Before the interval, I was speaking on the difference between the precedents, or alleged precedents, quoted and what is before us in this Bill. I was making the case that it is quite proper for Dáil Éireann, on occasion, to say, in respect of legislation it has passed: "The courts have shown by their decision that they do not appreciate the mind we had on this particular matter. We shall let the people who obtained a decision reap the reward of their enterprise but we shall, by Act, try to establish for the courts a new system and introduce phrases which they will interpret so as to give effect to our intention." That is a normal proceeding. Nobody can object to that. In the phrase he quoted in relation to the Local Authorities Mutual Assurance Bill, Deputy O'Connor showed that that was quite clearly what was intended to be done. The court came to a decision not in accordance with a view of the Dáil and, for future cases, the Dáil re-established its view. That went before the courts and the courts took a view in accord with what Dáil Éireann intended. Thereafter, the matter proceeded accordingly. It is open to the Dáil from time to time to do that and nobody can object to it. Here, we are writing in a provision to prevent people from getting a decision. We are dragging the matter out of the courts and into what the Taoiseach calls "the supreme court of this Dáil".
I want to put in contrast two things. We are living under the Constitution of the year 1937. In the earlier part of that Constitution, it is stated that there are different powers of Government and they are divided into the ordinary three branches—legislative, executive and judicial. Those three branches are followed in those divisions through the Constitution. We come to the Article which deals with the courts in Article 34. There are previous references to the courts, but this is the article which establishes the court system. In the Constitution under which we invite the people to live, we say that there are to be three types of functions to be attended to— judicial, executive and legislative. In Article 34, we tell the people what we propose for them in the way of courts. We say in that Article:
"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution."
The remainder of the paragraph deals with the question as to whether justice is to be administered in public or not. That is not relevant here. Justice is to be administered in courts established by law by judges appointed in the manner provided by the Constitution. At a later point, we divide the courts into courts of first instance and a court of final appeal. In paragraph (3) of Article 34 we say:
"The courts of first instance shall include a High Court, invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal."
There are further provisions but that gives in a skeleton way the situation of the courts in connection with justice. The people were told, that, under that Constitution, we were going to see that justice would be administered and that there would be no question of the Executive interfering with the courts. We were going to see that the courts would be independent of the Executive because they would be presided over by judges appointed in the manner provided by the Constitution. They were to be the people to administer justice. Later, in reference to the judges, by a device that has come down through history, we established that situation of the independence of the judiciary. We tell them that we expect them to be independent. We tell them that they cannot be removed save under very peculiar circumstances and for reasons such as misbehaviour or incapacity. We give them tenure for a particular period and we guarantee that their emoluments will not be reduced during their period in office. We ask the judges to take an oath when they enter upon their work. The oath prescribed for judges appointed under the Constitution, which covers the higher courts, is in the following terms:
"In the presence of Almighty God, I —— do solemnly and sincerely promise and declare that I will duly and faithfully to the best of my knowledge and power execute the office of —— without fear or favour, affection or ill-will towards any man and that I will uphold the Constitution and the laws. May God direct and sustain me."
In that very solemn way, we establish courts with independent judges whom we bind by an oath to behave in that way. Then, we say to the people: "Any time you want justice, go to those courts with the knowledge that they are presided over by judges whom we cannot sway by changing their salaries or by removing them from office. We have appointed them because we believe they will carry out their trust and we have put it beyond our power to penalise them by dismissal or reduction of emoluments so as to give them a free hand to do their work."
We say of them that they are to be independent in the exercise of their judicial functions, in Article 35; so we tell them that they are to be independent and we provide them with the means of securing that independence. Then we turn to the people and say: "If you have a case, go plead it in our courts, for you will get independent judges." We tell them in the forefront of the Constitution that there are three types of function in any case—legislative, executive and judicial. Go to Article 34 and what follows it and you will find what is meant by the courts. In those circumstances, people go to the courts asking to have decided a simple question, a question that is certainly simple for the courts to decide —they have decided many things like it often before—whether the people who claim these funds really merit them and are entitled to them. When that case has stayed there for some time, the Taoiseach comes in here with this piece of legislation and its effect is that, on its passing, all further proceedings shall be stayed. Then, to prevent the High Court having any independent view of this, we find: "The High Court shall, if an application in that behalf is made ex parte by or on behalf of the Attorney-General, make an order dismissing the pending action without costs.” Then there is provision for the payment of the costs. After that, we find that: “No action or other proceeding shall, save as provided by this section, or Section 11 of this Act, be brought or instituted in respect of the court funds or the moneys on deposit in the bank.”
Then, having taken that money out of the court, it is to be distributed in accordance with the other sections of the Bill. What is to be substituted? A committee of people will be nominated by the Government. That committee will be presided over by the Chief Justice or someone nominated by him and from that committee there may be removed from time to time such people as a group of three outside the court nominated by the Chief Justice may determine, on the application of the Attorney-General—and that is no question of competence, although the Taoiseach tried to make out the other night that it was. It says: "If it is thought desirable to move him." This group of non-judicial people, as shown in the Bill in any event, is then to distribute the funds. They are to decide their own procedure; they can decide what evidence they will have before them, what records will be kept of the evidence; and the money will be paid out.
Now, may I make the contrast? All the things that make for independence in the judiciary are absent from the new body. It is not to be thought that the Chief Justice becoming chairman of this remains Chief Justice, or at least is Chief Justice in relation to the position. He is not; he has no judicial oath to bind him, he is nothing in respect to these disbursements. The committee are to be nominees, not judicial people. All the rules of evidence may go by the board. Records that ought to be kept, so that people could thereafter say that somebody got those moneys who was not entitled to them—all that is to go. Supposing one were thinking of a real racket. Supposing a gang of people with the worst minds in the world got together and said they wanted to think of a group who would distribute some funds to friends of that group, what would they, if they wanted full freedom of action, think of doing?