Constitution (Amendment No. 24) Bill, 1934—Committee Stage (resumed).

Debate resumed on the following amendment:—
In Part II, in the second column relating to Article LXIII, to delete all words in that column and to insert in lieu thereof the words "the deletion of the words ‘on resolutions passed by Dáil Eireann and Seanad Eireann' and the substitution therefor of the words ‘on a resolution passed by Dáil Eireann and assented to by not less than three-fifths of the members of Dáil Eireann.'"

I would like to recall the memory of Deputies to the position this discussion had reached on last Thursday night. It will be remembered this amendment proposes that action cannot be taken with regard to the Comptroller and Auditor-General except with a majority of three-fifths of this House. That amendment was discussed for some time before there was any indication from the Government as to what their attitude on it was. Then, rather in response to an appeal from me, the President got up and, with a great show of large-mindedness and reasonableness, he was prepared to say that that there should be a majority of no less than five-ninths. At a later stage Deputy Cosgrave pointed out that this apparent concession on the part of the President was merely calculated to mislead the House, as he had stated a fraction which represented exactly the number of the Government and its satellites. Deputy Norton then came to the rescue and he said that as three-fifths of the members of the Dáil required such a number as was represented by the Government Party including the Ceann Comhairle and the Labour Party, he presumed that the Ceann Comhairle would have no vote and, consequently, at least one member of the Opposition would be required to support the motion for the removal of the Comptroller and Auditor-General.

It was getting near 10.30 and I said, though I could not undertake to go into the Constitution at that point on the spur of the moment, at the same time it seemed to me under the circumstances that the Ceann Comhairle would not be excluded from voting — I am sorry to have to refer to you in person, Sir. The President then got up and, with that facility for interpreting legal documents which he has shown on another occasion with such disastrous results to this country, he said the Article in the Constitution dealing with this was capable of no other interpretation than that the Ceann Comhairle would not be in a position to vote.

Perhaps the Deputy will be good enough to quote what I said?

The President knows perfectly well what he said. Does the President say otherwise than that he indicated that the clear interpretation of Article XXII was that you would require three-fifths of the House other than the Ceann Comhairle? Does the President say that that is misrepresenting him?

I would like to have what I said quoted.

The President is well aware that I shall not receive the Official Debates until to-morrow morning. He is, therefore, in a very safe position to demand that his exact words be produced. I am willing to sit down while the President quotes his exact words, if he so desires. Apparently he does not so desire. I think any Deputies who were present on Thursday night will agree that I have not misrepresented the President. He conveyed to us that there would be no question that three-fifths under such circumstances would require to be exclusive of the Ceann Comhairle's vote. It is not I who am trying to misrepresent what the President said. I suggest it is the President himself who is trying to misrepresent the position. The whole of Deputy Norton's argument was based on the assertion that five-ninths would require the co-operation of at least one member of the Opposition. The President supported him on that and used his Presidential prestige to assure the House that there could be no other interpretation than that five-ninths must be exclusive of the vote of the Chair

If we read Article XXII, it says:—

"All matters in each House shall, save as otherwise provided by this Constitution, be determined by a majority of the votes of the members present other than the Chairman or presiding member, who shall have and exercise a casting vote in the case of an equality of votes. The number of members necessary to constitute a meeting of either House for the exercise of its powers shall be determined by its Standing Orders."

Now, if the position were made — as the President indicated he was willing to make it — it would require a vote of three-fifths of the members of the Dáil. I submit, Sir, that you are, or the occupant of your office is, a member of the Dáil. There is no statement, to my knowledge, in the Constitution, excluding the Ceann Comhairle from exercising the function of an ordinary member of the Dáil, and voting on any matter before the Dáil, except Article XXII, which provides that he shall not ordinarily vote but only have, and can exercise, a casting vote in the case of an equality of votes. That Article says:

"save as otherwise provided by this Constitution."

If it were to be a vote of five-ninths, it would be, clearly, as otherwise provided by this Constitution. Under those circumstances, five-ninths of the members of this House on the voting power would include the Ceann Comhairle. I invite anyone to point out if I am wrong in this.

The President, on Thursday last, first of all said that he was willing to go some way to meet us and to provide for five-ninths. Deputy Cosgrave pointed out that this apparent generosity kept it, at the same time, in the power of the Government to dispose of the Comptroller and Auditor-General. The President said that he thought it unlikely that there would ever be a Party in the House that would have nearly five-ninths of the votes and that, therefore, it would be necessary always to get some other body. Deputy Norton came to the rescue of the President and said that five-ninths would require the co-operation of the Opposition. The President then got up and said that the Article of the Constitution was capable of no other interpretation than that the Ceann Comhairle would not be in a position to vote, and that it could mean nothing else. At the moment, we were very nearly at 10.30 and, on the Presidential assurance that it would require one member of the Opposition to secure a resolution passed and assented to by not less than three-fifths of the members, so that, but for the intervention of Deputy Gearoid O'Sullivan who intervened to move the adjournment of the debate, the House on Thursday evening might have voted on this amendment having been misled with regard to the interpretation of the Constitution on the President's assurance that the Constitution bore no other interpretation but that five-ninths would involve a certain support in the existing condition of the House by the Opposition.

I suggest, Sir, that on Thursday last there was an attempt made to get this House to vote in ignorance on a misleading assurance from the President. I suggest that, as the President implies that he recognised that it would be undesirable to have the Comptroller and Auditor-General in the power of the Government and its henchmen, it is clearly indicated that five-ninths would not bring about what he himself admitted, on Thursday last, was eminently desirable in this country. Secondly, he must recognise that the proposal of five-ninths is completely inadequate, and that in view of all that has been said I think we should now agree that our proportion of three-fifths is desirable and should be included in this Bill.

I should like to know, first, whether the President has utilised the week-end in considering the advisability of changing the attitude he took up here last Thursday and whether he is now prepared to accept the amendment on the Paper Secondly, I should like again to make it quite clear, so far as any of these amendments are concerned, and especially so far as this particular amendment and the next are concerned, that I look upon this, at the very best, as a mere bad substitution for a better method of dealing with things. I am not interested at all in abstract theory, but I look upon the Second House as, in practice, the best method of preserving the independence of the Judiciary and of the Comptroller and Auditor-General. The President, when speaking last Thursday night, said that it was sheer logic that drove him to this condemnation of the Second House as a method, which has been found practical in most countries, of dealing with threats to individual liberty, and especially to the independence of bodies like the Judiciary and the Comptroller and Auditor-General.

I have very little respect, if I may say so, Sir, for the value of the President's logic. I do not believe that it is logical and I am quite certain that it is not rational. I fear that the experience of other people would show that his logic again and again—and I am afraid that it is likely to be the same in this case—has led and is likely to lead this country into morasses from which the country cannot easily recover. For logic of that kind, which pays very little attention to practice and a great deal of attention to some particular form of theory — because in these matters you can keep on theoryad infinitum—as I said, I have very little respect. I do not think that it can have anything else but a disastrous effect on the country.

Deputy Fitzgerald has dealt with one particular aspect of the matter. I am not going into the question of the fraction of a man by which the President tries to save the question — or by which he tried to save it on Thursday night last—or whether it would require an extra two-fifths or three-fifths to make the exact fraction necessary to get rid of the Comptroller and Auditor-General. I suggest that it is, to a large extent, irrelevant; but the purpose, and the only meaning, of the President's proposal would be that he and the Party dependent on him—I mean the Fianna Fáil Party and its appendage, the Labour Party — would have the power to remove, on purely Party questions, a man in the position of the Comptroller and Auditor-General, and even if an extra two-fifths were necessary, it is just possible — I do not say that it is certain — that there are still one or two constituencies in this country where, if there were a by-election in the morning, the President and his Party, advancing under the ensign of the Bloody Calf-Skin, would be able to secure a majority, and, therefore, by the mere intervention of Providence in the very few constituencies—if there are any left to him—he might get his half a man or two-fifths of a man as the case may be. If Providence were slow to intervene, I have not the slightest doubt that there are many allies of the President in the country prepared to help on the good work of Providence in that respect and give him an opportunity by means of a by-election in a favourable constituency to settle this particular question. If the House will remember, the argument used by the President on this particular matter was that it is very unlikely that any Party would have a three-fifths majority in this House. On these two things we on these benches, and I think the country as a whole, have for some years past, especially during the last 12 months, been able to make very little distinction between the Labour Party and the Fianna Fáil Party.

The next observation I should like to make is that the whole idea behind the President's mind, and I think this is the serious thing about it, is that this question, and I presume the question of the judges, because they are more or less on a similar footing, are to be decided as a Party issue. The whole argument he puts forward is that he, as a Party, would not have a majority. In other words, the main consideration for the removal of a man in the position of the Comptroller and Auditor-General—the same thing, I presume, would apply to the judges— is that if he has offended the Party there must be a Party majority. Looking the facts in the face, and counting the Labour Party with the Government, there must be a Party majority for the business; it must be decided as a Party issue. That is precisely what we object to—that if the judges and the Comptroller and Auditor-General are not reduced to the position of a mere conduit pipe to convey the opinions, not of the law, but of the Government, they must be capable of being got rid of by a Party decision. That is the whole case as I take it— that if the Government have not reduced the judges and the Comptroller and Auditor-General to the position of the members of their own Party, mere "nod-men" and "yes-men," they must be got rid of and the Government must have a provision in the Constitution that will enable them to get rid of them. I suggest that is an extremely serious position, that the President of the State envisages as a normal, ordinary thing that a mere Party majority, acting on rigidly Party lines, will remove the Comptroller and Auditor-General and the judges.

The case has been made again and again that the Seanad will do it. That is not my experience of the existing Seanad. It is my experience, and it was always my belief, that there were many measures which, had we introduced them, the Seanad would have turned down. I am quite prepared to say that if we had proposed the removal of a judge who was not guilty of grave misconduct or had not lost his reason — and the same thing would apply to the Comptroller and Auditor-General — we should not have been able to get the support of anything like a majority in the Seanad. I am firmly convinced of that. The best safeguard you can have in this particular case is a relatively independent Second House. I have pointed out that you have a Second House where most of the members hold office for 12 years, and that in itself counts from the point of view of independence. Many of them are not in any sense bound up with our Party, or with the other Party. I say, therefore, that the preservation of the Second House would have been the best method. This is only the second best, as I have said already.

In answer to a difficulty raised by Deputy McGilligan, the President said something about promising that it would not be done in the lifetime of the present Dáil. On that I should like to say two things. First of all, judging by the way in which the Government have honoured even more formal promises than that in the past, I consider a promise of that kind worth nothing. Secondly, I think it is completely irrelevant. We are not interested in what is the present intention of the Government or what is the intention of any Government. There is a much more serious matter at issue than that. I suggest that the liberties of the people, as represented by the independence of the Comptroller and Auditor-General and the judiciary, should not be based on the mere vague promise or even on the very definite promise of any President of any Executive Council, even of a President whose word the nation could place more reliance on than it could on the present one. Again, I suggest, that it is a complete misunderstanding of and failure to grasp the constitutional issues at stake. That is really what I have mainly against this whole Bill and why we are anxious to remedy the damage done as much as possible by an amendment like the present, because I have seen no evidence whatever that the President has got any conception of the issues at stake.

He thinks that the best settlement is that he should have the power and he promises that he will not abuse it. I suggest that his argument is not the slightest good. It is a reason for having no Constitution and no controlling Parliament whatever. If the liberties and the rights of the people are to be made to rest merely on a vague promise, or a definite promise, given by the head of the Executive, then I say that, constitutionally, these liberties have vanished. A Constitution is necessary precisely because the Executive Council cannot be entrusted with supreme power of that kind when it depends on their own will whether or not they will exercise it. One of the primary functions of a Constitution is to limit the powers of the Executive. Yet, anybody who has spent any time in this House during the last couple of weeks and has been listening to the President on this Bill must have gone away with the idea that his whole conception of liberty was that he should be given supreme power and he will use it for the advantage of the Irish people. It may be quite satisfactory from his point of view.

I am not questioning the sincerity with which he puts forward that point of view, but it is a negation of fundamental and constitutional liberties, a word which he is very fond of himself. It is proof that the man using those arguments has not really grasped what liberty means. It is quite apparent from the course of this debate that he thinks that absolute, unchecked power is good because it is wielded for a moment by a Government that claims to have the support of the majority of the Irish people. A dictatorship by a Party, or by an individual wielding absolute power is extremely dangerous and the complete enjoyment of absolute power without any checks is the very negation of civil, political and constitutional liberty. For that reason, I suggest that the arguments advanced by the President on the last night in connection with this amendment reveal, as I say, that he has no conception of liberty and many of them are quite irrelevant, so far as the issue is concerned. He may get out by a mathematical fraction or by a straining of the interpretation of a present Article or he may make a present of the fraction—the half-man or the two-fifths or three-fifths of a man—it would be better anyhow than some of the calves — but it is quite clear that concession in respect of the rights which depend on the result of any chance by-election in a constituency which may still be favourable to the President is absolutely worthless.

I am not going now into which is the proper interpretation of the Article or what the proper fraction is, but the suggestion is that the entire position of the judiciary and the position of the Comptroller and Auditor-General are to depend on chance things of that kind, so that they can be removed by a Party vote — and that is what the President obviously envisaged when he suggested that no Party should control three-fifths, while he might control five-ninths, counting, for the moment, the Labour Party as not belonging to his Party. A breach between the Labour Party and the President's Party is a very insecure scaffolding with the help of which to try to lay the foundations of the liberties of the people of this country. For my own part, I consider this amendment a very poor substitute for a Second House, but it is some kind of a substitute and on that ground I support it.

The most effective argument that could be made against this amendment I have not heard or read made at all. If the President accepted the amendment, which he has not the slightest intention of doing, with the rows of dummies he has behind him, there is nothing to stop him repealing it any time he wants to do something of the kind envisaged by Deputy Cosgrave when he introduced this amendment. Suppose we insert this amendment, providing that it will be necessary to have a majority of three-fifths of Dáil Eireann to remove a judge, or, as this amendment reads, a Comptroller and Auditor-General, what is to prevent the President, having made up his mind to remove this inconvenient officer, repealing it and then, with a bare majority, dismissing the Comptroller and Auditor-General? None whatever. At first that argument seems to be a convincing one, but in the circumstances in which we find ourselves, it is not, because as things stand at present a job of that kind could be put through and it might be hard enough to bring home to the people what was a foot. It might be hard enough to bring home to the people that this was a case where the Comptroller and Auditor-General had offended a particular political Party and that he was going to be thrown out, and it might be difficult to bring home to the people that he was being put out on nothing but a Party vote. If you provide by this amendment that, in order to get out the Comptroller and Auditor-General, when you have no support for such a course from the members of your own Party, you will have first to repeal the amendment and then put out the Comptroller and Auditor-General, it will at least make manifest to the people of the country what is afoot.

It seems to me perfectly clear that the whole object of both these amendments is to provide that no individual political Party in this House will be able to remove a judge, or the Comptroller and Auditor-General. The President has frequently dwelt on the impropriety of reflecting on the quality of the Deputies of this House, the representatives of the people. Surely he is not going to suggest that if a judge was unsuited for his high office, had been guilty of gross misconduct or had become mentally incapacitated, or if the Comptroller and Auditor-General suffered from similar disabilities, Deputies of this House would deliberately conspire to keep them in their office? If it be true that Deputies, no matter what Party they belong to, would do their duty in facilitating the Executive to remove a person who had made himself entirely unsuited for his office, what apprehension need the President entertain in accepting this amendment? All it provides is that Deputies, voting not on Party lines, will, by a commanding majority, declare that it is manifest to any body of reasonable men that the individual in question is no longer suited for the position.

I do think the President ought to make the fraction larger because while it might be possible that two or three Deputies for some cranky reason might not be prepared to act with the body of the House, it is incredible that any considerable body of Deputies would endeavour to maintain in the position of Comptroller and Auditor-General a person who was manifestly unsuited by gross misconduct for it. Therefore, while there can be no objection to increasing the fraction, there must be every objection to reducing it because the fraction we should arrive at is such a one as will never be represented by one Party; it will be such a one as will put it out of question for ever that it will be possible for any Party, United Ireland, Fianna Fáil or any Party in this House, when sitting on those benches opposite, to dismiss a person in the position of Comptroller and Auditor-General without the assent of a substantial body of the Opposition. In this connection, it ought to be remembered, when the President cheerfully says: "We will not do this, or we will not do that during this session" that his own colleague, Deputy Dowdall, explained to us recently that when Fianna Fáil said they would not do a thing or that they would do a thing, they were making only a statement and that it was mean, base politics to suggest that they ought to be tied by these statements. Members of the President's Party do not believe that there is any obligation on a public man to keep a promise. They differentiate very carefully between an undertaking given on a public platform or in a public place, which is a statement, and, presumably, a promise given as between one man and another which is binding in their view.

The President will surely agree that he would not ask fellow-citizens of this State to depend for their liberties on the personal undertaking of any individual. The very essence of liberty is that I should not be beholden for my liberties to any other individual in this State but that I should be able to claim them as of right from an independent tribunal. The very essence of the Comptroller and Auditor-General's office is that, after the Appropriation Account has been adopted by this House, the Dáil can demand, as of right, a careful review by an absolutely independent Comptroller and Auditor-General of the administration of the moneys entrusted to the Government's care. It may be imagined by certain Deputies on these benches that the situation really could never arise when an Executive Council would want to get rid of a Comptroller and Auditor-General.

