Dáil Éireann debate -
Wednesday, 2 Apr 1941

Vol. 82 No. 9

Second Amendment of the Constitution Bill, 1940—Second Stage.

An Taoiseach

Tairgim go ndéantar an Bille um an Dara Leasú ar an mBunreacht do léigheamh an dara huair anois. Tá dhá Airteagal sa Bhunreacht a bhaineann le ceist an Bunreacht féin do leasú—Airteagal a sé is dachad agus Airteagal a haon déag is dachad. De bhuadh Airteagail a sé is dachad, is cead foráileamh ar bith den Bhunreacht do leasú ar mhodh áirithe. Gach togra chun leasú a dhéanamh fén Airteagal san, ní foláir é chur fé bhreith an phobail le Reifreann. Ach socruítear le hAirteagal a haon déag is dachad go dtig leis an Oireachtas, fé réir nithe áirithe, leasuithe do dhéanamh gan Reifreann taobh istigh de thrí bliana tar éis an lae a chuaidh an chéad Uachtarán i gcúram a oifige. Chuaidh an tUachtarán i gcúram a oifige an cúigiú lá fichead de Mheitheamh, sa bhliain míle naoi gcéad a hocht déag is fiche agus is cead, dá bhrí sin, leasuithe a dhéanamh le hachtú an Oireachtais go dtí an ceathrú lá fichead de Mhí an Mheithimh seo chughainn. Tá taithí againn ar oibriú an Bhunreachta le breis is trí bliana anois agus is léir, de thoradh na taithí sin, gur gá, nó gur mhaith an rud, leasuithe áirithe do dhéanamh. Scrúduíodh an Bunreacht go cúramach sna Ranna Stáit, ag féachaint don taithí a bhí again, agus do bhreithnigh an Riaghaltas molta na Roinn. Chuaidh an Riaghaltas i gcomhairle leis an Ard-Aighne agus socruíodh sa deire na leasuithe atá sa Sceideal a ghabhann leis an mBille seo do chur fé bhráid an Oireachtais. Ocht leasuithe is fiche, ar fad, atá sa Sceideal. Ach an chuid is mó dhíobh níl siad ro-thábhachtach. Tá atharú á dhéanamh ar abairt anso agus ansúd i dtreo go mbeidh an chiall níos soiléire ná bhí. Trí no ceithre cinn díobh tá siad tábhachtach go leor. Maidir leis an chuid is mó de na leasuithe, táim beagnach cinnte nach mbeidh mórán deifríochta eadrainn ach is dócha go mbeidh díospóireacht againn ar trí no ceithre cinn díobh— uimhir a 21, uimhir a 25 agus uimhir a 28, cuir i gcás. Ceann aca seo, baineann sé leis an téarma "aimsir chogaidh," do réir an leasuithe a rinneadh tamall ó shoin. Táimid ag leathnú na haimsire sin agus ag cur tréimhse breise léi. Baineann leasú eile le ceist habeas corpus agus ceann eile le halt 56, a bhaineas leis an Stát-Sheirbhís. Níl mórán le rá ar an mBille seo ar an Dara Céim. Bille iseadh é ar a mbeidh níos mó le rá againn nuair a bhéas sé á bhreithniú againn i gCoiste.

I am sure there are a number of Deputies who want to have what I have just said, said also in English. What

I have said is this: that, within three years from the first day on which the President took office, it is permissible for the Oireachtas by a Bill, without reference to the people, to amend the Constitution. The three years are now nearly up, and, if we are to take advantage of the permission that is given to make changes without reference to the people, we must do it within that period. The period was purposely given, in order to enable an examination to be made in practice of the working out of the Constitution, with a view to determining whether there were any changes of a minor character which might be necessary, or any other changes which it was considered important should be made. That examination has taken place in the various Departments of State over the past three years. The officers of the Department were asked particularly to note, in the working over three years, whether there were any particular Articles in the Constitution, in so far as it bore on their Departments, which seemed to merit a change. Their recommendations were sent to us. They were examined by the Government; we took the advice of the Attorney-General in regard to them, and this Bill is the result. We decided finally that those amendments which are mentioned should be considered and enacted before the period has passed in which we can, by simple enactment, make the change.

The majority of those amendments are not of fundamental importance. They are intended for the most part to clarify the text, and in one or two cases to remedy certain errors in the text which seem to have crept in. For example, in one case, when there was an amendment made here in the House, the amendment was made in English, and in the Irish version a phrase which had reference to a previous text, a previous draft, was allowed to remain. I quote that as an example. There are, however, two or three amendments which are of a more important type. Again, they are intended in the main rather to clarify the existing position than to introduce something which is fundamentally new. Those are, first of all, No. 21. No. 21 relates to the Article under which in times of war or armed rebellion the action which would be taken by the State is not governed by the Constitution; that is the Constitution cannot be invoked against Acts which would be passed by the Oireachtas under such circumstances. Deputies will remember that at the beginning of the war we brought in an amendment under which "time of war" would cover a situation such as that in which we are at the moment. In considering that matter since, it was thought that the time of war should also cover a period after the war is over. First of all, it is difficult to say exactly at what point of time the conflict would have finished. Apart from that, there is also the obvious desirability of keeping those powers for some while longer, because there is no doubt that immediately after the war you do not quite get back to a position of peace; you do not get back to the position in which you were immediately before the war. The point of time then, instead of being determined in some absolute way in words, has to be determined by resolution of the two Houses, just as in the case of the amendment which we brought in some time ago, that is the condition being such that the time of war would cover it has to be determined by means of a resolution of both Houses.

The next important amendment is that relating to the habeas corpus provisions, that is amendment 25. There, some changes are made from the existing text, but the proposal in the main is to continue what was regarded as the usual practice in the case of habeas corpus. The principal point is that now when a conditional order is given it is taken before one or three judges, that to be determined by the President of the High Court. It is also made clear that, if a question is raised as to the validity of a law, the question will have to be tried by the Supreme Court, which is the court which has always been envisaged in the Constitution as the court finally to try questions on the validity of laws. Finally, there is amendment 28, which might be regarded as having relation to transferred officers. When Article 56 of the Constitution was being passed, a question was raised here with regard to its bearing on the transferred officers, and an amendment was brought in to the effect that, notwithstanding the Article in the Constitution, we should make it definite in the Constitution that the rights which transferred officers have under the 1929 Act, which resulted as Deputies will remember from Article 10 of the Treaty of 1922, should be safeguarded by the Constitution itself. It was felt at the time that the Article in the Constitution seemed not to do that.

The House rejected that amendment. I think it was moved by Deputy Rice on behalf of Deputies Costello and McGilligan. I pointed out that the intention was not to give new or added security to anybody; the purpose of the Article as it stood was to make certain that the change-over from one position to the other, caused by the introduction and the passing of the new Constitution, did not of itself interfere with any rights that existed on the part of officers of the State. It was suggested at the time that they had a Constitutional guarantee as it stood. We pointed out that their rights were really in an Act of Parliament, and that the Constitution, inasmuch as it could be changed by legislation, did not give any added security; that it would be a very different matter if we had a Constitution—like the present Constitution will be after June next—which could not be changed by Act of the Oireachtas, but could only be changed after reference to the people. I rejected the amendment and the Article passed in the form in which it now stands. A doubt has been expressed as to whether the Article might not possibly be read to have the meaning which was sought to be introduced, the meaning which it was sought to give effect to by means of the amendment which was moved by Deputy Rice. The purpose of the present amendment is to make sure that that opinion which has been expressed will not hold; in other words, to make sure that the intention which was the intention when the Constitution was passed should be given full effect to, and that the intention of those who wanted to have an amendment for that purpose would not be read into it.

That covers the Bill as a whole. From its nature it is rather a Commitee Stage measure and each amendment will have to be dealt with separately in Committee. I think I have covered the ground generally.

Professor O'Sullivan

It is almost impossible to believe, when we are asked to consider this Second Amendment of the Constitution Bill, that the world is in the state that it is in at the moment. We are asked to take seriously the series of amendments that have been dealt with by the Taoiseach. There are one or two, one particularly, that may give rise to discussion and difference of opinion. I refer to the provision that a state of war shall be held to continue in this country for an indefinite period after the war has ceased—that is practically what the amendment comes to. Apart from that, except for the rather amusing light thrown on certain mischances and misadventures of the Constitution, I cannot see any great importance in these proposals.

The Bill is much more interesting from the point of view of what it omits in the way of amendments to the Constitution rather than in what it contains. Technically, we have before us a Constitution in the Irish language. There is appended a translation into English. That, at least, is the theory, and members of this House, the bulk of whom do not understand the Irish text, solemnly assumed that and took the Taoiseach's word for it. There was a suspicion at the time that the process had been the other way round, namely, that the Constitution had been drawn up in English, and translated into Irish. I ask Deputies to look at the amendments in this extraordinary schedule and they will be convinced of the truth that lay behind that suspicion; in other words, in a number of cases the Irish text is amended and there is no corresponding amendment of the English text. It does suggest to the Taoiseach, I put it, that the translation took place the other way round, not in the way we are given to understand. In some cases I doubt whether there were not substantial differences between the Irish and the English texts. Yet in future, in case there is a conflict between the two texts, the text of the Constitution that everybody in the House understands and the text that a limited number in the House and in the Seanad understands, the text shall prevail which, unfortunately, the majority of the people, the majority of the members of this House and the Seanad, do not understand.

The whole method of procedure is extraordinary. Until a certain editing is done by three people of whom one is the Taoiseach and another the Chief Justice, what shall we have? An Act, and a schedule contradicting the main Act until the editing is done. Furthermore, so that the House cannot lay hands on the sacred text of the Constitution, the final form of that Constitution is to be published and, as it is to be effective in law, it will be the text which the House will not have seen before it is issued. The only people to see it will be the Taoiseach and some people outside the House—the Chief Justice and somebody else. I do not object to that as regards the Constitution, but I hope that will not be followed when we are dealing with important legislation. It would be a bad precedent if the final text of a Bill became law without the House seeing it, without the House seeing what editing had taken place. Dealing with important legislation, that might be a bad precedent, but I am not inclined to be gravely upset about it when we are dealing only with the Constitution.

There is in these amendments, on the part of the Taoiseach, a vein of rather unconscious humour—possibly he did not intend it—and what I might call a face-saving that is almost oriental in its degree. I can understand the parental affection, almost amounting to nepotism, that the Taoiseach has for the Constitution. If he made up his mind from the start that the Constitution was really a document that ought to be amended from time to time, as the circumstances allow, I think in the end he would have a more workable Constitution. I think it is a pity, in what professes to be a fundamental document governing both the Government and the legislative powers of this House, that there is such a tying down in the way it is done here. It was recognised, in the original Constitution, that a certain amount of experience was necessary in order to give those interested an opportunity of seeing whether, in a reasonable way, amendments could not be made to it. That is the reason a certain period was fixed in which amendments could be made without going through all the ceremony—I prefer to call it the almost obstructive rigmarole—of a referendum. It would have been well if that period had been a great deal longer. Supposing the war had not occurred until next June, we were in a position here that we could not have passed that important amendment of the Constitution that we passed in September, 1939. For the future our hands are to be tied and we may find them tied in a time of considerable turmoil and chaos.

To remove the time-limitation would have been a much more reasonable amendment, and, as the Constitution requires a referendum in this case, the only useful purpose I can see that the referendum might serve might be to get rid of that particular limitation of the three years, because I cannot believe that there will not be other experiences which may require quick enactment of amendments of the Constitution. I think we have made it quite clear in the last 18 months that we have never hesitated to give the Government any power they were anxious to get and which they held was necessary for the safety of this country against enemies, external or internal. The Taoiseach, however, has not taken that course. He gives a number of amendments here, most of which are due largely to the pretence that a certain process was undergone, as I said already, in a direction opposite to what really took place.

Let us take the three amendments which the Taoiseach, quite rightly, fixes as being the important amendments. I leave out of account—it is a comparatively small matter—the proviso which insists that, in future, on a matter of Constitutional importance tried by the courts, only the decision of the majority shall be given and that there shall be no indication as to whether or not there was a division of opinion amongst the judges. From a purely Departmental point of view, I can see certain reasons for that proposal, but I can also see objections. At all times—and it is not something of which we should be unduly proud—there was considerable apathy about the whole Constitution and Constitutional questions in this country. The only time the people ever got a certain amount of interest flogged up was when there were cases in court, and although you want the people of this country to be really interested in the Constitution, you are taking away from them one of the real spurs to that interest. A division of opinion, with the Constitutional grounds stated by judges, would stimulate some interest in constitutional matters which is entirely absent at present. However, I leave that aside.

It is rather a serious matter to propose—I presume on the ground of the abnormality that may arise—that this country shall be treated as being in a state of war, even though there is no war in the country and though the war may have ceased on the Continent— and that for an indefinite period. I presume the period will be that which the Taoiseach and the majority of the House may consider to be abnormal, but we have no indication, and nobody could have any indication at present, as to the length of time for which that abnormality may continue. Either the Constitution is meant to be protective, or it is not. I can see that it is exceedingly important to preserve the life of a nation, and that is particularly so in the case of war, even though war does not immediately affect this country; but, because the situation is abnormal, I do not think that all the guarantees of the Constitution, so far as private liberty is concerned, should be swept away. That, of all amendments before us, is by far the most important, and it is the amendment about which, I think, there would be the greatest difference of opinion.

Last September 12 months, we passed here an amendment of the Constitution of very far-reaching importance. Now it is proposed that it should become—I cannot say that it will become a permanent provision of the Constitution—a provision for an indefinite period, not even terminated by the indefinite period of the war, but for an indefinite period afterwards. There is no guarantee that, within any reasonable time, we shall return to normality in that case, and if there is not a state of war in Europe, surely the powers which this House unhesitatingly gave to the Government to deal with internal trouble were sufficiently wide, without making almost permanent this formal wiping-away of what is left of Constitutional guarantees for personal liberty. That is undoubtedly the most serious of the amendments. I should like to have an opportunity of examining further the amendment which deals with what I may call habeas corpus, because the provisions are extremely complicated. At present I gather that one judge, when the writ is returned, could deal with the writ and decide whether or not an individual was being kept in custody. Now, apparently, according to the decision of the President of the High Court, three may do it. Apart from the desirability or undesirability of that, it does undoubtedly further interfere with the chances of the individual going free. It is not merely a verbal amendment; it is not merely a clarification of the present situation. It is a considerable changing of it.

