We have an amendment under discussion at the moment which seeks to provide, as a poor and weak alternative to the present practice, that judges should be removable only on a resolution passed by this House by a certain majority. That amendment was not put on the Paper to be considered alone. It was put on the Paper for consideration, and can only have its proper value if it is considered along with the other amendment which states that once things were wrong in the Constitution, changes could only be made in it provided that such changes were fought out before the people at a general election.
Again, as in the case of the Comptroller and Auditor-General, the President pretends to believe in the independence of the judges. He says that he will give another fraction— a different fraction to what we are discussing. It must be remembered that in the background of what he is suggesting is still that it is to be written into the Constitution—which Constitution is capable of being changed, at a day's notice, by a simple majority of the House. The new position would be that it would take two points of procedure in the House which can be run through on the same day to achieve the removal of the judges. It is no safeguard to write in as an Article of the Constitution that the judges will be removable only for cause stated, for misbehaviour or incapacity and passed by nine-tenths, five-ninths, three-fourths or any fraction of the Dáil if there is retained at the same time in the Constitution the power to change that Constitution by a simple majority in the House. All that would be required under the new circumstances would be to bring in a measure to change that fraction, to bring it back to what it is now, and pass a resolution on the same day.
That is what we are offered in exchange for the present position with regard to the independence of the judiciary, and that is proposed by the President as a serious contribution. Incidentally, it should be remarked that it was not proposed by him as a contribution until this matter was brought up by amendments from this side of the House, although on the last day we were debating this the President said the Bill had been seriously considered and that precise instructions had been given for drafting it. On the last day, for the first time, we got the admission that there were certain valuable things in the Constitution, but until we put down amendments calling attention to certain valuable things in the Constitution there was no proposal in regard to them from the Government. The proposal now is: "We will give you some fraction; we will argue about the fraction; it will bewilder the public mind, get over the difficulties of an important debate and make no difference in the long run."
What is the issue? It is a fairly serious one. The President gave as a considered statement on the Second Reading of the Bill to abolish the Seanad three phrases that I have quoted before and want again to stress. He has a mandate, and here it is: "We made it clear at the last election that it was our intention to abolish the Seanad as at present constituted." Do they bring in this Bill in conscientious and scrupulous implementation of that because it was considered to be the mandate? Clearly not. The second guarding phrase had to follow: "I think the elected representatives of the people ought to be the best judges of what is the people's will at a particular moment." So that if you get a mandate for anything and secure a majority in the House, then at any time in the period during which you hold office, the elected representatives of the people ought to be the best judges of what is the people's will at a particular moment. When we came to an argument on the merits away from theory the President said: "I would present this Bill if it were only from the mere point of view of the expedition of public business and the saving of public funds." So, for the mere expedition of public business and the saving of public funds, we put the judges in the position that by a majority of one, without reason stated —because that also can be changed by the majority of one—either a number of judges or an individual judge may be removed.
It seems strange that in a matter like the independence of the judiciary, which has obtained the assent of the people almost everywhere, some better argument than the one I have quoted could not have been brought forward. The President described the checks, and the balances system which operate with regard to financial supervisors, when discussing the Comptroller and Auditor-General, as makeshifts. They may be makeshifts to a great mind which is not yet satisfied with any suggestion put up for securing the independence either of the Comptroller and Auditor-General or of the judges, but they have commended themselves as good substantial safeguards for certain people, for whom the majority of people in the world have considered it desirable to have good and substantial safeguards, and only the worst type of self-inebriated egotist could describe the practice of the world in relation to this matter as a makeshift and a subterfuge.
