No. There are two parts to the section. "When under orders to carry out an operation of war" is one part. He is under orders to carry out an operation of war. In other words, if his troops were to occupy Buncrana or some other part of the County Donegal and that he is under orders to do that, and through negligence or some other cause he does not use his utmost exertion to bring the officers under his command into action, he would be deemed guilty of an offence. Again, the Minister will probably see on reading the section that way that there is something wrong there, because to carry out an operation of war it is not necessary to bring the troops of the command into action. I think that would be accepted, that you can carry out an operation of war without bringing your troops into action. That is the first part. The second part is that to which Deputy O'Donnell referred, that in going to meet an enemy that it is his duty to engage, he has not used his utmost exertion to bring the officers and men under his command into action. As Deputy McQuillan said last night, that section may be of use or value in Canada but we have had nothing established up to the moment here to show any necessity for it and the only one example I have been able to get the Minister to give me was the one he just gave recently. Section 124 (i) refers to the point he has in mind.
Let me again refer to the point that I was making at the beginning when Deputy O'Donnell asked his question —that the whole thing is left entirely to be decided by a court-martial and that, having decided it, they can then decide whether the particular person is to be sentenced to death or not. I make the point that this section has only one value, that it enables scapegoats to be found for a particular thing and that it enables the scapegoats to be executed. There is no use in saying to me or to anybody else: "Oh, these are his comrades." I know that as far as the Army in Ireland is concerned there is, and has been for some time, a very high spirit of comradeship. I should always like to believe that that high spirit will continue but I have seen army officers in other countries in recent days taking particular decisions in regard to their comrades. I have seen army officers taking action in regard to their comrades not so many years ago on the continent of Europe. I have read of army officers carrying poisoned tablets with them and revolvers and handing them to their comrades telling them to do away with themselves. That was only a couple of years ago. A number of distinguished military officers were butchered by their comrades in that fashion. It is no safeguard for me or for any officer in the Army that he is going to be tried by his comrades because unfortunately history proves that some of the worst things that can be done to military officers are done by their own comrades. It is no defence or can be no justification to this section to say that you are going to have a particular individual tried by his peers. I want to make sure that whatever goes into this Bill which will enable a man's life to be taken away will be placed in the Bill only when the offence for which he may lose his life is made clear and specific.
I want to point out to the House that under the criminal law of this country the general rule is that intent to do wrong is a necessary condition of liability. That is fundamental; it is a necessary condition of liability that an accused person must have intent to do wrong. That is why the British, with their conception of fair play and justice, in their Army Act put in the two words "treacherously or shamefully" so that it would be clearly established that if the person committed the offence he did it deliberately and with the intent to do wrong. In these circumstances they said:—
"If a court-martial finds that he had that intent, the intent to do wrong or to act treacherously or shamefully, then let him be sentenced to death if the court finds that he should be sentenced to death."
There is no such provision or safeguard in this section. There is no law of that kind being laid down here. The officers of the court-martial are being givencarte blanche to take a man's life away simply because they may be of the opinion that he did not do the right thing on a particular occasion. As I said, it may be discovered afterwards that what was considered to be wrong when he did it was in fact right. That is my objection to the section and to the insertion of the words “negligently or through other default”. That does not bring about the condition of liability that should exist if a man's life is to be taken away.
I was amazed last night when Deputy General MacEoin dealt with this section because generally speaking Deputy General MacEoin on matters of this kind takes a very sound and constructive view. He asked the question: "Do these sections show that an offence has been committed? If they show that an offence has been committed the punishment does not matter." That was his viewpoint. He put up the point, too, that these were court-martial officers, that the accused was being tried by his peers and that there was no danger. I think there is what you might term a revulsion in this country at the moment against capital punishment. The ordinary person is against corporal punishment whether it is a civilian or a soldier that is involved. I think the House will agree that the very fact that a man is commissioned in the forces of the State should not entitle anyone to take away that person's life more easily or more quickly than his life could be taken away by the civil authorities. Only recently we had an example in the courts of this country where a person charged with the offence of murder was acquitted unanimously by the jury that tried the case. That, to me, shows that there is among the ordinary citizens of the country a revulsion against capital punishment.
Deputy McQuillan took the same line on the section that I took. His experience of the Defence Forces shows there is no necessity for this section, and that a section enabling a man's life to be taken should only be inserted in an Act of Parliament for the very gravest of reasons. If those grave reasons are there and if they are explained to Parliament, Parliament will, if it thinks the situation demands it, give the Minister and the Government the power that they ask for in regard to executions. But where we propose to do as we are doing here, extending the law relating to capital punishment and enabling a man's life to be taken more easily than it can be taken at the moment, I think it is the duty of the Minister to explain the gravity of the situation and the necessity for the adoption of such a course as is here proposed in this section.
