I move amendment No. 9:—
To add at the end of the section the following new sub-section:—
10. No court, tribunal or authority other than the High Court, Circuit Court or District Court shall have by virtue of any Act passed before the passing of this Act or by virtue of any Order made by or under the authority of this Act or the Act of 1939 any jurisdiction to hear or determine any offence under this section.
This amendment proposes to ensure that the Special Criminal Court will have no jurisdiction in reference to offences under this Act. I put down this amendment largely because I was somewhat shocked at the view stated by the Minister during the Second Reading of this Bill on the manner in which offences ought to be brought before this Special Criminal Court, popularly known as the Military Tribunal. If I may say so without any disrespect, the Minister has completely misunderstood the whole purpose and scope of the Offences Against the State Acts. As reported in column 2089 of the Official Report of the 18th June, the Minister stated:
"It is, I understand, the function of the Attorney-General to decide whether cases should go to that court or be considered in the ordinary courts. I came to an understanding with the Attorney-General at an early stage in the war that there should be referred to the Special Court cases of offences against rationing and similar Orders where the evidence was such as to suggest that there was a conspiracy—an or ganisation on a large scale—for the black-marketing of goods over a substantial area. Generally speaking, charges against individual traders of selling goods at excessive prices, or contrary to the rationing regulations, were not proceeded with in that court, but where there was evidence of—shall I say—black-marketing on a wholesale scale, involving more than one trader and more than one locality in the country, then it was considered that the District Court would be inappropriate for dealing with the charges and the Special Court was used. Deputies who wish to raise questions concerning the utilisation of that court should do so with the Minister for Justice."
May I say in reference to that last sentence that when we tried to raise it with the Minister for Justice, he said: "Raise it with the Minister for Industry and Commerce." I put that to him during the discussion on the Estimate for the Department of Justice. The ball is passed from one Minister to the other. In my view, neither Minister has anything to do with it. I think the whole position has been misconceived. It is not the Attorney-General's function to decide whether a particular case is to go to that court or not. Before any case can go to this Military Tribunal, as it is called, the Government must make the offence a scheduled offence. It is a Government matter and the Government have to carry out the law in the way that this Oireachtas intended them to carry it out and only do it in the circumstances specified in the Act of 1939, as amended, and these circumstances are set out in Section 36 of that Act. Speaking generally, the provisions of Section 36 are as follows:
"Where the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of the public peace and order in relation to offences of a particular class or kind or under any particular enactment, the Government may by Order declare these offences to be scheduled offences."
The Government may do it, but before they can do it they must be satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of peace. I am sure the Minister will not take offence at what I am saying as I do not intend it in any disrespectful way. It appears to me, however, that when the Minister stated he had an understanding with the Attorney-General, both himself and the Attorney-General of the time were acting quite contrary to the law and spirit of the Act, because it is not a question of selecting a particular type of offence and saying: "That is a black-marketing offence of a particularly heinous character and it must go to the terror court in order to be dealt with." That is not what the Act says. That is not what the Parliament of this country intended when special tribunals were authorised to be set up. Before these courts were to be given jurisdiction, it was the intention and it is the letter of the law that the ordinary courts should be ineffective to secure the administration of justice and the preservation of the public peace. How can it be alleged that, even in reference to black-marketing offences, the ordinary courts are ineffective to secure the impartial administration of justice? I think that underlying the Minister's statement on the Second Reading of the Bill there was the suggestion that because certain types of black-marketing offences were of such a gross character that they ought to be dealt with by this particular terror tribunal and not by the ordinary courts they were sent to that tribunal. That concept of the Minister has nothing to do with the basis on which the jurisdiction of these special criminal courts is established, namely, the fact that the ordinary courts are ineffective to secure the proper administration of justice and the preservation of the public peace.
We have Circuit Courts and District Courts staffed and manned by judicial personages of standing and, it must be presumed, of ability. In reference to the particular individuals who occupy these positions at the moment, a very large percentage of the personnel of these courts has been actually appointed by the present Government, and by their action in sending these cases to the Military Tribunal, the Government have passed a vote of censure on themselves and on their own judicial appointments because the Special Criminal Court can have no jurisdiction, in justice at all events, apart from the letter of the law, unless the ordinary courts are inadequate to secure the effective administration of justice. Send a black market case to the Military Court and that suggests that the District Court, the Circuit Court, or even the High Court, which has jurisdiction, is inadequate to secure the effective administration of justice in relation to black market cases. I do not subscribe to that opinion, even though the people appointed have been appointed by the present Government. Every case sent to the Military Tribunal, as it is popularly called, is a vote of censure on our own judicial system at a time when that system is working satisfactorily and in accordance with the way most people want it to act.