Take the present Comptroller and Auditor-General's Account which was published some weeks ago. There are 18 pages of that account devoted to an exhaustive critique of the administration of the £2,000,000 that were voted to the Fianna Fáil Executive a couple of years ago. When those 18 pages come to be studied it may be that there will be a good many observations in them which will not be happy reading for the Fianna Fáil Government. There may appear in those pages a good many criticisms which the Government would much sooner had not been made. Does the President imagine that, if he had power to dismiss the Comptroller and Auditor-General without the cooperation of any of the Opposition Parties in this House, and unrestrained by the presence of an independent Seanad, pressure would not be brought to bear on him either to get rid of the existing Comptroller and Auditor-General or to point out to the Comptroller and Auditor-General that if he went on preparing reports of this character he would seriously have to consider appointing another person to his place? Of course it would. It may be that the President would resist such representations; it may be that he would say "I cannot hear of such things," but surely we are entitled to demand a greater security for this officer than the President suggests. We want to deliver the Comptroller and Auditor-General from the danger of being advised by the head of any Executive that unless he alters the tone of his reports, and shows himself to be less critical, the Executive will take steps with their Parliamentary majority to remove him. We want to secure that unless a case can be made to Dáil Eireann that the Comptroller and Auditor-General is clearly betraying the trust reposed in him by Dáil Eireann he shall be absolutely irremovable. I need hardly say that when the fifth amendment comes for consideration much of what has been said on this amendment may be said with even greater force. I understand they are being debated separately, Sir. The point at issue now is whether we shall have five-ninths or three-fifths. I shall be profoundly interested to hear the President explaining how he arrived at five-ninths. The appearance of five-ninths, coinciding exactly with the Parliamentary majority which he is at present in a position to control, is, to say the least of it, a striking coincidence. If he accepts the theory that no political organisation ought to be in a position to interfere with the independence of such an officer as the Comptroller and Auditor-General, I think he will find it extremely difficult to argue that the fraction proposed for insertion by Deputy Cosgrave is excessive. I consider the safeguard to be an extremely precarious one—only one step better than the President's undertaking; or as Deputy Dowdall would describe it, the President's statement; still it is the best we can hope to insert under existing circumstances, and such as it is I hope the President will be prepared to accept it.

A Chinn Comhairle, as Deputy Dillon has pointed out, the object of this amendment is to endeavour to make the office of the Comptroller and Auditor-General in some manner secure from a Ministry which might pass a Bill to undo anything that could be achieved by the amendment. The President was rather worth when it was suggested that the Ministry might use their powers in the manner suggested as regards the Comptroller and Auditor-General. Nobody could conceive any such thing, it was suggested, as that an officer holding such a responsible position could be discharged without good and sufficient reasons, such as incapacity, mentality or some other reason, but we had to-day in this House a Minister getting up and stating that one good and sufficient reason for discharging an individual from office is that his services were no longer required. That was the reason given for discharging a good, honest citizen who had served his country for a number of years; who had still four years to serve in his particular capacity; whose conduct was described as good, and against whom no complaint was urged. This particular individual was discharged from his office for what the Minister described as a good and sufficient reason.

You are surely not comparing the Comptroller and Auditor-General with him?

The reason given for the discharge of that citizen was that his services were no longer required. We have it announced in this House that that is a good and sufficient reason for discharging any citizen from any service in this State, but the President comes along and tells us that it was inconceivable that this Ministry would act in the way suggested in regard to the Comptroller and Auditor-General. The Ministry which acts in that way in regard to one citizen is certainly liable to act in the same manner in regard to another citizen. This House is dependent on the Comptroller and Auditor-General for its security in regard to the disposal of the sums voted in this House. That an officer holding that responsible position should be at the beck and call of any Government is a state of affairs which, I think, the people of this country would not stand for.

The President suggested as an amendment that a fraction of five-ninths would meet the case. He admitted afterwards that he made a mistake in the calculation, and that he did not realise that five-ninths exactly represented the composition numerically of the Fianna Fáil Party and their tail-end — the Labour Party. Well, it does exactly represent 85, and as the President admittedly made a mistake, I see no reason why he would not accept Deputy Cosgrave's amendment of three-fifths. If the President is not disposed to accept any amendment made by this side, if the fraction three-fifths, just because it is put forward by Deputy Cosgrave, is displeasing to the President, perhaps he would accept the fraction of eleven-eighteenths. It is only a small advance on his five-ninths, and it will satisfy me anyhow.

I think the President might go that far. Having gone so far as five-ninths — I hope the President will not get a pencil out, he should have got it out before he suggested the fraction of five-ninths — I am making a shot in the dark, and I suggest eleven-eighteenths. Is the President gambler enough to accept it on the spot? It is only a very small advance on five-ninths; it is about next door to it. Will the President be a sportsman for once and accept the fraction of eleven-eighteenths, and I will try to get Deputy Cosgrave to withdraw his amendment? The President is getting the assistance of the Attorney-General to see whether eleven-eighteenths is a good fraction or not. Perhaps because I suggest eleven-eighteenths it might be a bad fraction? It certainly makes as nice a fraction as five-ninths; I mean to say it looks as well on paper. It might be a little more difficult to calculate, but at any rate it would give us the security that it is a fraction which would represent something more than the number of Deputies on the Fianna Fáil and Labour Benches. As long as we achieve that, it will satisfy me. I would, therefore, suggest to the President, having considered everything carefully, and as he is rather disposed to give us some safeguard in a small fraction, that he should accept the fraction of eleven-eighteenths which I have mentioned.

I am putting the question —"That the words proposed to be deleted——"

Before you put the question, a Chinn Comhairle, may I ask if there is any advance upon the bid already made?

I should like to ask, also, if the President now recognises that, in purporting to interpret Article XXII on last Thursday night, he was wrong and that I was right.

I should like to draw the attention of Deputies to the fact that I had stood up to put the question, that speaking very slowly I had partly put the question and that Standing Orders provide that, in such circumstances, there may be no further discussion.

It will all arise on No. 5.

Question, "That the words proposed to be deleted stand," put.
The Committee divided: Tá, 58; Níl, 27.

  • Aiken, Frank.
  • Bartley, Gerald
  • Beegan, Patrick.
  • Boland, Gerald.
  • Brady, Brian.
  • Brady, Seán.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Briscoe, Robert.
  • Browne, William Frazer.
  • Carty, Frank.
  • Cleary, Mícheál.
  • Concannon, Helena.
  • Corry, Martin John.
  • Crowley, Fred. Hugh.
  • Crowley, Timothy.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Doherty, Hugh.
  • Donnelly, Eamon.
  • Flynn, John.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Goulding, John.
  • Rice, Edward.
  • Ruttledge, Patrick Joseph.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Hayes, Seán.
  • Hogan, Patrick (Clare).
  • Houlihan, Patrick.
  • Jordan, Stephen.
  • Kehoe, Patrick.
  • Kelly, James Patrick.
  • Kelly, Thomas.
  • Kilroy, Michael.
  • Kissane, Eamonn.
  • Lemass, Seán F.
  • Little, Patrick John.
  • Lynch, James B.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Maguire, Ben.
  • Maguire, Conor Alexander.
  • Moane, Edward.
  • Moore, Séamus.
  • Norton, William.
  • O'Briain, Donnchadh.
  • O'Dowd, Patrick.
  • O'Grady, Seán.
  • O'Kelly, Seán Thomas.
  • O'Reilly, Matthew.
  • Sheridan, Michael.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Francis C.

Níl

  • Alton, Ernest Henry.
  • Bennett, George Cecil.
  • Broderick, William Joseph.
  • Brodrick, Seán.
  • Burke, Patrick.
  • Cosgrave, William T.
  • Curran, Richard.
  • Davis, Michael.
  • Dillon, James M.
  • Dockrell, Henry Morgan.
  • Dolan, James Nicholas.
  • Doyle, Peadar S.
  • Fitzgerald, Desmond.
  • Good, John.
  • Keating, John.
  • Lynch, Finian.
  • MacDermot, Frank.
  • MacEoin, Seán.
  • McFadden, Michael Og.
  • McGuire, James Ivan.
  • McMenamin, Daniel.
  • Morrissey, Daniel.
  • Mulcahy, Richard.
  • O'Mahony, The.
  • Reidy, James.
  • Rogers, Patrick James.
  • Thrift, William Edward.
Tellers — Tá: Deputies Little and Traynor; Níl: Deputies Doyle and Bennett.
Question declared carried.

I move amendment No. 5:—

In Part II, in the second column relating to Article LXVIII, to delete all words in that column and insert in lieu thereof the words: "the deletion of the words ‘resolutions passed by both Dáil Eireann and Seanad Eireann' and the substitution therefor of the words ‘a resolution passed by Dáil Eireann and assented to by not less than three-fifths of the members of Dáil Eireann'."

This amendment, like the previous one, suffers from a certain weakness because of the non-acceptance of amendment 3. Whatever is left of the Constitution when this measure passes into law, if there be anything left, it will have, as already explained, a very short lease of life. I understand some references were made by the President in the course of the discussion on the last amendment, to the effect that certain Articles in the Constitution were under consideration, with a view to giving them a stronger position than the rest of the Constitution, by reason of the changes that are being made. The amendment, which was rejected on the last day that this matter was before the Dáil, proposed that amendments of the Constitution would be suspended until after a general election, and should then come into operation on a resolution being passed by the Dáil. The House in its wisdom rejected the amendment, and now we are forced to consider what security, if any, there is for the judiciary in this country. Article LXIX reads:—

"All judges shall be independent in the exercise of their functions, and subject only to the Constitution and the law..."

It does not require any recommendation from any member of this House, or from any member of the public, to impress on the minds of the people the importance of the independence of judges. We have executive authority, we have legislative authority, and we have judicial authority, three important institutions in the State. The Executive is subject to Parliament, the judges are, and ought to be, independent in the exercise of their functions. One can appreciate the importance of that, when we consider what happened in countries where the judiciary were not independent, where the Executive had supreme power, where other influence or authority existed in the State outside the courts. We are in the position now, with this measure, that when these amendments of the Constitution take place, the judges will have their independence limited to the pleasure of this House, if we like to put it that way. One of the earlier Articles in the Constitution, Article VI, states:—

The liberty of the person is inviolable, and no person shall be deprived of his liberty except in accordance with law. Upon a complaint made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every judge thereof shall forthwith enquire into the same and may make an order requiring the person in whose custody such person shall be detained to produce the body of the person so detained before such Court or judge without delay and to certify in writing as to the cause of the detention and such Court or Judge shall thereupon order the release of such person unless satisfied that he is being detained in accordance with law.

In so far as the Constitution and the law could ensure a person liberty that particular Article was inserted in the earlier stages of the foundation of this State to secure people their rights. There was a very good reason for it, because some twelve months before the insertion of that Article, it so happened, even under British law, that judges here, who had been appointed by the British Government, to exercise authority, had to be invoked in order to secure the body of a man who had been unlawfully detained. It is on record that the judges, even in the British time, would not stand for any such interference with the lives and liberties of the people. Although the man in that particular case had been sentenced to death, the authority, the power and the independence of the judges was canvassed here on behalf of the individual, and he was released. There was consequently very good reason for the insertion and for the continuance of the security which is afforded citizens—or was afforded, even under British law. What is it worth now? At that time, even when there was a state of war, and when practically every person who was opposed to the British administration here, was willing to admit there was a state of war, there was still that security left under the despised and condemned British law which was then in operation, for the rights and liberties of the people.

What is that liberty worth once this Bill passes into law? It is worth just simply the will and pleasure of a majority of this House. We have had an experience of it only within the last month or six weeks in the attempt by the present administration and their allies in this House to outlaw the national political organisation in this State. When this amended Constitution becomes law we will have in essence disposed of one of the three institutions of the State and reduced the number to two by a very simple process. One of the three would be gone and we could have decrees by the Executive Council. Nothing simpler. Under the power to which I have referred the Executive Council could style any body in this State that it wishes, a political body, and they could suppress it. It is a very serious contemplation. It is not too late to remedy this particular situation, that is as regards the liberties of the people.

What about the other matters? No institution in this State, no institution of the three, should have greater respect in the people's mind than the Judiciary. I have no doubts whatever that notwithstanding any limitations that might be put upon any member or all of the members of the Judiciary they would still do their duty and persevere in doing their duty. But remember this House in six hours could limit their lives of service. It would not reflect any credit upon the House to interfere and the House ought not have the power to interfere. Its powers should be restricted to those reasons laid down in the Constitution — stated misbehaviour or incapacity— these two. Something more exhaustive than a single vote on a measure passing through this House ought in all decency be enshrined in our law.

It should not be quoted as a precedent that within the first two decades of our political responsibility in this country we allowed the fundamental law of the land to be practically made a joke of for future generations when they are quoting what was done here upon the first change of Government that took place in this State. There is every reason for ensuring the conditions which were enshrined in the Constitution as regards the judiciary being kept on. There is every reason for it but no reason against it. I feel with even the passing of this amendment, that what Deputy Dillon has said with regard to a previous amendment is possible, that it can be changed in a day. But even that day has this satisfaction for us if the amendment be passed, that it may not happen or, in any event, it is one day longer than is provided in the Bill as it stands. I formally move the amendment.

It is interesting and noteworthy that the Attorney-General has softly and silently faded away. God knows, I do not blame him. I venture to say that if we could scan the lists of Deputy Little we would find that the Attorney-General had been paired for an hour. I do not blame him. The Attorney-General who would allow his name to appear on the voting register as voting against this amendment would present a pretty picture in his wig and gown. We are fighting here, Sir, to preserve in this country the independence of the judiciary. We want to provide that the next time Deputy Martin Corry gets vexed, he will not be in the position to dismiss the Chief Justice.

Remember Deputy Martin Corry in his straight, trenchant outlook on public affairs, represents the mass of the supporters of the Fianna Fáil Party. If any man differs from you, dispose of him. If any man is not prepared to adore at the shrine of President de Valera he is a traitor. If any man doing what he believes to be his duty, differs with President de Valera, he is a dastard and a fraud.

The President has a much nicer way of saying those things. Deputy Corry goes out and says them with a fine, flat, honest West Cork accent. He does not put a tooth in it. But the President shakes down the romantic look of hair over his eyebrow and says it is not the first time the judiciary was used to make the administration of justice in this country impossible. Does the President remember those memorable words he used on the Friday morning, when he spoke to us for one and a half hours on the Blue Shirts Bill, and said that it was not the first time that the courts in this country were used — and I interjected "to protect the people from tyranny," and the President said "to make the administration of justice impossible." Then the Minister for Industry and Commerce leaped into the breach. On the occasion to which I am about to refer the poor Attorney-General was cowering beside him. Something that Deputy McGilligan had said vexed the Minister for Industry and Commerce, and the Minister, thumping the desk, said "This is the Constitution"— the poor Attorney-General was growing smaller and smaller and redder and redder, and somebody asked: "What does the Attorney-General say to that?" The Minister for Industry and Commerce looked down upon the Attorney-General as if he were the dirt under his feet and said: "My opinion counts for more in the Executive Council than the Attorney-General's." He said: "My opinion prevails."

I suggest that the Deputy quote what I said.

The Minister can quote it himself.

The Deputy should quote what I said.

I am stating what the Minister for Industry and Commerce said. The Minister for Industry and Commerce was flanked by the cowering Attorney-General. The Minister is not now going to lead me up the pleasant avenue of Ballina. I am refreshing their memories. It is inconvenient to them to have their memories refreshed about theirobiter dicta when matters of this kind are under consideration. It is to protect the ordinary citizens of this country from the suspicions of President de Valera. It is to protect the citizens from the outlook expressed by President de Valera and the Minister for Industry and Commerce that we are fighting for this safeguard with regard to the judiciary.

We cannot forget that the leader of our organisation was imprisoned owing, no doubt, to President de Valera's own orders and his illegal orders. Were it not for the fact that we were able to get an independent judge, the leader of our organisation would be in prison to-day. Does anyone imagine that if the Seanad had not been there, when the judge directed the release of General O'Duffy, that the members on the Fianna Fáil Benches would have clamoured to have that judge brought to judgment, would have clamoured to have him brought to the frame of mind that he would be made to realise his position? Possibly we might have heard the more cosmopolitan members of the Party saying that the judge should be told where he got off.

Or asked how did he get on.

That is the danger that we are trying to protect the people of this country from. The independence of the judiciary means very little when it is put in the abstract form to the people, but in the ultimate it means the difference between liberty and slavery in this country. I do not want my rights by the courtesy of President de Valera, and I do not say that with the slightest intention of any personal offence. I do not want my rights at the courtesy of President Cosgrave. I want them from a tribunal to which I can come and demand them as my rights, and get them despite anyone who would withhold them from me. I want to feel that I am going before a tribunal which is absolutely independent of the Executive, or of anybody in the country. That is not what we are going to get now.

It is a source of gratification to see that the Attorney-General has come fluttering back. He is now wedged between the President and the Minister for Industry and Commerce. It will be interesting to hear him in such influential surroundings, having on the one side of him the President, who says that it was not the first time the judiciary had been used to make administration by the Executive Council difficult and impossible; and on the other side the Minister for Industry and Commerce, who says: "My opinion of the sedition is the one that carries, and carries most weight with the Executive."

The Deputy's knowledge is as good as his quotation.

I have referred to the value which the citizens of this State, and which the citizens of all States, put on the rights of having judges in an impregnable position above all political parties in regard to the writehabeas corpus. I have referred to the necessity of giving security to our independent judiciary for that reason. A case recently arose in which the courts were invoked again for the protection of the citizen, and to restrain the Executive from acting illegally and improperly. There is, at present, before the courts a motion standing in the name of our organisation, or the members thereof, asking the courts to pass judgment on certain facts. These facts are very angrily contested by the Executive Council. Can it be imagined that we can approach these courts with the same security if they are to be composed of judges who accept appointments under conditions which provide for dismissal by a bare majority of this House? I doubt very much if the Attorney-General is prepared to defend the general proposition that the High Court Judges should be dismissable by a bare majority of this House. I doubt very much if the head of the legal profession in this country would accept office as a judge on these terms. I doubt very much if any self-respecting member of the profession would consent to occupy the Bench upon such terms.

