Dáil Éireann debate -
Thursday, 4 Mar 1954

Vol. 144 No. 10

Defence Bill, 1951—Report Stage (Resumed).

Debate resumed on amendment No. 77:—

In pages 60 and 61 to delete Section 123.

Minister for Defence (Mr. Traynor)

I think that what I said here yesterday, together with what has been said by Deputies MacEoin, de Valera and Colley should be enough to convince any reasonable person of the necessity for this particular section in the Bill. Before dealing with some of the points in regard to the individual paragraphs I would like to make it absolutely clear that there is no question of this section, or indeed any other section in the Bill, being forced on the Army against its will. Since the discussions which took place at the Special Committee this Bill has been re-examined by the appropriate military authorities—the highest officers who could be procured to examine it—as well as the legal authorities, and all these responsible officers of long experience, men who have had years of experience in handling matters of discipline and so on, are satisfied that the action which it is proposed to take in regard to the insertion of this section in the Bill is necessary from the viewpoint of the military authorities and that there should be some provision for dealing with matters of this kind in the future.

As to the individual provisions in the section. I do not think that anyone studying these sections—now I am talking about the ordinary man in the street—would have any great difficulty in interpreting to his own satisfaction the meaning of these sections, nor do I think that he would have any great difficulty in giving meanings to the words that Deputy Cowan picked out specially to ridicule—because I think that is the only word that would meet the particular case.

So far as I am concerned, I can say that I have the viewpoint of the man in the street on the meaning of these particular words. I do not think that any Deputy would have any difficulty, for instance, in interpreting the words "utmost exertion". If two persons are pulling a cart it is very easy for the ordinary man looking at these people to know that one of them is what is commonly known as "swinging the lead" while the other man is pulling his weight. I think that is as good an illustration of the meaning of "using his utmost exertion" as anyone could desire. It means using the greatest possible effort in relation to the particular circumstances at the time. That is, as I understand it, the literal meaning of the expression. The meaning which I have given is I suggest the meaning that would occur to the mind of any ordinary person.

Deputy Cowan also dwelt for a considerable time on paragraph (b) of the section. I think the word he fastened on there was "courageously". He wanted to know who would be the judge of what was courageous and he gave us a dissertation on courage, cowardice, and so on. I think myself that an officer or brother officers in the field would very quickly sense what was cowardice as against what was courage. We have all had the experience of being present at football matches and of seeing one player being outstandingly courageous in respect to his tackling, going up for the ball, getting out of the ruck, and so forth, whereas we may see others who are not so anxious or who are drawing back. These are the ordinary things of life.

Captain Cowan

They are the people who get the international medals.

Mr. Traynor

That is the simplest explanation of what courage means. Courage, I suppose, connotes ability to endure hardships as well as to carry out courageous acts. One does not have to, as Deputy Cowan suggested, run in front, waving a sword to instil into the minds of onlookers that that is a courageous action. That is not necessarily a courageous action; it may be a publicity stunt. You can apply many descriptions to it but it is not necessarily a courageous action. The man who keeps his head, who keeps cool and who is in general an inspiration to the troops he is leading, can instil courage into the troops as well as being courageous himself without any of the show business that the man waving the sword would find it necessary to indulge in. The point is that, after that long dissertation on courage, the Deputy knew very well although he spoke for 20 minutes on that section, that I was deleting it, deleting it to meet the views put up by the Special Committee.

Deputy Cowan was also very anxious to know what was the meaning of "known friend." He seemed to think that there would be considerable difficulty in interpreting the term "known friend"—in other words, if one were required to go to the assistance of a "known friend," how was one to know who was a "known friend." The only explanation I can give of that is that generally in the Army a friend is known as a person who is friendly-disposed and the use of the word "friend" is common in Army parlance. A sentry will shout: "Halt, who goes there?" If you are wise enough, you will say: "Friend," meaning that you are not against him. He will probably then ask you "Advance, friend, to be recognised" and if he is satisfied that you are a friend all will be well and you can pass on your way. My interpretation of the term "known friend" is a person who is on your side and who is not against you. He may be a member of your own Army in an isolated position, fighting under great difficulties and the Bill suggests that it will be the duty of an officer to go to the aid of a known friend. It might be possible that even civilians fighting or doing their utmost to give their aid to the Army would be known as friends, and it might be desirable for the Army to give relief to these known friends. These are the only explanations which I can give in relation to the simple words that have been picked out, examined, parsed and their meanings sought.

Deputy Cowan also selected another word. He described it as a word with a lyrical meaning or as a lyrical word. That is the word "forsake". There, again, we know what meaning the ordinary man in the street would put on "forsake" and Deputy Cowan knows it as well as anybody else. The dictionary meaning of the word is as good as any; it is "to leave entirely", "to abandon,""to withdraw from." Perhaps as good as any meaning would be "to desert" but the fact is that it is an all-embracing word. To "forsake" is to "abandon", to "leave entirely" or to "withdraw from". In other words, its simple meaning is to desert.

