Committee on Finance. - Second Amendment of the Constitution Bill, 1940—Report. – Dáil Éireann (10th Dáil) – Thursday, 1 May 1941

The Taoiseach

I move amendment No. 1:—

I leathanach 11, ag Uimh. thagartha 12 sa Sceideal, na focail "ag féachaint do no leasuighthibh" do scriosadh as fo-alt 1º i gcolún 3 agus na focail "agus ina mbeidh na leasuighthe" do chur ina n-ionad; agus na focail "having regard to" do scriosadh as fo-alt 1º i gcolún 4 agus an focal "embodying" do chur ina n-ionad.

In page 10, at reference No. 12 of the Schedule, to delete in sub-section 1º in column 3 the words "ag féachaint do na leasuighthibh" and substitute therefor the words "agus ina mbeidh na leasuighthe"; and to delete in sub-section 1º in column 4 the words "having regard to" and substitute therefor the word "embodying".

Amendment No. 1 substitutes the word "embodying" for the words "having regard to" which were regarded as rather loose, thus making it clear that the text to be prepared under the Taoiseach's supervision will be the text "of this Constitution as then in force embodying all amendments theretofore made therein".

Mr. Cosgrave

Are these amendments being taken in Committee or Report?

An Ceann Comhairle

On Report.

The Taoiseach

I move amendment No. 2:—

I leathanach 11, ag Uimh. thagartha 12 sa Sceideal, fo-alt 2º do scriosadh as colúin 3 agus 4, agus an méid seo leanas do chur in a ionad sna colúin sin fé seach:—

“2º. Gach téacs a hullamh- óchar amhlaidh ní foláir don Uachtarán a lámh do chur le cóib de ar bheith fíoruighthe le sighnithe an Taoisigh Phrímh-Bhreithimh,. agus ni foláir an chóib sin do chur isteach ina hiris i n-oifig Iriseoir na Cúirte Uachtaraighe.”

“2º. A copy of every text so prepared, when authenticated by the signatures of the Taoiseach and the Chief Justice, shall be signed by the President and shall be enrolled for record in the office of the Registrar of the Supreme Court.”

In page 10, at reference No. 12 of the Schedule, to delete sub-section 2º in columns 3 and 4 and substitute in the said columns respectively the following:—

“2º. Gach téacs a hullamh- óchar amhlaidh ní foláir don Uachtarán a lámh do chur le cóib de ar bheith fíoruighthe dhi le sighnithe an Taoisigh agus an Phrímh-Bhreithimh, agus ní foláir an chóib sin do chur isteach ina hiris i n-oifig Iriseoir na Cúirte Uachtaraighe.”

“2º. A copy of every text so prepared, when authenticated by the signatures of the Taoiseach and the Chief Justice, shall be signed by the President and shall be enrolled for record in the office of the Registrar of the Supreme Court.”

This amendment deletes the existing sub-section 2º and substitutes a new sub-section. The proposed new sub-section reads:—

"A copy of every text so prepared when authenticated by the signatures of the Taoiseach and the Chief Justice shall be signed by the President and shall be enrolled for record in the office of the Registrar of the Supreme Court."

Mr. Dillon

What is the purpose of this amendment?

The Taoiseach

A question was raised about the words "shall be signed by" in the original sub-section. The original sub-section was this:

"A copy of every text so prepared shall be signed by the President and countersigned by the Taoiseach and the Chief Justice and when so signed and countersigned shall be enrolled for record in the office of the Registrar of the Supreme Court."

The question was: was it obligatory on the Taoiseach and the Chief Justice to sign whether they were satisfied with it or not? There was a suggestion that, when the text was prepared, it had to be signed.

Mr. Dillon

And the Taoiseach is importing into this that the President shall sign it on his advice.

The Taoiseach

The question of the President in regard to the matter is raised in this way: that it shall be authenticated by the signature of the Taoiseach and the Chief Justice. The text, when authenticated by their signatures, will then be presented to the President in the usual way.