I submit, that looking at the history of this institution — and the independence of the judiciary — looking at events of which, we ourselves have been witnesses, in the courts, for the last six months, it must be manifest to the House that this amendment goes to the very foundation of the principle of independence in the Saorstát. It is something of enormous importance. The objections of inadequacy that have been raised against amendment No. 4 are applicable here. At the same time this proposal is better than nothing. It, at least, places upon the Government the obligation to repeal it before they proceed to dismiss a judge, and places that obligation, not only upon a Fianna Fáil Government, but upon the successors of that Government whoever they may be. It makes it necessary that they should make their intention and purpose manifest to the whole country before they proceed. I am particularly anxious to hear what the Attorney-General will have to say upon this. I think the House is entitled to hear what the head of the legal profession has to say upon the subject. I think the House is entitled to know what the Attorney-General thinks upon the general question of the independence of the judiciary, and what he considers the necessary safeguards for the maintenance of that institution. I hope he will respond, and I hope that even the dark frown and angry gesture of the Minister for Industry and Commerce will not deter him from speaking his mind as the head of the profession upon this matter. I urge most strongly that this amendment should be accepted. In urging that, I believe I am making no more than this demand: that the Government should not destroy something which, in its destruction, would take away the rights of every citizen in this State as opposed to the potential oppression of the Executive Council.

In rising to support this amendment I believe I am rising to support the law of the land as administered by judges, rather than having the law of this land administered by a number of political hacks. Every one of us in this State, in the last 18 months, has suffered from the lash of the laws administered by little politicians. Every one of us has been bent under the lash of the law as administered by vindictive politicians administering a law of their own. I am not surprised that discussing this particular amendment the President hangs his head with shame. There is no man in this country who has paid more lip service to majority rule than the man who defies it more blatantly than anyone else in this country. What are the Government afraid of in accepting this amendment? What are the terms of the amendment? That the judges of this country shall not be removed from power at the beck and instigation of every little politician, and that they shall hold their office, except when they are voted out of office by a majority of three out of five of the nation's Parliament. And that is opposed in the sacred name of democracy. The judges are going to hold their positions according to the will and pleasure of any group of political acrobats who happen to form the Government—any group of political playboys who secure a majority of even one in this House.

Every one of us knows how easily majorities are secured. Every one of us knows how easily votes are put through. Are you afraid of a vote of three in five? If you are, what becomes of all your protestations about majority rule? Is it a bare majority, a bare majority stripped of their shirts? Is that the kind of majority rule you believe in? Deputy Dillon said that in this amendment we were fighting for the judiciary of this country, for the independence of the judiciary, but I believe we are fighting something bigger. I believe we are fighting against something greater. I believe in my heart that in fighting for this amendment, we are fighting against a corrupt and weak dictatorship in this country. You have by your majority rule, by your bare majority, got rid of many checks. You have got rid of every check except the judiciary, and when you get rid of that, the wobbling will of one man will rule throughout this land. That is the liberty that those who have gone before us fought for. That is the liberty that even greater men than all this majority put together struggled for—to let the will of one man or the vindictiveness of one man decide the destinies of the people of this country.

We have had that political rule and that will administered through the only avenue you could administer it. We have that political rule of the Executive Council in this country administered for the past 12 months through the medium of the Public Safety Act. We know what that amounts to. We know what the partisan judiciary that will be the outcome of this Bill, if this amendment is defeated, amounts to—that anyone who opposes the political will of the Party in power is to be branded as a criminal and thrown into jail, that the head of any man who opposes the will of the would-be dictator in this country will have only one purpose, to receive the blows of a policeman's baton.

We have the police forces in this country bent to the will of politicians and there are many sore heads in Kildare and in County Westmeath to-day because of the corruption you have instilled into that police force. Those who went before you trusting that clean men would come after them, left it in the power of the Executive Council to remove the chiefs of the police forces. Are we to do the same with the judiciary? Are we to perpetuate through every walk of life the same abuses, the same vindictive and weak administration under which we have suffered in the last 18 months? Remember the only thing that saved us from complete oppression and complete suppression was the independence of the judiciary in this country. We had glib promises from that side. We had promises from the Attorney-General of quiet justice under that Public Safety Act but when he retired from this House he was overruled by the politicians and the sentences he was going to remit were never interfered with.

I was going to appeal to the champions of democracy but I observe their benches are empty. I was going to appeal in that direction but I would appeal to the benches behind the Ministers. There are men there who believed in and fought for real liberty. There are men there with the heartbeats of real democrats. There are men there who fought for something bigger than the rule of a narrow vindictive political junta in this country. I would ask them, whether they are the Government or whether we are the Opposition, is it not fair play— fair play in your time and fair play in our time—that if the Seanad has to go in this country, we leave a situation under which a judge cannot be removed except by a vote of three-fifths of the members of this House? Remember when the British were in control of this country the professional reputations of the judges were upheld. The judges had their professional training and even in those dark days we appealed to the courts in this land against the British junta that ruled in the land and the courts saved more than one man's neck in this country. Even now, if it were not for the courts, the leader of this political organisation would be in jail to-day at the will of politicians. The courts held he was illegally there and they opened the doors of the jail and let him out. Is it fair or is it honest or Irish to interfere with that particular liberty? If this Parliament has control of the judges, is it not fair enough that there should be at least a three-fifths majority before a judge is removed?

I heard denials over there that it was the intention to remove judges, but the Minister for Industry and Commerce, speaking earlier on this Bill, told us that power to remove judges was provided for and he added "If it becomes necessary at any time to use that power, the Executive Council will use it." The strong face, the idol of the aristocracy, the man that would be Premier of Great Britain, the little tin-pot god of Lord Castlerosse! It is good enough for the Irish people that any time the Executive Council want a judge to go, he must go, that any time a judge in this country disagrees with the will and pleasure of the Executive Council that man must go! We had an exhibition of the will and pleasure of the Executive Council last Saturday. We had it in Naas. If these police officers did not break their sticks across the heads of boys of nine years of age these police officers would have gone. I ask you in the interests of this country to protect the judges from that kind of thing and to protect the people, who now have only got the judges to reply upon.

Remember that we all pay lip service to democracy. Democracy means that the Opposition has rights as well as the Government. The politicians in power in this country, the front bench and the back bench, and the militia down below, have attempted to deprive the Opposition in this country of any rights. All moving together, you have attempted, between the hammer of those on top and the anvil of those down below, to crush out of existence normal political opposition, and normal political opposition means normal democracy, and the only thing we have got to cling on to—the ordinary people in this country and the political Opposition in this country—is the independence of the judiciary. The safeguard of removal by both Houses has gone or is about to go. We do not ask you to leave absolute independence. We ask you to leave this margin of independence, that a member of the judiciary cannot be removed except by a vote of three out of every five members of this House. If you have no consideration for the Opposition, have some for the country and have some kind of respect for the judiciary and the independence of the judiciary. Mind you, you are doing a lot to break down respect for the Government and, incidentally, respect for the State. The only things that are left to the people to respect are the institutions of the State, and the greatest of all is the judiciary. Turn that into a political camp, make the people who sit there a lot of political pawns and you will have completed the work you started years ago, you will have everybody disrespecting the State and every institution of the State.

There is no need to go over all the arguments that were put forward in connection with the previous amendment; they pretty well hold. There is no fundamental difference of opinion between the two sides of the House as to the advisability of keeping the judges in an independent position any more than there was with regard to the Comptroller and Auditor-General. The point is, what security is it reasonable to give? We hold that they are going to be given, under the proposition which I stated I would put before the House on the Report Stage, greater security than the security they obtain under the present conditions. The judges, just the same as the Comptroller and Auditor-General, could have been removed by a majority in this House and in the Seanad. We believe that that majority, here and in the Seanad, was much easier to obtain than the majority in a single House which would have to be secured under the amendment which I suggested I would introduce on the Report Stage.

I may repeat that this House is elected by proportional representation. Our Party, this time, was the biggest that has ever been returned, and, if one might venture to predict, is likely to be one of the biggest that will be returned under the system of proportional representation in a single Parliament. Our numbers are 77, one more than half. With the Labour Party we would not have sufficient, even if both Parties were to agree, and that you were going to get members of both Parties to act as political Parties, to remove either a judge or the Comptroller and Auditor-General with the majority that I suggested would be put in the amendment. There has been a question raised about that, as to whether the Chairman would, or would not, have a vote. In regard to that, my intention was to change the wording of that amendment. I did not intend to preserve the wording of that amendment at all, because, although it would be interpreted, I believe—so I was informed—as meaning that it was being assented to by those who actually voted, I regarded it as possibly ambiguous, and I had long ago intended that in the amendment a different form of words would have to be used.

The difference of opinion between both sides of the House amounts to this: what is it reasonable to give? I hold there are circumstances under which it is right that Parliament should be able to remove a judge. There have been such things as corrupt judges. There have been such things as judges rendered incapable of carrying out their duties. Surely it is not suggested, if a clear case could be made in either of these possibilities, that a substantial majority of the representatives of the people should not be in a position to remove such a judge? It is just the same as would apply in the case of the Comptroller and Auditor-General. The difference between us amounts to this: what is a reasonable proportion? With proportional representation obtaining, I felt that a majority of five-ninths would be reasonable. It would be a majority which could not be obtained in the present House by any one Party, or even by the combination of two Parties which frequently vote together under present conditions. I am prepared to advance somewhat on that. I do not think there is any case made for having such a proportion that it could hardly be reached, or at least that there was a possibility of it not being reached when it ought to be reached. That is the difference between the Opposition and ourselves in regard to that amendment.

It is idle to argue as if the importance of the independence of the judiciary, and so on, was not recognised by this side of the House, or that we wished, in an way, to undermine it. Our attitude is simply that under the amendment which we propose to introduce the judges will, in fact, have a greater security and the Comptroller and Auditor-General will have a greater security from unfair political interference than they enjoy at present.

May I direct the President's attention to one circumstance of which, perhaps, he has not taken note? There is a Redistribution Bill at present before this House and, as I understand it, that Bill has been framed on the principle of getting rid of four-member constituencies and generally all even-member constituencies. I understood the object was to secure that in future elections majorities would be larger than they have been in the past. If that is so, I think it might fairly be taken into consideration. As the President says, according to our opinions as stated here, there is no great difference of principle between us. But the question that he is so fond of asking,quis custodiet ipsos custodes—who will guard the guardians—may be asked just as well in reference to an Opposition as in reference to a Government. As was pointed out when we were discussing the matter of the Comptroller and Auditor-General, it is easy to see a motive for a Government Party wishing to get rid of an obstreperous official who may criticise what they have been doing, whereas it is very difficult indeed to imagine a motive for an Opposition to oppose the removal of a bad judge or a bad Comptroller and Auditor-General.

The threat to the independence of the judiciary is one that is very real, and it is very real in other democratic countries besides this. The generality of politicians throughout the country are very apt to attack the independence of the judiciary. There have been plenty of examples of it in the history of this country, and I am quite sure that there are back bench members even, sitting here— members of the present Dáil—who have, at one time or another, delivered themselves of sentiments which were, in effect, an attack on the independence of the judiciary. On the other hand, there is no evidence at all that the other danger would be likely to exist, the danger that people would wish to keep in office somebody who was, clearly incompetent or corrupt. The proportion of three-fifths, which has been suggested from this side of the House, is a simpler and a more ordinary one—and, I might say, a neater one— than the Government's proportion of five-ninths. It seeks to secure that a judge will not be removed by a purely Party vote, even in a House which has been elected under the new Redistribution of Seats Bill—if that Bill goes through as drafted—when majorities may be larger than in the past.

I understand from the statement made by the President that he accepts, unreservedly, the principle of the independence of the judiciary. If that principle is accepted, I think we could confine ourselves to a discussion as to how that principle, on which we are all agreed, should be given effect to in the Constitution. If there is any doubt as to the acceptance of that principle, different considerations, of course, would arise; but if we are to take the President's statement at its face value, there appears to be nothing between the amendment emanating from this side of the House and the suggestion that has been put forward by the Government. The President's suggestion is that he will have five out of nine, and our suggestion is that we shall have six out of ten—a fraction of a man out of the Dáil. Are we to discuss, through the remainder of the evening, whether we will have that fraction or not? The President is good at mathematics. Mathematics are not in my line, but it appears to me that there is very little between the two sides of the House on this matter.

The discussion would appear to be centred around whether or not the Opposition is going to score a point or not, and not around the question of principle. We put forward three-fifths with the object of finding out whether or not the Government accepted the principle of the independence of the judiciary. That figure was not put forward as an absolutesine qua non of the independence of the judiciary and all that it implies. We are more interested in securing that the independence will be a real independence and not one depending on a chance big political majority that may accrue, possibly, to any political Party in this House, no matter what it may be. The President predicts that no other Party, under proportional representation, will ever get as big a numerical support as his Party got at the last election. That may be true, or it may not be true, but the principle of proportional representation, as it is at the moment, may not be continued indefinitely. There are other systems of proportional representation which some other Government might try and which might result in bringing a larger majority in support of a Party than that which supports the Government at the present moment. The principle of proportional representation might be eliminated from the Constitution, and we might have a straight vote in a single-member constituency. It is easy to conceive, in such a state of affairs, some situation in the country which might result, through a wave of enthusiasm, in putting into office some other Party with a much bigger majority than the present Government has. The result of that would be that the judges would be the sport of that Party. We do not want to see that occur.

I once heard an opponent of the Party to which we belong speaking on one occasion of "the thin red line" of constitutional judges which runs through the history of this country. We want to ensure that that thin red line of constitutional judges will continue in support of whatever group or Party in the State may be in a minority from time to time. We want to see their rights protected by an independent judiciary and to see that the encroachment of the Executive on the people's rights is braked at least, if not entirely stopped by an independent judiciary. There is more in this question of the independence of the judiciary than mere constitutional principle or theoretical principle, because the measure of support, the measure of confidence that a people give to the State, and to the institutions of the State and the economic structure of the State, depend on whether or not the administration of the law is pure and undefiled and free from the encroachment of the Executive.

There is no better safeguard for democracy than an absolutely independent judiciary, and I would be more afraid of an easy method being provided for getting rid of judges than of difficulties being put in the way of getting rid of a corrupt judge. There is very little danger of a corrupt judge. However great the danger there is of an incompetent judge, there is very little danger of corrupt judges. In the history of the last 120 or 130 years in England, I do not think there has been a single instance of a judge being removed from office for corrupt practice. There have been cases, now and again, of judges resigning on account of agitations in the House of Commons. That method could be employed in the case of a judge who exceeded his duties in any particular instance—even in the case where it required a very large majority of members of the Dáil to remove him. If it was clear that public opinion was outraged, and that that opinion was given expression to in this Dáil, no judge could remain on the Bench for a day in the face of such a storm of public opinion, even though he could not be removed except by such a majority.

The danger, therefore, I think, lies in what was indicated by the President: that is to say, not so much in making the majority required for the removal of a judge sufficiently large but in making provision which would render it exceedingly difficult, if not impossible, to remove a corrupt judge. The administration of the law is one of the matters lying at the root of constitutional and democratic Government. If there is anything to suggest, and if there is even a hint, that there is something wrong at the source, then the administration of justice is brought into contempt, and once it is brought into contempt the whole fabric of the State is liable to collapse.

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 thead 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.

Deputy Dillon expressed some anxiety to hear what I had to say in favour of the Bill as it stood. I confess I do not share with Deputy Dillon, or with Deputy O'Higgins, the fears which they have expressed with regard to the effects that it will bring about. The reason I do not share their fears is, first, because I have more respect for the judges than they have, and I have greater faith in democracy than they have. Speaking about the present judiciary, as a whole, I do not believe it would alter their decision one whit to know that they were subject to removal by the simple majority of this House rather than by the majority in the two Houses, as hitherto. That brings me to the point that the Opposition seem to suggest that we can only rely upon the safeguard contained in the Constitution for the independence of the judiciary. The independence of the judiciary is preserved in Article LXIX, where it is expressed that all judges shall be independent in the exercise of their functions. As Deputy McGilligan pointed out in the course of his speech, I believe that what you have really got to rely upon is that the emoluments and the dignity of the position of judges shall attract men of integrity, men who are above such considerations as fears of an adverse vote, even in this Assembly. I stated that I did not believe any of the judges at present sitting on the bench would alter their decision one whit for fear of a resolution being brought to the Dáil to remove them, because a particular decision might have been displeasing to the Executive then in office. I am sufficiently optimistic to believe that that condition of affairs will continue in the future. Look back on the history of judges in this country and in England, and consider how very, very seldom have there been any attempts whatsoever even to criticise them in representative assemblies.

Again, I have more faith in democracy than the Opposition appear to have. They have worked themselves up into a state of excitement about what may happen in future, how judges will be timorous to exercise independent judgment or to act according to their consciences, as they have sworn to act, if there is a situation in which a majority of five-ninths of this House is all that has to be obtained to put them out of office. I have sufficient faith in this Assembly to believe—even if the Opposition were on these benches, and if we were on the opposite benches, and even if they had far more than that majority—that it is almost inconceivable that they would, purely on a Party matter, drag the name of a judge before the Dáil and ask to have him removed. It has been the experience in every civilised country, and one of the things that civilisation has shown, that when you give power to people you give them a sense of responsibility. I do not believe, even if a judge did give a judgment which annoyed an Executive exceedingly, that that Executive would rush post haste to this Assembly and seek to have that judge discharged for that offence. I have sufficient belief in the people to believe that Governments constituted by democracy here will contain men of sufficient sanity, sufficient balance, sufficient judgment, and sufficient interest in the future of their country, that they will not hotheadedly, and without real justification attempt to remove from office men who have been placed there and who are expected by all the rules and traditions of the office they hold—in addition to the written letter of the Constitution —to act in an independent manner.

