I move that the Bill do now pass.
Financial Resolutions. - Second Amendment of the Constitution Bill, 1940—Fifth Stage.
This is the last occasion, as I understand it, upon which it will be possible to amend the Constitution by legislation in this House. Reference has been made in the course of the debate, I think by myself, to the fact that we shall have to have recourse to a Referendum in the hereafter if further changes have to be made. I think we are brought up against a situation which makes it abundantly clear to most of us—to me certainly—that this occasion should have been taken advantage of to incorporate in the Constitution an amendment which would have rendered comparatively innocuous the motion which appeared on the Order Paper and which the Minister for Justice did not move. The fact is that I have the most complete confidence in the personal integrity and high sense of public duty of the present occupant of the Ministry of Justice. But that does not alter the fact that I view with the utmost possible alarm the introduction by him, or any other Minister for Justice, of a motion to remove a judge from the Bench when I know that that motion can be carried by a bare majority of this House.
If the public know that any dispenser of justice in this country cannot be removed from his high office without the consent of all the political Parties in the State, then the public know that between them and the Executive stands an independent person who is a judge who can, if he deems it his public duty, bid the Executive defiance and depend on the Legislature to protect him from any attempt to victimise him for his act in protecting the individual from the vengeance of the Executive. If, however, the public come to believe that, if a judge displeases an influential member of the Government Party of the day, whatever Party that may be, that influential member of the Government can prevail on the Government to sponsor in this House a resolution removing him from the Bench and that resolution can be carried, I envisage the danger of abuses arising in this State of the gravest possible kind.
I should like to draw the Deputy's attention to the fact that on the Final Stage of the Bill debate is confined to matters actually in the measure. There is no reference in the Bill to the matter which the Deputy is now raising.
I admit that my argument is directed to suggesting that, if something is not in the Bill, steps should be taken to provide for that deficiency.
That would have been admitted on the Second Stage debate.
I see that; but, of course, the situation had not arisen before the Second Stage. We were not confronted with the position we are confronted with now. We are in a very peculiar position.
If the Deputy was in that position on the motion which has disappeared, his position is even worse now.
I ask for a little latitude. We are in this extraordinary position, that an utterly unprecedented matter under the Constitution arose to-day by way of putting a motion on the Order Paper. The motion was not moved after it had got the fullest publicity in the country, and no further action was anticipated because the judge had resigned. That is a very awkward situation.
It is not relevant.
We are finally disposing of an amending Bill affecting the Constitution which is to give rigid form for all time to provisos regarding the judiciary which are in the Constitution. While there is nothing in this actual amending Bill which might directly refer to this, the Constitution, as amended by this Bill, will stand rigid after this Bill has been passed. I am asking to be allowed to look back at the Constitution on which this Bill will be a graft hereafter.
The Deputy must confine himself to what is in the Bill. His difficulty is not of the Chair's making; it arises from the ordinary rules of order and established procedure.
I was merely going to ask if a rule whereby two-thirds of the House alone could dismiss a judge could be introduced. If that is not within the scope of the Bill, I cannot discuss it. I think an opportunity ought to be given to discuss this matter at greater length and in greater detail at an early stage in view of the utterly unexpected situation which has arisen as a result of the grave motion which was on the Order Paper not being moved by the Minister responsible.
This is the Final Stage of the Second Amendment of the Constitution Bill, so that we are entitled, in any event, to have a glance at the Constitution as it now stands in passing and to see how far the present Bill is indicative of a further growth of certain tendencies that were to be observed in the first draft of the Constitution and even in the first amendment of it.
The Deputy is confined to what is in the Bill, not what is in the Constitution.
I suggest that I am entitled to have a look at the Constitution, apropos of the changes made in it, in order to discover what tendency there is in the changes made——
The Deputy certainly may discuss the Constitution as affected by this Bill.
Very good. The purpose of any Constitution, as I understand it, in general is to protect the people of a country in certain important matters against absolute power. When Constitutions were first conceived of they were the guardians of the people's right as against monarchical power. By a slow growth of popular opinion, when Parliamentary democracy came to be regarded as a proper institution in certain countries, the terror of the tyranny of the monarch was replaced by a similar terror which was the tyranny exercised by a Party majority in a Parliamentary House. Constitutions were supposed to be drawn with certain fundamental rights so protective that the process of law could not take away those fundamental rights or could not whittle them down to a point when they were negligible.
