to do what they consider their duty by the State. From the position they are in, as men learned in the law, as men who have been thought fit to occupy the positions they do at present, I am confident that they could view it in no other light but as their duty to act, if they were so requested.
The object of this amendment is to do away with what, personally, I regard as the most invidious proposal in the whole Bill. This proposal to institute military courts—I shall deal with the term in a moment, as they have been so described up to this—is, to my mind, wholly unnecessary. Not only is it unnecessary, but it goes very far indeed towards upsetting the bedrock of our Constitution. Article 70 is, if not directly, very pointedly, abrogated by this section. Article 70 has already been referred to in these debates, and I think on this particular amendment it is worth referring to again. Article 70 of the Constitution reads:
No one shall be tried save in due course of law and extraordinary courts shall not be established, save only such Military Tribunals as may be authorised by law for dealing with military offenders against military law.
And not satisfied with making it clear that civilians and ordinary citizens shall be tried exclusively by civil courts, the Article goes on further to state:
The jurisdiction of military tribunals shall not be extended to or exercised over the civil population save in time of war, or armed rebellion, and for acts committed in time of war or armed rebellion, and in accordance with the regulations to be prescribed by law.
If a time of war were to come about, or if there were armed rebellion, then, even according to the Constitution, we should be justified in instituting military tribunals to deal, not merely with offences by members of the Army, but with offences by citizens in their civilian capacity. Does the Executive Council really claim, from their knowledge and information, that there will be a period of armed rebellion? If so, then let the military courts be established. But, if they say that there is not a likelihood of there being a period of armed rebellion, then I ask, what is the purpose of bringing in military tribunals at all? We have heard a great deal said by way of praise, with most of which I substantially agree, about the Civic Guard. There would be even more sense, shall I say decency, in proposing that courts such as these should be composed of officers of the Civic Guard, rather than officers of the Army, because the Civic Guards are a civil unarmed forced, while the military are not. I fail to see the purpose of bringing military officers into courts to determine charges against civilians in a time which is not proclaimed by the Executive Council to be a time of war or of armed rebellion.
Mention has been made of these courts as military courts, and I think the other day my friend, Deputy Cooper, stated that, as far as he was concerned, he would almost prefer to be tried—I think that is a fair paraphrase of his words—by a British courtmartial than by an ordinary court of justice. With that sentiment I am in agreement. Though the President seemed to question my experience of courtsmartial to-day, and I do not profess that it is anything like what his might be, at the same time, having been for five years in the British Army, I know something about British military courtsmartial. This I do know about them, that every sentence by a British courtmartial, and the whole proceedings of that courtmartial, are brought before the Judge-Advocate General, that he has to determine, after reading those proceedings, whether the sentence should be allowed to stand or whether it should be quashed, and that even if he upholds the decision of the courtmartial, there is a further appeal to the King, through the British War Council. Therefore there are two powers which may intervene between the sentence of a British courtmartial and its execution. As far as the military courts that were in existence in the Free State —I am now talking of our own military courts—were concerned, I understand that there, too, there was a possibility of revision by a person in a position somewhat similar to that of the Judge-Advocate General in the British Army.
We cannot discuss this amendment or this section without referring to Section 24, because Section 24 provides that there shall not only be no appeals from the sentences of these courts, but that there shall be no possibility of review or revision by way of certiorari. We are asked, therefore, not to set up courtsmartial like those that exist in the British Army, governed as they are by a code of British military law, and subject, as they are, as I have pointed out, to some form of revision or review, but to set up, not military courts at all, but nothing more or less than Executive Council courts. According to this section, "As soon as may be after every occasion on which this Part of this Act comes into force there shall be established by the Executive Council..." They shall determine presumably, not only whether the three members of the court are to be military officers, but from what I can see on the face of the Bill they are to determine who these military officers are to be. They will be in a very different position from judges, whether of the High or the Supreme Court, or even District Justices, because they will be nothing more or less than servants of the Executive Council. They will not be independent judges. They will not be in the same position as members of the Judiciary in that respect.