The third amendment to which the Taoiseach referred, I have unfortunately not been able to consider, for the reason that I bought what I call the official text of the Constitution, and, owing to the subtlety of the Taoiseach, a number of the provisions of the Constitution do not appear in it.

Mr. Cosgrave

You paid too much for that.

Professor O'Sullivan

If I had paid the twopence, I would have got them, but I paid unfortunately 1/3. I looked up the debates and could not find any correct reference to them. However, the fact that it could be got in the cheaper edition is a sign of the democratic leanings of the Government. I have, therefore, only the Taoiseach's explanation to rely on. Do I understand that all that is intended here is that any rights under law which transferred civil servants—let us admit that it deals with them—have stand, but that they are not Constitutionally guaranteed? That is what I understood. It does not indicate any desire on the part of the Government to repudiate any arrangements with these people?

Mr. Norton

Of course, it does.

Professor O'Sullivan

I asked the Taoiseach, and he shook his head to indicate that there was no such desire. All he said was that he does not want to give them a Constitutional basis to act upon. When it will become a desire on the part of the Government is another thing, but at present there is no such desire. Anyhow, as time goes on, I put it that the temptation to any Government to interfere with these rights will grow less and less, because comparatively few people indeed will be affected, and they will grow fewer from year to year.

When we heard several months ago that there were amendments to the Constitution and that they numbered 18, 19, 23, 26, or whatever they were, we expected that the Constitution would be really amended. We were very simple because we thought that important blocks in the Constitution would be amended. In the long title of the Bill, we find the words "whereas experience has shown that certain amendments of the Constitution are desirable." I admit that experience showed that certain amendments were desirable—and very desirable. But they are not in this Bill. Apart from this matter of extending the first amendment to the Constitution beyond the indefinite period already provided for, my main objection to the Bill is in respect to what is not in it. Here was an opportunity to introduce important amendments. The Taoiseach may say that that might mean a referendum. When I see the amendment which was passed in September, 1939, and accepted by the President without the necessity for a referendum, I can think of no effective Article of the Constitution that could not be amended without a referendum within the three years. I am not at all criticising the action of the President. I approve of the action of the President in taking that particular view but I draw the inference that there is no effective clause of this Constitution that could not be amended by ordinary legislation within the three years, following the precedent.

Take a matter which may give satisfaction to the Taoiseach—that Government Departments may have found nothing to object to in the Constitution and that the Attorney-General may have found it all right from the legal point of view. I doubt, however, if the country or many people in this House are satisfied with the provisions of the Constitution regarding the Seanad. Why tie yourself down in respect of that matter in the Constitution before you have really any experience? Why tie your hands as regards the number of members in the Seanad? That was a matter that could be amended. Why tie your hands as to the vocational character of a second House when you have a commission sitting on the whole question of vocationalism? Surely, that was a case in which amendment was required much more urgently than it was in respect of the matters with which 22 of the 26 amendments we have before us deal.

Let us take the question of a referendum. Have we any experience of that? So far as I can see, our desire has been to avoid anything of the kind. I remember that, when certain emergency laws of different kinds were being debated in this House, one of the objections to amending the Constitution was that the President might consider that it was a matter which should go to a referendum. Again, I put it to the Taoiseach and to the House that the action taken by the Oireachtas— President, Dáil and Seanad—in September, 1939, shows what was really thought of a referendum. Neither the Dáil nor the Seanad, nor the President suggested that that all-important matter should be put to the people. The Taoiseach has quite obviously in mind—judging by the amendment extending the war period for this country—the grave problems that will affect the country after the war. Yet, he keeps in the Constitution a provision which makes possible the holding up of legislation. Under certain conditions, drastic legislation may be necessary. If legislation is drastic, it may hit certain interests and, with a certain attitude on the part of the Seanad and a fraction of this House, a referendum may be demanded. That is a thing that it would be better to guard against than what is aimed at in extending the period of war for this country. The referendum in most countries has been an obstacle to progressive legislation. As a rule, it rejects changes of legislation. It may be desirable after the war that drastic legislation should not be impeded. Speaking from the theoretical and practical point of view, I think that it is a great mistake to try to combine a Parliamentary system with a mock, direct-democracy system. There is practical objection to putting obstacles in the way of urgent, important, legislative measures when the war ends.

We are still keeping the provision of the Constitution dealing with the election of the President directly by the people. Having solemnly laid down in this House that this was the keystone of the Constitution, the two principal Parties came together later and said: "That keystone is not going to be there any longer so far as the first election of President is concerned." This great, democratic right of the people was swept away, in practice, after a conference. I admit that anybody who fulfilled the necessary conditions could have gone up for election, but nobody was foolish enough to do that. Is it desirable that if, for one reason or another, there were a vacancy in the office of President in the next couple of months—I hope there will not be; nobody would be sorrier than I if there were—we should be plunged into the expense and turmoil of a presidential election?

I am sorry that, from one piece of experience which we know the Taoiseach had, namely, presidential elections and how to deal with them, he did not build on that particular experience. I, therefore, was greatly disappointed when I looked through the Bill to find that the amendments I hoped would be there were not there, and that most of the amendments were, as the Taoiseach said, drafting amendments provided by Departments. I know the tendency of Departments to snow under Ministers—I should say that we have plenty of examples of that at Question Time—but I am sorry to see the author of the Constitution and the Taoiseach himself suffer from that disease. It is not the experience of Departments, or even of the Attorney-General, that ought to decide what amendments of the Constitution were necessary. It is the experience we all have had of the working of the Constitution.

There is one amendment in this Schedule about the wisdom of which I have the gravest doubts. There are one or two others—one other particularly—about which I have some doubts. But, what I am mainly perturbed about is what is not in the Bill. However, I do not intend to say any more about it, except that when we heard of these amendments of the Constitution we thought we were getting something, but we are getting nothing of value.

Mr. Norton

I could not help being astounded at the rather light-hearted manner in which the Taoiseach introduced this extensive series of amendments to the Constitution, and the sparse attendance on the benches in this House to-day is a rather ironic commentary on the importance attached to a Constitution claimed to be the only one that was freely drafted by ourselves. Now we come to institute a whole bunch of amendments to the Constitution, and about one-sixth of the Legislative Assembly think it worth while to listen to the Taoiseach introducing the amendments, or think it worth while to listen to the nature of the amendments proposed in this Constitution.

Mr. Dillon

The Taoiseach has seven stalwarts here.

General Mulcahy

Surely you cannot blame them because of the way in which the Taoiseach presented his whole Constitution to the House and to the country.

Mr. Norton

I suggest to the Taoiseach that the explanation of that niggardly attendance is not the reluctance of members of the various Parties to come into the House to worry themselves with matters of Constitutional importance, but the fact that in his own Party the members are not allowed to take any but his own conception of what a constitution should be. I suggest to the Taoiseach as a member of the Fianna Fáil Party that they have a different method of organising the Constitutional structure of the country. I can imagine the punishment that would be meted out to any daring member of the Party who attempted to stand up even to the height of the Taoiseach's knee in Constitutional matters in relation to himself.

The fact of the matter is that, instead of approaching this whole question of the Constitution in a big, broadminded, and national way and inviting members of all Parties to cooperate in the preparation of a Constitution and its enactment, the Taoiseach came to the House and steam-rolled this Constitution through with the aid of a legion who did not even bother to participate in the discussion but came in when the bells rang to do what the Taoiseach wanted them to do, because of their infallible belief in the Taoiseach's knowledge of the best means of dealing with Constitutional matters. This Constitution was simply steam-rolled through the House by one Party, having at the time a pretty small majority in the House, and I doubt if they were reinforced by the authority of the majority of the votes of the people cast at the previous election. At all events, with the aid of three-member and five-member constituencies, they had a sufficient majority in the house to be able to get their own Constitution through. I thought then, and nothing that has happened since has convinced me to the contrary, that these were unhappy auspices under which to launch the Constitution, and that the precipitate steps then taken by the Taoiseach would in the course of time react seriously on the respect which our people had for the Constitution. As I said, the sparse attendance while we are discussing these 26 amendments to the Constitution is an indication of the little respect that is felt even amongst members of this House for the Constitution which we now have and indicates a lack of interest even as to the manner in which we amend it.

Even now I think the Taoiseach might endeavour to repair some of the damage which was originally done. That damage might be repaired if, recognising that, for good or evil, we now have this Constitution, an all-Party committee examined the operation of that Constitution in the light of the rather fragmentary experience which could be obtained from events during the past few years. With such information as was available, it might then consider whether alterations in the Constitution were desirable and, if so, what type of amendments were desirable. If you had an examination of the Constitution by an all-Party committee of that kind, you might very well get even, at this stage, a rather general adoption of the provisions of the Constitution by all groups in the House. We might, therefore, take it away from the rather curious parentage which it has at present by reason of being steam-rolled through the House by the votes of one Party.

I agree with Deputy O'Sullivan that instead of, at this early stage, hurriedly making amendments of the kind indicated in this Bill, we might have taken a longer period during which to consider the amendments that it was necessary to make. For instance, during the past 18 months at least, the country has been living in the shadow of a war. The Constitution meant nothing to the people. The people have been concerned during the past 18 months with endeavouring to preserve the neutrality of the country and to repair the worst damage which is being caused by the blockaded position of the country. There has been very little thought on the part of any section of the community, practically no thought whatever on the part of this House, and certainly less by people outside the House, as to what blemishes or imperfections have been shown in the Constitution during the past two and a half years. So that, with practically no informed public opinion as to defects in the Constitution, with no public consideration given. to the question of whether the Constitution works smoothly or otherwise, whether it was found to break down in this or that connection, we now proceed to pass through the House a Bill providing for a whole variety of amendments. All that is done, we are told by the Taoiseach, after he got information from certain Departments as to what they thought on the matter.

I do not regard Departments as good judges in a matter of this kind; in fact, I regard them as the worst possible judges. I do not know anybody qualified in the Departments to express an opinion on Constitutions. Departments generally have quite an indifferent regard for the dignity of this House or for the powers of this House. The whole, tendency of the modern Government Department is to get power into its own hands. If it can get power to initiate administrative or executive action by regulation, that is the type of legislation that that particular Department will look for. To suggest that the personnel in Government Departments, with the exception of legal folk in one or two Departments, have any special qualifications to advise on an amendment of the Constitution is really asking the House to swallow too much this evening. I do not believe they have any such qualifications. I do not believe I could count more than two people in all the Departments put together who have any special knowledge on a matter of this kind. I think, if the Taoiseach wanted advice as to the type of Constitution that would work best in conformity with Parliamentary Government, and bearing in mind the necessity for an expeditious form of Parliamentary Government, he might very well have got much better advice from an all-Party committee, in tune with the feelings of the people throughout the country, having a knowledge of the way the Parliamentary machine works and anxious that it should act as a complementary agency to the Executive Council, than he could possibly get by way of consultation with any Government Department.

I would suggest to him now that he might very well reconsider this whole question. Under Article 51 of the Constitution, provision was made whereby it could be amended in this way within three years from the first day on which the President entered on his office. I do not think it would be wholly impossible to amend that Article, even by avoiding a referendum. If paragraph 2 of Article 51 be looked at, I think it will be seen that a way is provided there for the avoidance of a referendum. It seems to me that, with our limited experience of the present Constitution, covering about 1½ of 2½ years, we might very well, at this stage, extend the three-year period so as to make it possible for us to review the operations of the Constitution over a longer period; over a period not so brimful of the extraneous kind of excitement that we have had for the past 18 months. Even now, the Taoiseach might, I think, look at Article 51 with a view to taking power under it to amend the Constitution by legislation over a longer period than three years. That longer period would, possibly, carry us into more tranquil times and calmer waters.

With that longer experience of the Constitution, and the promotion of a national outlook in regard to it among all Parties, it might then be possible to make in the Constitution much more effective and commendable amendments than can be made by the method provided under the measure before us to-day. For instance, if the Taoiseach were anxious to avail of the three years within which to cut out some of the dead timber in the Constitution, prematurely dead timber, or to take out some of the spanners that are acting as sand in the machinery he might, for instance, give some little attention to the position of the President in relation to the Constitution. When the Constitution was going through the House, I expressed doubts as to the desirability of having the President elected in the manner provided for in Article 12. We set off there most gallantly and heroically to declare that the President shall be elected by the direct vote of the people. That seems to be all right to anybody carried away by phrases, or to anyone who likes superficial democracy of that variety, but it will not work and it has not worked. The Government and the Taoiseach know perfectly well that it was only by the exercise of the most frantic efforts on their part that a contest was avoided when we came to elect the first President. We set off, under Article 12 of the Constitution, to make the President the plaything of any political Party that will adopt a potential President. The scheme for electing a President provides that the candidate will, in fact, have to be the nominee of a political Party.

The Taoiseach

Not necessarily.

Mr. Norton

Not necessarily, but almost certainly. A political Party decides to nominate a candidate for the Presidency. He has got to be 35 years of age, to get the nomination of not less than 20 persons who are members of one of the Houses of the Oireachtas, and he must be nominated by not less than four administrative councils as defined by law. We then take the President out on the hustings. We take him up and down the country addressing meetings—public meetings in the market squares, fair meetings, meetings in town halls and in urban council halls. We take him from Donegal to Kerry, around the south coast and up the east coast and give him a canter over the Midlands, and after that we bring him back to Dublin for the final rally. Having regard to what our experience of elections in this country has been, one could imagine the kind of things that would be imputed to that poor man by the time he had done a tour of the country. He would come back to Dublin for his final rally and the election would take place. He would be one of three candidates. Probably, the other two would be as much mud-stained after that political campaign as the one who ultimately succeeds in getting elected. At any rate, they would all get back and finish up the election in their respective strongholds. On the day appointed the people go to the poll and elect the President after having, during the best part of the preceding month, spent their time abusing him—the man they disliked.