An Ceann Comhairle

I was told unofficially that amendment No. 3, in the name of Deputy McGilligan, was not being moved: that the point is met by amendment No. 2.

Mr. Dillon

Amendment No. 3 is not being moved.

The Taoiseach

I move amendment No. 4:—

I leathanach 11, ag Uimh. thagartha 12 sa Sceideal, na focail "is fiadhnaise dho-chlaoidhte ar an mBunreacht so í ar bheith curtha isteach ina hiris di amhlaidh" do sciosadh as fo-alt 3º, i gColún 3, agus no focail "beidn sí, ar bheith curtha isteach ina hiris di amhlaidh, ina fiadhnaise dho-chlaoidhte ar an mBunreacht so mar a bheidh ar dháta an chóib sin do chur isteach ina hiris amhlaidh" do chur ina n-ionad; agus an focal "countersigned" do scriosadh as fo-alt 3º, i gColún 4, agus na focail "as at the date of such enrolment" do chur i ndiaidh an fhocail "Constitution" sa chéad áit ina bhfuil sé sa bhfo-alt san 3º.

In page 10, at reference No. 12 of the Schedule, to delete in sub-section 3º in column 3 the words "is fiadhnaise dho-chlaoidhte ar an mBunreacht so í ar bheith curtha isteach ina hiris di amhlaidh" and substitute therefor the words "beidh sí, ar bheith curtha isteach ina hiris di amhlaidh, ina fiadhnaise dho-chlaoidhte ar an mBunreacht so mar a bheidh ar dháta an chóib sin do chur isteach ina hiris amhlaidh"; and to delete in sub-section 3º in column 4 the word "countersigned" and after the word "Constitution", where it first occurs in the said sub-section 3º, to insert the words "as at the date of such enrolment".

This amendment deletes the word "countersigned" which was in the previous text that the House has just amended. The deletion of the word "countersigned" is consequential on the passing of amendment No. 2. The insertion of the words "as at the date of such enrolment" makes it clear that account must be taken of any amendment made to the Constitution subsequent to the latest date on which a clean text has been enrolled. For example, if an enrolment took place a month ago and if new amendments were subsequently made, the text that existed at that time could not be regarded as the text of the Constitution as a whole. Any amendments made subsequent to the last enrolment will have to be taken into account. The sub-section, as amended, will read as follows:—

"The copy so signed and enrolled which is for the time being the latest text so prepared shall, upon such enrolment, be conclusive evidence of this Constitution as at the date of such enrolment and shall for that purpose supersede all texts of this Constitution of which copies were previously so enrolled."

The Taoiseach

I move amendment No. 5:—

I leathanach 15, Uimh. thagartha nua mar leanas do chur roimh Uimh. thagartha 20 sa Sceideal:—

20

Airteagal 28

Na focail “in aimsir chogaidh nó ceannairce fá arm” do chur i bhfo-alt 3º d'alt 3 díreach roimh na focail “do bhun aon dlighidh”.

Na focail “in time of war or armed rebellion” do chur i bhfoalt 3º d'alt 3 díreach roimh na focail “in pursuance of any such law”.

In page 14, before reference No. 20 of the Schedule, to insert a new reference No. as follows:—

20

Article 28

The insertion in sub-section 3º of section 3, immediately before the words “do bhun aon dlighidh” of the words “in aimsir chogaidh nó ceannairce fá arm”.

The insertion in sub-section 3º of section 3, immediately before the words “in pursuance of any such law,” of the words “in time of war or armed rebellion”.

This amendment adopts, in principle, the third of a group of amendments which were put down by Deputy McGilligan on the Committee Stage proposing the insertion of the words "in time of war or armed rebellion" at three places in the original Article 28.3.3º. The effect of the amendment will be to make it clear that only those acts which are done in time of war or armed rebellion will be protected from being nullified by reference to the Constitution under the provisions of Article 28.3.3º. It will remain the position, however, that an Act expressed to be for the purposes of preserving the State in time of war or armed rebellion, can be passed by the Oireachtas in time of peace, and that nothing in the Constitution can be invoked, even in time of peace, to invalidate such an Act. It is only acts that are performed during a time of war that are themselves protected by this Article.