The progress under the Constitution that we are discussing has been towards making law superior to the Constitution. The progress right along since the Constitution was introduced has been to make the Constitution itself subservient to the ordinary law, and the ordinary law, of course, is passed by a simple majority in a House which contains a Party majority. That progress is still further marked by the amendments.
Amendments have been introduced which still further strengthen the law in its relation to the Constitution. I had put down some amendments which I had thought it would at least be advisable to have discussed in order to get the other picture painted, to see a Constitution which would be tied and which could not be changed: that in any event, whether the Constitution itself could be changed or not, what are called the fundamental rights could not be operated upon by, say, the will of a Minister, or the will of a Minister backed up by a Parliamentary majority. We have increased the power of the law in this Constitution. In the amendments that have been made in the Constitution, we have gone a step further in the situation which I have tried to paint. The fact that the Constitution can be suspended indefinitely is of little account. What is of account is, that the protection of the Constitution to the ordinary people, in regard to their fundamental rights, is gone. It will be remembered that in this House an Act called the Offences Against the State Act was passed. It was sent, under the Constitution, for the opinion of the judges as to its constitutionality. I do not pretend to give the full effect of that judgment, but it did amount to this: that, in respect to any fundamental right in the Constitution, where that is embedded in any phrase which drags in the law, the judges will not be curious to find, if some piece of legislation encroaches on a fundamental right, whether that right was in tow with the spirit of the Constitution or not. They will simply take the piece of legislation and look at it. They will see whether it was regularly passed, and if it was, that is what ties them, so that all the fine phrases in the Constitution with regard to fundamental rights go.
One of the best phrases in the Constitution was in regard to the freedom of the person, but that was subject to law. The Offences Against the State Act attacked that fundamental right and left it dependent, first of all, upon what a judge declared to be a judicial opinion expressed by a Minister. That was changed to what a Minister certified for, but that was in no way to be regarded as a judicial statement. If one surveys the Constitution that we are discussing, I think it will be found that the law on similar matters that are of no great importance sometimes, if they are put in prohibitory clauses, cannot be changed. They seem to be quite bluntly put there so that they cannot be changed. The rights that are of any value, such as the right of personal freedom, the inviolability of the home, the right of association, the right to express views, the right to vote, rights with regard to religious views—they are all subject to law, and, being subject to law, then, in the opinion of the judges on the Offences Against the State Act, may be changed by a Party majority in this House. The independence of the judges, although enshrined in a fine phrase, goes further in that it says they are independent, subject to the law and the Constitution. We go further in this constitutional amendment that has been passed. It will be found that it was by inventing offences, and by putting people into jail for inventing offences, that tyranny was first worked upon people, but if one looks at the articles that deal with offences, and the method of their trial, there is, first of all, the general statement that "justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution." Having made that statement the Constitution, previous to the amendment recently passed, allowed for the exercise of functions of a limited judicial type to be carried out by people who are not judges. Apart from criminal offences and the provision for special courts and military tribunals, as if the law had not sufficient sway over the Constitution, a further amendment was added last week on Report Stage. I do not know whether it is intended that that amendment should go as far as, in fact, it does go. I understand some suggestion was made to the effect that a rigid interpretation of the phrase used in the Constitution—that justice shall be administered in public courts— might prevent a court being cleared for certain cases. If that was the situation in which the amendment was passed it was an amazing situation, because under a statute of this House the court has to be cleared for the hearing of certain cases. Nevertheless, we are being asked to rectify that situation. The rectification is achieved in this way. As well as I remember, the Article in the Constitution used to read in this way:
"Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution."
That is now to be struck out, and the Article that has been inserted reads:—
"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."
I would like to know what is the exact position with regard to the reservation that has been tacked on to the end of the new amendment. It says that justice shall be administered in courts established by law by judges... in public "save in such special and limited cases as may be prescribed by law." There can be no doubt, I think, that that reservation applies not merely to cases in public, but to the hearing of cases by judges. If that be so, then we have taken a further step. We have courts in which limited judicial functions may be exercised by people who are not judges. We have the criminal courts, but they may be set aside. We have the special tribunals and the military tribunals, which may be instituted, and now we have this reservation tacked on to the end of the Article in the old Constitution.