It is no small matter to have got men to submit readily all over the world to the presentation of cases dealing with life, with property, with settlements regarding themselves and their families, with matters in which not merely their property, but their person is involved, to the consideration and final adjudication of a few minds, to have got willing obedience to a rule of law as one of the things that mark out a society emerging from a backward state into a more civilised state. One of the ways, right through history, in which that willing obedience has been obtained is by getting a number of people of particular types attracted by the dignities and emoluments offered to give their best service in an independent way to deciding all these matters of life, property, personal hurt and harm, and everything that the courts are dealing with daily. Are you likely to get the same people attracted if they know that a political majority holding away by one vote can, because they do something to displease that majority, remove judges from office?
It was said of war in ancient times that it had been elevated to an art prior to being degraded into a trade. Is not that what we are going to do with justice? People do not always agree with decisions given, but they submit readily to the courts, and abide by the decisions. Will there be the same enthusiasm to avail of these courts if the people to decide in the courts find themselves forced to trade for the sake of maintaining their position? If judges are going to be subjected even to financial pressure, as by the cutting of their salaries such pressure might be put upon them; if they are to be subjected to outside influence, to get about themselves in every case they decide the atmosphere and the mentality of a political party as to how they may fare from day to day if the new circumstances prevail, are they going to have the same respect as they have at present, and are people going to go before them as willingly as they do at present, and abide by what the courts lay down, as they do now?
It only needs a glance from anybody who understands the circumstances of life to see the variety of matters on which judges come in contact with the people every day, and how they have to give decisions on matters that would men in their feelings very deeply from day to day. When people believe that they have rights in a particular case, and submit them to the test of an independent mind set up there to rule without fear or favour, they may go away disgusted with the result, but at any rate, the enthusiasm for the institution and the feeling of confidence in the institution still lasts. It will not last very long if people realise that judges themselves, when giving their judgments, have come to realise that their judgments may be scrutinised by political newspapers and by the partisans of parties, and that pressure may be brought upon the Government to have them dismissed from office because their judgments are not in accord with what members of the political party want.
It used be said of certain old time armies, when they got to a high state of discipline, that one of the tests there in regard to discipline was that they feared their own officers more than they did the enemy. Do we want the judges to be in the position that they will fear their own masters more than the thing they are supposed to be the enemies of—crime and injustice? Is it a fair thing that a judge sitting to hear and determine the variety of things that come before him, all touching on human life, should be even disturbed in his mind that the judgment which he may give in any set of circumstances where political affiliation does not immediately appear should be scrutinised and examined from the angle of the partisan? Is it not even a wrong thing that in the cases where there are clearly matters of political interest being discussed, a judge or judges should not be able to decide independently and fearlessly and with the knowledge that, no matter how much their actions may displease a political party, they are preserved in their appointments until such time as two Houses, as it is at the moment, by a majority, on a case made before those Houses and substantiated with argument, have found that they can have been guilty either of misbehaviour or incapacity?
I said here on Second Reading that there was only one State in which there had been a clear equalisation between or even a mixture of the executive and the judiciary and that is in Russia, as at present constituted. They recognise no separation between the executive and the judiciary and it is claimed, and they claim it with pride, that it is therefore possible and right to alter the sentences of the courts in Russia because of political grounds. It is because their Constitution is arranged so that Lenin was able to complain that Bolshevik courts have been too lenient to persons dangerous to the Government. They state definitely and seriously that in Russia at the moment the State does not recognise the right of the individual to be adjudged in accordance with definitely legal principles and by a procedure which guarantees trial in a particular way. In the degenerate days of the Romans, there were measures which were called "privileged measures." They did not confer benefits but were so called because they were laws passed marking out a certain individual, a named individual, for some sort of treatment and there was nothing more corrupt in the administration in the later days than the use of these privileges. Are we getting to that state? At any rate, what is to prevent us from getting to that state? Is there any safeguard left? None except this one —will there be a break in the majority of the Party which controls the House by a majority of one, if a resolution is brought forward to dismiss a judge for something he has done?