Furthermore, I have this belief, that any Executive which was on the verge of taking such a step would pause, for this reason, that they would realise that to take such a step in hot haste, and without real basis and justification, would jeopardise their own position in the country. There is one thing, as Deputy McGilligan pointed out, which the ordinary "man in the street" respects, and that is the independence of a judge, even though the decision may be against him. It is one of the outstanding characteristics, and it has been commented upon over and over again, that parties engaged in suits here agree, provided they get a fair hearing, to take a judgment and accept it. I believe that even though the adherents of a political party resent a decision against them, if they felt the judge had conscientiously followed the reasons which weighed with him in coming to a decision, he would have their respect. Any Executive which attempted to discharge him, out of pique or momentary anger, would only suffer a loss in the country as a result of such action.

In the course of his speech Deputy McGilligan referred to the case of a District Justice down the country who was later criticised in the Dáil. Deputy McGilligan may, or may not, be aware that District Justices are in a different position as regards removability than judges, that they are removable on a certificate from the Attorney-General in office and the Chief Justice. I know quite well that District Justices have, on several occasions, said things from the bench which gave offence and which annoyed certain members of this Party. I know that when the last Government was in office a certain District Justice gave expression to opinions from the bench which responsible members in that Party considered were not part of his business. They criticised the District Justice for doing a thing which he ought not to do, which he is not supposed to do, and for exceeding the task committed to him, of hearing cases before him. To criticise a District Justice is one thing. To decide in cold blood, to remove him from office is quite a different thing. During the period we have been in office I think I have had, on one occasion only, to interfere and to consider whether a particular District Justice should be dealt with under the Section of the Courts of Justice Act which gives power of removal to the Chief Justice and myself. I say that I have sufficient faith in the country to believe that any Executive elected will not, without very grave reasons, and without bringing the case within the terms of the Article, bring before the Dáil such a resolution to remove a judge.

Even if they did take the present position, see how it stands. The Opposition, as I said a moment ago, are mouthing loudly about democracy when talking about this Bill. They say that the whole of this Bill strikes at democracy. But they always except from that the expression of the democratic will of the people of this country as represented in the present Dáil. I am prepared to believe that, were they in office, they would not utilise this power without justification. But they are, apparently, according to themselves, ready to believe that not only would this Executive Council, in hot haste, because a judge gave judgement which they did not like, come to the House with a resolution to have him removed, but they even go the length which Deputy Fitzgerald went in the last amendment when he characterised the Labour Party as being venal and corrupt that they, too, would walk into the Lobby in support of such a resolution. I believe that if the gentlemen opposite had the faith in democracy which they say they have, that faith to which they are so fond of giving lip service, they would be ashamed to get up in the House and say the things that they have said here—that if the judges offended the Executive Council and the Executive Council felt that their actions called for reprimand a resolution could then be brought into this House and a majority of the Deputies express their agreement with it.

In a few years you would have two Houses, one of which would be so much a duplicate of the other that the Government in office could control a majority in the two Houses. The gentlemen opposite are satisfied with that where a simple majority could be got by the Party which controlled both Houses, and yet they object to a majority composed of an alliance here. I believe the whole discussion is academic. I do not believe the situation will arise in which the Party will ever venture to bring the name of a judge for removal before the House unless there is genuine misbehaviour or incapacity. I say that with a very intimate knowledge of the Executive Council and the Party here, and from a knowledge of the Party opposite.

Deputy McGilligan made some confused references to something, which he attributed to me, when he mentioned a case about the Constitution (Special Powers) Tribunal. He suggested that I had wrongly stated that the remedy against any wrongful action of the Constitution (Special Powers) was action by the Executive Council. I think I have correctly expressed what is in the Act. If he looks at Section 4 he will see that that is so.

What is that section?

The Attorney-General

If the Deputy will read it——

Always be courteous.

The Attorney-General

Deputy McGilligan took me to task over something in the section. Perhaps he was endeavouring to make some other argument than that with which I am dealing. It occurs to me as appropriate in another sense to this discussion. It brought to my mind references to a section in Article 2A of the Constitution. That is the section establishing the Tribunal. That is a Tribunal to which is given extraordinary powers. For certain reasons these powers were given. Sub-section (2) of Section 4 says—

The Tribunal shall consist of five members, all of whom shall be officers of the Defence Forces of Saorstát Eireann not below the rank of Commandant and shall be appointed and removable at will by the Governor-General acting on the advice of the Executive Council.

They were removable at will. Under that Act a position was given to those men which is entirely different from that which is claimed for the judges here. If the Party opposite were so intent on the independence of people exercising judicial powers one would have thought they would have hesitated to put these men into such a position that they were removable by the will of the Executive Council and the Government. I am not using that argument now——

The Attorney-General

I could if I wished. What I want to draw attention to is this: Under that particular section, five military officers were appointed to the Tribunal. That Tribunal was functioning until the last Government went out of office. When we came into office what happened? When this Act was put into force again these same five officers were continued on the Tribunal. That shows that there is respect for the independent action of these men on the Tribunal as people who, apparently, acted conscientiously in the discharge of their duties. I believe the whole argument on this amendment is academic and that the independent of the judges is not going to be obtained by better safeguards. If anybody is really anxious about the independence of the judges, the amendment the President offers is quite adequate and I am quite sure that any of the judges on the bench will agree with me on that.

The Attorney-General might have concerned himself with the real point at issue. The real point at issue is the difference between 85 and 92. That is now what any arithmetician would say, what our friend Cocker, if he were alive, would announce. That is the difference between the packed jury of the Government which is represented by 85 members and a jury consisting of any number over that which can be secured. That is the real jury which must be satisfied with regard to either of the causes stated, misbehaviour or incapacity. Two or three observations have fallen from the lips of the Ministers, from the President and from some members of the Party and these observations do not exactly make out the case that is made by the Attorney-General. The Attorney-General says the Government is all right; this Government will not do anything wrong. And the Minister told us here a short time ago within the last two or three weeks that the Government would remove a judge when they thought it was desirable in the public interest. We are waiting for a qualification or amendment of that statement. While it stands in that form, if it reveals the mind of that Minister or any other Minister or members of the Party I would say they are not fit to be a jury—not fit to be a jury to try a prisoner much less a judge. The other statement was from the President this evening. He said: "There are corrupt judges; there were corrupt judges." Corrupt judges have been known. There have been corrupt Ministers, corrupt Parliaments, corrupt legislatures and corrupt everything else. There is no use in attempting to take up this lofty Pontius Pilate style, that there is nobody clean but ourselves and that we wash our hands of everything. The fact is that the judges for cause stated, misbehaviour or incapacity, are to be tried by a jury consisting of the Government and its allies in this House. Is not that the jury? I believe if one were to make a canvass outside the Party of the Government, nobody more favourable to their view could be got than their Labour allies in this House. These two Parties, the Government and their allies, make up 85. That on the face of it is suspicious. In the absence of any approach on the part of the Government to secure the support of anybody else in this House the systematic and consistent support they have received from their allies, the Labour Party, since they came in here, fills me with suspicion about this matter of the 85.

Who is talking Party now?

I am stating the fact of the case. I will give the President part of his own statement. I shall read some of the observations which the President of the Executive Council allowed himself to make on the occasion of the introduction of the Juries Protection Act. In column 1564 of the Official Debates, 8th May, 1929, he said:—

"On a previous occasion, I remarked here that the institutions that have grown up, through a long series of years, and have been accepted, ought not to be put aside and destroyed simply because a particular Executive find it convenient for the moment to put them aside."

It is not convenient to put aside institutions that have grown up here, in the Seanad and in the Dáil, but the case is made now that any Government which has a sufficient number in the Dáil and in the Seanad can secure a majority in the Seanad and thenipso facto can do what they wish. I advise the Government to try that. Let them try to pack the Seanad with their own people and then try to get a majority there in order to destroy it. I advise them to look at the motion on the Paper which has come down from the Seanad, and find out whether their own Party has not subscribed to that motion. “Simply because a particular Executive finds it convenient for the moment to put them aside”——

Is this relevant, a Chinn Comhairle, to the amendment? Is it not a Second Reading speech?

The point in regard to this matter is the difference between 85 and 92. I am making a case in respect of 92 and on these grounds: one of the reasons is that five years ago, according to a pronouncement of the executioner of the Seanad in this country now, a three-fourths majority was not good enough on a jury where a man was on trial for his life. Where judges are charged with misbehaviour or incapacity, we are asking that a majority of three-fifths of the votes of this House should decide, and the Government says that that is too much to ask to-day but five years ago, in the opinion of the President of the Executive Council, 12 jurymen out of 12 must find a man guilty before he could be sent to jail. That is a remarkable change that has come about in his opinion in five years; and these are the people opposite who speak about dictatorship and democracy and the rest of it. The President on that occasion went on to say:—

"Public trial, trial by jury in open court, is a safeguard as against a tyrannical Executive. What does this Bill do with regard to this particular safeguard?"

And he goes on, as reported in column 1565, to say:

"What about the State? Is the Executive going to be in a similar position? The State has unlimited rights as regards telling any juror to stand by."

What is the difference in this case? The President says that two out of five is not enough to stand aside; he wants four out of nine to stand aside. Although a judge is to be tried for his honour and his name and the reputation of his children, the President, who five years ago would not give the Executive authority to keep from the public the names of jurors, now himself says that two out of three jurors are not enough jurors to insist upon standing aside but he must have four out of nine, and he must have the nomination of the five himself. Deputies opposite laugh. Apparently, they think that it is a great joke. Then he said:

"Formerly, when they packed a jury they did it in the face of the whole community. The whole community saw it; they saw all the O's and the Mac's being told to stand aside.... The principle of a unanimous verdict was upheld and maintained because the underlying principle was that the accused was innocent until he was proved to be guilty."

By the way, the O's and the Mac's will be found on our side of the House and not on the benches opposite. The accused could come into court, examine witnesses and give evidence himself. That is not the case of a judge charged here with incapacity or misbehaviour and so on. The case made against any judge will not be accepted by any Opposition if it is felt that it is a case that is not complete, but is a case that some Minister thinks is desirable in the public interest. What is it that is desirable in the public interest? Will we get some explanation of the President's own statement that the Executive was hampered instead of helped by the judiciary? What was it that made people tear down the Bastille? Was it not that there was no attempt on the part of the judges to put any restraint upon the Executive who were acting unjustly, illegally and immorally? It was not for the same reason, not in the interest of King de Valera, that we pulled down British administration in this country. Every administration in the Saorstát since the beginning to the end did its business and discharged its administrative duties in accordance with justice. The judges were appointed, in the first instance, and took up their positions, on an understanding securely enshrined in the Constitution, independent in the exercise of their jurisdiction, independent in the exercise of their functions and subject only to the Constitution and the law. These were the terms upon which they took office. You have no right to alter them without the consent of the persons concerned.

During the two or three General Elections that have taken place posters were published by the Fianna Fail Party setting forth the salaries paid to all people in the State from the Governor-General down. Very special notice was directed to the salaries paid to the judges. One part of Article 68 of the Constitution says "such remuneration may not be diminished during their continuance in office." The real point here is the good faith of the Ministry. They are altering very materially the position of the judiciary by this Bill. They have been invited to put in what the Attorney-General called paper safeguards. He forgets, of course, that the whole law consists of paper safeguards in the same way. Not since the time of Moses were the laws inscribed on stone, and even then, they did not last long. And it is not even what is inscribed on paper that counts. It is what people accept; what the general opinion of the people has sanctioned and what the legislature has framed in the wisdom and the justice of its laws. These are the matters that most count. If this measure be passed in its present form it will show neither wisdom, nor justice, nor sound commonsense on the part of the Administration.

The President rather demurred, in the earlier stages of this debate when I purported to paraphrase something he said in connection with his attitude towards the judiciary. I believed then I quoted him accurately and I find I am right. I propose to read now, from the Official Reports, the statement made by the President of the Executive Council, who now desires to have every safeguard of the judiciary swept away, while he reassures the citizens of this country, on his own word, that he will do nothing out of the way. As reported in Volume 50, number 8, of the Official Debates, column 2525 the President, in the course of the discussion on the Wearing of Uniform (Restrictions) Bill used the following words:

"Out of the abundance of their knowledge of the difficulties that attach to administration in circumstances like ours, and their knowledge of the rents that are in the very things which they themselves devised, they are using the courts to hamper the Executive when it is necessary in the public interest that the Executive should be able to act."

These are the words used by the President when he knows that the courts are impregnable. We can hear his dulcet tones the next time he comes to explain a similar situation to the House and to Deputy Corry. We can imagine the President saying: "Because they are using the courts to hamper the Executive, it is necessary in the public interest that the Executive should be able to act." That is the mentality of President de Valera when the courts sustain the rights of an individual against him in a matter that he believes to be in the public interest. The courts, in sustaining that individual's rights against him, are, he thinks, hampering the Administration where it is in the public interest for the Executive to act. It is just an order to preserve some kind of a brake on President de Valera and his cohorts represented by Deputy Corry—well may the Deputy laugh—it is just to avoid having the judiciary and its independence placed at the disposal of Deputy Corry and all he stands for, that this amendment stands on the Order Paper.

He is a good judge.

We are looking forward to hearing Deputy Corry intervene in this debate. His opinion on these matters will be of value. We are anxious to hear what the plain people, to whom the President frequently refers, are thinking on this matter, the important question of the independence of the judiciary.

You will never have any occasion to find out what they think about you after the next election.

I only hope Deputy Corry will intervene and let us have the advantage of his considered opinion on this question. The House will be profoundly interested. It will be interesting to see the exact atmosphere that will prevail in this House, when the judiciary are deprived of any safeguards at all. It will be interesting to see the reactions we may expect from Deputy Corry and his colleaguesvis-á-vis the judiciary when it intervenes to protect the citizens of the State against vindictive and illegal attempts made to imprison them by the political Party of which the Deputy is a member.

The Minister for Industry and Commerce deprecated the language in which I paraphrased his views on sedition, and I felt bound to go and get the Official Report, consult it and read it for him. Deputy McGilligan had spoken on the night before, and he had commented pretty trenchantly on the activities of the President and his colleagues. The Minister for Industry and Commerce, as reported in col. 709, Vol. 51, No. 2 of the Official Debates was speaking on sedition when Deputy Dr. O'Higgins intervened and said:—

"Might I ask one question at this stage? Is it not a fact that every copy of that particular organ is submitted to the Attorney-General's office before it appears and that nothing appears that, in his opinion, is sedition."

The Minister replied: "No." Deputy O'Higgins repeated his query and the Minister against said "No." The report goes on:—

"Dr. O'Higgins: Is that not a fact?

Mr. Lemass: At one period that was the practice, I understand, but it is not now.

Dr. O'Higgins: At the date that particular publication was issued, was it not a fact."

The Minister then began to get cold feet because the Attorney-General was beginning to wriggle rather uncomfortably in his seat and the Minister's reply was:—

"What has that got to do with it?"

Dr. O'Higgins went on to say:—

"The Minister, who is like myself, unversed in law, refers to it in this House as sedition, but it has passed through the office of the Attorney-General, who is versed in law, as being non-seditious."

The report continues:—

Mr. Lemass: It is, in my opinion, not merely seditious——

Dr. O'Higgins: In your opinion?

Mr. Lemass:——but it is so subversive of public morality that more than the Government of this country should take notice of it.

Dr. O'Higgins: In my opinion.

Mr. Lemass: In my opinion, and my opinion will have something to do in determining Government policy on the matter.

The Attorney-General was not going to decide when the Government should prosecute for sedition. The Attorney-General was not to say to the Executive Council: "Here is a case for suppression; here is a case for confiscation." The opinion of the Minister for Industry and Commerce was going to carry weight and the Attorney-General was sitting beside him when he said that. Now does the President begin to realise why we are so solicitous to secure and reinforce the independence of the judiciary? I have quoted his own words. I have suggested a way in which his words might be used in different circumstances. I have succeeded in drawing Deputy Corry into an interjection. I hope I can draw him into an oration. I have quoted the words of the Minister for Industry and Commerce.

I wonder does the President begin to realise now why people on this side of the House are anxious that the judiciary should be fortified and why people on this side of the House are anxious that there should be some bulwark between the Fianna Fáil Executive and the judges, when the hounds are baying them on, when there are outcries about traitors playing England's game, sedition and treason? Is it any wonder that people on this side of the House are anxious that the courts should be maintained independent of an Executive Council of which the Minister for Industry and Commerce is a member? That is why these amendments are here. The case for them is greatly fortified by the two extracts I have read here to-day. I have no doubt that after we have had the benefit of hearing Deputy Corry on this matter the case will be further fortified. I suspect he has his riding instructions from the President, that this is an occasion on which he is not invited to intervene but he is an Independent Deputy. He is a plain-spoken Deputy. He is a man who is not afraid to speak his mind. I ask him now to get up and tell us what he thinks about the judges and how he thinks they should be dealt with. We remember the eloquence with which he advocated a reduction of their salaries. He wondered why they should be immune when everyone else was sharing the burden. He could see no grounds why they should be spared from a good drastic cut, the same as the dispensary doctors who are doing nothing for their pay.