After all that kind of schemozzle you get a President, someone who has got a majority. You then instal him in the Phænix Park and say to him "You are the President." This is a person who has been abused by a substantial proportion of the electorate during the previous four or six weeks or two months, a person who has probably got a bare majority of the votes, and a person who has probably been derided by two of the three political Parties in the State. With all that kind of undesirable embroidery on him, he takes up office as President of Ireland, having made himself an enemy of two of the Parties in the State and a political enemy of a substantial majority of the people. Then we expect him to carry out the functions which are provided for the President in the Constitution. It could not be done, and it cannot be done. You cannot pet the respect for a non-political President elected by methods of that kind that you can get for a President elected in other ways.

What we have done in the Constitution is: we have provided the American method of electing a President where there is a nation-wide campaign. The President there is the nominee of one Party and comes back to the White House as such. That is all right. He is the head of that political Party. If our President were the head of the reigning political Party, well and good, go on and elect him by the direct vote of the people. But what we have done in this Constitution is—we have made our President a kind of hybrid President. We have given him the American system of election, and the normal pre-war functions of the French President.

General Mulcahy

We have given him as impartial a job as the Ceann Comhairle.

Mr. Norton

We are even concerned with protecting the Ceann Comhairle from the inconvenience of an election once we set him up in a certain position here, but a potential President can run the gauntlet of an election in this country, about as stormy a place as he could contest an election in. We permit that kind of system to continue while amending the Constitution, although when we first tried it out it was the one piece of the Constitution that broke down, and broke down immediately, and of course it will break down again. Deputy O'Sullivan conjured up the possibility—with him I hope it will be a remote possibility—that we might conceivably find it necessary to fill a vacancy in the Presidential office say within three months, or within six months or within 12 months. The Constitution says that the President so elected shall be elected by direct vote of the people. Does anybody want to elect a President within the next three months or six months or 12 months by direct vote of the people? Can anybody contemplate what is going to happen if he has to be so elected? The Government will probably produce some candidate, and run him in the country, and probably because of the fact that they have produced him he will be opposed by candidates of other Parties, and in the circumstances through which we are now passing it is apparently calmly contemplated that we should have an election here by a direct vote of the people. I think the whole thing is a mistake; I think it is short-sighted. I think it is a variety of democracy that will not work, and, because it will not work, is no use. I think it would be far better if we were to devise some scheme by which the President would be elected by a kind of electoral college representative of the Dáil and Seanad, with perhaps, if it is found desirable, some additional representative persons from outside the House. At all events, the one thing we ought to do is to get away from the sheer nonsense of electing a President by the direct vote of the people. The one way in which we will surely get a political President, the creature of the Party in power, is by having that President made the nominee of a political Party, hawked around the country by that political Party and shoved into office by the same political Party. I think that is a mistake. The Taoiseach should have been courageous enough to introduce an amendment to Article 12 of the Constitution, recognising that that scheme has not worked, that it will not work, and that there will be the same panic-stricken efforts next time to get agreement on the nomination of a particular person as President, in complete defiance of and for the purpose of getting behind the provisions of Article 12 of the Constitution.

We come now to the amendment to Article 56 of the Constitution. Section 5 of Article 56, which it is proposed to amend says:—

"Nothing in this Constitution shall prejudice or affect the terms, conditions, remuneration or tenure of any person who was in any Governmental employment immediately prior to the coming into operation of this Constitution".

When this Constitution was being discussed by the Dáil advertence was had to the fact that, in Articles 77 and 78 of the old Constitution and in the Transferred Officers Compensation Act, 1929, certain Constitutional and statutory guarantees were given to transferred officers, and the point was made when we were discussing Article 56 of the Draft Constitution that at all events we should do nothing in Article 56 to wipe out those Constitutional guarantees contained in Articles 77 and 78 and the statutory guarantee in the Transferred Officers Compensation Act, 1929. Arising out of consideration of that kind, Section 5 was put into the present Article 56 of the Constitution, saying:—"Well, nothing in this Constitution shall prejudice whatever rights you previously had".

An Leas-Cheann Comhairle

Is the Deputy quoting from Article 56?

Mr. Norton

I am quoting from subsection (5) of Article 56 of the Constitution.

An Leas-Cheann Comhairle

There are only 51 Articles in the Constitution.

Mr. Cosgrave

You want to get the twopenny edition; you will get them in that.

Mr. Norton

The one I have is approved by the Dáil and costs 1/6. It goes on to say that there are certain transitory provisions. What I want to say is that the Taoiseach is putting in an amendment——

Mr. Dillon

Has the Constitution 51 or 56 Articles? Nobody seems to know.

The Taoiseach

It is stated in the Constitution that when certain Articles have been spent they are not to be published in future editions of the Constitution as such, but those Articles have the force of law none the less. We do not have to republish each Act of Parliament.

Mr. Norton

Article 56 still survives.

Mr. Dillon

My copy has 51 Articles.

The Taoiseach

If you want to get the transitory Articles you have to get an early edition, before they were spent. They are spent as far as the Constitution is concerned.

Mr. Norton

I take it that the amendment here on pages 22 and 23 sets out to amend Article 56. Would the Taoiseach agree with that?

The Taoiseach

That is right, because it has the force of law.

General Mulcahy

It is a Bill to amend the Constitution.

Mr. Dillon

It is like the Cheshire cat.

Mr. Norton

This Article 56 which has the force of law, and by virtue of that is contained in this document described as "Draft Constitution Approved by Dáil Eireann," is being amended under reference 28 in the present Bill, and the degree of amendment is set out on pages 22 and 23 of the green Bill which has been circulated to Deputies. Now, the purpose of Article 56 as it at present stands is to say to transferred officers "whatever rights you had under Articles 77 and 78 of the old Constitution, and whatever statutory rights you had under the Transferred Officers Compensation Act, 1929, still exist," because we provided definitely in subsection (5) of Article 56 that—

"nothing in this Constitution shall prejudice or affect the terms, conditions, remuneration or tenure of any person who was in any Governmental employment immediately prior to the coming into operation of this Constitution."

That section of that Article clearly left the position as it was. In other words, so long as officers previously had Constitutional rights or statutory rights the position was not disturbed by the enactment of that Article. That position was then clearly accepted by the Government. Notwithstanding subsection (5) of Article 56, the Taoiseach comes along now to add—

"Nothing in this Article shall operate to invalidate or restrict any legislation whatsoever which has been enacted or may be enacted hereafter applying to or prejudicing or affecting all or any of the matters contained in the next preceding subsection."

Although Section 5 of Article 56 provides that nothing in the Constitution shall affect or prejudice the rights of officers as compared with the rights which they previously had, we have an amendment now to the effect that, notwithstanding that apparent safeguard, nothing in that safeguard shall prevent anything being done in the future which will in fact completely obliterate any rights which officers have or had under Section 56 or under any previous Constitutional or statutory guarantee.

I wonder what induced the Taoiseach to put in this amendment? The Taoiseach knows that up to the present, notwithstanding the provisions of Section 56 (5), he has, in fact, violated the rights of transferred officers. Transferred officers, under Articles 77 and 78 of the previous Constitution, and the 1929 Compensation Act, were entitled to have their remuneration calculated periodically by reference to the cost-of-living index figure. There was to be a review of the remuneration upwards or downwards in accordance with the fluctuations in the cost-of-living figure, and for the best part of 17 years they had the experience of seeing that remuneration fall constantly under the downward tendency of the cost-of-living index figure; but, due to war conditions, the figure began to rise and the Government, which had pocketed all the advantages of the agreement with the transferred officers to have the remuneration adjusted in that way, suddenly decided that it would unilaterally repudiate the agreement to which it set its signature and by which it was morally and legally bound. Having got all the advantages, it declined to put up with any of the disadvantages of a rising figure.

The result of that unprecedented and dishonourable action—that is the only way I can describe it—on the part of the Government, an action which has been made applicable to people with less than £1 a week and to thousands with less than £2 a week, is that these people have felt it necessary to go to the courts to try to have their Constitutional rights vindicated. A case has been entered for hearing in the courts in which these officers are seeking a declaration that they are entitled to have their rights construed with reference to the Constitutional position as set out in the present Constitution, in Article 77 and 78 of the previous Constitution and in the 1929 Compensation Act. The Taoiseach is apparently now concerned that they have a very strong case, in view of the provisions of Article 56, and he is seeking to insert an amendment, the effect of which will be to legalise any action which may be taken by him, legislatively or under the Emergency Powers Act, to invalidate the guarantees given in Section 56.

This amendment by the Taoiseach is clearly an attempt to get behind the courts. It is clearly an effort to prejudice the position of the case now before the courts and clearly an effort to strengthen the Government's hand when it comes before the courts. Not satisfied, apparently, with committing the act of which they have been guilty, now, when they are brought before their own court to have an opinion pronounced there upon the Constitutionality of their actions, they will not even be prepared to accept the judgment of the court. In order to make sure that the judgment suits the Government, we get an amendment such as the one proposed to Section 56. The haste displayed here is positively indecent. It shows that the Government is not prepared to allow the courts to adjudicate on a matter of this kind. Instead, the Government want to create, in connection with the Constitution, an atmosphere of doubt so far as the officers are concerned and an assurance that those officers have not the rights which they are asking the court to decide they have. That is a matter we can deal with more fully on the Committee Stage.

I think the Taoiseach ought not to have introduced an amendment of this kind. It would be better to have waited until we had more experience of the working of the Constitution and then an effort could be made to try to have the Constitution amended as a result of a detailed consideration of its provisions by an all-party committee of the House.

Mr. Dillon

There are certain matters relating to this Bill which may properly be dealt with on the Second Stage. Few of us will forget the Taoiseach's purple passage when he arrived in the House with a copy of the original Constitution and described it as a thing of rags and patches. The rafters rang with Fianna Fáil cheers at that tour de force. But to-day, after a comparatively short time, this workbag for a patchwork quilt has been presented to us. Rags and patches! Whatever amendments were made in the previous Constitution had at least some substance and purpose in them. Here are all the changes in a patchwork quilt produced as a great instrument of liberation. Rags and patches! These words should ring in the Taoiseach's ears and, if he wants to use one of the most capacious receptacles for that commodity, I can recommend him to the amending Bill of his own Constitution, which was described as the greatest instrument of liberty and democracy that this State had ever seen.

There have been 28 amendments in the light of 18 months' experience. I wonder, at the end of another 18 months, will the Taoiseach be longing to apply 28 more rags and patches to the patchwork quilt which he will then have placed us in possession of? If he does, will he consider that an evidence of his own instability of character? It has been emphasised, since this debate began, that this document and the Constitution that it is designed to amend are the children of the Taoiseach's brain, his own unaided begetting. In that connection I always turn back, when I am obliged to attempt the task of probing the Taoiseach's purpose, to a manual of which I know him to be a close and ardent student—I turn back to a book written by a great mediaeval politician called Niccolo Machiavelli, in which I read the advice he gave to Prime Ministers of his day, and I must ask the indulgence of the House to trespass on their time for a few moments while I remind them of the advice that Niccolo Machiavelli gave to such men. A Prime Minister, therefore,

"being compelled knowingly to adopt the beast, ought to choose the fox and the lion; because the lion cannot defend himself against snares and the fox cannot defend himself against wolves. Therefore, it is necessary to be a fox to discover the snares and a lion to terrify the wolves. Those who rely simply on the lion do not understand what they are about. Therefore a wise lord cannot, nor ought he to, keep faith when such observance may be turned against him, and when the reasons that caused him to pledge it exist no longer. If men were entirely good this precept would not hold, but because they are bad, and will not keep faith with you, you too are not bound to observe it with them. Nor will there ever be wanting to a prince legitimate reasons to excuse this non-observance. Of this endless modern examples could be given, showing how many treaties and engagements have been made void and of no effect through the faithlessness of princes; and he who has known best how to employ the fox has succeeded test.

"But it is necessary to know well how to disguise this characteristic——

I invite Deputies to pay special attention to this paragraph.

—and to be a great pretender and dissembler, and men are so simple——

Especially in the Fianna Fáil Party.

—and so subject to present necessities that he who seeks to deceive will always find someone who will allow himself to be deceived. One recent example I cannot pass over in silence.

And I may say in parenthesis that I have no desire to compare the Prime Minister with Alexander the Sixth.

"Alexander the Sixth did nothing else but deceive men, nor ever thought of doing otherwise, and he always found victims; for there never was a man who had greater power in asserting, or who with greater oaths would affirm a thing, yet would observe it less; nevertheless his deceits always succeeded according to his wishes, because he well understood this side of mankind.

"Therefore it is unnecessary for a prince to have all the good qualities I have enumerated, but it is very necessary to appear to have them. And I shall dare to say this also, that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite.

"And you have to understand this, that a prince, especially a new one, cannot observe all those things far which men are esteemed, being often forced, in order to maintain the State, to act contrary to fidelity, friendship, humanity and religion. Therefore, it is necessary for him to have a mind ready to turn itself according as the winds and variations of fortune force it, yet, as I have said above, not to diverge from the good if he can avoid doing so, but, if compelled, then to know how to set about it.

"For this reason a prince ought to take care that he never lets anything slip from his lips that is not replete with the above-named five qualities, that he may appear to him who sees and hears him altogether merciful, faithful, humane, upright and religious. There is nothing more necessary to appear to have than this last quality, inasmuch as men judge generally more by the eye than by the hand, because it belongs to everybody to see you, to few to come in touch with you. Everyone sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the State to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result.

"For that reason, let a prince have the credit of conquering and holding his State, the means will always be considered honest, and he will be praised by everybody; because the vulgar are always taken by what a thing seems to be and by what comes of it; and in the world there are only the vulgar, for the few find a place there only when the many have no ground to rest on."

An Leas-Cheann Comhairle

From what is the Deputy quoting?

Mr. Dillon

I am quoting from The Prince by Niccolo Machiavelli. I do not think the Taoiseach would have to ask me that question. He is too familiar with the passage.

The Taoiseach

We nearly all have it off by heart, having heard it quoted so often.

Mr. Dillon

It was not from me that the Prime Minister first heard it. He was recommending it to his friends a good while before we had the pleasure of making one another's acquaintance, and I must say that few men in Europe have put it to better use. He is to-day one of the astutest politicians in Europe.

The Taoiseach

We might begin to believe that if it were repeated often enough.