There was read here, on Second Reading, a letter written by a Deputy of the Government Party to the papers calling attention to what a certain district justice had said, naming that district justice, and stating that he and a few more of his colleagues would profit by taking the hint that this Deputy's letter contained. The Deputy prided himself that this letter and view represented the feelings of a great many people who would be glad to see the courts presided over as courts of justice and leaving political misrepresentation to the politicians. What had that district justice done? In a case that came before him about assault by a big number of persons—somewhere in the neighbourhood, I think, of 30 or 40 —he said he would read for them as a homily and as some guide to their actions an editorial from the President's own paper, in which people were admonished to obey the law and to give the right of free speech to their political opponents. The Deputy of the Party which the President leads did not think that was proper, and he writes a letter to the paper admonishing him and telling him that he and a few of his colleagues ought to take the hint.
It is a very easy step from that to that Deputy having Party trouble with regard to that justice, or another Deputy having Party trouble with regard to another justice in another area, and I think the President himself has said, with regard to certain decisions that were put up to him when he was speaking in the Seanad, that they had not got from the courts the decisions they thought they had a right to expect from them. Some such phrase was used, and we have seen quite a definite tendency in the President and his Government, with regard to the administration of law in the country at the moment, and certainly a critical tendency in relation to the judiciary. We have the attitude with regard to personation. People were convicted of that offence. The Legislature, in its discretion at a particular time, had thought fit to lay down a minimum penalty by way of imprisonment in respect to that offence. That minimum penalty by way of imprisonment, even in cases where the judge has convicted and where the conviction has been confirmed on appeal to two higher courts, has not been served in any case and there is no intention of amending the law, I understand.
It is still a felony in this country to pretend to or, in fact, to hold courts-material, other than those duly established by law. People have advertised themselves as holding these; they have made no attempt to deny that they were held and there is no action taken. A man attended, with others, at dead of night, with weapons. They tried to shoot, and one of them was himself shot, and the Attorney-General decided to bring a charge of having a gun without a permit. We have had many questions as to the use of the prerogative and the wiping out of sentences that the courts have given for very serious and very obnoxious and loathsome offences, and, recently, a case has been argued before the courts in regard to a particular body which is not protected as the judges are and the Attorney-General decided to bring forward as an argument in relation to that particular tribunal that the safeguard of the citizen was that the Executive Council could remove this man.
That was put forward by a law officer, who, of all men, ought to have had respect for the tradition of independence of the judiciary, and have put some value on the independence of the judiciary. I think the phrase used was that if judgments other than what were expected came from that body the Executive Council could act. What is the standard then of all this—remitting sentences; not inflicting sentences when the courts have fixed them on certain crimes; not bringing men forward on charges even where they more or less pride themselves on their actions, and fling into the newspapers items of publicity with regard to what they have done? The Party that has no scruple about that, the Party that operates through a Government which has no scruple about that, is not going to be very anxious about an independent judiciary. It is a makeshift, the President thinks. This is only one of those things that the generality of men, in their wisdom, have decided to establish in order the better to accustom people to the courts and to decisions that will be given by people who are placed in a position to act without fear or favour; but it is only a makeshift!
The Minister for Industry and Commerce has announced that if it were in the public interest—not for incapacity, the President should note, and not for misbehaviour—the judges would be removed. They might be removed in circumstances where there was no incapacity, but there was definite capacity revealed; capacity which the President would consider difficult to meet; capacity concentrating on himself, say, or his activities in the country, but cogent and to the point. The President might consider that misbehaviour, or even if the President does not consider it misbehaviour he could get himself worked up to the point that it is against the public interest. This nine-tenths majority is going to prevail as long as he still has in the background the power to repeal whatever is that majority, and to get at the judges again by the single majority. Those are things which, on the whole, the people have decided to safeguard right through the world. Those are things that not merely have the people, in their wisdom, decided to safeguard in most countries of the world, but most governments in the world are glad to have in the background people who can correct them in matters of finance; people, away removed out of their power, to adjudge upon what they have done when they are passing legislation, those people knowing all the while that a simple majority could change the legislation, and that, of course, they would have to operate anew. Those governments have decided that it was for the good of themselves even as governments that they should be protected from the people who would say: "You are free to play about with the nation's finances as you like. You are free to change the laws, and to modify them with a bias against your opponents. You are even free to change the laws for individual cases, and modify them with a bias against individuals. You are now in a position to declare things at a particular moment to be offences which were not offences at the date of their commission."