Is it not right that Deputy Corry, who has been sent here by the patriotic, plain people of East Cork, should tell us what they are thinking about the judiciary and what he is thinking about the judiciary? Why not take a leaf out of the book of his colleague, Deputy Smith of Cavan, bring pen to paper, and let us know what his views are on how District Justices ought to be dealt with? We understand Deputy Smith is the white-haired boy of President de Valera, marked out for future distinction. Deputy Corry should qualify for special distinction, too. Deputy Corry should be as plain spoken, as courageous, in giving this House his opinion as was Deputy Smith in giving the public Press his opinion of the District Justices in this country. I think it would be a revelation to us all and an illumination to know what Deputy Corry is thinking. Deputy Donnelly should not be counselling him to keep silence. It is not fair. Deputy Corry has a perfect right to speak his mind on matters of this kind.

You would not like to hear it.

I would like to hear it, because when the Deputy gets up he speaks honestly the true mind of the Fianna Fáil Party, and that is an important thing for the country to hear at the present time, during the consideration of this amendment, during this fight to preserve the judiciary in a position where they can defend the rights of the people. If the country knew the true mind, the real mind, of the Fianna Fáil Party, it would realise more fully than it realises already the gravity of the danger that lies ahead of us. I think the President is too astute a politician to turn down this amendment altogether. He knows that though he may produce the ranks of dummies and march them through the Lobby, this business will leave a dirty taste in the people's mouths.

The President is one of the astutest politicians who have ever appeared in this country. He knows his people and he knows all the tricks of the trade. He knows when to be innocent, when to be injured and when to be astute. This is one of the occasions when I fancy the President will display his astuteness and will determine that, having listened patiently to the arguments, he is going to make up his mind that this concession ought to be made, that really a case has been made and, being as he is, a fair-minded man, a convinced democrat, he is prepared to yield. I think I can safely prophesy that the President will do that, and he will yield in the pleasant consciousness that, if the situation ever arises whereunder it is necessary to dispose of an inconvenient judge, in four hours he will be able to repeal that amendment and dispose of the judge or even of the Comptroller and Auditor-General just as he pleases, so long as he has Deputy Corry and his colleagues prepared to answer to the crack of his whip.

Mr. Rice

I hesitated a moment before rising to speak, because I hoped Deputy Corry would have responded to the invitation of Deputy Dillon and enlightened the House by giving his views on the judges and what ought to be done with them. I still live in hope that before the discussion is ended Deputy Corry will respond to the invitation and give his honest opinion about the judges and how they should be dealt with. The President, speaking on the amendment, pointed out that a judge could have been removed under the Constitution as it stands by a vote of the two Houses. Of course, that is quite true. He suggested there was no fundamental difference between the Government side and this side on this question. I take it that he confined that observation merely to the question of the fractional number that should be sufficient to decide on the removal of a judge. There is, however, a very fundamental difference between the two sides of the House on the question of what is security for the judges and what is sufficient to preserve their independence.

He told us that under the system of proportional representation there was no likelihood, almost no possibility, of any Party having a greater majority in this House than the present Government. Of course when it suited his argument on a different subject a couple of months ago he told us if he went to the country he would come back very much stronger than he is in the present Dáil. We all marvelled at his extraordinary self-restraint, that he did not go and get that larger majority which he said was waiting there for him. He hinted at the difficulty in his way in getting the Labour Party to assist him in removing a judge if it was not a fair thing to do. He said: "Even if both Parties," that is, Fianna Fáil and Labour, "were to agree." When one remembers the history of the Labour Party in this House for the last two years one cannot help being amused at the President's expression "even if they voted with Fianna Fáil." The Labour Benches have been pointed at two hours ago and again in the interval—those benches on which the Labour Party sometimes sit when they are in the House. They are in the same condition now as they were two hours ago—vacant. The President shakes his finger at me and I do not know why.

The Deputy is not very often in his own seat.

Mr. Rice

If the President will look up my attendance in this House he will probably find that it is better than the attendance of any one on those benches opposite, excepting the people who are getting their salaries free of income tax. The Deputy has to work for what he gets and he has to pay income tax on it and he is at a great disadvantage compared with the President and his colleagues in that respect.

Do you give your salary back?

Mr. Rice

What I am talking about is what I earn in my profession. I am not one of the professional politicians. The benches opposite are crowded with them. The Minister for Industry and Commerce, speaking on the 18th April (column 1871, Official Report) told us that if it became necessary in the mind of the Government—that is the expression he used, in the mind of the Government—to exercise the power of removing judges, it would be exercised. Perhaps, although the President would not say it, he would like us to believe that that was one of the usual outbursts of bombast of the Minister for Industry and Commerce. Whether it was that or whether it was considered policy, it represents the object that this Executive is aiming at, to put themselves in the position to remove a judge when they dislike him. I paraphrased that expression to the Minister when speaking later in the debate by saying that he claimed the Government could remove a Minister if they disliked him. What else does it mean? The President contradicted that statement of mine. Would they not dislike a judge when people come into the courts and use the courts, to quote his own expression, to hamper the Executive, when it is necessary in the public interest that the Executive should be able to act? We had some instances of that recently and I tremble to think of what could have happened on these occasions—there were several of them—if this arbitrary power that the President is really seeking now had been then vested in the Executive Council.

The Leader of the Opposition referred to the reason why the Bastille was stormed—because there was no power in the judges to release people who were improperly imprisoned. The President, or at least his Government, within the last two or three months, sent counsel into court to argue that the right ofhabeas corpus, given by Section 6 of the Constitution, is no longer in existence. For fear Deputy Corry might not know what that expression means, I will explain it in this way: that if the right of habeas corpus were taken away, the Government could arrest arbitrarily and imprison any citizen or any number of citizens and there would be no remedy, or no means by which those people could be released from unlawful custody. That was done in the case of General O'Duffy and other people at that particular time. They were unlawfully arrested and imprisoned, and the argument put up by counsel on behalf of the Government in the High Court of this country was that they could not be released by the judges because the right of habeas corpus was gone, or that it was taken away.

When it was there, your Government squashed it.

Why did not you try it?

Mr. Rice

You never tried it.

You only learn by your mistakes.

Mr. Rice

The Attorney-General, in dealing with this question, said that he had faith in the present judges that the knowledge that there might be a resolution brought against them in this House would not alter their decision. He has that faith, he says, but he left out of account entirely the consideration that the people of this country have the right to know that the security of tenure of their judges cannot be interfered with by a political Party. They have a right to know that the judges here, in deciding cases in our counts, are not liable to be removed from their position because the Executive of the day just happens not to like them or not to like the decisions they give. That is an element that the Attorney-General appears to have overlooked when he was dealing with the implications of this change in the position. What will the public think as to the security of tenure, and, therefore, depending on that security of tenure, the independence and integrity of the judges—what will they think about it—if a position is brought about in which the Executive of the day, by resolution in this House, by ringing the bell for their "yes" men to attend, can vote for the removal of a judge without even knowing, through listening to the debate, what they are voting about? What confidence will the public have in such a situation as that?

The Attorney-General told the House of another safeguard that the judges have. He told us that the Executive would not act in this way, in a fit of political passion—I do not say that that is the expression he used, but it is the sense he conveyed—that they would not act in hot haste—I think that was the expression used—because they would know that that would jeopardise their position in the country. So that the position is really this, that if it commended itself to the Fianna Fáil clubs throughout the country that a judge ought to be removed because he was enforcing the rights of a minority, then that particular safeguard, of which the Attorney-General speaks, would be taken away. The independence of the judges in this country is a tradition, and it is a tradition that the people of this country are proud of and justly proud of. We had many examples of it. Not very many years ago—13 or 14 years ago— a judge of the High Court in this country made an order for the attachment—the arrest—of General Macready. That was an assertion of the independence of the judiciary. One can imagine, with the present Party in power and the present Executive, what might happen if the occasion arose now for a judge to direct the arrest of some eminent person such as, shall we say, the Minister for Defence, who holds perhaps, as eminent a position as General Macready held and who, perhaps, is almost as eminent a soldier. One can conceive what would happen if such an order were issued and the power to remove that judge was vested in the Executive at present in office in this country and with the people behind them to vote. There is no safeguard in any of the ways that were mentioned by the President or by the Attorney-General. The suggestion that the Labour Party possibly might not agree, of course, is perfectly ridiculous, having regard to their history, as I said, for the last two or three years. Anyone who has observed them during that time can see what their attitude is. On the few occasions that they took it into their heads to vote with the Opposition and against the Government, even on the most innocuous matter, they took very good care to look around the House and see that the Government's majority was secure before they cast their votes; but they trooped into this House in force to vote for every measure that was designed to strip the minority of the people of this country of their rights under the Constitution and under the law. Deputy McGilligan has pointed out that this fraction, whatever it may be, will be an illusory safeguard in the hands of the present Executive. They can remove it at a moment's notice and they can get their battalions to come in and vote, when the bell rings, for the removal of a judge, without one-tenth of those battalions having heard the discussion leading up to the vote for his removal.

It seems to me that there is very little difference between the Attorney-General and Deputy Corry. Their sense of amusement appears to be very much the same. We hear views on law points from Deputy Corry. I am always interested in what Deputy Corry says. He is one of the few members of the Government in whose speeches I am interested.

Mr. Rice

Are you able to understand what he says?

Oh, quite. I can understand what he says and what he means much better than I can understand what the President means. I gather that the President still clings to his fraction of a man. Is his fraction of a man still to stand between the people of this country and the enslaving of the judiciary? Are we to be satisfied with that? I cannot say at the moment—I did know a few nights ago—what the exact fraction was, but now I cannot say. Possibly the details as to the precise fraction of the man are too horrible to be detailed. What is clear, however, is what was equally clear in the case of the Comptroller and Auditor-General —and it is a much more serious position here—that any chance by-election in which they can still count upon a snatched majority, would give them not merely a fraction of a man to put out the judges, but a whole man and a fraction of a man with it and then they would be able to dismiss a judge of the High Court by one and two-fifths of a man. That is the guarantee—that and the Labour Party. The Labour Party is, as usual, keenly interested in constitutional questions, and when the fundamental liberties of the people are at stake we can rely on that Party massed over there to save the people! Anybody who has been in this House knows that the Labour Party is more bound, hand and foot, to the Government than some of their own members. Even Deputy Corry occasionally threatens a revolt, but the Labour Party never a serious one. That Deputy is a much more serious obstacle to the Government than the Labour Party.

If it came to the removal of a judge, who did not show himself to be a mere creature of the Government, who did not take his points of law mildly and obediently from the Attorney-General, it would be misconduct, obvious bias, hampering the Executive. Could anybody think of a more serious crime in the eyes of the President than hampering him as the Executive? I, for one, cannot think of anything that he would consider more serious. Yet the President is seriously asking the House to make the judges the mere creatures of the Government, plus the quiescent or acquiescent Labour Party.

Under the present system as it exists, I doubt if there is a man who knows the situation who can honestly state that any Government, Fianna Fáil Government or U.I.P. Government, would have a chance of getting a vote in the Seanad for the removal of a judge if he had not been guilty of gross and palpable misconduct or was not obviously and entirely incapable. From what I know of the present Seanad I think the thing would be completely unthinkable and from what I know of the present Dáil nothing would be more likely. The mere promise from the President that, of course, he will not utilise that power, the mere promise or suggestion of the Attorney-General that the political wisdom of the Fianna Fáil Party will save them from that mistake, is no constitutional safeguard. That is making the people the creatures of the Government. That is an argument in favour of abolishing the Constitution altogether. A mere reliance on the goodwill of the Executive is not sufficient. That argument has been trotted out again and again as if it were a serious answer to a constitutional question. As I have already said in connection with the Comptroller and Auditor-General, in this respect one of the principal functions of the Constitution is to check the abuse of absolute power. To that it is no argument to say that they will not abuse it. I believe they will abuse it if they get that power; but even if they do not abuse it, the constitutional right is gone.

The President's view about the position of the judges is on all-fours with his view about democracy and liberty. A good judge is a man who takes his law from him. An excellent judge, of course, is a man who decides as the President wishes without being told by the President, but a good judge is a man who blindly obeys the law as put up by the President through his Attorney-General. What is democracy for him? What is liberty for him. The right of the people to elect him. That is really his conception of democracy. We have listened to him and to the Attorney-General, and it is quite clear that their only conception of the rights of the people is their goodwill—trust them. To trust in them is not giving a constitutional basis to the right of the people. The Government is so corrupted with the abuse of power that they cannot grasp what constitutional liberty is. They think that power ought to be unlimited if it fulfils two conditions. If they represent the majority at the moment then there is to be absolute power for the Government. I say that is not constitutional liberty. The other condition is that they will be the chosen representatives to put in force this absolute power. That is their idea of what a Constitution is.

It may be asked what rights have the people? According to them they should have no constitutional rights. Is not the whole burden of their argument that the Government would be sane enough not to do these things? What is the necessity for a Constitution? It is because you do not believe that such absolute power should be given into the hands of the Government—it is precisely to prevent that. In the same way, you try to make the judges independent in order to secure that the administration of the law will be independent of the Executive. It ought not to rest on the goodwill of the Executive, whether that Executive be good or bad. That is beside the point. Whether it is an Executive that will keep its promises or that will not keep its promises is beside the point. The essence of constitutional liberty consists in the fact that the Executive shall not have this power. Yet it is quite obvious from the President's whole attitude on the matter that he must have the power to treat the judges as his creatures; to treat them as he would treat the head of the Gárda. What better security of office have they? A vote of this House— five-ninths—with the independent Labour Party flocking in to defend the rights of the people! We have heard again and again that particular Party very vocal on the rights of the people, but I have seen them vote away every fundamental right of the people that they got the chance to vote away in the last 12 months. It is on that Party that the people are to depend for the preservation of their fundamental liberties.

We know the attitude of the President towards the judges He looks upon anybody who interprets the law fairly and straightly as hampering the Executive. Yet we are asked to rely as the constitutional safeguard merely on the goodwill of that Government. As I say, a reliance of that kind on the goodwill of that or any other Government is no constitutional safeguard. It is to wipe away all constitutional safeguards in this respect. We know perfectly well that he has always a cry by which he can get this House to vote as he wishes. The Opposition is factious, the judges will be refractory; they will be holding up the Executive. He is in full favour of liberty so long as the liberty goes the way he wants it. The people are free but only to obey him; the judges are free but only to interpret the law according as he wishes and it is on the conception of their duty to an Executive of that kind that the people have to depend for the preservation of that liberty. This is a denial of it.

When the President speaks of factious opposition, let us remember that his prototype, Robespierre, whom he imitates so very closely, sent thousands to the scaffold because they were factious. The factious were sent, one after another, to the scaffold and I have no doubt that, if there is any serious opposition here, similar steps may be taken and I presume Deputy Corry will act as the executioner. "The knowledge that the country might vote against them if they abuse their power"—that piece of political strategy and foresight on the part of the Government is put forward as a serious argument to support the wiping away of the fundamental rights enshrined in this Constitution. The judges must be made independent in reality of the whims of any Executive. No effort has been made to make the judges dependent up to the present, but the effort is now being made, and from the way the President has treated the Seanad, in the fit of pique in which he came in here, and from the way in which he referred to the judges, it is quite obvious that the judges will be brought to the position of the members of his own Party. They will be brought to heel and they must obey. The judges are being reduced to being mere tools of the Government and a portion of the Executive machine, not to administer the law between citizen and citizen and between Government and citizen, but to help the Government in making the citizen obedient not to the law but to the desires of the Government.

The Government would not act in haste, we are told. What else is this Bill? The Government might have waited until the other Seanad Bill, already on the books, was out of the way before they put forward the argument that they were not going to act in haste. The Bill is simply the outcome of a piece of bad temper on the part of the President and some of his Ministers. Otherwise, why the other Bill, not abolishing the Seanad but limiting its power, which is hung up and which, apparently, will come into law before this? Which is the real aim of the Government? They will not act in haste; they will not act in bad temper. What else is anything they have done since last August except acting in haste and bad temper, and trampling upon the rights and liberties of the people of this country? The Government thinks that by denying brazenly what they have done they convince the people that they have not done it. The President comes in here, as I have said, and, when he is trampling on democracy, prates about democracy, hoping that the people will accept his word and, further, hoping to conceal his real aims. Now we are told that we need not fear hasty action on the part of the Government. That is precisely what I do fear—either hasty action or well-thought-out action in order to make the judges and, through them, the people of the country, the slaves of the Government.

You will not have constitutional liberty unless certain things are secured. The right of free speech is the right of any minority, and especially of a minority that represents certainly two-fifths of the people of this country. That can be jeopardised and done away with, and will be done away with by the Government. Then there is an independent judiciary, a judiciary that feels it is independent. It is very good for people who take this Bill under their patronage to come in here and pay the judiciary the lip service of saying that they are sure that the feeling that they may be kicked out by a Party vote in this House will not influence or interfere with the independence of any judgment given in the courts. I believe that none of the present judges would be so interfered with, but it does not lie in the mouths of the people who are making the judges subject to such an insult and to such dependence to pay that mocking lip service to their spirit of independence. Whatever you may say of the present judges, if you have judges who are not independent—I do not care what class you draw them from—ultimately and very quickly the sense of independence will go, if the judges are subject to a mere Party kick in this or in any other House.

As I said already, I am not enamoured of this amendment and I want to say this of all the amendments. I do not believe that anybody can seriously hold that the present Seanad would vote for the dismissal of a judge, unless he had been guilty of misconduct, gross, palpable and clear to the ordinary man, or unless he had become mentally incapable. Either of those two things is possible. Therefore, it may be necessary to have some power to remove a judge, for instance, who, owing to old age or something else, may lose his mind, but unless these things are clear to the ordinary man in the street, I am certain that the present Seanad would scout out of the House any motion from any Government, Fianna Fáil or United Ireland Party, to remove a judge. To come along here when you have removed the safeguards of the people and to talk about your two-fifths of a man, offering that to the people as a kind of buckler to defend them from the attacks of an unscrupulous Executive, is ludicrous. You need not have a good case to come in here. I am convinced that if the judges give a decision which displeases the Government—and remember, no judge can give decisions which do not displease somebody; one side or other of a case generally loses and not even the present Government can be always right in matters of law and not even the present Attorney-General or President can advise the Government always rightly on matters of law—the Executive would have no difficulty in getting the full support of their own and the Labour Party for their removal, but it is quite clear, as I have said, from the President's speeches, that he approaches this matter altogether from the point of view of a Party getting rid of a judge because they, as a Party, dislike his decision. There were many decisions of judges which we did not like—no party to an action likes the decision of a judge when that party loses the action—but when we had a majority in this House we did not bring in that motion. If we had brought it in here it would certainly have been thrown out in the Seanad.

