There are two minor points upon which I should like to get information before speaking on the generality of the Bill. Deputy Costello has referred to one of them. Section 7, according to the side-noting, imposes restrictions on a change of name by aliens, and under sub-section (2) it appears it shall not be lawful for an alien to carry on, or continue to carry on, after the appointed day, any trade or business unless in the name under which such trade or business was carried on, "on whichever of the following days was the later." What does "later" mean? Does it mean further removed from us, or later in point of date? I should imagine that the 6th December, 1934, was later than the 6th December, 1922; and if that is the interpretation, what Deputy Costello suggests must happen. Say you have a gentleman called Wassenfeldt or some name of that kind, that he decides to Irishise his name, and that he becomes The O'Maguire on a particular date. If it is later than 6th December, 1922, he may continue as The O'Maguire, and later he may find that there are too many O'Maguires in the country, and he can change that name to something else. I wonder is that what is intended? Does it mean further removed in time from us, or earlier in date, or does it mean later in the sense that the 6th December, 1934 is later than the 6th December, 1922?
Deputy Costello has pointed out that under Section 5, say, a trade representative of Great Britain resident in this country is an alien. If he is, I do not think he yet realises the awkward position in which he is going to be placed under this Bill, because under a Ministerial order, his house may be broken into and he may be arrested, despite our having Constitutional provisions guaranteeing the liberty of the person in this country. Under this Bill he may be exempted from the application of such an aliens order, and when you get on down, you find that his wife and child are exempt. Suppose you get a female representative here, her husband is not exempt. There is a clause in the Interpretation Act which says that words importing the masculine shall import the feminine, but notvice versa. These are, however, only minor points.
The big point arises in connection with Section 9 and it has to be taken as colouring the whole Bill. Section 9 as it stands definitely does make, until an exemption order is passed, everybody, even a person of Irish descent, who is not as Section 2 states, a citizen of Saorstát Eireann, under the nationality and citizens law, an alien. That applies to a considerable number of people whom we claim as being very near and very dear to us, and as being of Irish descent. See what may happen them. Section 5 operates in full force against any of these people. Consider Section 5 in relation to the constitutional guarantees that we gave under the Constitution to a variety of people. In Article 7 we say:—
"The liberty of the person is inviolable"—not of citizens—"and no person shall be deprived of his liberty except in accordance with law."
We are going to make a distinction here and it is not a distinction which is going to be assented to by any judicial authority. It is by a Minister.
Under Section 5, sub-section 2 (b)— as if it were not wide enough the President is going to enlarge it—the Minister for Defence, or even a Customs officer, is going to have power to arrest and detain, and to search premises and places. Article 7 says that the dwelling of each citizen is inviolable. It is "citizen" that is used there. Article 8 says that freedom of conscience is, subject to certain things, guaranteed, and Article 9 gives the right of free expression of opinion, apparently to everybody in the country. It has been a moot point for many years as to whether the word "citizen" in these four fundamental articles means citizen as defined in the nationality law, or means a resident. In Article 3 a citizen is described as every person who was born in Ireland or either of whose parents was born in Ireland or who had been ordinarily resident in the area of the Irish Free State for not less than seven years. That particular term "citizen of the Irish Free State" is used in the Constitution, but certainly in interpreting modern constitutions, the general trend of opinion is that where no set phrase is used, a phrase like "citizen" does not merely tie you down to your own citizens, but extends to resident aliens.
What are going to be the reactions of these four fundamental articles of the Constitution on this Bill and on the one which is not tied up with the word "citizen"? Article 6 says that the liberty of the person is inviolable and that no person shall be deprived of his liberty except in accordance with law. We should know how far the distinction goes. The President in his opening remarks made it appear that Section 5, is only for use in time of war or such time of excitement. The President's example was in relation undoubtedly to a time of war. He may have meant to suggest that Article 4 might be regarded, notwithstanding the liberty that is guaranteed to every person in the State, as being subject to what may happen during a state of war or armed rebellion but there is no such phrase in Section 5 of the Bill. Whenever the Minister issues an order he can do a variety of things. He can pass an order in respect to, either all aliens or aliens of a particular nationality and incidentally, later on, he can define the nationality of an alien. Here he seems to be tied to particular aliens or aliens of a particular nationality.