Deputy Cowan also referred, I thought somewhat belittlingly, to the paragraph dealing with aircraft. We know that Deputy Cowan has a great regard for the regulations which govern the British armed forces. He believes that these are the sanest regulations that he has come across but he has very little use for the Canadian regulations which we are following to a certain extent in this Bill. We are using them because we believe they suit us down to the ground. In fact, we are a very much younger nation from the point of view of being free and independent than the Canadians, but they, too, are building up and, as I said before, they provide as good an example to follow as any other.

I do not know if Deputy Cowan is aware of this fact—that the British have an Air Force Act and in that Act —I think it is Section 4, paragraph (10)—he will find this quotation:—

"Every person subject to this Act who commits any of the following offences, that is to say—

(10) when ordered by his superior officer or otherwise under orders to carry out any warlike operation in the air, treacherously or shamefully——"

now I could imagine Deputy Cowan parsing these two words and getting quite a kick out of it for some time——

"——fails to use his utmost exertion to carry such orders into effect,

shall on conviction by court-martial be liable to suffer death or such less punishment as is in this Act mentioned."

I think that it will come somewhat as a surprise to Deputy Cowan to find that there is at least one section of a British regulation covering their armed forces which makes use of the words "utmost exertion" and also uses the words "treacherously or shamefully". I think it would be as difficult to say whether something done in the air was "treacherous" or whether it was "shameful" as it would be to say whether a man was using his "utmost exertion". It is merely playing with words. Witnesses of the incidents would, I think, be the best judges as to whether a thing was "shameful" or "treacherous," whether it was courageous or cowardly. These are the things we will have to rely on, and I want to impress on Deputy Cowan that it is not some civil servant who will be in the field spying on the officers who are in action. It will be one of his own officers who will report on the fact that the act was cowardly or otherwise within the meaning of the section which we are inserting. The charge on which the men would be tried would be based on that. He would be tried by a court of his own colleagues, officers, one of whom at least would be not lower in rank to himself, together with four others. There would be a judge advocate there to ensure that justice would be done and at the end of all that, if he was sentenced to death, and the possibility is not always there that he will be sentenced to death—it is to my mind a very remote possibility—but if the supreme penalty should be inflicted as a result of the court-martial, the sentence has to be confirmed by somebody else. There is a confirming authority, but I think in respect of the death sentence the Deputy will find in a later section of the Act that the sentence will have to be approved by the Government and that means that 11 or 12 or more men will sit down and after very serious contemplation and consideration decide whether that sentence should be carried out or not.

The Deputy also discussed the question of State ships and he seemed to think that because our ships were small ships they could in certain circumstances find themselves in a battle position and as a result of finding themselves in that battle position that some of these acts could be committed by the officers in charge. All I say to that is that I think it is good foresight to include a section dealing with the naval service, which, as the Deputy knows full well, is part of the Defence Forces as much as any other unit of the Army. If we had no ships at all, if we did not have a single vessel that could be described in any sense as a naval vessel I still think it would be good foresight to endeavour as far as possible to ensure that, should we at any future time get vessels, we would have that clause there to deal with personnel in charge of those vessels.

To show that Deputy Cowan is not keeping up with current events and that it is only a passing interest I will refer to what he said about—I think he mentioned the Zulus and Omdurman and some other places—and suggested that this type of battle does not happen any more. I think he must have been thinking in terms of atomic warfare rather than the type of warfare that existed in the past in these particular places. It is a peculiar thing, but the very latest war that has taken place on this earth was a war in which hand-to-hand fighting was the order of the day and in which men struggled against each other for a gain of 50 or perhaps 100 yards. They fought with dagger-like weapons and with butts of rifles, as well as with all these other high-powered weapons. The fact remains that that was the position in the last war. I believe that it is a position that will obtain as long as war endures and as long as civilisation is foolish enough to fight wars. It will always be necessary for the infantry to consolidate positions that are won perhaps by means of long-distance weapons or as a result of the use of long-distance planes or even the atomic weapon. When we get down to the common sense of the whole thing you will find that the old foot-slogger will be there at the finish. I only mention that to point out that in at least one of his references Deputy Cowan was not quite correct.

Captain Cowan

I take it the Minister is referring to the Korean war?

Mr. Traynor

Exactly.

Captain Cowan

I had hoped there might be somebody else interested in this matter of the execution of citizens of the country. I took it that in a matter such as this question of executing people for offences that are not known to the criminal law of this country we might have some Deputies in the House other than the Minister, General MacEoin, Deputy McQuillan, Major de Valera, Deputy Colley and myself to take part in the discussion.

But, apparently, the matter of the life or death of our commanders is of very little concern to the House, and so what I term "this murderous section," because that is what it is, is going to be passed without any objection from anybody who knows anything about the principles of law under the civil, military or criminal code. I feel, looking at the whole problem, that as a House we are deteriorating from the point of view of our responsibilities to the people who sent us here.

Here we have a section which says that on a matter of opinion, individuals can be sent to their death, and nobody gives a damn in this House whether they are sent to their deaths or not. I am very worried about the matter. I asked the Minister specifically to give to the House some indications of the considerations that would apply, or of the evidence that might be adduced, for the purpose of having a man shot, an officer, a commanding officer, in whom confidence had been reposed. I asked for some examples, and I have got not one example of the circumstances in which a man might be sentenced to death.