The Attorney-General

Was that the reason you did not bring it in?

No, but it is a good reason for the thing we are debating. Of course, I cannot expect the Attorney-General to turn his mind to the Bill, or to the amendment we are debating. I cannot possibly do it and I am not going to attempt it. That interruption shows that he has not followed a single line of the argument—the constitutional side of it, anyway.

It is a good interruption.

Quite good. It shows the mind of the Attorney-General. It shows the constitutional power behind the mind with which he approaches this question, and he does not differ in any way—whether it is a comfort or an insult to him—from the President. Their whole method of approaching the question is the same. It is quite obvious from the way in which the President spoke on a previous occasion here that he envisages a Party vote on a matter of this kind. That is wrong. On a matter of this kind there ought not to be a Party vote. He says no Party in this House will have three-fifths of the votes. The judges are to be put out, according to him, on a Party vote. Look at the report of his speech. We have it in the Official Debates. Look at the papers of last Friday. A Party vote is envisaged; the judges, in fact, are to become the creatures of the Party, and they are to be saved by two-fifths of a man.

Personally, I do not care much for this amendment; it is really quite inadequate, but it was rather interesting listening to the discussion on this matter. I remember the time when the people who are now the Government went around and created anarchy in this country on the grounds that the Executive Council, elected by the elected representatives of the people, had not sovereign power, but were mere puppets and were dictated to from outside this country. Then a couple of years ago they got power and when they got power they realised that the Executive Council, which has the confidence of this House, has actually more power than any Government in Europe. Last year the Government tried to create a scare—a completely dishonest tactic on their part—by saying that when our Party mooted the idea of the organic State we were declaring for a dictatorship. The President and his Ministers, not to mention the back benchers, proceeded to try and indicate to the people that the one horror they had was the fear of a dictatorship in this country. If that was other than one of those typically dishonest Presidential tactics, it is perfectly clear that they would now be seeking, as far as they could, to avoid giving dictatorial powers to their successors. The President, who has more dictatorial power than any Government in Europe to-day, finds that power inadequate for his purposes. The Attorney-General gets up and tries to put forward an argument largely on the lines of "I have faith in" and "I believe in" and so on.

I remember in the early stages the Government assured the House and the country that that appalling coercion measure which we had brought in, the 17th Amendment to the Constitution, was not only loathed by them, but that they certainly had no intention of ever making use of it. They denounced the operation of that Act as an outrage against justice and a completely immoral Act, which they would not make use of, but since they saw their Party interests jeopardised by our movements they resurrected it. They had sworn that they would never use it, but they resurrected it. The President, of course, explained by saying that it was only resurrected because of his ardent love for the Irish nation, and because he realised that it was quite necessary to conserve that nation. The President and the Attorney-General say they have no intention of using those arbitrary and unjust powers, and we are expected to take their word for it. To-morrow, the President will not only try to persuade us, but will actually persuade himself as soon as his personal interests or his Party interest appear to be slightly in danger, that, no matter what he said in the past, any power he has which can be used in his own personal interests or in his Party interests can be rightly used no matter what he might have said before.

The Attorney-General said he has faith in the judges and faith in democracy. He then referred to the letter which was written by a Deputy of their own Party, with regard to certain action by a District Justice, and he explained that the reference to that by Deputy McGilligan had no relevance, because that man was a District Justice who might be removed, I think, by an order signed by the Attorney-General and the Minister for Justice. He said that was quite irrelevant. That, to my mind, was very indicative. He said, also, that both here and in England there has been very little criticism of judges. It is very significant that the Party member, when he knew that the power to deal with a judge was in the hands of two front benchers in his own Party, felt and knew he had power to issue threats against the occupant of the bench, because he knew that he had the machine and the power within his Party to operate against any judge who did not act as the Party wished. The back benchers have not. so far, issued threats against the Judges of the High Court or Supreme Court, because they are not able to carry them out, but with regard to the District Justice the back bencher knew perfectly well that, in so far as the District Justice was at the mercy of the Government, he was in a position to threaten the District Justice, and had every hope of making his wishes operative through the agency of the Minister for Justice. The Attorney-General referred to Article LXIX of the Constitution——

The Attorney-General

I understand the Deputy is mistaken. It is the Attorney-General and the Chief Justice.

Well, it does not matter.

The Attorney-General

No difference.

Once you have the Chief Justice at the mercy of the Executive Council I have no doubt that the back benchers, the Fianna Fáil club secretaries, and all the rest of them, will be able to issue their threats. The Attorney-General quoted Article LXIX of the Constitution, as if somehow or another making all our fears with regard to the independence of the judiciary quite groundless. Article LXIX says: "All judges shall be independent in the exercise of their functions and subject only to the Constitution and the law." The Attorney-General proposed that according to the Constitution and the law the judges are to be independent in the exercise of their functions, but ought to be removable at the will of the Fianna Fáil Party and their allies. Of course, once they have dealt with the judges, the judges will not have any functions in which to be independent. The Attorney-General referred to Article LXIX, in an effort to persuade the people that the judges, through the operation of Article LXIX, would be able, in effect, to defy a corrupt Government. There is nothing in it to that effect: "All judges shall be independent in the exercise of their functions and subject only to the Constitution and the law." They will be subject to the Constitution which makes them removable at will by a Party majority in this House controlled by the present Government. That means nothing whatever. The other night, during the debate on the previous amendment, Deputy Norton got up and said that when we were the Government there was no independence in the judges, and there was no independence in the Comptroller and Auditor-General, because we had a majority in this House and a majority in the Seanad. I pointed out, at the time, that we had not a majority in this House, and that it was completely libellous to suggest that the Independent members of this House were as servile to our Party or were as menial and completely our creatures as the Labour Party is here. So far as the Seanad is concerned, it does not really matter what Party has the majority there. Any Fianna Fáil Deputy who gets up and votes against the Government is at present taking action which may, and quite possibly will, put the Government out of office. That means that he is practically condemning himself to ceasing to be a member of this House. The responsibility he has to take is the responsibility of putting out of office the Government of his own Party. If, when we were in office, we had put forward some proposition and a member of our Party in the Dáil had stood out against it, that would have been a vote of censure on the Government. If, at one time, this vote had been effective, it would have put the Government out of office. So far as a Senator is concerned, he is not put in that invidious position. He can vote against a motion that has come up from the Dáil and it does not affect the Government. The Government can carry on. It does not make any difference whatever. We have seen that in the case of Fianna Fáil Senators. Not only are Fianna Fáil Senators not tied by the Party allegiance by which Fianna Fáil Deputies are tied but they have not that servile compliance that is so pronounced a feature of the Labour Party here.

The Attorney-General went out of his way to pay compliments to us and to say that he was satisfied that, even if we got into power we would not, for Party reasons, remove a judge. The public statements of his own Party— pre-eminently those of the President— indicate quite clearly that the President cannot think otherwise than as a dictator. When the courts give a decision which does not suit him, he is quite indignant. There is a rather interesting sideline to that. The Attorney-General said that the ordinary man in the street has great respect for the independence of the judges. He has, presumably, respect for the judges, too. When a judge gives a decision, it is usually satisfactory to one person and unsatisfactory to another person. The dissatisfied person might want to do something to get that decision altered, if he thought there was any means of doing so. At present, he knows that the judges are independent and that, once he has gone to the highest court, there is nobody he can appeal to against that ruling. The Attorney-General says that the man in the street respects the independence of the judges. Is there going to be that respect for the judges and are our people going to be as completely satisfied and patient with the findings of the courts when it is known in the country that the Fianna Fáil Party have power to deal with any judge who finds according to justice and not according to the wishes of that Party or any member of it? I do not think that even the Government will pretend to deny that the Fianna Fáil clubs—the members of which are usually people completely devoid of civic sense, completely convinced that it is the duty of the Government, as they have put that Government in, to fulfil the wishes of that Party and not to be bound by ideas of justice or rectitude—once it is known that the Government has power to remove the judges, will demand the removal from the bench of anybody they disapprove of? We know perfectly well—though they may pretend otherwise—that the policy of the Government is very largely dictated by this ignorant clamour from Fianna Fáil clubs. I have myself known cases of Civic Guards being removed following upon a demand from the local Fianna Fáil club. The Minister for Justice will get up and say that there was some other reason for it——

The Minister for Justice will not be allowed to do so on this amendment.

I was speaking, more or less, in an abstract way. The Fianna Fáil clubs have already shown that they are powerful instruments against justice and equity. What the Government is now proposing to do is to make those organisations very vocal and clamorous against the judges. We have every Sunday, I believe, public meetings in Dublin protesting against the imprisonment of certain criminals who are called "Republican prisoners." We have Fianna Fáil clubs entirely concurring in the protests made by these people. I have seen in certain organs denunciations of the sentencing of certain parties who were found guilty. At present, the Government is protected, to some extent, against that clamour but if you have wild women in Gloucester Street, or wherever it is, shouting for the punishment of a judge who had dared to find some criminal guilty after that criminal had shouted "Up the Republic" or something like that—when you have these people supported by Fianna Fáil clubs throughout the country, even if the Government were an honest Government— which I do not think they are—even if they were desirous of acting in the interests of justice and not in the personal interests of the President, they would find it very difficult to resist that clamour. The Attorney-General said that any Government or any Party would hesitate to bring in a motion for the dismissal of a judge for purely Party reasons because it would tell against them in the country when going forward for election. Once you get a situation in which the Fianna Fáil Party, with its henchmen of the Labour Party, will be able to dismiss any judge whose verdicts may be contrary to the wishes of the Fianna Fáil Party, it is going to be quite the other way about. The Government that refuses to make effective that ignorant clamour is going to realise, when it has to face the country, that it is not going to have the zealous support of the Party on which it depends.

The Attorney-General said that, in the name of democracy we should be ashamed to say the things we have said. Personally, I do not quite know what is meant when people like Deputy Norton and the President talk about democracy. I prefer to talk about something else. Democracy in government or anything else is to be judged by the way it fulfils the end we desire it to fulfil. The end of government is to promote the reign of justice. To my mind, it is also important that justice should respect the right of persons. The really dangerous situation in this country, as possibly in most countries at present, is that the arrogance of government may completely over-ride the person in the State. So far, with the operation of popularly-elected Governments, the situation has not been allowed to go too far, because experience showed that, once power was put in the hands of human beings, they tended to abuse that power. Certain safeguards—none of them perfect— were established to prevent tyrannical, unjust or undesirable operation of power and authority on the part of Governments. We have, as I pointed out before, Governments restricted to working within the framework of constitutions they themselves cannot alter. We have power vested in a monarch or a president elected in a manner other than that in which the Government is elected. We have restrictive powers in Second Chambers and we have the power of the courts to protect citizens, within the law, against a tyrannical Executive.

We are now going to have a position with President de Valera supported by two servile Parties in the Dáil—no member of which would dare to take upon himself the responsibility of even risking putting the present Government out of office—when you have the President demanding tyrannical powers that were not excelled by the Czars of Russia. No Czar of Russia had more power than President de Valera is taking on himself at the moment. He is going to have complete power over the whole life, and over all activities, in so far as he likes to use it, of every person within the State. The Attorney-General says that he has faith in democracy. He talked about the restraint put upon the Government in having to go and face the people. It is undeniable, once the Bill that we are now dealing with becomes law, that there is no need for the President ever again to face the people. Once this Bill becomes law the President, with a majority in this House, has power to extend the life of the Dáil for 20 or 40 years. Apparently, he considers that power necessary for him to govern this country. We know that he can get up and say that he has no intention of making use of that power. But he made promises before and he has always broken them. He made a promise with regard to the 17th Amendment of the Constitution but, in the name of national well-being, the President broke that promise. It is not hard for the President to persuade himself that that is necessary, when the term of office of the present Government is drawing to a close. There is nothing easier. He has done things much more difficult than to persuade himself, by putting up a specious case, to show that it would be absolutely against national interest that an election should be held.

Is this relevant to the amendment?

The President does not like to admit that he has become a more supreme dictator than the world has ever known. I invite the Minister for Industry and Commerce to show what limit there is to be in the President's power if he is able to abolish the Constitution and able to change any law. With a servile majority, what dictator could have more power?

I would not be inclined to show it on this amendment.

It does not mean a great deal at the present moment, with an independent judiciary, but the Government could change the law any way it likes, were the amendment passed or not. The difference will be, when it changes the law, that that law will apply nominally to every person in the country. If the Government makes it illegal to wear a hat or not to wear a hat, nominally everyone who breaks that law will be liable to be punished. When the President has complete power over the judiciary he will be able to select that it shall be an offence for one man to do a thing and not an offence for another man. At present I admit he gets the same effect quite easily by arranging that certain people shall be prosecuted for an offence, and that other people should be immune and shall be allowed to break the law. This amendment does not amount to a great deal. Why the President insists on refusing it is hard to say, except that we know he is a very impatient man. He could, even if he accepted the amendment, by two actions rather than by one, at any time take away all the power that it tends to give. He is very impatient, and wants to deal with this question. He would rather not do so piecemeal or leave any loophole for anyone in any way to restrict his power.

The Attorney-General talked about the Military Tribunal. Admittedly, the 17th Amendment of the Constitution was a very extreme action. The bringing into operation of that Act was only justified by the fact that the police and the Government, while restrained and acting within the law, had not the power to bring murderers to justice, or even to prevent murder. When the present Government came into power they brought the 17th Amendment into operation, not to put down murder but merely to put down political opponents. They brought it in and made it operative against political opponents, but refused to make it operative against murderers. Apart from that, the 17th Amendment of the Constitution says that the members of the court shall be officers of the National Army but not below a certain rank. As far as the ordinary judge is concerned, his whole living and his whole training is to be a judge. When a Government takes action and removes a judge his whole livelihood is gone; he is thrown out completely. As far as officer members of the Military Tribunal are concerned in these circumstances, and as far as ordinary judges are concerned, they know that once this Bill is passed if they dare to thwart President de Valera's wishes they are liable to have their whole lives ruined. They are, therefore, very much calculated to be amenable to the President's wishes.

As far as the military court is concerned these officers are only to be removable according to the Army Act, if I remember aright, for cause shown. Being members of the court is of very little advantage to them, other than pursuing their ordinary avocations. At present the putting into force of the 17th Amendment is a temporary affair. It may go on for years, but it is necessarily temporary. These men were members of the court prior to the election of 1932. When the present Government came in they abolished the court and these men carried on their ordinary duties as soldiers. There was no claim that they were being terribly badly treated, that they were suffering an enormous loss. I think they got some little extra emoluments, as members of the court, other than what they got as ordinary officers. In fact, it was only a choice between fitting them in between one and the other, but, as far as their livelihood was concerned, it meant no difference. The Government having denounced the 17th Amendment now turns round and uses it as an argument. Having said that it was a scandal for us to have gone so far, they now turn round and say, "as you went so far, we are only going a little further." As far as that is concerned they are going very much further. I can quite conceive a member of the Military Court saying: "If I am in this position I am going to find according to the evidence. I am going to bring in a true verdict. I know the Government can, if it likes, remove me at will. But it makes no difference to me. I shall still be drawing my pay, and still be an officer. I would as soon that they would remove me, if they were going to try to dictate how I should perform my duties."

But it is a totally different matter with regard to the judges. The Attorney-General assumes that he has faith in democracy and he tells us he has faith in the Government. He always had this faith in democracy but in 1922 democracy indicated that it did not agree with the Attorney-General, that it did not agree with the President, and the President felt justified in taking up arms against democracy because it did not agree with him.

The Deputy is not going to go into the history of 1922 now.

I was not going to go into the history of 1922, but I certainly do not pretend to that unquestioning faith in democracy that the Attorney-General has. Anybody who looks over the history of democracy and anybody who looks over the history of any Government elected by it will see certain flaws and defects in it. But once democracy was satisfied to elect President de Valera, thereafter democracy cannot be questioned. That is perfectly ridiculous. The suggestion was made that you should have faith in the judges. We have faith in the judges but we know perfectly well that, human nature being what it is, when a man is in the position of having to sacrifice his livelihood in the interests of justice it will be found that he is more likely to sin against justice than if he were independent of the Government. He is much more likely to bring in a just decision when he is perfectly free than he is when he knows very well that he may be removed if he gives a decision that offends the Government. He is more likely to bring in a just decision when he knows that he is not going to injure himself by doing so, than he is if he is put in the position in which if he dares to act justly he is bound to have the whole power of the Government against him, their power to deprive him of his means of livelihood and practically outlaw him in his own country.

The President is proposing that the majority should be five-ninths. It is rather interesting that he agrees now that that can be changed by a vote of the House. In the debate on a previous amendment he tried to fool the House about this majority. He said there could be no doubt about it when I asked him whether with the House constituted as it is at present, that five-ninths meant that it would require one more than the present two Parties, the Government and their allies. He said there could be no doubt about it; that the Speaker would be exempted from having a vote. But I would have expected that the President, realising that he was taking away what was, if you like, rather a tenuous protection of the independence of the judiciary, would have wanted to go further. He said that he wanted to get rid of the Seanad in the interests of democracy. I would rather think that in making that decision he was not adverting to the fact that he was to be the master in future, that he was completely to be the master of the judiciary. I would therefore have expected him when this thing came along to show that this attempt to control the judiciary was so far from his mind to say that he was going to move an amendment and going to insist that there would be a majority of three-fourths before any judge should be changed.