Apparently in this way, we have guaranteed freedom of a variety of things, freedom from arrest, from search, from detention, liberty of speech, liberty of association, liberty of conscience for the people of the country. We are now about to decide, not that a judge shall decide, who has the right to do these things, that a Minister by order in relation to individuals, may grant to officials of the Department of Justice or to a Customs and Excise officer the right to arrest and detain, the right to break into premises and search premises. That is a very far reaching provision and it is certainly in complete breach of the Constitution. It certainly does give power to make distinctions as between individuals.
The reactions of this Bill, which in precise terms aims at Article 6 and Article 7—the freedom from arrest and the inviolability of the dwellinghouse— may have a reaction also on the interpretation to be given by the courts hereafter to the meaning of the word "citizen" in these two Articles and may have a very narrowing effect upon what we intend or what it is now believed we intend, by the freedom of, say, religious belief or practice of religion, and the freedom of expression of opinion given in Articles 8 and 9, which are not at the moment limited in any way. I object to Section 5 for a variety of reasons. It is definitely giving over to a Minister, in relation even to individuals, the exercise of judicial power. Definitely and clearly it is given over to him without any check or limitation which would enable this matter to be brought before a court. It gives him that power without tying him down to the avoidance of distinctions as between groups of people or individuals in groups. Without putting any of these limitations upon him, it gives him power, if and whenever he thinks proper, acting through agents— civil servants—to arrest and detain, to break open a house and to search. There ought surely to be some limitation of that peculiar freedom. If it is to be exercised mainly in times of war or armed rebellion, let the section say so. If it is thought wise to reserve the use of such a power for some other emergency, which cannot be foreseen at the moment, let it be reserved for that but requiring the promulgation of notice to the Dáil before any interference of this kind is attempted in respect of any individual.
The President says, in introducing a Bill which has this clause, that it is "a liberal measure." He says further that, when we are so liberal in our gifts to these aliens, we should demand certain consideration, and that the consideration is that we subject them to our laws. We do not. We do not subject them to our Constitutional guarantees. We prevent their getting the benefit of those guarantees if the Minister thinks fit. That would be a considerable blot on the Bill even if it were narrowed down to a small number of aliens, as the phrase is used at the moment, but when, by Article 9, it can have the widest possible extension, when an Englishman who visits this country for the purpose of trade or a person born of Irish parents who does not happen to be an Irish citizen may, at any time the Minister thinks proper, have his house broken into, his premises searched, and his arrest ordered, it is very serious. Apparently, there is no way to have that proceeding brought before a court. The Minister can do this with regard to particular aliens. Section 5, apart from the breaches which it makes in certain other Constitutional guarantees, does certainly leave open the argument that it is a breach of Article 64, which provides that judicial power shall be exercised and justice administered in the public courts by judges appointed in a particular manner. Power is being taken to abrogate a particular provision with regard to freedom of the person, freedom of speech and the right to have a house sacred from entry. As if that was not enough, the Minister is given authority to issue an Order which may contain provisions "conferring on the Minister and on officers of the Minister and the military and police forces of the State all such powers (including powers of arrest and detention and powers of searching persons and places) as are, in the opinion of the Minister, necessary for giving full effect to or enforcing compliance with such order." If that is a "liberal Bill," the full content and extent of its liberality should be brought vividly before the mind of any alien who is thinking of coming into the country and should be brought particularly before the mind of those of our people who still look to us as in some way attached to them. They should be given some notice of the latest benefaction that we are conferring on them if they come to the country. We are giving a Minister power to wipe out these Constitutional guarantees so that their premises may be raided and they themselves arrested and put into jail. Eventually, according to this mysterious phrase, they can be prevented from leaving the country. If they want to get out to avoid all these things, the Minister can prevent them. Part of the Order may be devoted to telling them that they must stay in the country, even though it be in Arbour Hill.