I think the whole concept is wrong. It is not for the Minister and the Attorney-General to say: "We will send black market cases to the Military Tribunal." There must be a determination by the Government that the ordinary courts are ineffective to deal with these cases, that the preservation of public peace and order cannot be secured by the ordinary courts or the effective administration of justice assured by the ordinary courts. There is no foundation for the suggestion that the ordinary courts are inadequate to deal with black market cases, of however heinous a character. It must be assumed that the district justices will do their duty.
I want to make a public profession of faith. I have no sympathy with black market offences. I wish to see the offenders prosecuted with the utmost vigour and I wish to see them getting the utmost penalties the law provides. But I want our judicial system maintained, and it is a blot on the administration of justice that extraordinary courts, which were intended to deal only with a particular type of case, a case where ordinary courts or juries would be ineffective—a case of armed insurrection or illegal organisation, for example—should be utilised to deal with such things as black market offences. I think it is lessening the prestige and blackening the character of the administration of justice when we have to resort to that kind of tribunal.
There are certain types of cases which can be tried summarily by the ordinary district justices; there are other cases that can be tried on indictment. The same facts may give rise to a summary offence or an indictable offence. The indictable offence may be tried by a jury. I would prefer to have a jur convicting a black marketeer in one case out of ten than to have the whole ten black marketeers convicted by the Military Tribunal, because I think it would be a far greater manifestation of public spirit, acting through the jury system to deal with black marketeers, than have them dealt with by the gentlemen who preside at these military tribunals.
You would get far more respect for the law if you reach the position where juries convict black marketeers in indictable offences—and I believe juries would convict in black market cases. You would have far more respect for the administration of the law and more respect from the black marketeers if their own fellow countrymen were on juries convicting them. I believe they would convict them. I believe that with the ordinary consuming public on a jury—and a jury is a cross section of the public—you would get far more respect for the administration of justice in that way and far more public support in relation to the hunting down of black marketeers than in any sentence of the Military Tribunal. I believe these sentences rather gain public sympathy for the black marketeers than otherwise.
They may strike terror into the hearts of some who get exemplary sentences, but if these exemplary sentences were given by a district justice or a Circuit Court judge after conviction by a jury, it would be far more effective than any number of sentences by a military tribunal. I say quite sincerely that the only effect of convictions by military tribunals is to gain a sort of sneaking sympathy for black marketeers, who do not deserve any sympathy whatever. I suggest to the Minister that these offences ought not to be tried by the military courts, that the approach is wrong as he stated it. He has, I am sure, quite inadvertently taken the wrong approach to this matter. There is considerable excuse for the Minister in taking that approach when apparently the Attorney-General assisted him. The spectacle of the Minister and the Attorney-General deciding in advance that certain cases should go to the tribunal is in complete conflict with the provisions of the statute and contrary to the whole spirit of it.
Under the Act of 1939, when the Attorney-General sends cases from the ordinary courts to the Military Tribunal, he is supposed to act judicially in each case. He is supposed to bring to bear on the facts of each case a judicial determination and he can only bring that judicial determination to bear on the facts of each case when the Government has done its job; that is to say, has determined that the ordinary courts are inadequate to secure the determination of justice. A Government Order may be legal when it puts offences of this kind as scheduled offences, but it is contrary to the spirit of the Act and essential justice in the circumstances existing in this country, where the ordinary courts are functioning satisfactorily in reference to practically every offence, with the exception of offences against the State, armed insurrection, or something in the nature of preparation for armed insurrection or illegal association.
Where the ordinary courts are functioning perfectly, it is contrary to the spirit of the Act and to morality and justice to send these cases to the Military Tribunal. It is contrary to the public interest, apart from morality and justice, because the use of these courts destroys the whole effect intended and produces public sympathy rather than public opprobrium. You will get far more sympathy from the public if you bring the black marketeers to the ordinary tribunals with vigour and determination rather than if you bring them to the Military Courts.
I make these observations in all sincerity. I believe it is wrong on principle to use that tribunal for these purposes. That tribunal has a value in the circumstances in which it was created, a value to deter people who may be engaged in unlawful associations, who may be thinking of engaging in illegal conspiracies of an armed character against the State. That value will be destroyed if ordinary cases which should be tried before the ordinary courts are brought before that special tribunal. I appeal to the Minister to accept this amendment in the public interest.