Mr. Dillon

It is true, and all the Constitution-mongering that goes on here is the best of politics, because, at the very moment when some unfortunate creature down the country is beginning to to say what she really thinks of the Prime Minister, somebody says: "Whisht, you should not talk that way about him. Did you not see the grand Constitution he is after writing, telling us all to reverence the Lord God Almighty and to be good Catholics, and everything else? He is a great man". He deliberately acquires that reputation by the Constitution-mongering that goes on from time to time here, and, in due course, if that reputation requires further reinforcement, we shall have a Constitution amendment propounded to the country by way of referendum, and he will be stalking through the country, like a modern prototype of Saint Paul, turning his back on all small matters and concerning himself before the people only with the loftiest considerations of individual liberty and the Constitutional rights of the sovereign Irish people, whereas we poor miserable politicians, tailing after him, will be talking about pigs and Indian-meal.

It is right and prudent that this House should recognise that aspect of the present proposal because that element enters into this business in no small measure. Here we have the scholar Taoiseach, surrounded and harassed by smaller men, and he has the blessed assurance that not 5 per cent. of the citizens of this country have ever, or will ever, peruse this draft Bill, or know, or ever will know, what is in it, and he has the further assurance that not 10 per cent. of our people give two hoots about what is or is not in it. But we, who are in this House, and know, from day to day and hour to hour, the dangers with which our country is confronted, and the measures requisite to meet and overcome them, cannot forbear to concentrate our minds on this question: if the crisis for which we were called upon to legislate 12 months ago had supervened 12 months after this Constitution became incapable of amendment, except by referendum, what would have happened this country? We might well have had chaos and anarchy before the requisite steps to keep the ship of State upon an even keel could have been taken, and, with that warning clearly before us, we announce that whereas experience has shown that certain amendments of the Constitution are necessary, we are going to abolish the only machinery whereby that Constitution can in future be expeditiously amended.

The Taoiseach says to this House:

"The reason I still stand for that is that the experience which I, the Taoiseach, have had has satisfied me that these are all the amendments necessary and no reasonable posterity could differ from that conclusion, any more than any loyal member of the Fianna Fáil Party might be expected to differ from it to-day."

Such an attitude of mind, in my judgment, amounts to monomania. Here is the Taoiseach coming to the House and saying:

"After the 18 months' experience of my time, I have found 18 or 20 amendments necessary, some of which I know require to be made over-night, some of which I took the responsibility of telling Dáil Eireann had to be given within 24 hours if the State was to be saved; but I say to posterity that no such circumstance can ever conceivably arise again, and I propose to bar and bolt that door so that if any successor of mine, as Prime Minister of this country, finds himself confronted with problems different from mine but equally urgent, he must suffer destruction and the sight of his country's destruction because I rendered the legislative machinery of this country so rigid in my day that it was beyond his power to take the steps requisite to safeguard the State."

Conceive the situation that would have arisen if my leader, Deputy Cosgrave, when he was President of this country, had retained in the Constitution which he was responsible for recommending to the country the proviso that amendments could not have been made except by referendum, and that Constitution was in operation when the crisis came upon us last October 12 months. According to the words of the present Taoiseach, had that been so, he could not have taken responsibility for maintaining the State in safety for an hour. Through the foresight and the prescience of Deputy Cosgrave, that provision was removed from the old Constitution—admittedly, over the frantic protests of the present Taoiseach. The wisdom and foresight of the men who took that provision out were amply vindicated by the events through which we passed.

Some Deputies may think that the Taoiseach had in mind, when recommending the Constitution of 1939 to this House, that crises lay ahead which might, conceivably, require its rapid amendment. That is not true. The Taoiseach believed, when passing this new Constitution through the House, that he had made ample provision to meet all emergencies which could arise and that, by taking certain steps in conformity with the text of that Constitution, he could provide himself with all the powers requisite to meet any threat to the country. But, when the time came, he found that the powers he had fashioned were insufficient and that nothing but an amendment of the Constitution would meet the situation with which he was confronted. I think that the Taoiseach would be well advised to consider further the question of whether this rigidity should be preserved in the Constitution. Even if he cannot bring himself in these tumultuous times to recommend a permanent decision on that matter to the people, he would be well advised to ask the people for a rest-period during which a final decision might be taken and meanwhile extend the operation of the section which requires a referendum after a given day, so that in the interval thus purchased all parties in the State might combine to take counsel with a view to determining whether the extra safeguard provided by that Article is worth the added danger which our own experience teaches is inherent in such a plan.

I appeal not only to our own experience but to the experience of the United States of America. In the U.S.A., there is a provision that the Constitution cannot be altered except as the result of the consent of a very considerable number of the constituent States of the Federation. What has been the result of that? On every modern development of social reform in the U.S.A., constitutional crises of the first magnitude have arisen. There is fresh in the memory of us all the strange expedient which the Roosevelt administration resorted to when they introduced the Supreme Court Bill, because the Constitution was incapable of amendment except by a long, tedious procedure. They put into the court men whose views were well known on the interpretation of certain sections of the Constitution which the then administration desired to amend and were unable to do. The administration was quite determined to have the interpretation of these sections coincide with their view rather than the view of the Supreme Court, as expressed on different occasions. Only two weeks ago a decision was taken by the Supeme Court reversing itself and making child-labour illegal in the United States. It is hard for the people of this country to realise that, in certain of the States of the United States Federation, conditions relating to child-labour were much the same as those that obtained in industrial England in the first half of the nineteenth century and that it was impossible to change them. The referendum made change impossible. The only means by which they could be changed was by carrying on a struggle with the Supreme Court which went on from 1914 to 1941. Only a few days ago has a decision been secured from the Supreme Court interpreting the Constitution to mean that it was within the power of the Federal Government of the United States to make child-labour illegal in inter-State commerce —a thing which was effected in the internal economy of Great Britain 70 years ago.

Is it desired that the Legislature of this country should, in respect of matters which could arise here, be so supremely hamstrung as that? What useful purpose is served? If this country were cursed by a Government which desired to oppress a minority, would a bit of paper hold it up? Is there any country where a minority has been protected against a really ruthless majority by a paper Constitution? What do dictators care about written Constitutions under which they take power? The Chancellor of the German Reich, Herr Hitler, was most scrupulous in observance of the constitution of the Weimar Republic when he entered into the Chancellorship. Has he protected the Socialists and Catholics of Germany? Has Marshal Petain abided by the constitution of the Third Republic? Did Stalin carefully consider the Duma constitution of Russia? Has any minority which was really confronted with a resolute determination on the part of the majority to oppress and grind them down secured safe refuge in a paper Constitution? That does not argue—although I am no lover of Constitutions per se—that it may not be useful to have a written statement of one's rights from day to day so that the individual citizen will have Constitutional safeguards against the executive of the day, with a general understanding amongst all parties that there will be ready submission to the text of the Constitution. But if that be its sole purpose, what objection can there possibly be to leaving it in the hands of the Legislature, which can readily be called together, to make amendments to the Constitution if such amendments are promptly needed for the preservation of the State? All this abracadabra about a referendum is designed to prevent an unscrupulous executive from taking away the fundamental rights of a minority. In my submission, no unscrupulous minority in any country has been so deterred, though, many a time and oft, an individual citizen has invoked the fundamental law to protect himself from bureaucracy or from a Minister. When the court declared the fundamental law to be on the side of the citizen, then it was the wish of all parties in the State to compel the executive or the bureaucracy to mend its hand. For that reason, some argument can be made for the written Constitution but I do not think it is a very coercive argument. But it can be made. In my submission, when the rag-bag has been produced, the rag-bag of 26 patches, the Taoiseach in forbearing to add another tatter to the rag-bag's collection, to put in one useful piece of cloth amongst the fustian which would deliver us from this rigidity which may well threaten the State, has not shown on this particular occasion any, of that remarkable political sagacity with which I credited him.

The last thing I want to say on this Constitution is this. I think the Second Stage of a Constitution (Amendment) Bill is the appropriate stage on which to say that too many people in this country and in many other countries in the world to-day are allowing themselves to be dazzled by the proposition that a Constitution written upon paper, or a new order evolved by some individual's mind, is going to provide a charter of freedom and justice for all men under which the world is to blossom and prosper and is going to create a world in which all men will receive their own. No greater illusion could bewilder the minds of men. The fact is that it is not the system of Government that matters; it is the men who operate it. It does not matter what order you evolve, or what Constitution you write, if those who are charged with the task of administering it do not approach that task with the reverence and sense of duty that that responsibility should imply, then the Constitution might as well never have been written or the order never evolved.

It is not Constitutions and orders that require amendment in our day, but rather the hearts of men. There is no use in the legislators of this State, who are responsible for the welfare of our people, shuffling off that responsibility to any written document or any political concept. The evils from which our people suffer and the evils from which the peoples of the world suffer to-day are not due to Constitutions or orders. They are due to the failure of those who operate those Constitutions and those orders, old or new, to operate them in accordance with the sovereign law of God. That is the plain fact. We are, all too frequently, thumping our craws, and protesting our devotion to Christian principles. If public men in this and other countries would practise Christian principles and would adopt as their slogan, justice and charity, instead of liberté, egalite and fraternité, Deutschland uber Alles, or, “My country, may she be always right, but my country right or wrong”, 99 per cent. of the world's problems would be solved. But the truth of the matter is that 99.9 of us who should face that responsibility, turn our backs upon it and soothe our consciences by writing documents analogous to this Constitution and by piously amending them from time to time, hoping that by the application of these rags and patches to the inadequate hyprocrisy enshrined in Bunreacht na hEireann we will succeed in getting paper and print to do for us what no one but ourselves can do.

To be perfectly frank, I do not give two fiddle-dee-dee's what amendments we make in the Constitution. I do not think it matters a damn, except that we should make it as amendable as it is possible to make it. There is only one thing in that Constitution that really matters and that is bad. That is its rigidity. Remove that element from it and I do not give a fiddle-dee-dee what you do to it. I do not want to appear to preach, and I do not want to exclude myself for one moment from the great minority; but I do deliberately say, and it ought to be said on the Second Reading of this Bill, that changing Constitutions or orders will avail the people nothing. Change is necessary, but it is a change in the hearts of men. We in this country should and could give an example to the world that that change could, in practice, be made. I see very little evidence of it on the hustings at the present time. I only hope that some day may dawn when, instead of advocating it, all of us in this House may salute its advent.

Mr. Esmonde

I have in my hands a copy of the Constitution which has been referred to so often in this debate. I was one of those who voted against that Constitution along with a very considerable minority of the people of the country. But, as a member of this House, I must treat this document with very great respect, as it does represent the Constitution of our country. As a member of this House, I think there is a duty imposed on us to interpret that document by our actions here, not only in the letter but also in the spirit. I believe that some of the amendments which are sought to be made by this Bill are entirely contrary to the bargain that the people made with themselves when they enacted this Constitution. I have only to refer to two sentences in the preamble:—

"We, the people of Éire, do hereby adopt and enact and give to ourselves this Constitution.

"The supreme power in this country is derived from the people of this country and put in legal form in this document."

It is only fair to assume, though I do not think it actually was so, for the purpose of discussion here and of finding out what our duties are, that those people who did enact this Constitution knew what they were about and knew what it meant. Article 51, which is referred to in the preamble to this Bill, gives both Houses the right, without seeking any further mandate from the people, within a period of three years to amend the Constitution. I submit that is a very reasonable clause to be put there for one purpose and for one purpose only. It is natural to assume that, in a trial of a document of this kind, there would arise the necessity for certain small adjustments here and there. The Constitution would want a shake down during its first few years of working. Therefore, when the people were asked to tie their hands and to tie the hands of this Assembly I submit that, under Article 51, it was done on the basis that there would have to be re-drafting of sections here and there, the reconciling of the two languages in which the Constitution is written, and so forth. In so far as a number of these amendments seek to do that, there is-no breach of faith with the people of the country, but, in other respects, and particularly in respect to two of the matters which the Taoiseach referred to as going beyond ordinary drafting amendments, I do think there is a breach of faith.

The first point I would refer to is the amendment to Article 28. Other speakers adverted to what would have happened if the European war had not broken out for a period of more than three years after the coming into operation of the Constitution. In September, 1939, as a result of the crisis which then arose, and in the emergency which existed here as a result of the outbreak of the European war, a war likely to last for some time, Constitution (Amendment) No. 1 Act was passed, not for the primary reason of amending the Constitution, of giving any greater rights or providing any greater safeguards than existed, but so that this House could take away from itself and give to officials in the employment of the Government the right to legislate—the right which we were sent here to discharge. That was done so that the Emergency Powers Act could be passed, and so that hasty legislation, by means of emergency orders, could be passed. We see these orders appear from day to day. It enabled things to be done which, in normal circumstances, would, in a great many respects, violate the principles of this Constitution. That was all very well but, at that time, I think it was straining the meaning which one would attach to the words "time of war" in Article 28. The amendment sought in amendment No. 21 in the Schedule is an amendment of words to be added to words that have already been put in by the Constitution (Amendment) No. 1 Act. In that Act the people declared that all the laws of this country would be invalid if passed in a certain manner, except during a time of war, revolution, and so forth. It was for the purpose of meeting the situation that existed at the time that the Constitution (Amendment) No. 1 Act was passed. We were asked to strain the meaning of Article 28 by reading into "time of war" to include.

"... a time when there is taking place an armed conflict in which the State is not a participant, but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State".

That was passed by this House. I submit it was something that was never contemplated in the spirit of the Constitution, or in Article 28 that was amended. Now, that is the thin end of the wedge. As a result of the passing of Constitution (Amendment) No. 1 Act matters involving property, liberty and other very important functions are sent out in legal form from an office desk by some official in the employment of one of the Departments of State. That is the effect of the powers given by the Constitution (Amendment) No. 1 Act, and by the Emergency Powers Act of 1939, but it does not stop there, because this Bill which we are discussing now places the time in which civil servants can still govern this country beyond the period when the war would have come to an end. I would submit that some very strong reasons should be advanced by the Taoiseach before he asks the House to grant those powers, because what I have said is the effect of them—to give the right to issue those orders that we receive by post almost every morning after the European war is over. If it is necessary that those powers should be retained by the Executive, and that those functions should be taken away from the Legislature for a period beyond the duration of the war, I suggest that we should not abrogate our rights but should fix some limit of time.