The House knows that the Minister has said: "We have followed the Canadian Act in this because we think it improves our Act." That is the Minister's explanation—that it improves our Act—and he says that military authorities have examined this and while he does not say they approve of it, he says they have taken no objection to it. I beg leave of the House to take the view that, in a serious and grave matter such as this is, it is not sufficient explanation for the House nor sufficient justification, when it can be established, as I have established in dealing with the particular point the Minister made, that there is ample authority in the Act to deal with the particular type of insubordination that he mentioned in his example. Human life is something that ought to be protected and respected and it is our duty as a Parliament to see when we consider the situation is grave enough and serious enough that a man's life may be in jeopardy that that man's life can only be put into jeopardy if he is guilty of a specific offence of a treacherous or shameful kind such as they mention in the British Air Force Act and each and every one of us should use his utmost endeavour to ensure that a sub-section such as this is not passed into law which givesad lib. to military courts-martial power to sentence one of their comrades to death.
As I have hinted, in view of our experience in the last 25 years of the activities of military leaders and military officers in various countries it is vitally essential and important that they should not have the power of life or death over their own comrades or others unless in the very gravest circumstances and unless the offences which can bring about the death penalty are clear and specific and give no reason for doubt whatsoever. I think that where we are dealing with a military Act such as this is and which, as General MacEoin said, is to be a permanent Act, and which may govern the Defence Forces of this State for many years, we should be very slow to extend powers of life and death and give those powers to persons who may in fact abuse them unless we have the strictest control over what they do.
The Minister says there is a protection in that a sentence of death may not be carried out unless that sentence is confirmed by the Government. In other words, if a person is sentenced to death by a military court-martial, that sentence must be confirmed by the Government. That is what the Minister says and he adds that in those circumstances a Government consisting of 12 or more people would hardly carry out the sentence or allow the sentence to be carried out unless it was just that it should be done. I would like the Minister to consider that. I would like the House to consider that, and I would like the Minister and the House to consider if there have been in the history of this State circumstances in which military officers did in fact carry out executions and did insist that the Government would approve of the decision that they had come to to execute particular citizens.
That is a part of our history that we must not close our eyes to. Has it happened in the past that the Government have been compelled by threats to submit to the decision of military officers to carry out executions? If that has happened in the past, can it happen in the future, and if it has happened in the past is it not our duty as a House to make sure that such a thing as that will not occur or happen in the future? On a matter such as this, all that I can do as a Deputy of this House is to oppose it by all the means that are in my power, to oppose the giving of powers to military authorities, to our courts or to anybody else to execute persons unless the charges against those persons are clear and specific, and involve, on the part of the accused person, a definite intent to do wrong. If a person does something and has not a criminal intent to do wrong, then I say that the power to execute that person should not be exercised and that it should not be permitted by this House to be exercised by anybody.
I would be long sorry if it should be the view of this House that, because a person wears the uniform of his country, he can be sentenced to death much more easily and much more readily than the person who does not honour the State by serving it in uniform. I have referred to the Minister's reply in which he simply says, in answer to my extensive examination, that there is no difficulty in interpreting what is in the section. I say that I have difficulty in interpreting what is in the section, and that I personally do not know what this section means. If I were asked by an accused person to advise him as to whether he was guilty of an offence under that section or not, I would have to tell him bluntly that I could not advise him, that it was entirely a matter for the five officers who tried him: that under the section they had the right to make the law and the right to interpret the law and that they had the right, having so made it, to sentence him to death.
I say that we should not be in that position. I say that there is great difficulty in interpreting that section. I asked the Minister to give an explanation of what the section meant. The Minister took two words out of the section, "utmost exertion." He said that he found in the British Air Force Act the words "utmost exertion", and, therefore, there is no trouble as to what they mean. But, as I have pointed out, in the Air Force Act they use the words "treacherously and shamefully", in addition to the words "not using his utmost exertion", so that there is no comparison between the two sections.
The Minister has left the House in doubt as to what this means. He says that there is no difficulty in giving a meaning to the words that are in the section, and that I have only adopted an attitude of ridicule for the section in my examination of it in this House. I want to admit frankly that I was so horrified by that section, I was so appalled by it, I made up my mind that, as far as I could, I would endeavour to have that section deleted from the Act. I did adopt the two lines. I examined it critically from the point of view of its meaning and interpretation, and I did throw as much ridicule as I could on the section. The Minister is perfectly right when he says that I ridiculed it. I did, and I did it deliberately. I think it is right that it should be ridiculed and held up to the ridicule of this House and of the country, because it is a section that is so completely contrary to our concepts of the fundamental principles of law that it ought not to be introduced into this or any other Act.
The Minister says that, as far as he is concerned, he takes the point of view of the man in the street. I submit, with respect, that where we are dealing with a section of this importance which concerns the lives of very many of our leading military officers, we cannot take the point of view of the man in the street, that the point of view of the man in the street is not a point of view that determines the meaning of a section which involves either life or death.