The debate on this amendment has taken some little time but, nevertheless, I think that the time spent on it is warranted by the seriousness of the step proposed in the Bill. I was anxious to get to the bottom of the provision, in so far as I could and I went to the Official Debates for the year 1940, when the same provision that is now in the permenent Bill was introduced by the Minister. At that time, of course, we were in an emergency situation and the Minister introduced his Defence Forces (No. 2) Bill of that year to deal with the emergency situation. At that time, the Minister had, as any Minister in similar circumstances would have, the unanimous and full support of the House. It is very strange that in his Second Reading speech the Minister did not advert to, or give any reasons for, this particular section but when it came to the Committee Stage, Deputy Cosgrave made some inquiries with regard to it. The debate in regard to the then Section 4, which is similar to the section we are now discussing, is set out in columns 1544/45. Volume 80 of the Official Debates. It is so short that I think I shall read it to the House:—
"Mr. Cosgrave: I notice there are certain sections in this Bill which apparently have a temporary character only. Does it follow that once the Bill becomes law, the question of the period of emergency settles that problem. It is only in the period of emergency that this measure will be in operation?
Mr. Traynor: Yes, as regards the emergency provisions.
Mr. Cosgrave: Did the Minister get advice on that? It is altogether a question of law. The Minister is really expressing an opinion. Not one of the expressions in this section is given under the definitions in Section 2.
Mr. Traynor: In fact we have not the power to deal with this except in this manner.
Mr. Norton: I take it the Minister is anxious that the Bill should have a limited period of duration. There will be some limit to its period of duration though it may be in operation for a long period?
Mr. Traynor: Yes, that is right. There will be a limited period of duration as regards the emergency provision.
Mr. Cosgrave: We are prepared to give the Minister power to deal with emergency situations but not to give him powers to continue that emergency situation. We are not fixing the limit of time of the period of emergency but we object to having special clauses embodied in the Bill which normally would not be made statute law in this State except for a period of emergency.
Mr. Traynor: I take it there is no desire on the part of the Government to take these powers other than for a state of emergency. It is a matter that will be dealt with at a later stage when the Defence Forces Act comes along at a later period.
Mr. Norton: Would the Minister consider any provision or give any guarantee that the Bill has a definite duration, that is, a reasonable period of duration, having regard to the emergency provided for in this Bill?
Mr. Traynor: We will consider it.
Mr. Benson: There has already been a declaration of a state of emergency. That exists in the legislation passed here last September. Does this Bill deal with another state of emergency or is it the same one?
Mr. Traynor: I would say it is the same state of emergency. In respect of this Bill we have got to procure certain powers to deal with certain situations with which we have not been in a position to deal previously. This Bill will give us the power to do this. For instance, we have no power to enlist men for the period of the duration. This Bill gives that right and at the end of the emergency to allow the men to go free.
Mr. Benson: Would it not be as well if one declaration of a state of emergency covered both matters? The provisions here would automatically come in with the declaration of emergency which was made last September and possibly that state of emergency need not be made to-day?"
That was the whole discussion on this particular section in 1940. The Minister gave no reason then for that section except that he asked the House within an emergency situation to give him these powers and the House with reservations, as one can see in the speeches of Deputy Cosgrave and Deputy Norton, gave the powers but, clearly, everybody considered that they were only powers for the period of the emergency.
It is true that the Minister did say that the matter would be dealt with subsequently in the permanent legislation and that is what we are dealing with now. My complaint is that the Minister has not given any reason whatsoever why this provision should be in a permanent Bill in a period of peace time.
I have dealt with the constitutional aspect of this and I have stated that in my opinion this particular section is contrary to the provisions of the Constitution. I have also dealt with it on the basis of constitutional safeguards for the people and I want to sum up in a very brief way my objections to the section as it stands.