The Taoiseach

I move amendment No. 6:—

I leathanaigh 15 agus 17, ag Uimh. thagartha 21 sa Sceideal, na focail a tairgtear, i gColún 3, a chur i ndeireadh fo-ailt 3º d'alt 3 do scriosadh agus na focail "agus foluigheann `aimsir chogaidh nó ceannaire fá arm' an tréimhse aimsire sin a bheidh idir an tráth a cuirfear deireadh le haon chogadh, nó le haon choinbhliocht fá arm den tsórt sin réamh-ráidhte, no le ceannairc fá arm agus an tráth a bheartóchaidh gach Tigh den Oireachtas le rún nach ann a thuilleadh don staid phráinne náisiúnta arbh é an cogadh sin, nó an coinbhliocht sin fá arm, nó an cheannairc sin fá arm fá ndeár é" do chur ina n-ionad: agus na focail a tairgtear, i gColún 4, a chur i ndeireadh fo-ailt 3º d'alt 3 do scriosadh agus na focail "and `time of war or armed rebellion' includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist" do chur ina n-ionad.

In pages 14 and 16, at reference No. 21 of the Schedule, to delete in column 3 the words proposed to be added at the end of sub-section 3º of Section 3 and substitute therefor the words "agus foluigheann `aimsir chogaidh nó ceannairce fá arm' an tréimhse aimsire sin a bheidh idir an tráth a cuirfear deireadh he ha-on chogadh, nó le haon choinbhliocht fá arm den tsórt sin réamh-ráidhte, nó le ceannairc fá arm agus an tráth a bheartóchaidh gach Tigh den Oireachtas le rún nach ann a thuil leadh don staid phráinne náisiúnta arbh é an cogadh sin, nó an coinbhliocht sin fá arm, nó an cheannairc sin fá arm fá ndeár é"; and to delete in column 4 the words proposed to be added at the end of sub-section 3º of Section 3 and substitute therefor the words "and `time of war or armed rebellion' includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist".

Reference No. 21 proposes the insertion, at the end of Article 28.3.3º, of certain words to cover a time after the termination of armed conflict in which the State is not a participant, so that the "time of war" might be deemed to continue until the two Houses of the Oireachtas otherwise decided by resolution. This amendment proposes the insertion of certain other words instead of the words proposed in reference No. 21. Under the new form, the period after a war in which the State is actually engaged and also a period after an armed rebellion will be covered as well as a period after an armed conflict in which the State has not been engaged. In the course of the discussion that took place Deputy McGilligan pointed out that there had been no reference to an extension of time after a "time of war" in which the State was a participant, or an extension of time after an armed rebellion. That was a very important matter to deal with. We are making this amendment so as to cover the time following a period after an armed rebellion or a war in which the State was a participant. It would seem strange that you should continue the period after a time of conflict, such as the present, and not continue it after a time of actual war in which the necessity for such continuation might become even greater. It would be well for me to read it as a whole. Article 28 (3) 3º when so amended would read:—

"Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law.

"In this sub-section `time of war' includes 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, and `time of war or armed rebellion' includes such time, after the termination of any war or of any such armed conflict as aforesaid or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict or armed rebellion has ceased to exist."

That is simply incorporating the idea in the proper way.

Mr. Cosgrave

According to that, a war can go on for all time.

The Taoiseach

Until the Houses of the Oireachtas have resolved otherwise.

Mr. Cosgrave

If they do not resolve?

The Taoiseach

There is no other way to deal with it.

Mr. Dillon

Are we to assume, for all practical purposes, in the event of the two Houses of the Oireachtas declaring that an armed conflict of one of the three different types is in progress, that the Constitution is virtually suspended during the period of the emergency created by that armed conflict?

The Taoiseach

Yes.