We had the contribution from Deputy MacEoin, who said: "Look at the section; are these things offences?" He said: "I am not worried about the punishment," but "look at the section; are these things offences," and if they are offences, in a period of active service, well, perhaps, death is the right thing. Deputy Vivion de Valera, who has taken a very sound line on all this matter of the Defence Forces Bill, said: "Well, we must look at it that this is a question of active service." Deputy Colley says: "When I listened to this argument I thought I was listening to an argument about the legal meaning of words and we forget it is active service."

The Minister had certain criticisms of my approach to the section but no defence of the section, because, in my submission, there is no defence to this section, and so there is nobody in this House who could defend this section. Deputy McQuillan has taken the line that, very well, it may be in the Canadian Act. But the Canadians, because of their Constitution, because of the different races that occupy their country and because they have compulsory service in it, may find that it is necessary to have a section such as this, but it does not apply to us because of our history and our traditions. I will come to that later. The Minister says that the Army authorities are quite satisfied. I will come to that aspect afterwards.

Mr. Traynor

I said I understood that they had examined it very carefully and, naturally, I am sure they are satisfied.

Captain Cowan

Anyway, the Minister says that the Army authorities are satisfied that there should be provisions for shooting their own comrades on a matter of opinion, not on a matter of a breach of any positive regulation, law or anything else.

Mr. Traynor

That provision has been there since 1923.

Captain Cowan

No. I will deal with that. I have no objection to its remaining in the 1923 Act.

Mr. Traynor

The Deputy has no objection to their being shot under the 1923 Act but only under the 1953 Act.

Captain Cowan

Everything that is in the 1923 Act is reinstated in Section 124 of this Bill, but Section 123 of this Bill, which we are discussing, is something new, something that struck the imagination of somebody in the Department of Defence. They read the Canadian Act as being a good thing to bring in here, a nice thing to bring in here, something that is contrary to our conception of law entirely. Section 123 of the Bill refers to every officer. It does not specifically segregate commanders from any other officer. The 1923 Act applies to every officer. In fact, I am not sure if it does not apply to every person subject to military law. In fact, Section 32 of that Act does apply to every person subject to military law whether an officer, a soldier, corporal or sergeant-major. If he behaves in a treacherous manner on active service, he can be sentenced to death. That is what is in the 1923 Act. The whole of those provisions are reinstated in Section 124 of this Bill.

Mr. O'Donnell

Would the Deputy agree that, if any of the persons set out committed any of the offences specified in Section 123, he was acting in a treacherous manner?

Captain Cowan

No. I want the Deputy to listen. I am sorry that the Deputy was not here yesterday when I opened this matter. We understand why there were not a number of people here yesterday.

Mr. O'Donnell

And why there are a number of people not here to-day.

Captain Cowan

Perhaps they are getting over what was on yesterday.

Mr. O'Donnell

Or preparing to celebrate?

Captain Cowan

I do not know. Nothing that I can say can alter the decision. I cannot say whether they are celebrating or not.

Mr. Everett

Did you not hear?

Captain Cowan

I did not hear yet. At any rate, I am glad that Deputy O'Donnell asked me that question.

Mr. O'Donnell

I am quite serious in asking the question.

Captain Cowan

I am glad that the question was put forward. I want Deputy O'Donnell to read paragraph (a) of Section 123:

". . who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command ... into action."

The point I am making is that there is no allegation of a specific offence there. The matter is left to the opinion of certain officers and it is they who will decide as to whether or not the individual concerned used his utmost exertion. I am very keen to have Deputy O'Donnell's opinion on this section because he is a lawyer. The first one is not in the 1932 Act to which the Minister referred; neither is it in the Air Force Act, which I will deal with later, where there are the qualifying words "treacherously or shamefully" which, from the point of view of the lawyer, ensure that there are certain mental attributes necessary to establish a particular charge. Under the 1932 Act the offence is one of endeavouring to persuade, induce or compel a person to commit an offence. Now we all know what that means. The offence of unjustifiably surrendering, yielding or abandoning——

Mr. O'Donnell

Who will define "unjustifiably"? It is the same thing.

Captain Cowan

It is not the same thing. On the matter of whether it is justifiable or not, the Minister agreed in subsequent sub-sections to the request of the Special Committee to put in the word "unjustifiably" instead of "improperly". The word "unjustifiably" does not come into this section. Under this section the whole point is: did he or did he not use his utmost exertion? I would like Deputy O'Donnell to answer this question: if Deputy O'Donnell was defending a man on that charge, what defence would he offer? What would be his basis of assessment of the phrase "his utmost exertion"?

An Ceann Comhairle

Had we not a discussion on the ambiguity of all this yesterday?

Captain Cowan

The Minister dealt with it in his answer and I am now replying to that answer.

An Ceann Comhairle

The alleged ambiguity of certain terms was canvassed very fully yesterday.