That does not appear to satisfy the President. If the Seanad goes, the Constitution is changeable by a simple majority, and all those late-found valuable things which only occurred to the President round about the early stages of the Committee Stage of this Bill can be changed by a majority of one. The President can then wipe out any argument against him by saying: "What has happened elsewhere is only makeshift; there is no ideal suggestion made to me; there is nothing that, in my magnificence, I consider to be a suitable way of meeting this undoubted difficulty, and, even if there were, it is the elected representatives of the people who ought to know what the people want at any particular moment." Then there will come the ad hoc decision.
That is not good for the judges, speaking particularly of them. It is not good for the judicial system, which is an institution that has been thought worth planting in a certain position of importance, free from prejudice. It is not good for the people who are likely to avail themselves of the services of the courts, and it is not good even for the Government. The Government can be held suspect of a likely attack upon the independence of those people and of a consequent warping and twisting of the whole scheme under which we are working at the moment. The President says he is going to bring forward something on Report Stage. We have been told what it is. It still suffers from the disadvantage, as I have said, that no matter how it is implanted in the Constitution at the moment, it is changeable by a single vote. Would it not be proper to bring forward those suggestions in the Bill itself? The excuse could be made, if the Bill had been rushed, that there was no time to consider those matters, but we are told that was not the case; that it had been under consideration for a long time; that every item in it had been carefully considered, and as carefully drafted; but there was this late finding of valuable things in the Constitution. The President says: "At a later stage we will deal with the matter; possibly at a still later stage we may have a committee to consider something, and they may put forward a plan and it may be accepted." That is the establishment, say, of the judges in an independent position. The President can now argue that really there is no difference between what is now put forward and what has been the situation up to this. There will be a big difference in future. Does not the President see it immediately; has he not played for it? If anything were brought forward now it could be contrasted with the situation at the moment. The people could weigh in the balance and pass judgment on the two things, contrasting the suggestion with the present situation—the majority of the two Houses, whatever the imperfections in that might be; the fact that the resolutions could only be passed on stated grounds of misbehaviour or incapacity, and that it required a particular majority to change even this phrase. That is the situation. That could be balanced against whatever the President has in the recesses of his mind to bring forward, or will bring forward if somebody suggests something idealistically perfect to him which he considers it worth while to bring in. Once the Seanad goes, your situation is entirely different. The situation then is that the judges are without any strength. There is no fortification of their old-time independent position. Anything the President may bring forward after that can be claimed as an improvement, and he gets the advantage of the situation which he himself has created by suddenly removing the judges from a position of particular strength to one of ordinary weakness.