Mr. Dillon

And, therefore, if the House at any time desires to suspend this Constitution, all that is requisite is that we should persuade the Dáil and the Seanad to declare that the Sino-Japanese war constitutes a national emergency here and until the two Houses pass a resolution declaring. that the Sino-Japanese war—or the Japanese-Indo-China war—no longer constitutes a menace to this State, the Constitution is suspended?

The Taoiseach

Yes.

Mr. Dillon

This is a great institute of human liberty.

The Taoiseach

The Deputy cannot have it both ways, unfortunately.

The Taoiseach

I move amendment No. 7:—

I leathanach 17, Uimh. Thagartha nua mar leanas do chur roimh Uimh. Thagartha 22 sa Sceideal:—

22	Airteagal 34	Alt I do scriosadh agus alt nua mar leanas do chur ina ionad, sé sin le rá:—	Alt I do scriosadh agus alt nua mar leanas do chur ina ionad, sé sin le rá:—
		“I. Is i gcúirteannaibh a bunuighthear le dligheadh agus ag breitheamhnaibh a ceaptar ar an modh atá leagtha amach sa Bhunreacht so, agus go poiblidhe ach amháin insna cásannaibh speisialta teoranta sin a hordóchar le dligheadh, a riarfar Ceart.”	“I. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and in public save in such special and limited cases as may be prescribed by law.”

In page 16, before reference No. 22 of the Schedule, to insert a new reference No. as follows:—

22	Article 34	The deletion of section 1 and the insertion in its place of a new section as follows, that is to say:—	The deletion of section 1 and the insertion in its place of a new section as follows, that is to say:
		“I. Is i gcúirteannaibh a bunuighthear le dligheadh agus ag breitheamhnaibh a ceaptar ar an modh atá leagtha amach sa Bhunreacht so, agus go poiblidhe ach amháin insna cásannaibh speisialta teoranta sin a hordóchar le dligheadh a riarfar Ceart.”	“I. Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and in public save in such special and limited cases as may be prescribed by law.”

Mr. Cosgrave

Is amendment No. 7 in order?

An Ceann Comhairle

It is designed to meet a difficulty in court procedure. On the lines of the ruling which I gave on amendments in the Committee Stage, this amendment would, in consistence, be out of order. If any objection is taken I shall rule it out. Does the Deputy object?

Mr. Cosgrave

I asked the question, as I think a statement of that sort should be made when it is being introduced.

An Ceann Comhairle

It would have been made, I may assure the Deputy, first on the Taoiseach's explanation.

Mr. Cosgrave

The Taoiseach cannot rule as to what is in order or out of order. It is not part of his business.

An Ceann Comhairle

Quite so, but I understand that the Taoiseach would have explained the purpose of this amendment. If any Deputy objects I shall not accept it.

The Taoiseach

This amendment was introduced in this stage at the instance of a resolution passed by the Superior Courts Rules Committee, who pointed out that the present Article 34, Section 1, would be improved by making it less absolute in its form, and the suggestion has been embodied in the amendment. The suggestion was that the Constitution should be amended so as to enable legislation to be enacted providing that in special and limited classes of cases proceedings may be heard otherwise than in public court. The committee were of opinion that this could be carried out by making the Article read:

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and in public save in such special and limited cases as may be prescribed by law."

An Ceann Comhairle

May I state also that I understand that the Chief Whip met both Opposition Parties regarding this amendment, and I understand that there was general agreement to the introduction of this amendment?

Mr. Cosgrave

Certainly, but a statement of some sort should be made. Somebody at some time or other will read the records of the House, and, without some reference, it would appear extraordinary that certain amendments were ruled out last week, and that one of the most glaring inconsistency was introduced on the Report Stage.

An Ceann Comhairle

It would not have gone through without comment from the Chair.

Mr. Cosgrave

Might I ask respectfully if the other amendments which were ruled out of order last week would have been allowed if similar agreement had been reached?

An Ceann Comhairle

That is a hypothetical question.

Mr. Cosgrave

It has exactly the same bearing, apparently with the difference that the House has not its own independence, that it is under the tutelage or influence of the Government, and I never understood that to be the case before.