Captain Cowan

That is so, but I was diverted into this line by the question put to me by Deputy O'Donnell and I am very anxious that he should understand the view I hold in relation to this particular section. The Minister, in reply, has dealt with the meaning of "utmost exertion". He referred to the two men pulling the cart; he also referred to the individual who is swinging the lead. That was his answer on the basis of someone not using his utmost exertion. As Deputy O'Donnell will agree, this constitutes a very serious charge against an individual.

Mr. O'Donnell

Surely he will be tried by his peers, who will know.

Captain Cowan

We will deal with the peers. The fact that a man is tried by his peers does not mean that one can arraign him on a doubtful charge.

Mr. Traynor

Is not every charge doubtful until the offender is proved guilty?

Mr. O'Donnell

That is the reason why he is tried.

Captain Cowan

The result may be doubtful, but the constituents of the offence are not doubtful. Everybody knows what the constituents of murder are. The constituents of treason are laid down. The constituents of housebreaking are laid down. It is not left to the court to decide what housebreaking is, what treason is or-what murder is. The constituents of all these are laid down by statute. Here we do not say what using his utmost exertion constitutes. We leave the term absolutely wide. We leave it to the court to decide the law; to decide if the person charged has broken that law as the court understands it; and, thirdly, to decide whether or not he shall be sentenced to death. That is my difficulty in regard to this matter and the Minister has not answered it.

Mr. Traynor

I have pointed out that this exists in the law of another land, the law for which the Deputy has a very great respect. In relation to the British Air Force Act the words "utmost exertion" are used.

Captain Cowan

I accept what the Minister says. It does not come as any surprise to me. It is my duty to be aware of such things as that. The Minister said—I took a note of it— when ordered by his superior officer to carry out any air operation. The important thing is that the two words "treacherously" or "shamefully" are embodied in that particular instance; treacherously or shamefully fails to use his utmost exertion.

Mr. Traynor

To carry out the orders of his superior officers.

Captain Cowan

The Minister says now that that is exactly the same as this section. This section says he does not use his utmost exertion; it does not say either "shamefully" or "treacherously" and that is my objection to it.

Mr. Traynor

Do you want "shamefully" and "treacherously" included?

Captain Cowan

If the Minister will agree to put them in, that will help me considerably.

Mr. Traynor

And the Deputy will be satisfied that the penalty shall be inflicted.

Captain Cowan

I am not to be committed too far. If the Minister puts in the words "shamefully or treacherously" the person charged will know what he has to face.

Mr. Traynor

The Deputy knows that in amendment No. 78 I go some of the way to meet him by the insertion of the words "negligently or through other default."

An Ceann Comhairle

I was about to draw Deputy Cowan's attention to the fact that amendments Nos. 77 to 84 are being considered together and I want the Deputy to take into consideration those particular amendments introduced by the Minister.

Captain Cowan

I have done that.

An Ceann Comhairle

The Chair is not convinced that Deputy Cowan is taking cognisance of these amendments.

Captain Cowan

I dealt with them very fully yesterday evening in relation to the use of the word "unjustifiably" for "improperly". There is no trouble about that; in amendment No. 80, "unjustifiably" for "improperly"; in amendment No. 81 to substitute "unjustifiably" for "improperly"; in amendment No. 82 to substitute "unjustifiably" for "improperly"; and in amendment No. 83 to substitute "unjustifiably" for "improperly"; and then there is my own amendment to substitute "penal servitude" for "death". We are then left with "negligently or through other default."

An Ceann Comhairle

That is the Minister's amendment.

Captain Cowan

The Minister proposes to insert "negligently or through other default".

An Ceann Comhairle

I am not on the merits of the matter at all.

Captain Cowan

I appreciate that, but I have endeavoured in dealing with the section to deal with it, taking into account the Minister's amendments. The Minister has agreed to delete sub-section (b) which I criticised pretty extensively last night.

Mr. Traynor

You were not taking into account that it was being withdrawn.

Captain Cowan

I was taking into account the whole picture as best I could.

Mr. Traynor

You were not making allowance for the fact that it was being withdrawn.

Captain Cowan

I was dealing all the time with the mentality behind the section.

Mr. Traynor

I know you were relevant because it is in the Bill.

Captain Cowan

We shall come to that. At present I am answering the Minister's criticism and the Minister's question, that in the British Air Force Act they have a section which is similar in which they use the two words that are in this, "utmost exertion", but in the British Air Force Act "utmost exertion" is coupled with the two words "treacherously or shamefully." From the ordinary interpretation of that, a person who does a thing treacherously does it with very evil intent and, if he does it shamefully, there is the same evil intent. I classify this offence as becoming one of the criminal laws of this country, because anything that involves a man in losing his life is certainly a criminal law and a criminal punishment.

Mr. O'Donnell

Will the Deputy refer to the words "duty to engage"? If he does not do his duty, he has done something shameful or treacherous.

Captain Cowan

That is not the point. The point is that he does carry out his duty of engaging the enemy, but the allegation is that he does not do it to his utmost exertion. It does not say that he refuses to do it or neglects to do it, as the Minister suggests in his amendment, but that he does not do it.