I think that some time limit should be fixed, because, as the Constitution will read when this Bill is passed, as undoubtedly it will be passed, it would be open to a Government to carry on for ever and ever by order unless a resolution, such as is contemplated here, be passed. The second matter I would like to have some information on is that in regard to habeas corpus.

Notice taken that 20 Deputies were not present; House counted, and 20 Deputies being present,

Mr. Esmonde

I was about to deal with the amendment to Article 40 of the Constitution contained in reference No. 25 in the Schedule to the Bill. The section which it is proposed to amend, sub-section (2) of Section 4, Article 40, says:—

"Upon complaint being made by or on behalf of any person that he is being unlawfully detained, the High Court and any and every judge thereof ...."

In the new sub-section proposed to be substituted, the words "any and every judge" do not appear. I take it the intention of the Taoiseach—or perhaps I am misinterpreting the position—is that the right to go to one judge only will exist to a person who is unlawfully detained, and that, having had a conditional order refused by one judge, he cannot then proceed to another judge to obtain such conditional order. That right apparently existed before by use of the words "any and every judge." Those words are changed now to the words "to the High Court or any judge thereof." I do not know whether or not there is any intention behind that change, but I think it is a matter which should be looked into.

When the Constitution was being amended for the last time by this House, I think there was a number of matters that could have been included and were properly the subject matter for amendment. There is one which I should like to mention, and possibly I will be alone in my views on this; certainly I will find myself in violent conflict with the leader of the Labour Party. I think a situation should never arise again when the people would be deprived of their right to elect the head of the State, the President. It has been mentioned here in debate that it is hoped that in future there would never be an election for President, and that there would always be some accommodation by all Parties with regard to an agreed nominee. I think that is very bad. I think it is wrong; I think it is taking away from the people a right which they understood they had, and creating the impression that the members of this House will come together and agree behind the people's backs to deprive them of the right to choose the head of the State. I think something should be included in the Constitution, even at this late stage, to prevent a similar situation arising again as arose at the election of the first President.

Mr. Linehan

I can imagine, in happier days pre-war and possibly in happier days post war, this House spending, as it has already spent, two and a quarter hours discussing amendments to the Constitution. As one of my reasons for voting against the Second Stage of this Bill, I propose to say first of all that it is sheer waste of time in this House to discuss this matter at present when there are hundreds of other more urgent things to be dealt with. I believe it is waste of time to discuss this Bill now. At the last sitting of this House there was a motion before us dealing with a matter that, under the Constitution as it exists, affected thousands of people and their families, and that put a number of people and a number of children in this country on to the very verge of starvation, a period employment order which was enforced under the existing Constitution, and we got three hours to discuss it. There will be more than three hours spent in discussing this Bill.

The Taoiseach

There will, from the Deputy's side, I am quite sure.

Mr. Linehan

If that is the way the Taoiseach feels about it, will he get up now and withdraw the Bill, and let us discuss the things that ought to ibe discussed in this House? On this Order Paper there are at least five motions dealing with tillage, dealing with foot-and-mouth disease, and dealing with supplies. When the orders for the day were being given, and the Taoiseach was asked whether time would be provided for those motions, he was practically sarcastic in the manner in which he refused the movers of those motions Government time or even Private Members' time in which to discuss them. For once in his life the Taoiseach made a serious speech; he made it in Limerick last Saturday. If that speech in Limerick had any good effect in the country, if it brought home to the country the serious position in which this State is now, that good is completely gone when the Parliament of this country spends two and a quarter hours and will probably spend another couple of hours discussing futile amendments to the Constitution. I do not intend to waste the time of the House for more than five minutes. I would be quite satisfied to discuss amendments to the Constitution from any point of view at any other time, but, at the present time, when the people of this country are hungry and do not know where they will get their next meal, when the farmers of the country are scared and frightened owing to the mishandling by the Government of the tillage situation, owing to the mishandling by the Government of the seeds and manure situation, and owing to the mishandling by the Government of the foot-and-mouth situation, I think it is scandalous waste of time in this House and making a laughing stock of the Parliament of this country that we should be discussing 28 amendments to the Constitution, most of which are being brought in because the Irish in the original Constitution was not correctly phrased. I do not want to waste the time of the House now, because I believe it is being scandalously wasted. As far as I am concerned, and on behalf of my constituents, I resent the time of the House being wasted on fiddling with Constitutions when the people of this country are being driven to desperation every hour of the day because the Taoiseach and every Minister under him are scandalously mishandling the situation. If the Taoiseach, in regard to the really serious matters facing the country at the present time, took one-tenth of the interest which he takes in fiddling with Constitutions, I would be glad to give him time to deal with this matter. If the Taoiseach says we are wasting time here, will he get up and withdraw this Bill now, and not waste any more time on it?

Mr. Costello

I gather that there are two points of view on whether or not this Bill should be properly and adequately discussed. My colleague, Deputy Linehan, has just given utterance to one point of view, for which there is much to be said. In the interruption which the Prime Minister made a few minutes ago, he gave utterance to another point of view, because he rather sarcastically said there probably would be more than three hours occupied on this side of the House. The only meaning of that was that we should not discuss this matter at all while Deputy Linehan thinks that there are other matters more vital to the interests of the people which should be discussed. The Prime Minister rather suggested to me that he takes the attitude in regard to this amendment to the Constitution which he took on the original discussion of the Constitution when it was going through this House. It could be summed up in one statement: whatever he said was to go, and whatever his views on the Constitution were they were to be accepted irrespective of discussion.

I do not intend to occupy the time of the House to any great extent. This Bill is largely a Bill dealing with detail. There are one or two fundamental changes which it proposes to make. I approach the consideration even of those fundamental changes with no degree whatever of enthusiasm. In saying that, I think I am reflecting the view of the people in general towards the Constitution which has now been in existence for about three years. The people have almost completely forgotten that there is such a thing as a Constitution. Perhaps the only knowledge they will have that there is a Constitution in the country is the fact that we are going to amend it here in this House. As I said, there are one or two fundamental changes which are proposed to be made under this Bill. The chief one has been referred to by Deputy Esmonde, that is the change in reference to the clause dealing with the right of the citizen to writ of habeas corpus in the High Court.

It is proposed, as I understand the amendment to Article 40 of the Constitution, to take away what has been in this country since the establishment of the State in 1922, the fundamental right of the citizen to apply to any and every judge of the High Court for a writ of habeas corpus which will give him the right to have his detention investigated by any and every judge of the High Court. That right was enshrined in the Constitution of 1922. It was carried forward in the amendment of the Constitution which was introduced a couple of years ago and which is now the Constitution of this State. Any person who claimed that he was unlawfully being detained had the right to apply to any judge of the High Court for a writ of habeas corpus. He had the right, not merely to apply to any judge of the High Court, but to select the particular judge to whom he would make his application. That right, which was embodied in the original Constitution of this State, was really taken over from the law as it stood before the coming into being of this State.

It was even in the Black and Tan times the right of the subject to approach any judge of the High Court and apply for a writ of habeas corpus so that his detention could be inquired into and the judge would determine whether or not he was being unlawfully detained. He had the right to select his judge and, if he was refused that right, either on the original application for a conditional order of habeas corpus or if, after a plenary hearing, the particular judge refused him the right of habeas corpus, he had the right to walk into the chambers or the private residence of any other judge of the High Court and demand, as of right, the issuing of a writ of habeas corpus, and that judge was entitled and bound to issue that writ irrespective, if he so pleased, of the decision of one of his colleagues.

That was a valuable right and not merely a theoretical right. There is at least one man alive to-day who would have been dead 18 or 19 years ago if that right did not exist. There was a case in which I was engaged—it was the case of Egan and Macready—and it was heard in 1921, at the height of the Black and Tan régime. Every High Court judge had been tried up to that. The decision of the King and Allen had applied and every judge of the High Court had refused to grant a writ of habeas corpus or inquire into whether the people who were then fighting the fight for freedom were being lawfully detained or whether they were under lawful sentence of death.

There was only one man left, the late Master of the Rolls, who at one time adorned the Supreme Court of this State. He was the only judge left, and he had the courage, in spite of his upbringing and outlook, to remember that it was the judicial tradition, even in the old days, that habeas corpus took precedence of every business. He stopped his Chancery business, his ordinary court business, when we applied to him for a conditional order in the case of Egan, who subsequently became Lieutenant Egan. He gave the conditional order for the writ of habeas corpus and subsequently heard it himself and, notwithstanding that every one of his colleagues of the High Court had declined to pass judgment owing to the case of the King and Allen, he gave independent consideration to the matters put forward. He gave independent judgment, with the result that there is one man alive who would not have been alive if that right was not in existence.

That very valuable Constitutional right was preserved and given authority in the original Constitution of this State. I should have said that the particular person in that case of Egan and Macready was under sentence of death, but it was implied. He was under a sentence of death and was saved from death by only a few hours. That right was embodied in our original Constitution and was continued in the amendment of the Constitution, but in this amendment of the Constitution it is proposed to be taken away.

I was not here when the Taoiseach was making his Second Reading speech. I do not know whether he has attempted to give the House and the country any justification for these proposals. It is a very radical and fundamental inroad on the Constitutional rights of the citizen. I think the House and the people are entitled to know the reasons impelling the Government to introduce so fundamental an amendment of the Constitution. This Bill is largely confined to very minor and entirely unimportant amendments, amendments for which I personally think there is not the slightest need. Amongst the whole of them this one stands out. It may be the Taoiseach or the Government have some reason for this.

The right was exercised in recent times, within the last year or two, and one judge did grant a writ of habeas corpus. The right was exercised by people who were alleged to be unlawfully detained by the Government of this State, and I think the counsel refused to go on with the case before three judges of the High Court, and that right was conceded to the person detained. His right to have his case heard by one judge was within the last 12 or 18 months conceded by our courts. It is a very valuable right, a right which is very inconvenient at times to the Government. It was to the last Government when the members of the present Government were operating in a somewhat illegal fashion outside this House and inconvenient to the Government of the present time when they are asking people to obey without question their orders and dictates, whether embodied in laws or in the sheaves of administrative orders that emanate from Government Departments hourly.

We had the Minister for Supplies appealing at the university the other night for implicit obedience to the Government, for an implicit following of the dictates of the Government in connection with administrative orders which nobody can follow and which sometimes people cannot buy. Implicit obedience to the Government and reverence for the law will not be obtained unless the citizen knows that the rights which he has are respected. It is, perhaps, not a matter which I should comment upon, but it is not without its significance that, when this point is being raised here, and raised seriously by me, the Tánaiste carries on a facetious conversation with the Parliamentary Secretary.

I do not know whether we will have any reply to this matter. I anticipate the reply will be that this point is being raised by Constitutional lawyers who have specialised in making such points over the last few years. That may be so, but at all events something of a fundamental character, which will recoil on the democratic institutions of this country, is being slipped in under the cover of futile and ridiculous amendments in this Bill.

That is the big fundamental change that is being made in this Bill. Slipped in along with it and in the same clause, or in the same Article, another inroad is being made. We find in the first proposed amendment to the Constitution the matters to which I have referred. We find that not merely is the citizen prevented from selecting his judge, but he is prevented from going from judge to judge. We find the President of the High Court can himself select the judge and that he can have not one judge, but three judges, if he likes, and we find that the right and initiative passes from the citizen into the President of the High Court. We find, further, that in a case which involves the invalidity of a law, according to the Constitution, where a person is illegally detained by a law which, in the opinion of the High Court, infringes the Constitution—I wait until the conversation between the Tánaiste and the Parliamentary Secretary has concluded; I am interrupting it. We find, as I was saying, that when a case being heard and investigated by the High Court is one in which the person complaining is being detained under a law which, in the opinion of the High Court, is invalid, having regard to the provisions of the Constitution, provision is made, not that that person shall be immediately released, but that he shall be detained; that the opinion of the High Court that the provision of that law is invalid according to this Constitution is not to be given immediate effect to, but that a case is to be stated by the High Court for the opinion of the Supreme Court as to whether the High Court is right or wrong.

One would have thought that the old tradition, going back for centuries and derived from the British common law, from which we have derived many of the best principles embodied in this Constitution, would be given effect to in this State which supposes itself to be one of the most democratic States in the world. It has always been held, and was always the law, and still is the law, that if any judge grants a writ of habeas corpus and orders the release of the person seeking that writ, no appeal from the granting of that writ lay to any higher tribunal, that it was the Constitutional right of the citizen, subsequent to the foundation of this State, immediately to be released and that the State—the Crown in the old days and the State in the days subsequent to the setting-up of this State—was not entitled to appeal from that decision. The position was that a person refused the grant of a writ of habeas corpus was entitled to appeal.

That was established by the House of Lords, but it was made quite clear in the case I have referred to, Egan and Macready, that while Clifford and O'Sullivan had established in the House of Lords that the subject or citizen had the right to appeal, the Crown or Executive had no such right. That was the position that existed until this amendment, bringing our democratic Constitution up-to-date, was introduced. The Prime Minister in the course of his career around the country, during the general election at which this Constitution was submitted to the people for their opinion, used to ask the people to read this Constitution and to ponder upon it. As I say, the people have forgotten there is such a Constitution since, but if they read or ponder on the Constitution and on this amendment of it, they will be still more convinced that a written Constitution is no safeguard of their liberties, and that this last amendment is the greatest inroad upon the constitutional liberty of the citizen that has been made since the establishment of this State.

Before these considerations, the other matters pale into insignificance. I should like to know, however, in passing, why it is that there should be a provision continuing the state of emergency and, in effect, suspending the provisions of the Constitution, after the war has ended or the emergency has passed. I do not know what the justification for that is. We may recall here that Acts which were introduced into the British House of Commons during the last European War are still law here under the provisions of the Constitution which it is proposed now further to amend and extend. The Government have wide powers, granted to them under the Emergency Powers Act, which, in effect, nullify and suspend the provisions of the Constitution, and it is proposed under this amendment to allow that state of affairs to be continued indefinitely after the war has ended or the emergency has passed. The provision is that the emergency legislation—put plainly, the suspension of the Constitution—is to continue until both Houses of the Oireachtas determine otherwise.