People have mixed feelings with regard to any constitutional document if you tie things down too rigidly. In an emergency you may find that you have not sufficient elasticity in your powers to deal with an emergency situation. On the other hand, if you have not some provision to tie down the Executive of the day, you are simply trusting the fortunes of the people, their religious views, their personal freedom, the inviolability of their homes, the right to free association, the right to speak their minds freely, over to the will of a Government majority in one House. On that, I want to refer to a point that Deputy Dillon made. It may be said, of course, that there are two Houses, that legislation requires to be passed by both Houses, and that, therefore, apart from a motion to remove a judge, even if the law governs everything, the law has to run the gauntlet of two Houses. We must, however, remember the situation that we are in now. If we had adopted the American system in which the Seanad was built up in a sort of lagging position behind the building up of the Dáil, then you would have got the position in which a new Government, when it might be apt to be tyrannical, would be tied by an Assembly which had not been thrown up by the same political majority. It would be a brake on it. The brake would be realised as the Party majority filtered through the other House.
We did not do that. We have adopted in the Constitution a scheme of having a Seanad going out of office with the Government. When it is re-elected, it is re-elected under the same sway of political opinion as that which elects the new Dáil. Therefore, as far as the election goes, the Seanad is almost certain to reflect the political strength of the new Dáil. For fear it would not reflect that strength enough, power is given to the new Taoiseach, a person thrown up at the general election, to nominate a certain number of his adherents to the Seanad. The result is that the Seanad is certain to be much more under the control of the Party that governs than the Dáil itself is. In these circumstances, the protection of the Second House disappears. That is the situation in which we now find ourselves.
It may be that, in steering a course between the two points of the dilemma, we have tied ourselves by being too rigid, and not leaving ourselves enough elasticity to deal with an emergency, and, on the other hand, asking the people to trust themselves to a Parliamentary majority. It may be that it was necessary to swing away from the rigid system. At any rate, if anyone feels that this Constitution is going to tie the hands of any Government he should disabuse himself of that idea, because the law is supreme. The Constitution is underfoot as far as the law is concerned. The law will emerge from a Party majority in this House. If there is also with the Party in this House a Party majority of the same complexion in the Seanad, and if it be thought that in these circumstances there is really any importance to be attached to a written document, then I say the people who think so have not fully considered the effect of the document.
I said that we have taken one further step. As a result of what I have said, I find myself unable to be excited about that further step. We have allowed this House the power to extend the national emergency, when it occurs, in such a way that the Constitution may be suspended. We have passed phrases here which have changed the Constitution in such a way that it could be set aside, and acts done under certain legislation could not be invalidated, if those acts were done during a time of conflict, war, or armed rebellion. The "time of war" was amended by increasing the phrase to mean a period in which this State was not engaged in conflict, but when there was a national emergency voted by the two Houses of the Oireachtas. Now we find ourselves in the position that, once a national emergency resolution has been passed, it is necessary that each House, by another majority, should vote that the national emergency has passed, before the Constitution regains whatever life it had in it. Feeling that the Constitution is not much of a safeguard for the people, I cannot complain very bitterly of that.
There is observable here the tendency —which is usual with loosely-worded documents—that, instead of tying the hands of the Executive, great care is taken, in the First Amendment of the Constitution, to increase that power; and again, in the Second Amendment of the Constitution, care is taken to extend it still further and to increase the power of the Executive by making it more supreme. It appears that, once an emergency has been voted, it requires positive action on the part of this House to bring that emergency period to a close, in order that the Constitution may again be operative as far as the courts of this country are concerned.
I should like to make further reference to a matter which I raised on a previous stage of the Bill, in the hope of obtaining further clarification from the Taoiseach. When the Draft Constitution was under consideration in this House, there was in it an article which up to now has been described as Article 56, and I refer particularly to paragraph 5. It seemed to me that the effect of the Article was to recognise that certain people who had Constitutional rights or statutory rights previously should not have those rights trampled upon nor their agreements torn up in any capricious fashion. With that end in view, a phrase was put in to Article 56:
"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."
If that phrase meant anything, or if the manner of its introduction meant anything, it clearly meant that the rights persons had prior to the coming into operation of this new Constitution would be saved, and that this clause was a saving clause to preserve those statutory or Constitutional rights. One can scarcely imagine that the Taoiseach recognised in that clause any other meaning. Whatever meaning he then desired, surely the reasons for attaching that meaning to it, and recognising its necessity, are as important to-day as they were then; but apparently, the Taoiseach has some other viewpoint on the matter now. Notwithstanding what appears to be the saving value of that clause, he comes along now to add to the Article, as a step-down from that position, the phrase that:
"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 sub-section."
I would like to ask the Taoiseach what value he attaches to that paragraph 5 of Article 56 as it stands at present with the addition of the amendment now proposed. It seems to me that it would have been much more honest to delete paragraph 5, as its value has been completely destroyed by the new sub-section. The Taoiseach ought to tell us why he regarded Article 56 as well and satisfactorily drawn when it was going through the House, and why he now finds it necessary to amend it in the manner proposed in this Bill.