Mr. Traynor

But if he is ordered to go into action and does not do it?

Captain Cowan

If he is ordered to go into action and does not do it, he refuses to obey an order. This section says when ordered

"to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage does not use his utmost exertion to bring the officers and men under his command ... into action."

That is the allegation. It does not say that he does not go into action, but that he does not use his utmost exertion to bring his command, as it were, into action. If that is done treacherously and if it is done shamefully, then I can see the ground for charging the man; I can see the evidence that may be produced against him and I can see the defence open to him, that his action, whatever it was, was neither shameful nor treacherous. That is why I say that if the words "shameful or treacherous" were in this section we would know where we stood and the particular officer would have a defence.

Mr. O'Donnell

Surely the defence would be that he used his utmost exertion in the performance of his duty.

Captain Cowan

Yes, but what I want Deputy O'Donnell to understand is that when we have an offence of that kind, where it is a simple matter of deciding did he use his utmost exertion or did he not, the officers comprising the court have, first and foremost, to make the law. They have to say that it would be proper for a commanding officer to do certain things in this particular eventuality; they have to set up what the standard of the law is. The next thing they have to do is to say: "This man did not do that, therefore he is guilty of an offence against the law that we laid down".

Mr. O'Donnell

And they are his peers.

Captain Cowan

Deputy O'Donnell knows that when he goes into any court he does not go into the district justice to determine the law. The law is there binding the district justice and the law is there binding a judge of the Central Criminal Court and binding the jury, and the jury have to find the facts which, if proved, mean that the person is guilty of a particular offence.

Mr. Traynor

When this is passed, this will be the law.

Captain Cowan

No, when this is passed, it will not be the law because nobody will know what the "utmost exertion" of an officer is.

Mr. O'Donnell

Surely an officer does.

Captain Cowan

This is a section which has no other purpose than to provide scapegoats for something that goes wrong. In other words, if something goes wrong in a military action, this section enables a scapegoat to be found, a scapegoat to be taken into custody, a scapegoat to be tried and a scapegoat to be executed. That is all this section does.

Mr. Traynor

That is only a statement of the Deputy's own view of the section.

Captain Cowan

The very fact that I can come to that view of what the section means shows the danger of this section, because it is entirely at large. I have asked the Minister to say, but he has not done it, what would be the circumstances in which a particular commander might be charged under this section.

Mr. Traynor

I will give an instance which has just occurred to me. Supposing there is a commander—and any man in charge of troops is a commander, even though he is described as an officer—who is in contact with an enemy, a position could arise where such an officer will be ordered to attack an enemy position. He may be in a very safe position when he gets the order and he may, through some subterfuge, delay and continue to delay in carrying out the order until such time as the enemy has perhaps got into a position which it would be impossible to get him out of, and the result of the failure of that officer to carry out that order instantly might be the cause, not only of losing a valuable position, but of losing the lives of perhaps 100 soldiers. That is an instance of where a man would not be doing his utmost endeavour.

Mr. O'Donnell

He might only attack with his advance guard instead of bringing up his main body.

Mr. Traynor

It is very difficult to argue with Deputy Cowan, because he thinks he is always right, because neither I nor anybody else can convince him that an argument put forward is a good one. The instance I have cited is only one of numerous instances of that type that could occur where an officer would deliberately delay carrying out an instruction because of the danger he saw in carrying it out, whereas his superior might believe that, if the position were stormed, even with loss of life, the day might be saved. The delay of that officer would be a case in which he did not use his utmost endeavour.

Captain Cowan

I hope the Minister will not blame me for a natural human characteristic, that I always try to be right. I do not mean to say that I am always right, but I think it applies to all of us.

Mr. Traynor

Your weakness is that you think everybody else is wrong.

Captain Cowan

No. When one assumes the position that one is right, naturally one has to assume that everybody else is wrong, but I do not think that is a ground of criticism. What I want the Minister to understand is this, that the argument he advances is sound in so far as it goes if there were no provision made in the Act for the case that the Minister and Deputy O'Donnell have just cited. But if they will look at sub-section (i) of Section 124 they will see that every person, whether an officer or not, who, when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect may be court-martialled and can be sentenced to death. I am not opposing common sense or reason in regard to that, but when I see the very example the Minister has given provided specifically for in Section 124, and mentioned by Deputy O'Donnell—that he is ordered to carry out an operation of war and fails to use his utmost exertion to carry his orders into effect—when I see that provided for very clearly and distinctly, I come back to asking what is the necessity for Section 123 (a).

Mr. Traynor

To deal with men who are leading troops.

Mr. O'Donnell

Officers.

Captain Cowan

No.

Mr. Traynor

In this case we are dealing with persons subject to military law. We do not specify one individual as against another. Everyone takes whatever is coming to him in that section; but in Section 123 we are specifying the individual who leads men into action and whose own action may be the means of either saving the day or losing it.

Mr. O'Donnell

A commanding officer.

Mr. Traynor

It specifically deals with commanders.