Once this Bill goes through we must recognise that the whole people of the country are to be dependent on President de Valera's mood. If he wants something done there is to be no power in the country to prevent him doing it. We must trust to his own good nature. We know from experience that when the President pretends to persuade everybody that a thing is necessary in the national interest it was because he had already persuaded himself. He asked for power to change Article XVII of the Constitution "because it was not in the national interest." I am satisfied that once he has this power, when it comes to the end of the time when his term of office is over he will make a very good show of it to point out that it would be disastrous to have an election that time.

I have already intimated to the Deputy that that line of argument is not in order.

Mr. Kelly

We heard all this before.

The Deputy says we have heard all this before. One would imagine that a matter like the principle of the independence of the judges would be worth several hours' debate, even if it meant that several arguments had to be repeated in order to get them properly understood. The impatience shown by the Deputy on the discussion of the principle is a forecast of what time will be occupied when the position of the judges is considered. I have been trying to find out what the Attorney-General's arguments meant. Deputy Fitzgerald has gone through them in detail. It seems to me that the counter to what the Attorney-General has said could be put in one phrase, that he used the arguments in relation to the attitude taken by the people in regard to the judges as the judges are at the moment constituted with their independence protected and he thought that those were good arguments and should be projected into the future. For instance, he has faith in the present judges. Let us take that argument and project it into the future in the new conditions. Let us presume one judge got rid of, one judge only, to make way for a partisan of the present Government. Will the Attorney-General then have the same faith in the new Bench? Is he likely to get good aspirants for the office in the circumstances? Will he get a worthy man to take the position if that man knows that the application of the principle which removed his predecessor will remove him immediately he offends the Government by his decisions? The Attorney-General can get hangers-on who will have the feeling that when making good in the cases that come before them, if appointed on the Bench they may be able to put something by for the time when they will be dismissed from office.

I asked previously that this test should be applied—will the Attorney-General get anybody whom he considers a worthy aspirant for office at the moment and simply ask him would he prefer to take the position under the present circumstances or under the new, and let us hear the reply? The Attorney-General has faith in the present judges and in democracy and that faith is going to outlast the taking away of the Seanad; it is going to outlive the possibility that judges are to be removed by a majority vote of one. Are we to take it then that countries where safeguards similar to the one we are discussing exist, have lost faith in democracy and have no faith in their judges? The Attorney-General commends to our notice Article LXIX. Article LXIX in the Constitution guarantees that all judges shall be independent in the exercise of their functions and the sequence of the Attorney-General's argument is that that is to remain and that there is some value in that apart from Article LXVIII. I wonder would the Attorney-General tell us what the Minister for Finance's views were of his dealings with the judges last year. Article LXVIII establishes not merely the judges in a position from which they cannot be removed except in a particular way, but it deals with their remuneration and says:

"such remuneration may not be diminished during their continuance in office."

The Minister for Finance was trying to get the judges' salaries cut. I wonder did the judges feel that Article LXVIII was a safeguard to them.

Mr. Blythe?

No, but the present Minister. There was no question of ever cutting their salaries in Mr. Blythe's time.

Nonsense.

Was there not the question of asking them?

Possibly. Was there not a difference in what was done by the present Minister for Finance and what was done in the time of the late Minister?

I did not see it.

Will the correspondence be published?

I have not seen it, but I imagine the same procedure was adopted.

The ostrich sometimes becomes the President's model.

No, but the Deputy is simply taking a chance shot.

It has gone home, I think. Let us have the correspondence. Does the Attorney-General know of any correspondence that has gone on with the judges? Will he say that the judges did not find themselves forced by the present Minister for Finance to make reference to Article LXVIII as their safeguard? Will the judges, in future, be satisfied that they have established independence in their position by the safeguard of Article LXIX? If everything else goes, what is to prevent Article LXIX going also? I do not regard it as much of a safeguard apart from Article LXVIII. What will its continuance depend on? Simply on a majority of this House. If the majority wants it out, it will have to go out. The Attorney-General supposes that it should be sufficient to attract men who would give decisions without fear of an adverse vote in this House. But let there be one man of the present judiciary removed, to make way for someone that the Government requires; let one judge be treated as General O'Duffy was treated, and, I ask, will the Attorney-General then have the same confidence for the future? Once a breach is made on the Bench, will it attract the same men—men of sufficient ability and courage—to give decisions without fear of the danger of an adverse vote in this House?

The Attorney-General said there was no attempt to criticise judges in other countries. Why? Because the principal institutions established and the main protections for judges are to to be found in the clauses in the Constitution that make it difficult to remove them from office. Because of that you know you are getting good men. You have good men on the Bench. That is usually the position. They are looking to their duties. They look to the facts of the cases presented to them and they decide to the best of their ability. But let one judge be removed and one partisan appointment be made, let one breach be made, does anyone say that there will not be an immediate change? It may be that the judges appointed under the old system will preserve their independence and character, and the traditions round about them. Some of them will retire rather than be subjected to the new conditions. But will the new appointments carry the same weight in the public mind?

Will it be always said that the judges who come with the knowledge that the Government of the day if they have a majority can pitch them out, are worthy of the same confidence? Will the public have the same confidence, and feel the same security, in these men in the discharge of their duty no matter what their ability is?

The man who argues that these safeguards are no good, and says that in opposition to them he has faith in the present judges, and in the present democracy, must go on to say that the countries that have so far established these safeguards must have lost faith in the character of the men aspiring to the judicial bench, and must have lost faith in the democracy of their own country. These are common safeguards. They exist pretty well all over the world. The point of view held by the Attorney-General was not held by his colleagues some time ago. The present Minister for Justice, speaking upon Constitution (Amendment No. 17) Act, referred to the point that the people who were to be appointed as judges under that Act were officers who could be removed. He said:—

"I refer to temporary judges and I referred to them before. I said before it was a bad precedent to create these temporary judges, because they get the idea that they must serve the Executive in a certain way or they will not ensure permanent positions afterwards."

So we are told that temporary judges who want permanent offices must serve the Administration in a particular way. According to the Minister for Justice, that is the idea that we are bound to get. If one of our present judges goes, or if one of our present judges is removed, will the judge who succeeds him get the idea that he will be treated in the way indicated if he does not serve the Executive Council? The Minister for Finance, speaking on the subject, dropped into poetry about these people. I remember he quoted the lines of Shelley:—

"I met Murder on the way,

He wore the mask of Castlereagh,

Very smooth he looked, yet grim;

Seven bloodhounds followed him."

And he continued,

"only in this case we are not going to have seven bloodhounds— we are only going to have five—five officers of the secret tribunal... were to be empowered to sentence to death political opponents for any act..."

From the same spring comes the argument of Deputies MacEntee and Ruttledge as they then were. We are told that that is the worst of putting men into paid positions from which they could be easily removed by the Executive Council.

The Deputy must not have been listening to Deputy Fitzgerald.

Because the Deputy is arguing against him.

No, I am exactly on the same lines as Deputy Fitzgerald.

Yes, but going in a different direction.

That is the Minister's idea of being on the same line. Unemployment and employment for example? Figures do not matter. I recently saw some figures that theIrish Press produced. I know the explanation of these figures now. They were given to the Minister for Industry and Commerce and he thought they were unemployment figures, with the result that there were three changes in three months. We have seen the spring of the arguments of Deputy MacEntee and Deputy Ruttledge. The question of whether you will have any security depends on whether you will get people to have confidence in a judiciary whose pay depends on the Government, and whom the Government can remove at ease.

The Attorney-General has not lost faith in democracy and has not lost faith in the present judges. He also tells us that the people of this country respect the judgment of the courts even if they were adverse, and he added a peculiar phrase—I hope there was not much in it—"if they get a fair hearing." Would that point to contentions, hereafter, as to whether certain litigants get a fair hearing? Take the general argument. People at the moment do respect the decisions of the courts but you cannot carry that very far into the future. Let me repeat what I have already said, that let but one man be removed, to make way for a partisan of the Government, and is there going to be any respect for these courts in the future? People will get used to the new idea that judges may be removed by a vote of this House, that their pay proceeds from this House and that their whole existence depends upon a majority of this House. Immediately you have that situation developed the respect that there has been throughout the country for the decision of the courts begins to wane.

There will be more room for a man thinking that an adverse verdict against him was not fair, that courts were subject to their new masters who paid them and that they were under their thumb. It is because conditions are such as they are now that you have good judges and that their judgments, even though people may think them wrong in the circumstances of the moment, at times—litigants I mean— are respected because nobody can say, as judges are at the moment, that they are subject to any pressure. They certainly are in as free and as independent a position as judges are in any country and they are protected by safeguards which are common. This inverted argument that because you can say things about judges at the moment, and say things about their judgments, you can always say the same things when conditions are changed, is not logical, and does not attract.

The President has told us—the phrase must be remarked on again— that the courts were being made use of to hamper his activities. The Minister for Industry and Commerce has told us that if, in the minds of the Government, it becomes necessary to remove these people they will be removed. Supposing we add these two things together—that if it is necessary in the mind of the Government to remove them they will be removed and that at the moment the President considers that the courts have been used to hamper his activities at a time when he or the Executive Council should be free to act. The Attorney-General pins his faith to Article LXIX. There is this phrase in Article LXIX:—

"All judges shall be independent in the exercise of their functions."

You can imagine the courage with which a judge, capable of removal by a majority vote of the House, will approach an Attorney-General who goes to remonstrate with him on certain decisions, and say: "Well, you cannot touch me; I have Article LXIX." And the judges shall be independent in the exercise of their functions!

Article LXV gives the judges considerable power, an important power at the moment:

"The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution."

Will they always have that power? At the moment, one of the safeguards which people have is that these independent judges can pronounce upon whether the laws passed by the House are in accordance with the Constitution or not. They can decide whether the arm of the Executive is being used in accordance with the law, when the laws have been declared to be within the Constitution. There are some valuable things in the Constitution the President discovered in the early part of the debate. Article VI provides:

"The liberty of the person is inviolable and no person shall be deprived of his liberty except in accordance with law."

That is Article VI of the Constitution at the moment. The judges can decide whether any law which has been passed controverts any particular Article of the Constitution, or whether any action of the Executive is to be governed by it. They are put in a position of independence so that they can give judgment on that without any fear of the Executive of the day.

There are three ways now of checking this. One is to amend that Article of the Constitution which gives power to inquire into any law in its relation to the standard of the Constitution. The second is to amend the Article which protects the liberty of the person and the third is to get after the judges. Mind you, their independence can be very easily undermined or at least the feeling in the country that they are independent in the discharge of their functions can be very easily broken down. One person removed, in the new situation, and you will have none of these views that the President thinks are so common now about judges. You are certainly not going to have them maintained for any length of time when one man has been removed from office by a majority vote of the House in order to make room for somebody whom the Government will appoint. The dwelling of each citizen is inviolable according to another Article and shall not be forcibly entered, except in accordance with law. If a law were passed here, the judges have power to determine whether that law is a breach of that Article and when certain actions take place, the present judges have the right to determine whether these actions are in breach of Article VII of the Constitution. They are put in this position, that those activities they are asked to criticise are carried out as an act of the Government which commands a majority in the House. But they know that that majority at the moment cannot remove them. They will know exactly the opposite in the future. It will require no more than the majority, which gives the Government this power, to remove them from their positions if they attempt, on any occasion—to use the President's euphemism—to hamper the Executive in some activity which he considers proper.

Article IX gives the right of free expression of opinion, the right of assembly peaceably and without arms. The right to form associations or unions is guaranteed for purposes not opposed to public morality. We know that the clash with the Seanad has arisen over that particular Article. The judges must know as they read these things, that because the Seanad decided to hold up a Bill which was going to restrict very much the operation of Article IX, the Seanad is now being abolished and the Government who rushed in here so hastily to abolish the Seanad, because it tried to prevent or to hamper the Executive in its activities in regard to Article IX, has also power hastily to rush in and to get them removed by a majority vote. Yet we are told there is going to be no difference between the situation hereafter and the situation as it has been up to this.

There are certain Articles which prescribed the period for which the Dáil is elected and certain Articles which prescribe and lay down how vacancies that arise from time to time in the Dáil are to be filled. If laws were brought in prolonging the life of Parliament beyond the constitutional time allowed or proposing to fill vacancies as they occur, other than in accordance with the Article, the judges can decide whether these laws are constitutional or not and can reject the ones that are not. They can defy an Executive who desire to have that power. They can defy them in their activities if they are unconstitutional or outside the provisions of the Article. For the future the preservation of these Articles lies in the hands of those people who know that if they defy the majority Party in this House they can, the next day, the whole lot of them, be removed from office by a majority vote of this House. There is the Article I have so often alluded to, which forbids the Oireachtas to declare acts to be infringements of the law which were not so at the date of their commission. I refer to it so often because it is the contrary principle that has been worked in Russia in recent years. One of the ways in which the Government there found it necessary to get after their political opponents was by having the power, which they used, to declare certain things to be offences, those not being offences when they were committed. We have seen the activity in this country with regard to one individual which went pretty close to a breach of that. That individual, I am sure, will be regarded by the President as hampering him, impeding him in his activities when he thinks these activities are proper.

We have already dealt with the position of the Comptroller and Auditor-General. In addition to establishing the Comptroller and Auditor-General in a particular position there is an Article of the Constitution which says that.

"All revenues of the Irish Free State from whatever source arising, shall, subject to such exception as may be provided by law, form one fund, and shall be appropriated for the purposes of the Irish Free State in the manner and subject to the charges and liabilities imposed by law."

If certain appropriations were determined on at this moment it is the right of any citizen to go before the courts and see whether a judge will determine in his favour that such and such was done in breach of that Article.

Does the Deputy contend that reading every Article in the Constitution, and commenting upon what might happen, is in order on this amendment?

I do. I am quite willing to abide by your decision if you say it is not, but I submit that in a matter like a discussion in relation to the independence of the judges, if it is not possible to show by example all the things that might happen, then there is no good served by debate. Are we discussing an important matter?

The Minister says "No." The Minister has already expressed the opinion that if it is considered necessary in the mind of the Government, these judges should be, and will be, removed. The Minister has already declared that it is his mind that is going to operate.

That has not been stated here.

The Minister has declared that it is his mind that is going to operate in the councils of the Executive as to whether certain speeches are seditious or not.

That was not quoted.

It was quoted.

It was misquoted.

It was quoted from the books read by Deputy Dillon.

I challenged Deputy Dillon to produce them and he could not produce them.

The Minister was out of the House when they were quoted and the Minister now denies that he made the statement.

That quotation could not have been made.

The Minister was not in the House when the quotation was read out.

It could not have been quoted, because it was not reported. If Deputy Dillon pretended that he read that from the Official Reports, he was deceiving the House, because those remarks are not in the Official Reports.

Deputy Dillon quoted exactly——

Not the words the Deputy used now.

He did make a quotation. The Minister was not here. There is about as much reason and substance in the Minister's denial now as there is in most of the brazenness we are accustomed to from him. Is it not absurd that a Minister who was not in the House when the quotation was made should rise now and say he was not quoted?

He was not quoted.

Not having settled that point, perhaps the Deputy might deal with the amendment?

The Minister set himself up as a judge of what sedition is.

I did not.

The Minister did give his opinion that a certain speech of mine was seditious and said that his opinion was going to count for more than that of his unfortunate friend, the Attorney-General.

I did not.

The Minister thinks that it is not important to have a discussion here on the judges and the importance of an independent judiciary.

That is not the matter we are discussing; it is not the matter we should be discussing.

It has nothing to do with the amendment.

The amendment is distinctly about the independence of the judges.

Who is in the Chair, anyway?

The President has dealt with it and he said it meant as much: the Attorney-General said it meant as much; but, of course, all these opinions are subject to the overriding opinion of the Minister for Industry and Commerce. The President has stated that the independence of the judges is not in dispute—and how is he disposing of it? By leaving it to the majority vote of the House. If that is what Ministers and Deputies over there mean by the independence of the judges, then certainly it is hardly worth discussing it, but I consider it is well worth discussing what that particular position will lead to. I have in mind certain Articles of the Constitution which contain valuable information, although that was discovered late. Is it proper that each and every one of these things can be taken away by a majority vote? Is it proper that there can be taken away from the judges the power to enquire into laws passed in relation to every one of these things? And even if they do enquire into these things, if they offend the majority of the House they can then be removed by that majority. That is the matter that is being discussed. Deputy Dillon invited the opinion of Deputy Corry in this matter. I thought Deputy Corry would have been anxious to intervene. He has a tradition of being connected with justice or the administration of justice. He has a history, I think, in that connection.

Is this in order?

It has nothing to do with the amendment.

He was the man who approached the judges before. He was the only man in that Party who had the courage to put down an amendment to reduce their salaries.

I ask again if this is in order?

He was the only Deputy who had the temerity to put down an amendment to reduce judges' salaries. He must have known when he was doing so that it was contrary to an Article of the Constitution; but he will have power to do it eventually. A member of the House, like Deputy Corry, will be enabled to put down a resolution hereafter to reduce the salaries of the judges and it will not be open to anyone to object. It will not be open to any court to object that such is unconstitutional.

You murdered 77 for majority rule. Why should you make a noise about sacking a judge by majority rule?

The word ‘murder' should not be used in referring to any Deputy.

Legally murdered. Will that do?

There is no such thing.

It is not very approprivate to have Deputy Corry talking that way.

It is very appropriate to you.