I propose to deal with the remarks of the last speaker first. When speaking on the Second Stage of the Bill, I believe I answered the question put to me now by the Deputy. I pointed out the intention in Article 56, Section 5. There could be no doubt regarding the intention, as it so happens that the records of the Dáil indicate it very clearly. An amendment was proposed here designed for another purpose—to put the State servants affected by Article 10 of the Treaty in a special privileged position by means of the new Constitution. We refused to do that. We said that the meaning of this Article was that the passing of the Constitution as such was not intended to affect their position— that is, that the mere passing of this Constitution would not affect the existing position, which was that their rights depended on an Act of Parliament which could be repealed or altered if the Oireachtas so decided.
It was said that, under the old Constitution, they had a Constitutional position; but the old Constitution was a very different one from this, as the old Constitution could be changed by simple legislation. Therefore, in fact, the public servants to whom Article 10 of the Treaty related had only the rights guaranteed to them by the Legislature, and if the Legislature wished at any time to change those rights it could do so, If those rights were incorporated in a definite form in this Constitution, they would be given Constitutional rights which could not be changed by the Legislature but which would require a referendum. The question is as to whether this Article in the Constitution expressed exactly what we intended it to express. Was there a doubt that it might be used in the sense of the amendment we had refused to accept, had voted against and defeated? We wished to make certain that the position after the passing of this Constitution would be the same as before—that is, that the mere passing of the Constitution would not affect rights which were embodied in an Act of Parliament but, at the same time, that it would not be used to prevent the Legislature at any time dealing with those rights. In other words you have here an addition proposed to make that quite clear.
"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 sub-section."
That was intended to clarify the position, lest there be any question whatever as to the point which Section 5 was intended to cover. It is not introducing something new, but is maintaining the previous position. It is simply a question of making clear that there would not be read into that what was intended by the amendment which was introduced at the time the Draft Constitution was being discussed in Dáil Eireann. We want to make sure that the passing of this Constitution did not affect that position and that whatever rights they had would still remain untouched. These, in our opinion, were embodied in the 1929 Act.
Would the Taoiseach allow me to ask him a question?
Has the Taoiseach got any advice which leads him to believe that it is necessary to make this amendment now?
This is simply a precautionary measure. As far as we are concerned, we put in that as a precautionary measure lest it might be said by anybody that this really meant what the amendment which we rejected at the time was intended to mean. In other words, the question here is whether this really meant that the passing of the Constitution would not affect the position. That was the intention. And then the question is, could it be read in a wider sense and could it be said that, in fact, by this they are getting Constitutional rights and their position is being guaranteed in the way suggested in a Resolution which was moved at the time—I forget who it was that moved the Resolution. It may have been the Deputy. Somebody moved a Resolution which would prevent the Legislature from passing a measure which would prejudice their position.
With regard to the wider questions of the Constitution as a whole which have been raised by Deputy McGilligan, his own remarks make it quite clear that he is fully conscious of the difficulty there is, on the one hand, to try to secure and protect in the best possible way the rights of the individual as against the Executive or against Parliament or, in our case, a majority in Parliament and, on the other hand, to give to Parliament the powers to protect the State. At various points you have to try to decide how far you can go in one direction without endangering the interests of the other. In time of crisis, if the State is to last, the Parliament must be in a position in which it can defend the State and take the measures that are necessary to ensure its security. It is quite true that unless you completely tie the hands of an Executive, an Executive that is inclined to be tyrannical may abuse its position and may pretend that there is a situation which needs strong action when, in fact, no such situation exists and it is a question of the individuals that constitute the Executive taking a wrong view of a situation or being tyrannically inclined. That has been certainly before my mind in all this question of the Constitution since we first had to deal with it. I said that when we were introducing the Constitution. It is natural that an existing Executive is inclined to go too far with its precautions, perhaps, on the one hand, whereas the Opposition, on the other hand, looking at it from the other angle, is inclined to go too far in the other direction. I think, at any rate, that this is a fair compromise and I certainly would feel very uneasy from the point of view of the safety of the community if we tied the hands of the majority in Parliament or the Executive any more than they are tied here.
How are they tied?
They are tied in a number of ways.
Tell me, about personal liberty, how are they tied?
We would have a long debate on that point over again.
Just hint at it.