The taunt has been and will be thrown—and it is natural, I suppose, that it would be in a debate of this kind—in the face of anyone objecting to these courts that the objector is saying that the decisions will be unfair or unjust. I say nothing of the kind, but I do say that there should be some power to revise these decisions. The decisions of these courts will be final, once and for all, and one of the reasons why I am proposing that the courts should consist of High Court Judges is that there would be power of revision by way of certiorari, or even, for that matter, by way of appeal. If the Government had made anything in the nature of a case for the establishment of courts like these, one would be loth to take any action against them, but they have made no case. They may have made some case for the establishment of some form of special court, but they have made no case for the establishment of any form of military court. Why should they not be civil courts? How will the military courts effect the purpose of this whole Bill any better than civil courts? On the contrary, would there not be far greater respect for civil courts, for this reason, that it is only too obvious that military men, and especially men who may be appointed under this Bill, of only the rank of commandant, cannot be expected to have even the same experience of the world, much less of law or of evidence, or even of the administration of justice, as any of the judges occupying the benches of the Free State Judiciary?
I do not know whether it has struck members of the Executive Council or not, but when it may be suggested that it would be invidious to put judges in this position, is it not far more invidious to put mere military officers in this position? Did they join the National Army to sit in judgment on their civilian fellow-countrymen? It is a different matter to sit in judgment upon the soldiers of the National Army, for that is part of the execution of their duty, but I wonder how many young officers at present in the National Army ever dreamt when they were joining that force that they would be called upon as members of the Army, in a time which had not been proclaimed a time of armed rebellion, to sit in judgment, with the possibility of having to pass sentences of death, upon their civilian fellow-countrymen. I think that instead of it being a hardship to ask the judges to perform this duty, it would be a far greater hardship to ask officers of the Army to do it.
The whole principle involved in this section permeates and vitiates the whole Bill. If this section and the previous one, which provides for the machinery of the proclamation and the method employed by that machinery, had not been in the Bill, I for one would not have voted against the Second Reading of the Bill. It is almost entirely upon the ground that where no sufficient cause has been shown our Government thought fit to substitute military for civil courts, courts which will administer only, I admit, in certain contingencies, but which may administer in the case of all the offences under this Bill—it is because of that that I have strenuously opposed the passage of this measure. If I could be convinced, if there could be any argument brought forward even now by the President or any other member of the Executive Council to show me what the civilian courts could not do that are expected to be done by these military courts, and how these military courts could effect the purpose of this Bill, the purpose of it being the detection and the prevention of crime—if I could be shown how these military courts could effect that purpose any better than civil courts, I do not care of what composition, I would mend my way.
We have had no indication as to what the urgency, what the necessity—I do not like to use the word, but, shall I say, what the excuse?—is for bringing the military into it at all. Is there a likelihood that under this Bill there will be a state of armed rebellion? Is that the view of the Executive Council? If it is their view, then they need not alter the Constitution at all, because it is provided in Article 70 that in a state of armed rebellion or in a time of war military tribunals may be substituted for civil ones. If there is not such a likelihood, then why bring in the military? I do really appeal to the Government. I appeal to them because I think they will command respect from the people whom they are endeavouring to serve if they will not insist upon the introduction of these military tribunals. It may be said they will act in a fair way. That may be so, but still you have the fact remaining, and you cannot get away from it, that because they are military tribunals they will not be trusted or respected by the people.
Furthermore, you have the great outstanding possible injustice that there will be no power of revision, no power of review, no appeal; there will be nothing, not even by way of certiorari, from a decision which may be made in error, which may be made even in good faith. Are the circumstances such as to demand that drastic remedy? I do not believe they are, and I think that if the President would reconsider this section and would set up any form of civil court—if he would even, if he thought it necessary, appoint special commissioners for the purpose—it would be very desirable. The special commissioners may never have to meet; I hope that they never will. But would it not be possible to set up some form of civil tribunal, either composed of judges as I have outlined in this amendment, or composed of those learned in the law and who would be willing to act as special commissioners if the emergency arose? This section, to my mind, goes to the root of the whole Bill. It controls and governs everything in the Bill, and as long as this section remains, not being shown either the justice or the necessity for it, I will feel bound to continue opposing this measure.