I think not. The Deputy, at any rate, thought to murder the position of the judges. There are various types of pressure to be brought upon them. One is financial pressure and the Deputy wanted to do that but he was not allowed to speak his mind on that occasion and his amendment was withdrawn. But he has indicated his views of these people through the country. Deputy Smith indicated his views more recently.

There has been constant repetition and if that continues what hope is there of ending the debate?

Deputy Smith recently gave his view as a back bencher of the Party in relation to District Justices.

That has no relation to the matter before the House.

We have heard the same thing at least three times from the same Deputy.

You did not. I have only spoken twice and I did not repeat myself in the course of those speeches.

You certainly ought not to be making the type of speech you are making.

People are asked to take a hint—the District Justice was asked to take a hint. There is a prospect for the future. The Attorney-General debated this matter at some length and he said the District Justices are in a different position as compared with the judges. Of course they are, but was that a proper situation to envisage even for a District Justice?

The Deputy, in the course of his speech, has already put that almostipsissimis verbis.

Might I respectfully say that I could not previously have used the words I spoke, because the Attorney-General had not spoken?

My recollection must be at fault.

I ask you to consider that the Attorney-General had not spoken and that argument had not been made.

The speech which the Deputy made began at five minutes to eight o'clock.

I did not previously speak of the District Justices, but I think Deputy Fitzgerald did. I did not.

I apologise. I had heard the same words and naturally thought that they came from the same Deputy.

Deputy Fitzgerald has used the same argument. What is the Attorney-General's point of view— that District Justices are not the same as judges?

This amendment does not deal with that particular point.

Sir, these matters have been introduced into the argument and have been debated by, at least, four speakers. I did not think that I had gone so far outside the argument.

Does the Deputy remember circulars being sent to District Justices on a certain occasion?

The Deputy ought to remember it. There was quite an uproar on a previous occasion when circulars were sent out.

I do not remember, and I would ask that the circular the Minister mentions should be produced. When the Minister mentions circulars and documents of that kind, it is a great thing to ask him to produce the document. Let us have the document. Glib statements are not worth anything. The only thing that is worth anything is the evidence.

Does the Deputy deny it?

I do, and my denial cannot be set aside by an obviously forced laugh. That is no good. That is not currency. Let us get back to these District Justices. Apparently, there is some aggravation to the Opposition Benches in pursuing this subject. The Attorney-General says that they are not the same as judges. They are not. They are not to be removed, however, by Deputies writing letters to the papers and saying that he and his colleagues should take the hint. I think that the conduct of the Deputy should have been condemned by the President——

On this amendment?

I hope that the Chair will now allow me to move that the question be now put.

I am accepting that motion.

Question proposed: "That the question be now put."
The Committee divided: Tá, 58; Níl, 42.

  • Aiken, Frank.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Boland, Gerald.
  • Boland, Patrick.
  • Brady, Brian.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Briscoe, Robert.
  • Carty, Frank.
  • Cleary, Mícheál.
  • Concannon, Helena.
  • Corkery, Daniel.
  • Corry, Martin John.
  • Crowley, Fred. Hugh.
  • Crowley, Timothy.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Doherty, Hugh.
  • Donnelly, Eamon.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Goulding, John.
  • Hales, Thomas.
  • Harris, Thomas.
  • Hogan, Patrick (Clare).
  • Jordan, Stephen.
  • Keely, Séamus P.
  • Kehoe, Patrick.
  • Kelly, James Patrick.
  • Kelly, Thomas.
  • Keyes, Michael.
  • Kilroy, Michael.
  • Kissane, Eamonn.
  • Lemass, Seán F.
  • Little, Patrick John.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Maguire, Ben.
  • Maguire, Conor Alexander.
  • Moore, Séamus.
  • Moylan, Seán.
  • Murphy, Timothy Joseph.
  • Norton, William.
  • O'Briain, Donnchadh.
  • O'Grady, Seán.
  • O'Kelly, Seán Thomas.
  • O'Reilly, Matthew.
  • Pearse, Margaret Mary.
  • Rice, Edward.
  • Ruttledge, Patrick Joseph.
  • Ryan, James.
  • Ryan. Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Traynor, Oscar.
  • Victory, James.
  • Ward, Francis C.

Níl

  • Bennett, George Cecil.
  • Bourke, Séamus.
  • Broderick, William Joseph.
  • Brodrick, Seán.
  • Burke, James Michael.
  • Burke, Patrick.
  • Byrne, Alfred.
  • Esmonde, Osmond Grattan.
  • Fagan, Charles.
  • Fitzgerald, Desmond.
  • Good, John.
  • Holohan, Richard.
  • Keating, John.
  • Lynch, Finian.
  • MacDermot, Frank.
  • MacEoin, Seán.
  • McFadden, Michael Og.
  • McGilligan, Patrick.
  • McGovern, Patrick.
  • McMenamin, Daniel.
  • Morrisroe, James.
  • Cosgrave, William T.
  • Costello, John Aloysius.
  • Curran, Richard.
  • Davis, Michael.
  • Davitt, Robert Emmet.
  • Dockrell, Henry Morgan.
  • Doyle, Peadar S.
  • Morrissey, Daniel.
  • Mulcahy, Richard.
  • Murphy, James Edward.
  • Nally, Martin.
  • O'Donovan, Timothy Joseph.
  • O'Higgins, Thomas Francis.
  • O'Mahony, The.
  • O'Neill, Eamonn.
  • O'Sullivan, Gearóid.
  • O'Sullivan, John Marcus.
  • Reidy, James.
  • Rice, Vincent.
  • Rogers, Patrick James.
  • Thrift, William Edward.
Tellers:—Tá: Deputies Little and Traynor; Níl: Deputies Doyle and Bennett.
Question declared carried.
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 59; Níl, 42.

  • Aiken, Frank.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Boland, Gerald.
  • Boland, Patrick.
  • Brady, Brian.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Briscoe, Robert.
  • Carty, Frank.
  • Clery, Mícheál.
  • Concannon, Helena.
  • Corkery, Daniel.
  • Corry, Martin John.
  • Crowley, Fred. Hugh.
  • Crowley, Timothy.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Doherty, Hugh.
  • Donnelly, Eamon.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Goulding, John.
  • Hales, Thomas.
  • Harris, Thomas.
  • Hogan, Patrick (Clare).
  • Jordan, Stephen.
  • Keely, Séamus P.
  • Kehoe, Patrick.
  • Kelly, James Patrick.
  • Kelly, Thomas.
  • Keyes, Michael.
  • Kilroy, Michael.
  • Kissane, Eamon.
  • Lemass, Seán F.
  • Little, Patrick John.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Maguire, Ben.
  • Maguire, Conor Alexander.
  • Moore, Séamus.
  • Moylan, Seán.
  • Murphy, Timothy Joseph.
  • Norton, William.
  • O'Briain, Donnchadh.
  • O'Grady, Seán.
  • O'Kelly, Seán Thomas.
  • O'Reilly, Matthew.
  • Pearse, Margaret Mary.
  • Rice, Edward.
  • Ruttledge, Patrick Joseph.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Francis C.

Níl

  • Bennett, George Cecil.
  • Bourke, Séamus.
  • Broderick, William Joseph.
  • Brodrick, Seán.
  • Burke, James Michael.
  • Burke, Patrick.
  • Byrne, Alfred.
  • Cosgrave, William T.
  • Costello, John Aloysius.
  • Curran, Richard.
  • Davis, Michael.
  • Davitt, Robert Emmet.
  • Dockrell, Henry Morgan.
  • Doyle, Peadar S.
  • Morrissey, Daniel.
  • Mulcahy, Richard.
  • Murphy, James Edward.
  • Nally, Martin.
  • O'Donovan, Timothy Joseph.
  • O'Higgins, Thomas Francis.
  • O'Mahony, The.
  • Esmonde, Osmond Grattan.
  • Fagan, Charles.
  • Fitzgerald, Desmond.
  • Good, John.
  • Holohan, Richard.
  • Keating, John.
  • Lynch, Finian.
  • MacDermot, Frank.
  • MacEoin, Seán.
  • McFadden, Michael Og.
  • McGilligan, Patrick.
  • McGovern, Patrick.
  • McMenamin, Daniel.
  • Morrisroe, James.
  • O'Neill, Eamonn.
  • O'Sullivan, Gearóid.
  • O'Sullivan, John Marcus.
  • Reidy, James.
  • Rice, Vincent.
  • Rogers, Patrick James.
  • Thrift, William Edward.
Tellers:—Tá: Deputies Little and Tray nor; Níl: Deputies Doyle and Bennett.
Question declared carried.
Question put: "That the Schedule be the Schedule of the Bill."

I think that to anybody who has listened to the debate on the three important constitutional points that were raised, one thing has become clear and that is, that, whatever fears the Opposition had when they came to discuss this Bill or when this Bill was introduced, they have been intensified by the speeches we have heard from the Government Benches and by the reasons put forward by the President and other members against the amendments. I do not intend to deal with this Schedule seriatim in any sense at all. There are a few points only that I wish to deal with because I think they are really vital from the point of view of the liberty of the people of the country. This Schedule proposes to put the liberties of the people completely at the mercy of the Executive Council and I know that is what the Government want. Every argument of the President, every speech he has made, every incident that occurs in the country, point in that one direction.

I was not, as I said already, by any means satisfied that the amendments we put down to this Schedule would go any reasonable distance to effect what we wanted but they go at least some distance and I should like the President, as he is considering, to consider between now and Report Stage serious amendment of this Bill, if there is anything except mere pretence in his repeated salaams to the goddess of liberty—I do not believe there is anything but pretence in them but I am not convinced that he is convinced of that. He thinks there is. That is not merely the tragedy of the man; it is the tragedy of the country at the moment, that he does not see that he is drifting and quickly drifting towards dictatorship. He is determined to beat down anything in the nature of opposition and has become more impatient of anything of the kind and I suggest that between now and Report Stage, if he is determined to go on with this wretched Bill, he should consider serious amendments to it—amendments that may have the effect of safeguarding some essential liberties if this is to be a constitutionally governed country.

It may be that the President thinks the time is past for that or that the time has not yet come, but, in fact, I may tell him that the latter is the usual view taken up by budding dictators—that things are in a state of flux and that the time has not yet come to insist on fundamental principles but that we must wait for them and that in the meanwhile rather revolutionary methods must be tried. I understand that that is the line now being followed by the Government and yet I press that there would be consideration given, for instance, to the question of keeping a Seanad for certain purposes at least and that amendments to provide for that should be tabled for Report.

I quite admit to the President that we cannot provide him with a perfect Second House. He is gracious enough to suggest his royal assent to the view that, if we can, he will accept it. It cannot be done. The only person I ever knew who was able to do that was the President's teacher, the Abbé Siéyes. He turned out perfect constitutions at command. Quite true they were like those beautiful French clocks which have to be kept under glasscases, and which never went round. They never worked, but theoretically they were more or less perfect. I have no doubt they would satisfy what the President calls his sheer logic. Sheer? Yes I will admit the sheerness of it, but not the logic. "Lunacy" would be more like it. I would ask him to consider these particular amendments, and to realise whither he is drifting. It is the one thing I am really anxious about.

I am not going to discuss the details of this Schedule, but only the general effect of the Schedule. I cannot give him—nobody can—a perfect Second House. There is no Parliamentary institution of any kind that he, or any theoretical thinker he may appeal to, cannot criticise. Even this House is not constitutionally perfect—far from it. I know no Assembly that cannot have serious objections made to it theoretically, but what I would ask the President to do is to look, for once in his life, at the practical working of the Constitution. It is desperately practical in some ways to abolish the Seanad—practical from his point of view—even as the Abbé Siéyes was practical in that sense, but I would ask him to look at the general working of the Constitution, and try to get a practical working Constitution.

I feel that he is facing for disaster in the steps he is taking, I would make a serious appeal to him to consider, if he is determined to go on with the wretched Bill, whether he cannot give some kind of real guarantee of the preservation of the fundamental rights of the people—the right of free speech at public meetings, and the independence of the judiciary. I would particularly ask that those rights be preserved, because if they are wiped away, as I feel they will be wiped away, there is no good in speaking of liberty or democracy. It is all gone; it is all a sham. The President says we are in a time of flux. That is all the more reason for having checks; all the more reason for preventing rash actions that would be fatal to the future of the country. The very fact that we are in that revolutionary state, as he calls it, the very fact that we are unsettled, is precisely the reason why there ought to be some check on hasty and mad action on the part of any Executive.

The whole argument in favour of this Schedule and the whole argument against the amendments are summed up in this: "The Executive is not mad, therefore you do not need constitutional checks." As I say, that argument has one result—you do not need a Constitution at all; you do not need a Dáil to keep the Executive in check; all that the people need is to trust that in their wisdom they will do right. The same argument cuts not merely at the Seanad but at the Dáil; it cuts at any kind of constitutional government. Every argument and every speech that has been made by the President and his Ministers convinces me that they have no conception of real permanent fundamental laws on anything, even where principles are concerned. They pretend that there are certain Articles of the Constitution which they regard as passing phases, and others which they think ought to be permanent, but it is clear that they have no respect for anything in the nature of permanence in the Constitution.

As I said, the argument in favour of this is precisely that one of the main purposes of the Constitution is not merely to set out the powers of the Executive elected by a majority of the properly elected Assembly, but it has another purpose as well—to put limits on an arbitrary Executive. There are none now left, and the fact that the President and the Attorney-General think a promise is a constitutional safeguard is a proof that they have no conception of the constitution issues at stake. The tragedy of this country and of more than this country perhaps, is that so many people think they can fit the rôle of Cromwell, without having his ability.

I just want to interpose for a moment. Reference was made by the President on the Second Reading of this measure to some statement of that unfrocked Abbé Siéyes, and also to the peculiar Parliamentary system in vogue in Norway. I should like the President to tell us, after he looks up the Constitution of Norway, whether it be a fact that in that Constitution there is a prohibition of one of the most important religious Orders?

Question put.
The Committee divided: Tá, 58; Níl, 42.

  • Aiken, Frank.
  • Bartley, Gerald.
  • Beegan, Patrick.
  • Boland, Gerald.
  • Brady, Brian.
  • Breathnach, Cormac.
  • Breen, Daniel.
  • Briscoe, Robert.
  • Cleary, Mícheál.
  • Concannon, Helena.
  • Corkery, Daniel.
  • Corry, Martin John.
  • Crowley, Fred. Hugh.
  • Crowley, Timothy.
  • Derrig, Thomas.
  • De Valera, Eamon.
  • Doherty, Hugh.
  • Donnelly, Eamon.
  • Flynn, Stephen.
  • Fogarty, Andrew.
  • Geoghegan, James.
  • Goulding, John.
  • Hales, Thomas.
  • Harris, Thomas.
  • Hogan, Patrick (Clare).
  • Jordan, Stephen.
  • Keely, Séamus P.
  • Kehoe, Patrick.
  • Kelly, James Patrick.
  • Kelly, Thomas.
  • Keyes, Michael.
  • Kilroy, Michael.
  • Kissane, Eamonn.
  • Lemass, Seán F.
  • Little, Patrick John.
  • McEllistrim, Thomas.
  • MacEntee, Seán.
  • Maguire, Ben.
  • Maguire, Conor Alexander.
  • Moore, Séamus.
  • Moylan, Seán.
  • Murphy, Timothy Joseph.
  • Norton, William.
  • O'Briain, Donnchadh.
  • O'Grady, Seán.
  • O'Kelly, Seán Thomas.
  • O'Reilly, Matthew.
  • Pearse, Margaret Mary.
  • Rice, Edward.
  • Ruttledge, Patrick Joseph.
  • Ryan, James.
  • Ryan, Martin.
  • Ryan, Robert.
  • Sheridan, Michael.
  • Traynor, Oscar.
  • Victory, James.
  • Walsh, Richard.
  • Ward, Francis C.

Níl

  • Anthony, Richard.
  • Bennett, George Cecil.
  • Bourke, Séamus.
  • Broderick, William Joseph.
  • Brodrick, Seán.
  • Burke, James Michael.
  • Burke, Patrick.
  • Byrne, Alfred.
  • Cosgrave, William T.
  • Costello, John Aloysius.
  • Curran, Richard.
  • Davis, Michael.
  • Davitt, Robert Emmet.
  • Dockrell, Henry Morgan.
  • Doyle, Peadar S.
  • Esmonde, Osmond Grattan.
  • Fagan, Charles.
  • Fitzgerald, Desmond.
  • Good, John.
  • Holohan, Richard.
  • Keating, John.
  • Lynch, Finian.
  • MacDermot, Frank.
  • MacEoin, Seán.
  • McFadden, Michael Og.
  • McGilligan, Patrick.
  • McGovern, Patrick.
  • McMenamin, Daniel.
  • Morrisroe, James.
  • Morrissey, Daniel.
  • Mulcahy, Richard.
  • Nally, Martin.
  • O'Donovan, Timothy Joseph.
  • O'Higgins, Thomas Francis.
  • O'Mahony, The.
  • O'Neill, Eamonn.
  • O'Sullivan, Gearóid.
  • O'Sullivan, John Marcus.
  • Reidy, James.
  • Rice, Vincent.
  • Rogers, Patrick James.
  • Thrift, William Edward.
Tellers:—Tá: Deputies Little and Traynor; Níl: Deputies Doyle and Bennett.
Question declared carried.
Title agreed to.
Bill reported without amendment.

When is it proposed to take the Report Stage?

When will the amendments be circulated?

I understood that the President was to give a certain amount of consideration to these amendments.

Is it intended to hand in any amendments?

Yes, for Friday.

When will they be in the hands of members?

That is too late.

We shall give you until Tuesday of next week then.

Report Stage fixed for Tuesday, 8th May.