The Article of the Constitution which deals with emergency situations does declare an emergency such as is visualised in this particular Bill. Secondly, even if the Constitution did give to this Parliament power to invest the Government with such powers it would be unwise of Parliament to give such powers to the Government. In this House we should be concerned with the protection of the freedom and the liberties of the citizen. This House was established for that purpose. One of its prime functions is to preserve the freedom and liberties of the citizen. When this House gives power to the Government — and that means any Government in the future—to declarea state of emergency it is surrendering its powers and surrendering them unwisely to an Executive that may be corrupt and tyrannical.
The Minister asked me last night: "If you have that type of tyrannical Government, what does it matter what is written in the law?" There is something to be said for that, but I want the Minister and the House to realise that the Defence Forces or Government are not acting in accordance with law. If a corrupt Executive at any time in the future made an Order in regard to the Defence Forces which was clearly unconstitutional and outside the powers of the Government, the Chief of Staff and the Army authorities would obey that Order at their peril and each and every one of them who would obey that Order would render himself liable subsequently to be tried by the civil courts and dealt with for acting in an unlawful and in an unconstitutional manner, so that there is protection.
The Army is like the courts. It can only act in accordance with law. It cannot be compelled by any Executive to act illegally, unconstitutionally or wrongly. If we give the powers set out in this section, a corrupt Government, a tyrannical Government, a Government that wants to take over total powers and set up a dictatorship may make the Order and the Army would be bound to obey that Order because it would be a lawful Order in accordance with the laws of the State.
I have spent a considerable amount of time in opposition to this section. I have clearly set out my own view in my two contributions over the past couple of weeks. I request this House not to hand over to the Government powers that the Government need not have, powers that a Government should not have. To surrender the powers of Dáil Éireann in this matter and hand them over to the Government would be a very grave and serious error. In my view it would be a tragedy.
In my view the persons who prepared this Constitution, the Ministers who examined it and approved of it and the people of this country who adopted it were wise when they limited, in Article28, the powers not only of the Government but those of the President and the powers of the Oireachtas in relation to matters of war, armed rebellion and emergency situations. The Constitution clearly says:—
"War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann."
That is a very clear provision that this is the House which is invested with the power to declare war or authorise this country to enter upon a war. The Constitution also says:—
"In the case of an actual invasion however, the Government may take whatever steps they may consider necessary for the protection of the State. . . ."
Then it deals with its third—and in my view—very important provision when it says:—
"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 preservation of the State in time of war or armed rebellion. . . ."
So that in time of war or armed rebellion any law that is enacted by the Oireachtas having for its express object the securing of the public safety is valid. Why did the Constitution go to the trouble of limiting the powers of the Government and the powers of the Oireachtas in regard to war and emergency situations if it intended that this House, the Parliament of the people, should surrender its powers to the Government and give themcarte blancheat any time to declare a state of emergency with all the matters that flow from such a declaration?
I want to say to the Minister that I feel, as a Deputy of this House, this is not a power that the House should surrender to any Government now or in the future. I feel that the Government ought not to ask this House to surrender to it powers which are clearly unnecessary and which have been invoked only when this Dáil gave power to the Government during the recent emergency. Over a period of30 years we have not had to operate such a provision except in a case of emergency when this House gave specific power to the Government to operate the powers.
I ask the Minister to agree to the deletion of this clause from the Defence Forces Bill. It is a dangerous power— a power that may be used by scheming individuals in the future for the purpose of destroying the liberty of the people of the State. If the Minister does not agree to delete this clause then the only thing that is left to the members of this House to do is to vote against the giving of such power to the Government.
I am quite sure that if this House were to pass this section of the Bill it would be violently opposed in the other House. I am perfectly certain that the organs of public opinion in this country, when they realised the grave issues that are involved, would each and every one of them, day after day, call public opinion together against the surrender of such a power to a Government. We are, as it were, at the crossroads here. If we take the step that the Minister asks us to take we may be endangering—in fact, probably we will be endangering—the freedom and the liberties of the people. I will not vote with my eyes open for any such surrender of power which is vested in this House to a Government which can, under the section, declare an emergency whenever they think it necessary and irrespective of whether or not it is necessary.
Deputies MacBride and McQuillan rose.