We know the composition of the Seanad as it stands at present under the beneficent auspices of the present Government; we know that we have in this House government by the Party system, and by a majority, and that that system is reflected in the constitution of the Seanad; in other words, this proposed amendment of the Constitution allows, if it is not designed to allow, the Government, after the war, for an indefinite period which can be prolonged by virtue of their majority in this House, and the Seanad, which reflects the political complexion of this House, to continue the state of affairs in which the Constitution is amended and emergency legislation in full force and effect. I gather that the Prime Minister, in moving the Second Reading of the Bill, did not give any justification for these proposals. I should be interested to hear of any justification, and will perhaps look forward to returning to the charge on this matter during the Committee Stage.

There is one minor matter which is, perhaps, not a matter for Second Reading, but upon which I should personally like to have some light or leading from the Prime Minister as to the justification for it. I know that he is following a precedent established by the Supreme Court in the last few months. The proposed amendment is that the Constitution should be amended so as to provide that, in effect, when the Supreme Court is pronouncing judgment on the validity or invalidity of a law, having regard to the provisions of the Constitution, only one judgment is to be given, and that one judgment is to be the judgment of the court. That may be a very convenient method of dealing with the situation, both from the point of view of the Government and the judiciary. The precedent for it, of course, exists in the practice of the Court of Criminal Appeal, where the practice is that only one judge pronounces the judgment of the court. It is, perhaps, easy to see reasons for that, which, incidentally, is taken from the British practice. It is, perhaps, desirable that in a case in which a person has appealed to the Court of Criminal Appeal from the verdict and sentence of a judge and jury, there should not be any apparent doubt as to the correctness of that verdict and sentence.

It might be, particularly in the case of death, undesirable that there should be apparent any want of unanimity of judicial opinion. I cannot say how that applies to matters affecting the Constitution. It is vital that in questions affecting the validity or invalidity of laws under the Constitution, if there is to be any respect for the Constitution, that each and every judge of the Supreme Court should deliver a written judgment, if possible. I do not want to make any observations in this House which might appear to be contrary to what my intentions are, in the nature of preaching on their duties to the Supreme Court, but I suggest that the public will be better served, that Constitutional lawyers will be much more interested, and probably that it will tend towards a more accurate decision, a wider view of the Constitution, and a deeper interest by Constitutional lawyers and the public if, in a matter affecting the validity of law, and involving the interpretation of clauses of the Constitution, there should be a written judgment by each and every member of the highest tribunal in the land that is determining the validity of that law, and determining the provisions of the Constitution.

Mr. Cogan

I understand this Bill is necessary, in the opinion of the Government, because of the fact that the time for making changes by legislation expires within the next few months. A common-sense amendment which should be embodied in this Bill would be one which would give this House power to amend the Constitution at any time without difficulty, or without going through the form of appealing to the people through a Referendum. It is not right that in a case of serious emergency this House should be debarred from amending the Constitution whenever it thinks fit. For that reason, if there is to be any amendment at the present time, it should be one to empower this House-to amend the Constitution at any time by legislation. Because of the time limit in the existing Constitution, we are compelled here and now to devote Parliamentary time to the consideration of this Bill. If it were not for the fact that there is a time limit, the time of this House could be occupied much more usefully than dealing with the complicated clauses of the Constitution.

Since this Bill has been introduced I think there are serious omissions in the changes that it is proposed to make. The most obvious omission is the failure to change the system of electing the head of the State. No one who takes a serious interest in public life agrees that the present system of electing the President is a good or a desirable one. Means were found by which it was possible to avoid an election in the case of the first President, but it is not likely that it will be always possible or desirable to avoid an election. If the Presidency was a position with political or executive power, similar to that which exists in the United States of America, there would be reasonable justification for having an election, but having regard to the fact that the head of the State here occupies more or less of a judicial position, it is neither proper nor desirable that an election should be held, and it is not likely that a President elected by the machinery provided by the existing Constitution would be the best person to discharge the functions of the head of the State. We would all prefer that every honour and dignity should be attached to the office of President, and for that reason it is undesirable that the first step in the election of a President should be through a general election. That is the first amendment which seems to be urgently called for, and if it could be included in this Bill it would greatly improve the Constitution.

Another amendment that is urgently called for is in regard to the election of the Executive by this House. In most public bodies and voluntary associations the executive is usually elected by the members. This House when electing a Government is compelled under the Constitution to follow the example and the precedent established in Great Britain of having a purely party system of government. That is to say, the head of the Government is elected and he is empowered to select Ministers. The amendment of the Constitution which the country would desire would be one which would empower this House to elect a government by proportional representation so that we would have a government which would be representative of all parties. The principle of proportional representation is adopted in the election of Deputies. It is logical that the same system should be extended to the election of the Executive by this House. That would be in the best national interest, as it would give us at the present time an all-party or national government, which would be the best government to lead the country in the crisis through which we are passing. There is no reason why the Party system should be ever embodied in the Constitution or why it should be continued, especially when an opportunity is provided in this Bill to make a change. A most desirable amendment of the Constitution would be one to enable this House to elect a representative government by proportional representation. If that were done we might have a more efficient Government, a Government which would be better qualified to deal with our pressing economic, social and financial problems. I ask the Government to reconsider this Bill and to introduce the changes suggested. I also ask that the period within which it would be possible to amend the Constitution, when considered necessary, should be extended.

Mr. Childers

I want to draw attention to one aspect of this Bill which I think is of importance to the community. I think the Government are quite right in deciding that the mere ending of hostilities in Europe and in the world generally does not conclude the emergency so far as we are concerned. I think it is very important that the public should be aware of the value of the particular section of this Bill which deals with that position. Even assuming that we are happily left in a state of peace at the end of this war, many of the conditions which obtain during the war so far as our economic life is concerned may be even more onerous when the war is over. For example, at the end of the war, no matter what may be the result, our external income may have collapsed to a point where we shall have to exercise the most drastic choice in regard to our imports from countries with whom we have no normal trade. The idea that at the end of the war we can suddenly start to purchase maize from the Argentine is one which is associated simply with the most extravagant optimism. We may not have the means to trade with the Argentine so far as maize is concerned if we have not got the income derived now from external investments with which to pay for the maize, and we may have to make use of powers to decide what we shall do with what will be a diminished income in order to secure the economic life of our people, and to secure employment. Therefore, so far as the choice of our imports and their direction are concerned, we shall certainly require emergency powers long after the war has terminated.

Secondly, so far as the rationing of commodities is concerned, acute scarcity may obtain for a considerable period after the war. It may obtain through stronger nations than ourselves purchasing raw materials which will become available at the end of hostilities by making use of their own powers to do so and leaving us short. In a similar way we shall have to make the rationing powers available under the Emergency Act for a long time after the war ceases. Again the question arises that we may in certain cases have a surplus of very high priced commodities in this country, either produced at home in dire need, or else actually obtained by manufacturers who had the courage to buy when such materials were available. If, at the end of the war, we are allowed to import freely commodities at a very low price while having those stocks bought at a very high price, the result may prove disastrous to a number of people, with the result that there will be increasing unemployment. That would particularly apply in the case of turf. Very huge stocks of turf may be accumulated at the end of the war, and it is essential to make use of the emergency powers to see that these stocks are liquidated in the interests of the farmers.

The same thing applies to the mobilisation of our securities. It may even be necessary at the end of the war, when there is a condition approaching financial, chaos in the world, for us to make use of very drastic powers to control the savings of our own people in the interests of the community, and it is obviously essential that those powers now carried by the Government under emergency orders should continue, so that we will have those powers for some considerable time after the war has ended.

Then, again, we may have to consider making use of our emergency powers to direct our exports in the manner best suited to the economy of the country. For example, it may be more convenient for us to send surplus seed potatoes to some particular country from whom we receive goods rather than to countries with whom we normally trade. It may be necessary, in order to compensate for the loss of our external income resulting from a long war which will affect the whole world, including ourselves, to take drastic action to stimulate our exports by means which, in normal times, would be considered unnecessary. There, again, the continuance of the emergency situation is obviously essential. Equally, steps which we have taken to preserve public order may, unfortunately, prove only too necessary for a long period after the war. I feel quite certain, so far as the economic life of the country is concerned, that the whole emergency system under which we operate will be more vitally necessary at the end of the war, no matter who may be the victor and under what conditions the war is concluded.

The Taoiseach

The first remarks I should reply to are those of Deputy Linehan, who said that we have a lot of very important work to do and we should not spend time dealing with amendments which in their character do not appear to be vital to the Constitution. The reason we are dealing with them now is because the three-year period is practically up; because the moment the 24th June is passed it will not be open to the Oireachtas to amend the Constitution without a referendum. The period of three years was to give time during which the operation of the Constitution could be observed, and the various Departments which might be affected by it could have it under observation so far as the work of each Department was concerned; and that at the end a report should be made to the Government of the day so that they would be in a position to bring in such amendments as experience might have proved to be valuable. Now the time is running out. I should like to remind Deputies that one thing that was deliberately excluded by the Constitution itself from the power of the Oireachtas, even during those three years, was to change Articles 46 and 51, because, if there is to be any use in a Constitution at all, if we are to have one at all, it surely should be out of the power of the representative assembly, which it is supposed to bind, to keep changing it without reference to the people from whom the Constitution ultimately derives its authority.

There have been remarks made about this Constitution. What I should like to remind some Deputies of is this. This Constitution was brought in here to the Parliament of the day. It was discussed over a long period. Invitations were issued to the various Parties to try to approach the measure, not as a Party measure, but as one that affected the interests of the State as a whole. Deputy Norton spoke about an all-Party committee. This House was a committee. There was an all-Party discussion of this Constitution at the start.

But we have our different views. Each citizen has his own view of what is right, of what is good and what is best, and surely there must be, in the end, some way of deciding these matters. The democratic way of deciding them is by a majority vote of the people, or, if the matter has to be decided by the representative Assembly, then by the majority of the representatives. That procedure was followed. In the first place, the Constitution was put before the elected representatives of the people here. They discussed it fully in committee as well as in a general way. We had a committee of the House discussing it for a period of weeks. Therefore, there was an all-Party discussion of it. Then it was put to the people in a way that this people had never had any law put to them. It was discussed on platform after platform throughout the country. The majority of the people voted in favour of it. There is no law in this State, and there has been no law in this State—leaving aside its fundamental character altogether—that got such discussion and that got so deliberately the approval of the people as this law did. The only Deputy who approached it in the right spirit was Deputy Esmonde. He said that it did not matter who introduced it. The point is that it was adopted by the people as their fundamental law, and, as such, deserves a greater measure of respect than any other law that has been passed in this State. It is in that spirit that I certainly approached the amendment of it.

The suggestion was made as if the amendment of it was simply left to Departments. That is not so. The experience of the Departments was asked. The principal officers were asked to send up suggestions as to any amendments which they had found to be desirable in the operation of the Constitution, and which would seem to them to be advisable. These suggestions were examined. Some were amendments of a type that would improve the style, the language or something else. These were not the amendments that we paid a great deal of attention to, because we were not looking for a document from the point of view of style, but rather one that would be clear, and that would be able to be interpreted properly. The amendments in this Bill are those which it was felt were necessary for clarity, to eliminate a few mistakes and minor errors that had crept in. It was for the purpose of discovering such that the period of three years was given. As I have said already, we did not want to have a longer period than three years because otherwise the Constitution would be of very little value.

Now, I know that you can have a representative democracy without a Constitution if you are prepared to give to the elected representatives of any particular period full and complete powers. There is a great deal to be said for that: to put it to the people that, when they are electing a government they are electing an all-powerful body that will not be prevented from taking any action that the majority consider to be in the interests of the community, and that there will be no reference back at all to the people. We, however, for a variety of reasons considered that, on the whole, it would be better to have a written Constitution that would embody certain principles and certain machinery which, by a chance majority, the Government of the day could not set aside. But we cannot have it both ways. We cannot have a limitation on the power of a majority that might be a purely temporary majority to do what they please, and, at the same time, not have such a limitation. The two are contradictory, and, therefore, we must have one or the other. Which do we want?

Let us not have the argument from the same person, at the one time advocating that there should be no restriction, and on the other hand advocating that there must be. You must make up your mind which it is you want. We, at any rate, the majority of the House, and the majority of the people, decided that they would have a written Constitution. It is not a rigid Constitution. It can be changed by reference to the people. I know that is a costly process, and, in many ways, not a very satisfactory process. Therefore, it is not likely to be adopted unless there is a real necessity for doing so. There may be some vital question which so affects the interests of the community as a whole that the most satisfactory way of settling it would be by referring it to the people. The fact that it is an expensive way, and a more or less cumbersome way, will, in itself, act as a deterrent from using or abusing it.

The next thing that was referred to was the question of Irish. What was said would, I think, come very much better from those who knew the language and would be able to criticise it from that point of view. The fact is that the Constitution was passed in both languages by the House. When it was being examined the two versions were there side by side. Reference has been made to certain omissions, and the suggestion made that the Constitution was prepared in a way other than it was. These omissions, however, were due to the fact that amendments were brought in here while the House was in session, and, in the nature of things, were discussed in English. It was because the amendments were made in this House that the omissions occurred in having a corresponding Irish text. The Constitution was passed in both texts, as this Bill will be. At the time the Constitution was going through it was pointed out that if there were any members of the House who wished to have the Irish text examined because they felt that they were not able to do that themselves, they might get members of their own Party to help them, or, if necessary, we could set up a Committee of the House which would make that examination for them so as to give them greater confidence. In the two texts we express, as far as it is reasonable to expect, the same ideas, and provide that if there is in any respect apparent contradiction between the two texts then the Irish is to prevail. Some people take the view that it is a great advantage to have a fundamental law in two languages. Ambiguities are found in practically every language. You will have those ambiguities no matter how you may try to provide against them. Skilful lawyers will take up a text and will be able to construe it quite differently from what was intended by the people who wrote it originally. It will be very difficult to do that where you have two texts. Where there is an apparent slight ambiguity in one text, when you turn to the other text you find that it is completely removed: that it quite clearly has one meaning and not another. You can see that by reference to the Constitution itself. If an attempt were made to force a meaning from a phrase or sentence in the English text, by turning to the Irish text, it will be seen at once that it was a forced meaning and not that intended originally. Passing the Constitution, therefore, in two texts has that advantage. It has that advantage in the case of a fundamental document like the Constitution.