An Ceann Comhairle

I can assure the Deputy that this amendment is not being accepted to meet the Government's wishes. That is not the attitude of the Chair.

Mr. Cosgrave

I have already said that no objection would be raised, but I did not undertake that the question of its being in order would not be raised. It appears to me to be extraordinary that an amendment is allowed in while other amendments are excluded, and we are even confronted with the possibility that, if the Government did not object to the other amendments, they would have been allowed in.

However, regarding this amendment as it stands, the courts are to sit in public, save in such special and limited cases as may be prescribed by law. Every case that is prescribed by law not to be heard in public is a special case, so that every case, consequently, could be removed from public hearing. So far as the "limited cases" are concerned, one less than the maximum number that is heard would be a limited number. To take a less severe view, even one less than half of the cases would be a limited number. So far as this amendment is concerned, it is vague. It is possible to prevent cases being heard in the courts by reason of it.

Mr. Dillon

I understand that this amendment is designed to make provision for some procedure which would, apparently, be very difficult to carry on if the Constitution were to pass without an amendment on these lines. Personally, I do not think it matters a damn whether this amendment is passed or not, because I do not think any of the Constitution matters a damn, inasmuch as we can suspend it any time the Finns and Latvians go to war, by passing a resolution, in this House, that the Finnish-Latvian war involves a state of crisis for us. Therefore, the Constitution can be a perennial nuisance. The nuisance value of this Constitution is very substantial, as the present Taoiseach has grave reason to know, since he was obliged to come into this House 12 months ago and say: "Unless you amend this Constitution for me forthwith, the powers of evil in this State may succeed in overthrowing the Government before I am able to act in a way which will enable us to defend the State against an armed attempt to overthrow it from within." That is his own experience, and this piece of machinery has been in operation for about two years.

An Ceann Comhairle

The Deputy must deal with the amendment.

Mr. Dillon

This amendment manifested its necessity in the course of the last week, although the Taoiseach has been on the rampage amongst the Departments of State for the last two years, asking them to fine-comb this document and find any conceivable amendments they could possibly require, as the time for amendment is running out. After that fine-combing process had gone on for two years, the Taoiseach arrived triumphantly with the combings in a rag bag. Even then, after the rag bag has been flaunted about the House, he says: "Here is another rag which I wish to put in with the rest." While actually doing that, in the same breath, he says: "If my successor discovers a second, third, fourth and fifth rag that he considers expedient to put in the rag bag we must have a referendum about them all."

An Ceann Comhairle

The Deputy must confine himself to the amendment, which he has gone far away from.

Mr. Dillon

This amendment is brought in to provide for a minor matter relating to the normal work of our daily life.

An Ceann Comhairle

And with that minor matter the Deputy must deal.

Mr. Dillon

I am dealing with it. Surely I am entitled to say here and now that but for the fact that we have the machinery of Dáil Eireann and the Seanad under the Constitution to provide for this minor contingency the only alternative would be to go to referendum. Is not that right?

An Ceann Comhairle

The Deputy may be right in his facts but is not so in relevancy.

Mr. Dillon

Am I not entitled to say "Thanks be to God, the rag bag was not closed before this rag was discovered"? What would we have done if the Taoiseach had closed the rag bag before rag number 7 was produced for introduction therein? We would have had to go to referendum, and in lunacy and minor matters the procedure of the courts would have to be suspended.

The Taoiseach

Have they been in the past?

Mr. Dillon

I could not tell you. What did you produce the rag for?

The Taoiseach

I did not produce it.

Mr. Dillon

Somebody produced it. It did not walk in here by itself.

The Taoiseach

It was produced here because it was regarded as an improvement, I suppose.

Mr. Dillon

All I know is, the rag has landed. The cat did not bring it in. Somebody brought it in and I am told the Taoiseach brought it in.

The Taoiseach

I will take responsibility.

Mr. Dillon

If the rag bag had been closed, if all the rags and patches that the Taoiseach meant to apply to this Constitution had been applied and we had passed through the rag-bag period into the referendum period, what would we have done?