Captain Cowan

We had all this in the 1923 Act and it was considered adequate. The British have had it in their Act for almost 100 years and it is considered adequate. It was mentioned here last night that they fought wars every year in that period and they never had to introduce a section like Section 123 nor did they see the necessity for such a section. Anybody who knows and studies their constitution and their parliament knows that their parliament would not pass into law a section such as Section 123.

Mr. O'Donnell

They have got it in one of the Air Force Acts.

Captain Cowan

No. The Minister has referred to the Air Force Act. I want to refer Deputy O'Donnell to Section 124 (i) which is exactly the same as the Air Force Act—"who when ordered to carry out an operation of war fails to use his utmost exertion to carry the orders into effect." The Air Force Act which the Minister read said: "When ordered by his superior officer." I think that the Minister might read the full section again. It refers probably to every person subject to air force law or every officer. I do not know. I would just like to get the remainder of it. I again apologise for my bad handwriting. It says: "When ordered by his superior officer to carry out any air" and there is a word after that which might be "any airlike operation."

Mr. Traynor

It says: "Every person subject to this Act who is guilty of any of the following offences"; then it says in sub-section (10) "when ordered by his superior officer or otherwise under orders to carry out any warlike operation in the air, treacherously or shamefully fails to use his utmost exertions to carry such orders into effect" shall on conviction and so on be liable to sentence of death.

Captain Cowan

That is correct. Deputy O'Donnell will see that that section and Section 124 (i) are similar in effect, because, as the Minister says, the Air Act says that every person subject to military law who is ordered by his superior officer to carry out any warlike operation in the air—because, obviously, that is where they generally operate—who treacherously or shamefully fails to use his utmost exertion to carry out the orders of his superior officer may be sentenced to death. Under Section 124, it says that every person subject to military law who, when ordered to carry out an operation of war, fails to use his utmost exertion to carry the orders into effect may be sentenced to death. That is drafted exactly as it is in the Air Force Act, exactly as it is in the British Act dealing with airmen, and if that is so, why, then, should we bring in this Section 123, which applies only to commanders? Because, whether he is a commander or is not, if he is given an order to carry out an operation of war and he fails to use his utmost exertion to carry the order into effect, then he is guilty of an offence for which he may be sentenced to death. That being so, why, then, the necessity for Section 123 (a) which says:—

"who when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does not use his utmost exertion to bring the officers and men under his command or his ship, aircraft or other matériel into action——”

Mr. Traynor

The Deputy is not inserting the amendment I am proposing there. He is reading the section as if it was not amended.

Captain Cowan

I will insert the words which, in my view, do not alter the section. The Minister's amendment is to insert "negligently or through other default." In other words, under the Minister's amendment it would read:—

"who, when under orders to carry out an operation of war or on coming into contact with an enemy that it is his duty to engage, does——"

Mr. Traynor

"Negligently."

An Ceann Comhairle

"Negligently" comes before "does."

Captain Cowan

Yes.

"Negligently or through other default does not use his utmost exertion to bring the officers and men under his command into action."

We have the Canadian Act, we have the Air Force Act, and then we have the Minister endeavouring to try and water this section down a bit by putting in the word "negligently."

Mr. Traynor

No. The Minister is endeavouring to meet the wishes of members of the Special Committee, in which the Deputy was a very active member.

Captain Cowan

The Minister will admit that on the Special Committee when this matter was discussed I was as entirely opposed to that section as I am now. It was discussed upside down, and perhaps as a result of that the Minister decided to water down the section a bit by putting in the words "negligently or through other default." I want the section to be looked at from that point of view— that a person does not engage the enemy because of some negligence or default.

Mr. O'Donnell

A person under orders to do so, does not.

Captain Cowan

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 given carte 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 gives ad 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.

Mr. Traynor

Well, it was the man in the street who sent me here, and who sent the Deputy here.

Captain Cowan

I know, but the man in the street is not capable of interpreting a section such as this. When I say that I mean no disrespect for the man in the street whose training in the interpretation of statutes would not enable him to know what a particular statute means.

Mr. Traynor

I did not suggest that it did. What I suggested was that the man in the street would at least understand the meaning of what is "utmost exertion".

Captain Cowan

I know, but the man in the street unfortunately is not the person whose duty it is to interpret the meaning of words in a statute. Very often, as the Minister knows, some of our judges misinterpret the meaning of words in a statute, and it takes the Supreme Court of the country to decide what is the precise meaning.

Mr. Traynor

Does it not happen that 12 men sit in judgment on cases which come before the law courts?

Captain Cowan

No. That is an interesting point. In the criminal law and in the civil law in certain cases the function of decision is left to the jury. In a criminal case the 12 members of the jury must be unanimous. In a civil case nine out of 12 will suffice. In relation to the respective functions as between judge and jury, the jury find the facts; the judge interprets the law. The judge tells the jury what the law is and leaves it to the jury to say whether on the facts a particular person did or did not do certain things. The interpretation of the law is never left to the jury. It is a matter for the judge and the jury is bound by law to accept the judge's interpretation of the law. I think it will be agreed by everybody that that is perfectly reasonable.