There are two omissions which are being rectified, one the provision with regard to the Seanad. There was a certain electorate proposed with regard to the Seanad. When we changed it here as a result of amendments which were introduced in this House and accepted, a word or two were left behind which did not belong to the new text but belonged to the text as it was originally introduced. When we come to the Committee Stage I will point that out, and you will see where it occurred. It is quite wrong to suggest that there was carelessness about the preparation either of the English text or of the Irish text, or that one was simply a translation of the other. There was an attempt, naturally, to make the two as close as they possibly could be one to the other. As a matter of fact, the first person with whom I discussed the drafting of the Constitution was a native Irish speaker, and the very first text was produced by him. But he was not a lawyer, and there were many technical things that had to be discussed, and bit by bit when we had a committee we had to get the English-speaking people, lawyers for the greatest number, to deal with some of the fundamental points, some of the difficulties. The fact is that, side by side with the one, you had got the other, and every effort was made to have the Irish text as original as possible, in the sense of being as original an expression of the ideas as we could get, but we did have to get the two texts corresponding. We wanted to have them as near as possible one to the other, so that each could be regarded as being as close a translation as possible. To draw any conclusions from the omissions here would be quite wrong. Again, I stress the fact that those omissions were due-to the changes produced by the amendments here in this House.

The Bill is being criticised through the fact that there is a number of minor changes. Well, we can let Deputy Dillon get away with his statement about that. It does not worry me very much. The fact is we are taking advantage of this change to tighten it up in various ways in regard to phrasing and so on, to try to remove ambiguities, and in one or two places to try to express more adequately what was intended. It has been criticised because of what is not in it. Again, of course, Deputies on the opposite benches who were here when the Constitution was first going through, and who had different views to the views of the majority, will naturally think, like most other people, that they were right all the time, and expect that changes will be made now to suit the views which we then opposed because we believed that those views were not right at the time. One of those matters is the question of three years. As I have pointed out we deliberately chose the period of three years, which we thought was sufficiently long to allow the Constitution to operate and to see whether in fact there were some minor changes that had to be made. There was a way of amending it after that period, a little more difficult—in fact, if you like, a good bit more difficult— than by simple legislation, but that period was deliberately accepted, and deliberately we prevented that particular article which said three years from being amended itself. Even within the Constitution itself we cannot propose to extend it now. The argument we had then is being produced here now. That argument was settled by majority vote at the time. That argument was settled by the acceptance by the people of the Constitution as a whole, and that argument will be settled in the House in that way. It is not open to us now, except we have an amendment which would go to the people, to extend the time.

The next thing that has been criticised is that we have not changed the mode of election of the President. I think when I was bringing in the original proposition I pointed out that undoubtedly a popular election for President, if there was a way in which it could be avoided, was not an easy process. There is nobody who knows better than I do that, when a person is before the people in an election, opponents will say things and sometimes fling mud, and that some of it is bound to stick. Unfortunately, democracy is run in that way. Every one of us, whatever side of the House we are on, when we go up for election, have to stand listening to a lot of things which are quite unjust, quite wrong. But are we not to have elections on that account? The President is no doubt the most important officer in the State, and to the utmost extent we ought to try to have a President who will have the respect of all sections of the people, but it is also true that public representatives generally have a very important part to play in the life of the country, and that what is said with regard to the President ought also to hold, though perhaps not to the same extent, in regard to those who hold other offices. But we cannot have it. It would be very desirable if it could be done, but we cannot have it, and we have to take democracy with its faults as well as its virtues if we are going to work with it. Therefore, though it is unfortunate that the President should have to be elected in that way by a vote of the people, if we want what we were striving to have—that is to have the powers of the President appear to come directly from the people—we cannot get rid of it. I felt, when we were bringing it in, that it was particularly important here in this country of ours, in view of our past history, that the chief officer of State should be seen by the people to have been elected by them, that they had the power of electing him, that he was not the nominee of one person or another, that he was there clearly as the chief officer of the State, whom they could elect. It is said that in the last case we disliked an election so much that the Parties agreed to the present President. That was so; he was so outstanding that all the Parties agreed. If we can get such a person in future that all the Parties will agree, I take it in general that the people would also be quite satisfied and would agree, but if there is any section of the people dissatisfied there is another method besides the nominations of the Dáil. Remember that if the Dáil elected a President, if the Parties actually had an election of the President here by the Dáil and Seanad, there would also be objections raised to that. It would be said that there was wangling of one kind or another in the election. It is, I admit, a cumbersome way. There are difficulties attached to it. There is the disadvantage which has been pointed out that probably a President going up for election will have quite a number of things said about him that are unjust and wrong, and that may help to a certain extent to weaken his influence in his high office afterwards, but, as I have said, that is something which we have to face because no better method can be suggested. As I have said, if it were done by the two Houses, you would have other suggestions made.

The next question raised was the extension of the period after the immediate emergency of actual conflict has passed. I admit that there is a difficulty there again. If somebody will tell us how we can solve that difficulty I will be very happy. I thought myself of having some limit of a year or some period like that, but again the minute you try rigidly to fix definitely a period of a year you will find that a year and a month was the time which was required. If anybody can suggest how we are going to have better than this, I am prepared to keep an open mind with regard to it.

Mr. McGilligan

Could you not secure it by having the resolution limited for a particular time, unless it was positively voted to extend the period?

The Taoiseach

That is the reverse of the form in which it is here. Will it matter in practice which of the two ways is used?

Mr. McGilligan

It means that the House has to take a formal decision, that notwithstanding the termination of the armed conflict, they will agree to abrogate the Constitution for a longer period.

The Taoiseach

I will give the matter consideration. It can be considered from that point of view. The only question is, is it conceivable that you will have a Parliament like this, where we have parties, and that those powers are going to be continued without somebody bringing in a motion to end them? I do not think it is. It would be closing our eyes to the ways parties operate. I will consider the point, but my own feeling is that the direct way is better. The two Houses have to meet and have to pass a resolution saying that this particular situation was in existence, and they would similarly have to meet and pass a resolution before it would pass out. My belief is that our system would not operate without having some party in the House—generally the Opposition, if the Government were slow about doing it—which would undoubtedly try to speed up the end of the time in which these very great powers would be given to the Executive.

On this question of how it can best be done, I gave the matter a certain amount of thought and I have not been able to get a satisfactory solution. There is undoubtedly a situation to be covered. Simply to say that we must not do anything about it will not be enough. We must do something about it and it is essential that there should be some provision made. The Article as it stands is not clear enough. There is no point of time at which you can be certain that the conflict has ended. We must have somebody to declare that particular point of time. That can best be declared by the bodies who brought it into being.

Mr. McGilligan

If you do not amend the Constitution, the period would automatically be brought to a close by the cessation of the armed conflict.

The Taoiseach

Yes, but when would that be determined? The Deputy knows that very often you have a period of armistice. That is the period when the opposing forces are standing to.

Mr. McGilligan

It would end on the making of peace.

The Taoiseach

Then there might be a question whether it should not end before that.

Mr. McGilligan

This allows for an enlargement beyond the time when peace has been declared.

The Taoiseach

I agree, and if there is a reasonable way of arranging it I will certainly be prepared to approach any solution with an open mind. I am not satisfied, but it is the best we can do. The Deputy has given a slight modification of it which is not much better than what we have, if it is at all better. I will give it closer examination and think over it before I finally decide. There will be an opportunity given on the Committee Stage for more complete consideration.

The next point dealt with habeas corpus. With regard to that, there is the question of the omission of the words “any and every judge”. My advice is that, as it is, it expresses the same thing. If there is any difficulty about it, I will consider whether “every” should not be put back. Most people reading “any and every” would at first sight ask what is the meaning of it and what is its purpose. It might possibly be clearer in the light of certain interpretations, but I have not met any cases in which the interpretation was not the same as we have here. If there are any difficulties experienced on the point of this not being very clear, we might be able to put it in a clearer fashion.

Next comes the question of the three judges. The point is that before a conditional order is made absolute it should be decided by three judges, if the President of the High Court should consider it of sufficient importance to have three judges. We are passing on to the judiciary the responsibility of saying whether a case is of such importance that it should be tried by one judge or by three judges. There are cases in which we insist in the Constitution that the whole Supreme Court of five judges should act. When there are important cases we know that judges, like other people, differ in their opinions. Very often when you have two judges they may differ in their opinions, and then you have three in order to get two to one, if possible, so that there will be a majority decision and an absolute determination of the issue on the rule of the majority verdict.

No one will deny that there are times when you have to consider the interests of the individual, of the State, and the community as a whole and, whilst it is right that in so far as it is possible the bias should be in favour of the individual against the combined power of the State—the individual is relatively helpless unless he is assisted by having rights of this sort definitely guaranteed and the power of the State can show itself in a variety of ways—at the same time you have to safeguard the rights of the community as a whole. If there is an important matter to be decided as to whether a certain law is constitutional or not, it is not proper that that should be dealt with in the haphazard way of finding some judge with a particular view, and allowing him to decide. You try, in other words, to choose the person whose opinion happens to be in a certain direction and then get your verdict. We would not stand for that and I think, therefore, that for the final determination, if it is regarded by the President of the High Court, who is removed from politics, as of sufficient importance to have three judges, there is no harm done to anybody.

It might be said that it is easier for an individual to convince one judge than three, but, if it is a matter of simple justice and a question of law and right, I think a court of three judges is a more secure guarantee for the parties concerned. Let us assume that some person is detained in prison and his liberty is taken away for the time being, or it may be assumed that he is awaiting trial or is guilty of some offence. If there is a question whether he has been rightfully detained in accordance with the law, then the first step will be to let him go to any judge he pleases and, after that, he can go on until he gets some judge to give him a conditional order. Then there will be the question of the final determination by one judge or three, according as the President of the High Court determines. I am not a lawyer and I have not the time or opportunity to study cases, even leading cases, in regard to habeas corpus, but I am told that in important cases three judges generally are engaged.

In the case of the Constitution of 1922, there was a provision put into it under which it was decided that a person who applied for a writ of habeas corpus could insist on having one judge to try the case and finally determine it, but that was not, I am informed, in accordance with the general practice, in accordance with which the terms of that Constitution were supposed to have been drawn up. We shall no doubt have much closer argument on this when we come to deal with the amendment itself.

Mr. McGilligan

Is it clear that when the President of the High Court decides, all he is entitled to decide is: three judges or one judge?

The Taoiseach

That is certainly the intention.

Mr. McGilligan

But that he cannot say who the judges will be?

The Taoiseach

I do not know that.

Mr. McGilligan

That is the grave point.

The Taoiseach

I take it that the President of the High Court, who usually assigns judges for the hearing of cases——

Mr. McGilligan

And, therefore, could cut out the person who gave the conditional order?

The Taoiseach

I do not know that he would do so in practice, but I suppose he could.

Mr. McGilligan

That is the grave point.

The Taoiseach

It is quite possible he could. In fact, I might venture to give as my opinion that the text, as it is, would permit it.

Mr. McGilligan

It is intended to give him that power?

The Taoiseach

That is what the text would mean. We can argue as to the rights and wrongs of it, but the President of the High Court, as a nonpolitical person dealing with a case before him would have advertence, I should say, particularly to this: "Here is an important case upon which we want to get a just decision. We want to try to arrive, on the principle that three or two heads are better than one, at a fair and proper settlement", and I think everyone will admit that the danger is that you may have a person with a particular bias who will be sought out and who may very well give a decision which would have very important consequences.

The final amendment on which there is difficulty is No. 28. I am repeating much of what I said at the start, but apparently, if I am to judge by some of the remarks made here, not much attention was paid to it. With regard to No. 28, the position is that when the Constitution was being enacted, we wanted to ensure that the mere passing of the Constitution was not going to prejudice the position of certain rights; that, in other words, they would be left, in effect, what they had been. An amendment was moved here urging that we should give Constitutional guarantees to certain State officials. I refused it, and it was turned down by a majority of the House.

There is clear evidence of what the intention at the time was. It was that there was to be no constitutional guarantee, but that these rights rested on an Act, the 1929 Act, which embodied a certain agreement, and that in the old Constitution they did not have, and could not have, the same rights as they would have under this Constitution, once this Constitution becomes unalterable except by referendum. If we had accepted that amendment, we would have put them in this Constitution in a position superior to that in which they had been, because they would have been held to have rights which could not be affected unless we went to the people with a referendum.

We resisted that wisely. We said: "You have rights and we are not changing them. You did not have the sort of rights you would have under this Constitution, and we would not give them to you," and this amendment is necessary, because there has been some sort of suggestion that, notwithstanding our intention, there was a possibility that there could be read into this an intention quite different from that which we had; in other words, that there might be a suggestion that if they were given constitutional rights in accordance with this Constitution, it would mean that we could not deal with these rights except by way of referendum, if we wanted to change them in any way.

This amendment is designed to make it clear that this Constitution, which cannot be changed except by referendum, is not going to give to any officers of the State a position which they did not have before this was passed. Its purpose is to make it clear, and we have to put it in, if you like, a very brutal form in order that it may be quite clear that no construction can be given to it which would suggest that they are getting constitutional rights under this Constitution. We have to put it in a very plain and more or less brutal form, in order to make it quite clear, and in order that there will not be any misunderstandings about it. Our position in this respect is perfectly clear. It is there on record, and anybody who reads the debate on the amendment in the names of Deputy Costello and Deputy McGilligan, and which was actually moved on the occasion by Deputy Rice, he will find what I said. There is no doubt whatever as to what the intention was, and we want to ensure, before this Constitution passes beyond the stage at which it can be changed by legislation, that there will be no misunderstanding in that regard. That is the only purpose of this amendment.

I am not sure if I have covered all the points raised, but as this is in the main a Committee Stage Bill, we shall have an opportunity of arguing the various points more closely on Committee Stage. The result of the amendments will be that, in some of the cases, the texts will be brought more closely into consonance and the Constitution will be improved from that point of view. I think there is no use in our foolishly hoping that we will be able to get agreement on the fundamental questions between us, which were fundamental when the Constitution was being discussed in the Dáil. The views expressed simply show that those on the opposite benches now hold the views which they held when the Constitution was going through the House, and we on our side hold the views we held then.

