I took it I would have a little more time to consider this difficult problem. The amendment I put down to the section was designed for the purpose of keeping within the Oireachtas the power of deciding when an emergency situation is to be declared. I feel that the Minister's advisers have missed the fundamental point. The Minister stated that Section 4 was inserted in the Defence Forces (Temporary Provisions) Act in, I think, 1941. I am not altogether sure of the exact year but the important point is that the section was inserted during a period of actual emergency. It is possible that at that time the Oireachtas did not worry very much about the particular section because there happened to be a state of emergency in existence. Secondly, this was a provision inserted in a Bill which was purely temporary in its nature, which only existed from year to year and which could be amended at any time when the annual continuing Bill came before the House.
The section, as it stands, gives the Government power whenever they consider the circumstances of such a nature as to warrant their doing so to declare by Order that a state of emergency exists. In my view, no Government ought to be armed with such a power and I believe that the Constitution provides against such a power being given to the Government. We are discussing a matter of the gravest importance. Under Article 28 of the Constitution—and this country is different from Britain because it operatesunder a written Constitution in which the powers, functions and responsibilities of different persons and different organisations are specifically prescribed—the powers of the Government are clearly defined. The powers of the Dáil, the powers of the judiciary and the limited powers of the Army are also clearly set out in the Constitution.
In Britain there is a more flexible position where they have no written Constitution and where Parliament is supreme. Here Parliament is supreme only within the Constitution and certain Acts that are passed by this Parliament can be held by our Supreme Court to be unconstitutional. The Supreme Court has held in recent years that an Act passed by this Parliament was unconstitutional and could not operate and it was declared to be void and a nullity. That was the Act that dealt with the Sinn Féin funds. In my view, if this Dáil were to pass this section it would be acting contrary to the Constitution and the section could be challenged in the court. I am of opinion that if it were so challenged the courts would hold that the Oireachtas had no power to pass such a section. It is a grave section, a section which entitles the Government by Order to declare that a state of emergency exists and, as the Minister said yesterday, the declaration of a state of emergency enables the Government: (1) to alter the machinery of recruiting; (2) to call up all, or any part the Government likes, of the Reserves; (3) to exercise powers of billeting on the civil population.
There is another power which the Minister did not mention and which, I think, is important because it is consequential. When the Government declares a state of emergency under this power, it has also the power to declare that the Army or a part of the Army is on active service. When they declare that a part of the Army or all the Army is on active service it means that courts-martial operating against officers and soldiers have more extensive powers of punishment than they would have if the Army was not on active service.
I do not think that these are minor powers. This Dáil, as is the case in every democratic Parliament, holdsdirect control over the military forces, and it says annually how many soldiers and officers the Minister or the Government may have; it provides for their pay; it provides for the number of reservists that may be established, and provides, as it does in this Act, the limited ways in which the Reserve and reservists may be called out as an active part of the armed forces of the State.
By a military order under this section, the Government may bring the whole Reserve under arms, cause the country very serious expense in pay and maintenance and for other provisions, perhaps, without justification. The Government can take the Army or a part of the Army and billet that Army on the civil population. If they think there is some particular disturbance in a locality they could, under the provisions of this Act, billet officers and soldiers in the homes of every person that might be opposing the Government in that particular part of the country and compel the inhabitants, under pain of punishment, to provide food and vehicles for them, to provide petrol for Army lorries and forage for Army horses. No one will tell me that is not a grave power to give the Executive without any reason.
When the constitution was being considered—and it received most serious consideration at the time—provisions in regard to an emergency situation were inserted in Article 28 of the Constitution. Article 28 sets out the powers of the Government and it says:—
"War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann."
That is the first proviso, that the Government has no right to declare war and the State has no right to participate in any war save with the assent of Dáil Éireann. Then it provides this:
"In the case of actual invasion, however, the Government may take whatever steps they may consider necessary for the protection of the State, and Dáil Éireann if notsitting shall be summoned to meet at the earliest practicable date."
I think that is one of the points Deputy McQuillan had in mind when he spoke, that in the case of actual invasion— but it must be actual invasion of this country—the Government are given the right under the Constitution to take whatever steps they consider necessary to protect the public, and there is a saving clause that the Dáil will be summoned as soon as practicable to consider it. The Government would be entitled in any State, whether there is a written Constitution or no Constitution, to operate that power. It is a very old maxim and a very old law that the safety of the public is the supreme law, and that is provided in the case of actual invasion. The last part of this Article is a very vital part because it says this:—
"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."
That again is one of the points that was mentioned by Deputy Major de Valera. Any law that this House passes to deal with the preservation of the State in time of war or armed rebellion would not be contrary to the Constitution. The section we are discussing has nothing to do with war or armed rebellion. The Article goes on further to say:—
"In this sub-section `time of war' includes the 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."
Any law that is passed by this House and by the Oireachtas and which is expressly declared to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion is not contrary to the Constitution. I asked the Minister to look into the constitutional position. This Bill is declared to be "An Act to make further and better provision in relation to the defence of the State and the Defence Forces and to make provision for other matters connected with or incidental to the matters aforesaid." It does not say, under the Constitution, that it is an Act for the purpose of securing the public safety or the preservation of the State in time of war or armed rebellion —and such must be expressed if this Bill is to be considered to operate in any way under that part of the Constitution. That was one of the matters I wanted the Minister to look into.
We have, therefore, this position. No war can be declared without the assent of Dáil Éireann. Dáil Éireann has the power to declare a war—it is not the Seanad or the Government or anyone else but Dáil Éireann. In case of invasion, the Government is entitled to take any steps they think necessary. In case of war or armed rebellion, the Government may take such steps as they are authorised by law to take— and no more. The Constitution says:—
"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."
In other words, if there is a war between France and England or between Russia and America, in which we are not directly involved, but regarding which the Dáil and the Seanad each decide that a national emergency exists affecting the vital interests of Ireland, then any law that would be passed by the Oireachtas to deal with that would not be contrary to the Constitution.
We see, then, that the Constitutionis very clear on the limitations it places on the Dáil and on the Government in these vital matters of war, actual invasion, or a war in which we are not directly involved, but in the case of which each House of the Oireachtas thinks that it is such a serious matter that a national emergency exists.
The peculiar thing about it is that the Constitution refers to a "national emergency," whereas the Minister for Defence in this Bill refers to an "emergency." In my view, there is no difference between the two phrases. If this matter were tested by the Supreme Court, it is my view that the Supreme Court would hold that this House is entitled to pass such laws as they are authorised to pass under that constitutional provision dealing with emergency situations, but that they are not entitled to pass any other law to declare the existence of an emergency except the ones they are so authorised to pass. That is why I say this is a matter of the gravest importance, as it would be handing over to the Executive or to the Government powers which this Dáil has no right to pass over to the Government and which, under the Constitution, we have no right to give to the Government.