Mr. Traynor

Did that apply in the case to which the Deputy referred? Perhaps we had better not go into it.

An Leas-Cheann Comhairle

We seem to be getting away from the amendment.

Captain Cowan

That was a very interesting case. The Minister has said that he takes the point of view of the man in the street as to what the meaning of these words "utmost exertion" is. The peculiar thing is that in a court-martial, which is distinct from a trial by judge and jury, the five officers who comprise that court-martial are the judges of the law and the facts. The Minister has mentioned the judge-advocate. He has a specific function in a general court-martial.

An Leas-Cheann Comhairle

I think we have gone over this before on more than one occasion. It seems unnecessary to bring it up again.

Captain Cowan

I am replying to the point made by the Minister.

Mr. Traynor

And I was replying to the point made by the Deputy.

Captain Cowan

The Minister says he takes the view of the man in the street and I have pointed out that, as far as the ordinary criminal law is concerned, the legal meaning of words must be found by the judge. In a court-martial the members of the court-martial are the judges both of the law and the facts. The judge-advocate has particular functions but he has no say in the decision, good, bad or indifferent. There is that difference. Where one is passing a Bill to be operated subsequently by a military court there should be no doubt whatsoever as to meaning of words because that Bill, if it passes into law, will subsequently have to be interpreted by people who have no knowledge of legal niceties or legal interpretation. In the interpretation of statutes the man in the street's point of view may not be, and very often is not, the correct legal point of view. The Bill will be interpreted by officers who will have no knowledge of law and for that reason there should be no doubt as to what words mean. This section should only be passed by the House if it is absolutely precise and leaves no ground for doubt or indecision as to its meaning.

This Bill will become part of the major criminal law of the State. It will affect men's lives. In criminal law intent to do wrong is a necessary condition of liability. There is nothing in this section to show intent. The words in the British Air Force Act "treacherously or shamefully" do enable intent to be established. The words proposed to be inserted by the Minister here, "negligently or through other default," do not bring about that necessary condition of liability.

I am glad the Minister proposes to delete sub-section (b) because that sub-section could give rise to impossible situations and difficulties. I am only sorry the Minister has not taken the courageous step of deleting the entire section.

The Minister did not refer to sub-section (c) and I regret that the House has not had the benefit of examples of cases where an officer—

"who, when capable of making a successful defence, surrenders his ship, aircraft, vehicle, defence establishment, matériel or unit to the enemy.”

I referred last night to the old rule of war where, when a defence was made by a garrison and that garrison was subsequently overcome by the enemy, it was the right of the enemy commander to put the garrison to the sword if he was satisfied they had made an unnecessary defence; in other words, if he was of the opinion that they defended stubbornly when they had no hope and, by doing so, brought about the unnecessary deaths of the attackers. I would have liked to have had the Minister's view as to what constitutes a successful defence.

Mr. Traynor

The governing word there is "capable".

Captain Cowan

What does capable of making a successful defence mean? During the last world war many of us were interested in Tobruk. One day it was defended; the next day it surrendered. The next day it was defended by another force; and the day after that it surrendered again. So far nobody has been brought before a court-martial and charged with surrendering that particular defence establishment at a time when it was capable of making a successful defence. It would have been interesting from the historical point of view if the Minister had given the House examples of such charges, of the evidence adduced to support the charges, the evidence adduced against the charges and the ultimate decision. I am sure the Minister would have available to him in the military library particulars of charges such as this, and the results of those charges. I said earlier that I look on this section as a section which can be used for the purpose of making scapegoats.

An Leas-Cheann Comhairle

The Deputy has covered that ground very well.

Captain Cowan

I am dealing with it under sub-section (c) at the moment.

An Leas-Cheann Comhairle

Nevertheless, it is repetition.

Notice taken that 20 Deputies were not present; House counted and 20 Deputies being present,

Captain Cowan

I was saying that this sub-section (c) is a typical section that could be used either by the military authorities or by the Government for the purpose of finding a scapegoat, some person on whom they could place the blame for some particular ill happening. I was anxious that the House should have the help of the Minister in reciting from historical records whether it was necessary or not to impose such a penalty as is provided for in this section. As the Minister said, the operative word is the word "capable". As to whether a particular commanding officer is capable of making a successful defence or not, that rests on the decision of the court-martial that tries him. I made the general point that in producing this section the draftsmen were completely out of line with military development and with modern military means of communication.

As I understand it, at no stage during the last world war was any one of the Governments which took part in the war out of touch with even the smallest garrison in the various parts of the world. The time has long passed, because of modern means of communication, when the responsibility as to whether he will surrender or not is left to the decision of the commander on the spot. The commander on the spot in all cases keeps in touch with his superior authority by radio or some other method of communication and, generally speaking, the commanding authority is in a position to decide whether there should or should not be a surrender.

Even in the case of Stalingrad, where the German general did, in fact, surrender, he was urged up to the last moment by his own superior authority not to surrender. He has not been brought to trial in regard to that; circumstances, perhaps, have made that impossible. But the fact is that, if it were possible to have court-martialled him in the period before the war ended, he would very likely have been sentenced to death and very likely have been executed, whilst history since would have justified his action in surrendering.