I think the Constitution has worked, on the whole, well during the years it has been in operation. It has stood up to most of the tests. I will be told that I was fortunate that the three years had not passed before this war broke out and that otherwise I might have found myself at the beginning of the war in a position which would give rise to a certain amount of difficulty; but I think that if we had had to face that situation, we would just have faced it. It would probably have involved a referendum at the time, but I have no doubt that we would have got——

Mr. McGilligan

What would have involved a referendum?

The Taoiseach

In regard to the time limit, it has been suggested here that if this war had occurred after the three year period had passed, we could not have brought in the first amendment of the Constitution, which we did bring in and which gave certain powers to the Government.

Mr. McGilligan

I remember being told that your legal advice was that Article 28 did not need to be amended to cover the emergency.

The Taoiseach

I am stating what has been stated on the opposite benches.

Mr. McGilligan

I think the other argument was used.

The Taoiseach

It is possible, and I am not quite clear about what advice was given to me at the time, but whatever I said was the advice given. Leaving out the actual legal position as it might be determined by the courts, if the position were such that we could not have brought in that amendment, we should have had to get it in some other way. The resources of civilisation have not, so to speak, been exhausted. I am perfectly certain that we should have been able to deal with the difficulty even if it were necessary to have a reference to the people. It would, however, have been inconvenient.

Mr. Norton

Would the Taoiseach clear up one point? He says that Section 5 crept into Article 56 without the full significance of that section being then appreciated?

The Taoiseach

I did not say anything of the kind.

Mr. Norton

I understood that, when the Taoiseach was speaking in introducing the Bill, he indicated that Article 56 appeared now to have a meaning that it was not then intended it should have.

The Taoiseach

No. What I said was that a suggestion had been made to me that a meaning would be taken out of it contrary to the intention clearly made evident by the discussions here. This provision was in the draft that we brought in. An amendment was put down to it. We resisted the amendment and the majority of the House agreed with our view that it should not go in.

Mr. Norton

What is the purpose of leaving Section 5 in Article 56 now?

The Taoiseach

For the purpose of clarification, by way of addition. We held that Section 5 means a certain thing—that civil servants and transferred officers could not plead that they were getting rights under this Constitution, because that would be giving them a position they did not occupy before.

Mr. Norton

Did they get those rights in Section 5 of Article 56?

The Taoiseach

We hold that they did not, but we have not the final determination. This is a matter which could be determined in a court of law. We take the opportunity, again, to emphasise the position by way of clarification which, to the minds of some people, might seem to be necessary. I do not know what view a court would take but we are taking the opportunity to make as certain as we possibly can that it will not happen that—contrary to the intentions of the House and of the people, because there was a very big debate on the question—any section like that will get a position under this Constitution which would be an improvement on the position they held before. The purpose of this Article originally was to leave things, so far as their rights were concerned, as they were before. We argued what their rights were under the 1929 Act——

Mr. Norton

Their rights were preserved in clauses 77 and 78.

The Taoiseach

Clauses 77 and 78 were no more stable or lasting, so far as the powers of the Legislature were concerned, than the ordinary law, because they could have been changed by the simple process of passing an Act. Once the 24th June is passed, this Constitution cannot be changed by way simply of an Act of Parliament.

Mr. Norton

Have you not assailed their rights under the 1929 Act since then?

The Taoiseach

You can talk of that somewhere else. So far as this Constitution is concerned, either as it was or as it will be, it assails no rights whatever. This provision merely makes sure that we do not give rights which were not possessed before—rights that could not be dealt with except by way of reference to the people. They never had that right.

Mr. McGilligan

Which version of this Constitution is to be the official one?

The Taoiseach

When I spoke at the beginning, I said that, in the case of the original Constitution and in this case, we are passing the measures in both languages. An effort is made to have the two languages express the same thing, but if there should, by any chance, be a conflict between the texts, it is the Irish text which will prevail.

Mr. McGilligan

Only for this amendment?

The Taoiseach

And for the Constitution itself.

Mr. McGilligan

Are you making that retrospective?

The Taoiseach

That is so at present.

Mr. McGilligan

Where is it laid down?

The Taoiseach

It is in the Constitution itself.

Mr. McGilligan

According to the Constitution, the text that is enrolled in the Supreme Court is the official text.

The Taoiseach

The texts enrolled were signed in both cases.

Mr. McGilligan

Therefore, they are equal.

The Taoiseach

Except for the provision of Article 63 of the Constitution. As a rule, when we come to the Dáil, we have a Bill in one language only— generally, the English language. An official translation is afterwards issued. That official translation is not the signed document at all. In the case of the Constitution, as it was going to be the fundamental law, we felt it was only right that the national language should be accorded its proper place. Therefore, we provided, in the case of the Constitution, that, as English is a second official language, the two texts should be signed, and only in case of a possible conflict between the two texts would the Irish text prevail.

Mr. McGilligan

Except for amendment No. 1. There was only an English text in that case and that is conclusive.

The Taoiseach

That is now being amended.

Mr. McGilligan

Retrospectively?

The Taoiseach

I see what you mean now. You are referring to that particular amendment.

Mr. McGilligan

In that case, we put an English patch on the Irish Constitution.

The Taoiseach

That is what happened at the time. In other words, we had not time to put that into Irish, because there was a sudden emergency.

Mr. McGilligan

We had to pass it in one day.

The Taoiseach

We had very little time.

Mr. McGilligan

That must remain the conclusive text of amendment No. 1.

The Taoiseach

Not when we get this amendment through.

Mr. Norton

You will translate that now.

The Taoiseach

We are passing now, by way of amendment, the Irish text of it.

Mr. McGilligan

The Irish text of amendment No. 1. You are given a revising power which may, eventually, be operated to bring that situation about.

The Taoiseach

No. That revising power, since you mentioned it, brings up another question. It has been suggested that the Taoiseach, the Chief Justice and somebody else have got some revising power. No such power is given. There is a power, so to speak, to present in a single document the Constitution as it will be when the amendments shall have been made. It is a consolidating power of a certain type. I do not want that term to be used to misrepresent what happens. You get the consolidated text and you want to have that text authoritative, so that it will not be questioned.

Mr. McGilligan

Suppose a shade of meaning developed between the two texts, and that, in revising, the texts were made more comparable—

The Taoiseach

They could not make a change in the text.

Mr. McGilligan

Then this refers merely to the numbering of paragraphs.

The Taoiseach

They have no power in that respect, either. For instance, under this Bill, certain words will be deleted and certain words put in. When that is done, this will furnish a guarantee that the ultimate text is in accordance with that which has been amended. Beyond that, no power is given. When a person takes up the published Constitution, he will have the authority of the Taoiseach and Chief Justice for its being, in fact, the Constitution as it has been legally changed. If there was any question with regard to that, of course it would be questioned at once if the text was other than it purported to be.

Mr. McGilligan

The point I am making on amendment No. 1 is this: Supposing I wanted to raise now in court that the Emergency Powers Act was not properly passed because amendment No. 1 itself was in conflict with the Constitution, the text on which I will argue it out is the English text.

The Taoiseach

At the moment, yes.

Mr. McGilligan

The week after this is passed into law, if I go to argue that what we did on the 3rd September, 1939, was wrong, I am entitled to stand on the English text, as it was on the English text we founded the Emergency Powers Act. There is here an Irish version. That was passed without advertence——

The Taoiseach

That would be passed also.

Mr. McGilligan

We will not be passing the Emergency Powers Act.

The Taoiseach

We will be passing the text which will be the Irish version of the First Amendment.

Mr. McGilligan

We are going to repass the Emergency Powers Act under the Irish version of Article 28 as amended. If I want to argue that the Emergency Powers Act was improperly passed and found my argument on this enlargement of Article 28, I must found my argument on the English text of the enlargement, because it was under the English text that the Emergency Powers Act was passed. I think there is no doubt about that.

The Taoiseach

The moment we pass this text and say that this text is the fundamental text, in fact the Dáil will have had a reconsideration of this as to whether this was the same or not.

Mr. McGilligan

They will say: "If there is any doubt about it here is what will stand for the future". But, looking back on the 3rd September, 1939, that was what was before us.

The Taoiseach

I know you can argue that side of it. But I say the point has been raised that you can argue that the Dáil is having a new consideration of the text of that, and if the Dáil solemnly comes to the decision that this text shall be the text under which that is going to stand, the Dáil has a right to do it. If this text is passed in the Dáil as being authoritatively the text of the previous measure, in case of a conflict of texts in the Constitution, it is this text which will prevail.

Mr. McGilligan

Section 1 says that upon the passing of this Act the several amendments shall forthwith become and be effective. That is after the passing of this Act. It has no reference back to the 3rd September, 1939.

The Taoiseach

So far as the Constitution is concerned, the authoritative text will be this, if there is a conflict. That is what we have to be careful about—that this will be the authoritative text.

Mr. McGilligan

As from some date in the future?

The Taoiseach

Yes, I quite agree.

Mr. McGilligan

It is not retrospective?

The Taoiseach

No.

General Mulcahy

What about passing an Act giving the Irish section retrospective powers?

The Taoiseach

I do not think it is necessary. I have been arguing against Deputy McGilligan, but apparently we are at one mind at the end of it. I think he was talking about the future. I am talking about the future. If you go into a court to-day, this text is not in existence, and how could it be pleaded?

Mr. McGilligan

If I go in next September?

The Taoiseach

You can get on the other, if you wish.

Mr. McGilligan

If I go in September to argue about something which happened in September, 1939, my argument with regard to that will be based on the English text.

The Taoiseach

If you go back behind this date.

Question put.

The Dáil divided: Tá, 57; Níl, 41.

Tá

• Allen, Denis.
• Bartley, Gerald.
• Beegan, Patrick.
• Boland, Gerald.
• Bourke, Dan.
• Brady, Brian.
• Brady, Seán.
• Breen, Daniel.
• Brennan, Martin.
• Breslin, Cormac.
• Briscoe, Robert.
• Buckley, Seán.
• Carty, Frank.
• Childers, Erskine H.
• Cooney, Eamonn.
• Corry, Martin J.
• Crowley, Fred Hugh.
• Derrig, Thomas.
• De Valera, Eamon.
• Fogarty, Patrick J.
• Fuller, Stephen.
• Gorry, Patrick J.
• Harris, Thomas.
• Hogan, Daniel.
• Keane, John J.
• Kelly, James P.
• Kelly, Thomas.
• Kennedy, Michael J.
• Killilea, Mark.
• Kissane, Eamon.
• Lemass, Seán F.
• Little, Patrick J.
• Loughman, Francis.
• Lynch, James B.
• McCann, John.
• McDevitt, Henry A.
• McEllistrim, Thomas.
• Maguire, Ben.
• Morrissey, Michael.
• Moylan, Seán.
• Mullen, Thomas.
• O Briain, Donnchadh.
• O Ceallaigh, Seán T.
• O'Grady, Seán.
• O'Loghlen, Peter J.
• O'Rourke, Daniel.
• Rice, Brigid M.
• Ruttledge, Patrick J.
• Ryan, James.
• Ryan, Martin.
• Sheridan, Michael.
• Smith, Patrick.
• Traynor, Oscar.
• Victory, James.
• Walsh, Laurence J.
• Walsh, Richard.
• Ward, Conn.

Níl

• Belton, Patrick.
• Bennett, George C.
• Benson, Ernest E.
• Brennan, Michael.
• Brodrick, Seán.
• Browne, Patrick.
• Burke, Patrick.
• Byrne, Alfred (Junior).
• Coburn, James.
• Cole, John J.
• Cogan, Patrick.
• Corish, Richard.
• Cosgrave, William T.
• Costello, John A.
• Curran, Richard.
• Daly, Patrick.
• Davin, William.
• Dockrell Henry M.
• Doyle, Peadar S.
• Esmonde, John L.
• Fagan, Charles.
• Fitzgerald-Kenney, James.
• Hannigan, Joseph.
• Hughes, James.
• Hurley, Jeremiah.
• Keating, John.
• Keyes, Michael.
• Linehan, Timothy.
• Lynch, Finian.
• MacEoin, Seán.
• McGilligan, Patrick.
• McMenamin, Daniel.
• Morrissey, Daniel.
• Mulcahy, Richard.
• Murohy, Timothy J.
• Nally, Martin.
• Norton, William.
• O'Donovan, Timothy J.
• O'Higgins, Thomas F.
• O'Sullivan, John M.
• Pattison, James P.

Tellers:—Tá: Deputy Smith and Brady; Níl: Deputies P.S. Doyle and Bennett.

Question declared carried.

Ceann Comhairle

When is it proposed to take the Committee Stage?

The Taoiseach

On the 23rd April.

Mr. Cosgrave

This Bill was introduced in December.

General Mulcahy

In November.

Mr. Cosgrave

We got it in March, and now, after short notice, it is to be taken in Committee after Easter.

The Taoiseach

Deputies have had the printed text for a long time, and had an opportunity of reading it.

Mr. Cosgrave

We have other things to do besides reading Constitutions.

The Taoiseach

So have other people.

General Mulcahy

This Bill was introduced in November last. The House gave instructions that it should be printed at the time, and, according to the Standing Orders, it ought to have been in the hands of the Ceann Comhairle at a particular time. The Bill, however, does not appear to have been given to the printers until some time in March.

The Taoiseach

The Bill has been in the hands of Deputies for a very long time.

General Mulcahy

How long? How many weeks?

The Taoiseach

Three or four weeks.

Mr. Cosgrave

Three weeks.

General Mulcahy

The Government spent three months on it after getting the permission of the House to print it.

The Taoiseach

The time in which the Bill has to be passed is running close, and we want to give a reasonable time for its consideration in both Houses.

General Mulcahy

Would the Taoiseach say why there was a delay in printing the measure after an Order had been made by the House in November last that it should have been printed then?

The Taoiseach

That very often happens.

General Mulcahy

Why?

The Taoiseach

Because there is other work that intervenes.

Mr. Cosgrave

That is it.

The Taoiseach

That is it. The Deputies have not the slightest cause for complaint in regard to the matter —not a bit.

Mr. Cosgrave

The Taoiseach would —not like it to-night?

The Taoiseach

The Deputy does not like it at any time. That is the trouble.

Committee Stage ordered for the 23rd April.