There are certain general guiding principles laid down and the Executive are expected to act in good faith so far as those are concerned and the majority in Parliament are supposed to act in good faith in regard to these. The judges are there, within the limits in which they can operate, to see the powers that are given are not abused.
They have denied that. The judges have said they have no such power.
It depends on the case in question.
Of personal liberty.
It is quite obvious that we cannot go step by step here and go into detail on these things. We would have to start all over again. We would have to start the discussion right from the beginning. These things were worked out in the cases of the particular Acts that were going through and, in the case of a document of this sort, there is this conflict between the desire on the one hand to limit the powers of the Executive, lest they be abused, and, on the other hand, to give them ample powers to be rightly used. Whenever a definite choice came up to me, at any rate, I came to the conclusion that the public interest would be best served by making it possible for the Executive in a case of crisis to defend the State and to protect the State.
I am not talking of crisis at all. I am talking of ordinary law. The Offences Against the State Act is ordinary law. I am not talking of a time of crisis.
With regard to the superiority of law, in general, where law is mentioned here and where it is possible to make regulations by law it is intended that the law would work out the details. The general principles are laid down in the Constitution and, by law, the details are to be worked out. Again, I am not going to deny for one moment that people of ingenuity and those who are prepared to use that ingenuity in a wrong direction could by means of the details work contrary to the general principles that are laid down or in a way which is not intended. I am quite willing to admit that, but again I think it would be quite impossible for us to produce any document of a reasonable size which would even cover some of the cases that might suggest themselves to any person who throws himself an imagination into the possible difficulties that might arise and the possible cases that might arise. On the whole, we have to take the position that a body of representatives who have been elected by the people will ordinarily act in good faith and if the situation is reached in which they are prepared to abuse their position and abuse their power to the extent that is suggested when we are asked to amend these Articles in definite ways, then there is an end to popular representation in the ordinary way; a new situation is come about; you are practically into a revolutionary situation in which a coup has been effected by the Executive, because that is what it would practically mean. If they are prepared to do the one thing, they are prepared to do the other. The only thing is, I agree with those who would like to provide if it could be done—it would be satisfactory—that any such person with such desires should not appear to be able to do it under the cloak of the Constitution. I am quite willing to admit that.
That is what they can do, of course. They can do it under the cloak of the Constitution.
I do not think the Deputy or anybody else would be able to devise an instrument which would not enable people to do that unless, on the other hand, you so manacle the Executive of the day that they cannot take the measures that are necessary to protect the State.
I do not want to interrupt the Taoiseach, but I had one amendment down which, of course, fell by the way, to see that people should not be deprived of their liberty save by judicial decision. That would have brought the courts in. That was not accepted.
In regard to that, we are all pretty well tied. The Government as well as the Opposition have been tied, once this Bill was introduced, by the fact that the Chair could not deal with this in any way but one.
He could. He did it on the last occasion by agreement.
That request did not come either from Deputies opposite or from me. It was the result of an outside suggestion, and I do not think that agreement on the Deputy's amendment would have got us out of our difficulties. However, as I have said, there are two points of view, as I am sure the Deputy is very well aware, and there is the difficulty of getting the right balance between the two. Having to choose between the two and, if you like, having chosen rather on the side of strengthening the hands of the Executive to deal with abnormal situations, I think we have taken the wiser decision. We could have gone, of course, in the other direction and tried to make it impossible for the Executive to take the action which prudence at the time might suggest should be taken. We had to choose between the two, and I think we made the best choice, and personally I believe that if the Deputy himself were responsible for bringing in a measure of this sort and had to make a choice, he would make the same choice.
At any rate, I would not pretend to wrap it up in a rigid Constitution. I do not want that the law should not be flexible, but here the law is more than the Constitution.
Well, "the law" is a general phrase, which is not accurate.
The question of liberty has been discussed by the courts, and they have said that they have not power to prevent such abuses. The Taoiseach used a phrase, which rather struck me, to the effect that the law is only working out the details of the Constitution. There is a very short phrase in the Constitution about personal liberty—just two lines—in which it is stated that "no citizen shall be deprived of his personal liberty", and it ends up with "save in accordance with law." We worked out the details in connection with the Offences Against the State Act, and it amounted to this: that if a Minister says that a man ought to go to jail, then he goes to jail. He is simply deprived of his personal liberty.
I have my doubts about that.
In fact, there is the compromise, and it is between the law and the Constitution. The judges hold that there are the two territories, separate and apart, the legislature and the judiciary, and they say: "We will not encroach on the legislature; we will take the law as it comes to us from them."
The Question is: "That the Bill do now pass".
I am against the Bill.