An Ceann Comhairle

The Deputy can only discuss this amendment and not certain possible contingencies.

Mr. Dillon

I want to know if this amendment, this last rag, would justify invoking the referendum procedure and I want to ask now, Sir——

An Ceann Comhairle

The Deputy should discuss the merits of this amendment, not of the referendum. The Deputy is debating much wider questions than this amendment.

Mr. Dillon

On the merits of this question, should not this amendment be postponed for further and better consideration? We always have the machinery of the referendum. If this Bill passes through without this last rag, let us have a referendum on the question of whether:

"justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and in public save and in such special and limited cases as may be prescribed by law."

Would it not be lots of fun to have a referendum on that?

An Ceann Comhairle

If the Deputy cannot tear himself away from the referendum he will have to desist from speaking.

Mr. Dillon

I suggest that this amendment should be postponed until after this Bill has passed through and should be referred to a referendum. I submit, on a point of order, I am entitled to advocate that.

An Ceann Comhairle

The Deputy is not entitled to continue the line of argument.

Mr. Dillon

I am arguing that this important amendment should be made the subject of the Constitutional machinery set up, which is referendum.

An Ceann Comhairle

The Deputy's remedy is to oppose the amendment.

Mr. Dillon

And I am going to give important grounds for opposing the amendment, by your leave. Let us have a referendum on this instead of putting it in this Bill. Let us take this amendment out of the Bill and put it to the people. Let us ask the people down the country whether they are for or against the proposition that "justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution and in public save in such special and limited cases as may be prescribed by law". Let us ask the Deputies of the Fianna Fáil Party, instead of voting for it here intelligently, as they will, to go out and explain to the people in the course of a referendum why it is desirable to put that amendment in the Constitution. It is a better way of dealing with this matter. It ought to bring home to us all the invaluable machinery of the referendum.

An Ceann Comhairle

The Deputy will have to resume his seat if he cannot get down to the amendment. The Deputy is not in order.

Mr. Dillon

Again, I argue that——

An Ceann Comhairle

The Deputy may not argue at length whether it should be referred to the people. The Deputy is, in essence, discussing the merits of the referendum.

Mr. Dillon

I am arguing, Sir, that that rag can better be applied to the thing of rags and patches by way of referendum than by this Bill. Surely I have a right to do that, and surely I have a perfect right to make that argument as lengthy as I like so long as I do not repeat myself or speak more than once in a Report Stage Debate? I look upon you, Sir, with every confidence to protect the interests of the humblest Deputy in this House——

An Ceann Comhairle

Quite, and to see that order is maintained in discussion.

Mr. Dillon

And, as one of the humblest, I claim my right to speak to this amendment on Report Stage at whatever length I think expedient provided I do not repeat myself and am not irrelevant. I now argue that this amendment should properly be taken out of this Bill and sent to the people by referendum.

An Ceann Comhairle

At least three times the Deputy has so argued.

Mr. Dillon

I am now going to elaborate that by drawing the attention of this House and the country to the beautiful picture that would be presented by the Deputies of the Fianna Fáil Party explaining this amendment to the public and inviting the masses of our people to march to the referendum booth on a public holiday, and there record their votes as to whether they were in favour of it or against it. Having given them that practice in operating the referendum on this amendment, then we would not only get the true public feeling in regard to this specific rag, but we would educate our people into the immense advantages conferred upon them by this Constitution in that they could have a referendum on every rag that came out of the Taoiseach's mind.

The Taoiseach

I do not know whether that is worth replying to. I do not know whether I would be in order if I attempted to reply to the greater part of it. I know that the Deputies on the opposite side, of course, hate like poison the Constitution which the majority of the people passed and, therefore, Deputy Dillon makes use of every possible occasion to try to bring it into disrepute. I suggest it is not either to the benefit of the country or even to the benefit of the Deputies who indulge in that sort of thing that that should be done.

In regard to this amendment, Sir, the position is this. "Justice shall be administered in public courts" was in the Constitution which was passed in 1922. It is also in the present Constitution. It has been operated over all these years on the understanding that there were certain classes of cases which would be heard in private, and they have been so heard.