I know there will be objections when I again refer to the example of the Chief Commissioner of Police. I know I will be told that the situation was not the same; neither was it. Is there anything to prevent the position of the judges being equated, a week after this measure becomes law, to what the position of the Chief Commissioner was? They could simply be removed by letter sent them, even though the letter quoted the wrong Act. What is to prevent the President being then in the position to make the same answer with regard to the judges that he recently made with regard to General O'Duffy? Of General O'Duffy, he said: "There is no charge against him." A characteristic which might not attach to those appointed to fill the places of dismissed judges would be that the new occupants were not for—then you fill in the requisite number of years —in the service of the last administration. The President will say that that situation is not likely to arise. Two years before, he could have said that that situation was not likely to arise with regard to the Chief Commissioner of Police. At any rate, it can arise in the future, whether it is likely or not. The only argument that the President uses to-day is: "Surely we ought to retain this power over judges"; if they become incapable or if they are guilty of what would be regarded by most of the people of the country as misbehaviour, there ought to be some power to remove them. That argument must be answered and answered in the affirmative. The President, having announced this big principle, slips back immediately into Party thought. The whole tendency of his mind during the three days these matters have been under discussion has been to think in terms of Parties, in the numerical strength of Parties as they are at the moment, to think of such a majority as is possible at the moment and say that that represents the extremest limit anybody ought to go as regards the majority to be required for the removal of judges from office. Surely, it is the other principle that ought to be accepted— that we should not, here and now, say it is possible to have the conduct of a judge decided upon as either revealing incapacity or misbehaviour unless it so commends itself to some people who, at a particular time, are classed amongst the Opposition. As in the case of the Comptroller and Auditor-General, can the President imagine circumstances in which the Opposition will want an incapable judge on the bench? Can he even imagine circumstances in which the Opposition will want a judge guilty of misbehaviour on the bench? He will only find these circumstances if he admits openly that, in relation to incapacity and misbehaviour, he is again thinking along Party lines— that "incapacity" will mean incapacity to carry out the wishes of the reigning Government and that "misbehaviour" will mean behaviour contrary to their desires. If these are the standards, the Opposition would not desire to have the fitness of judges tested by them. Is that what the President wants established as the general criteria? As in the case of the Comptroller and Auditor-General, the President does not even pay serious lip service to this principle of the independence of the judiciary. He simply says: "We will make a gesture; we will make it rather difficult, as we plant a thing in the Constitution, to get a judge removed; we will say that it will not be possible to have that done except by a fairly large majority." He hopes that the people will be dazzled by the generosity of this gesture and will not look any further into the Constitution, where they will see that whatever be the percentage or majority now talked of—to be established, possibly, later by amendment—by a simple vote of this House it can be reduced to that contemplated under this measure as it is and leave the judges removable by a simple vote of the majority of the members of this House.
Speaking of the Comptroller and Auditor-General, the President, thinking again in terms of Parties, asked if we fancied that the present Government could get, say, the Labour Party to join with him in removing judges when the judges' conduct would have to be criticised and a resolution stating the incapacity or misbehaviour would have to be moved. The attendance of the Labour Party at present shows the importance they attach, as the so-called guardians of democracy, to the position of the judges. If the arguments about misbehaviour or incapacity were being addressed to this House, I suppose we should know what their vote would be, but it would not be one that would be swayed by the arguments. Yet Labour people, generally, have been found appreciative of an independent judiciary. If they have any complaint about the judiciary it is that they have not been made sufficiently independent, that they have not been put in a position where they can let abstract justice rule in their minds and be applied to the facts of cases as they come before them, that they are still somewhat tied, because they have a leaning on Governments or on society, as it is constituted. Labour people have been found to want more independence for judges. They want them put in a position where they can, with better security, snap their fingers at a Government in office. We have only got to look back on what has been done in the way of swallowing all that used to be described as the "principles" that Labour so closely adhered to and regard the performances of that Party in relation to these things in recent months just to see what strength judges will have when they have to lean on the group of Labour men as we know them at the moment, when they have the so-called Labour representatives as their guardians. Even they can be discarded, because the situation is not going to be such that it will require a stated majority. There will merely have to be two measures—one reducing the majority down to the obvious majority of one and, then, the passage of the resolution by the one vote. With that the judges' independence is gone. That is a thing that was fought for in this country for years. Even at the time that Irish Parliaments were sending their Bills to England, when England had an independent judiciary, removable only by the vote of two Houses, the demand for the independence of the judges here was denied time and again. It was achieved some time prior to 1800, and it has lasted here until now. This attempt to remove it is being made on the grounds, as stated by the President, of the expedition of public business and the expense to public funds. Those are the two reasons which impel him even to endanger the independent position the judges now have.