The Committee had in mind such cases as income-tax appeals, matrimonial cases, certain criminal cases, cases in which the jurisdiction of the court is parental and administrative, as for example suits relating to wards of court and persons of unsound mind, and cases in which litigation relates to a secret process. These cases, in practice, have been held in private. They have been held in camera, and not in public, and I have not the slightest doubt that the practice that has obtained up to the present would be continued, but as there was an opportunity of introducing an amendment without a great deal of fuss—at least it was hoped that there would not be a great deal of fuss about it—it was thought better to do the thing in this way, in view of the absolute sense in which that particular Article might be read. It was possible for somebody to read the Article in a very absolute sense, which might be against the practice of the courts, and therefore it was deemed better to deal with the matter in this way although, in view of the practice that has obtained for all the years, nobody might challenge the practice obtaining heretofore.

Mr. D. Morrissey

Arising out of the few introductory remarks of the Taoiseach, I do not think any of us want to say that we hate the Constitution like poison, but I do say that if we have not the respect that, perhaps, we should have for it, I think the Taoiseach himself is largely responsible for that by reason of the way in which he introduced it to this House and to the country. I shall leave it at that, but certainly we have not very much reason to respect it as a result of the Taoiseach's introduction.

The Taoiseach

That could lead to a good deal of argument.

Mr. D. Morrissey

Well, at least, I am entitled to say as many words on that point as the Taoiseach himself, but I noticed that the Taoiseach did not try at all to meet the point raised by Deputy Cosgrave. Deputy Cosgrave, in speaking to this amendment, pointed out that by the passing of an Act here any case can become a special case and that nine cases out of ten can become limited cases and, therefore, need not be held in public.

The Taoiseach did not advert to that argument which was put up against this amendment—in the loose way in which it is framed—and while what the Taoiseach has stated as regards the practice is correct, this amendment would enable the matter to be taken much further than even the Taoiseach himself would contemplate. I should like to hear the Taoiseach addressing himself to the argument put up by Deputy Cosgrave as to whether, under this amendment, if it is incorporated in the Constitution, it is not possible that nine cases out of ten would be limited cases within the meaning of this amendment, and that practically every case could be made a special case; and, further, whether or not it is even essential, as the amendment is drafted, that cases should be heard in the courts. It seemed to me— of course, I may be quite wrong but, if so, I am subject to correction—that under this amendment, if it is passed, the holding of cases in public might mean the holding of them at any crossroads in the country, and that any case that the Government of the day wishes to be treated as a special case can be so treated. Perhaps the Taoiseach would address himself to that aspect of the question.

The Taoiseach

In regard to that aspect of the question, I can only say that the same thing occurs here as occurred in a number of. other cases. The Constitution can only be generally directive, except in a few special cases. If you are going to treat the Constitution as an Act of Parliament in which you will have every possible case that you can think of covered, then you will not have a Constitution in the ordinary sense at all. If the Oireachtas—the two Houses of Parliament—choose, at any time, to abuse their powers and abuse the Constitution, and if they try to get out of it by means of some legal quibble, I have no doubt but that man's ingenuity will be able to do so. In this case, the amendment is the amendment that has been suggested. As we proposed to ask the concurrence of other sections of the House in the acceptance of this amendment, we put it exactly as we got it, and we did so, believing that, in the form in which it is, it is sufficiently explicit, but it cannot prevent either House or the two Houses of the Oireachtas from abusing their position and trying to cover up that abuse of their position by some sort of legal quibble. That is the sort of thing no Constitution could stop. If it is possible for the two Houses of the Oireachtas to bring in as a special case one that is different from the cases that have occurred up to the present, and to try to have that case heard in camera, then it would be a question of the Oireachtas abusing their powers.

Dáil Éireann debate - Thursday, 1 May 1941

Committee on Finance. - Second Amendment of the Constitution Bill, 1940—Report.

Dáil Éireann debate -
Thursday, 1 May 1941