The main point I want to make is that we are here creating a situation which may involve the life of an innocent man and we are doing it almost cheerfully in this House. As it happens, only Deputy McQuillan and myself have opposed this section. Our opposition to it has resulted in certain alterations which the Minister proposes, but I feel that with a proper sense of responsibility this House would not agree to the insertion in the statute law of the country of a provision such as this.

I have endeavoured to deal with this, as the Minister said yesterday, to make the section look ridiculous. That is one of the ways of dealing with a section such as this. But I have also endeavoured to deal with it in as serious a way as I could, and for the purpose of showing how dangerous a provision such as this is, how unjust and unfair it may be, and I think it will be very little use to the particular commander who is executed that Army officers who study the history of the time subsequently discover that he was right and that the people who sentenced him to death and executed him were wrong. That is the trouble in regard to the whole section, that it is not in regard to overt acts, in which there is a deliberate intent to do wrong. Offences are created here which depend entirely on the mind and view of the court-martial as to whether they are in fact offences or not and whether they bring about the death penalty.

The Minister and Deputy MacEoin make the point that the penalty provided here is death or any lesser punishment awardable by a court-martial. Deputy MacEoin, who must have intended to be facetious, said that he could be sentenced to death or to a fine of 2/6. I should hope that this section would be dealt with and considered on an entirely different basis from that. If a court-martial finds that an officer when capable of making a successful defence surrendered his defence establishment to the enemy, is it not obvious that that man will be sentenced to death by the court-martial? Can anyone imagine that a court-martial could impose a penalty less than the maximum penalty if they found the charge proved?

An Leas-Cheann Comhairle

The Deputy has referred to this on a former occasion. This is pure repetition.

Captain Cowan

Well, Sir, Deputy General MacEoin made a point and I am replying to it, that under the powers granted in this section a court-martial could sentence to death or they could fine the officer concerned 2/6. I would not like that to go on the records of this House without having that point of view corrected. There is no possibility that a court-martial of five officers who find an officer guilty of surrendering his defence establishment when capable of making a successful defence will fine him 2/6, and that point of view was expressed here last night and is on the records of the House.

If we were to deal in that facetious way with a section of the seriousness and gravity of this section, then I think we have taken complete leave of our senses; and I want it to be very clear that, as far as this House is concerned, if they take the decision to incorporate this section in the military code they do not want anyone to be under the impression that it is a section of such ridiculousness that it may involve an officer accused in a pecuniary penalty of 2/6. The section provides for death, and it is no use the Minister or anybody else saying that that may be death or any lesser punishment, because, I submit, and I think it would and must be the view of the House as expressed by the persons who took part in the debate, that where on what is described as active service a person is guilty of the particular offences that are laid down here it ought to be clear that where the section gives the power to impose the penalty of death that penalty will be imposed.

I have dealt with the points which the Minister has made in his statement. I am not going to trouble with sub-section (e), because the Minister has not dealt with it specifically. That is the section which says: "Who fails to pursue the enemy or to consolidate a position gained." All I would like to do in regard to that is to direct the attention of the House to Section 124 which, in my view, gives the Army and the Government, and, in the event of an emergency, gives the State all the powers that it needs to deal with any cases of cowardice, treachery, refusal to obey orders or anything, in fact, that endangers the Defence Forces or the State.

I draw attention to sub-section (f), which says: "Who improperly fails to relieve or assist a known friend to the utmost of his power."

An Leas-Cheann Comhairle

The Deputy has dealt fully with that point.

Captain Cowan

I did, but I want to deal now with the Minister's reply to that.

An Leas-Cheann Comhairle

The Deputy will not be allowed to repeat himself, even in replying to the Minister.

Captain Cowan

I am replying to the Minister. The Minister said that the use of the word "friend" creates no difficulty whatsoever in the section and that a friend in army parlance— and that is the word the Minister used —was a person who is not against him. I hope I am quoting the Minister correctly. He describes a friend as a person who is on your side, a man fighting under great difficulties, and that in these circumstances it is the duty of the commander to go to the assistance of that particular known friend. In opening on my amendment to delete this particular section I subjected sub-section (f) to a rather detailed examination and I was critical of the language in it and particularly anxious to ascertain the Minister's interpretation of what "a known friend" is. I think that where a section such as this imposes the gravest penalty known to our law for a breach of a sub-section such as this it is only right that not only the House and the country but every person in the Army now or in the future should be clear as to the meaning of "known friend". As I say, the Minister has described that as a person who is not against him, a person on his side.

I submit with respect that the Minister's interpretation of that particular section in no way assists the House in understanding what is the meaning of that particular sub-section. In this Bill we have many pages at the beginning devoted to definitions. I have looked over these definitions. They are contained in Section 2 of the Bill and they cover pages 13, 14, 15 and a considerable part of page 16. There are four pages of interpretations but I have been unable to find in the interpretations any interpretation of this phrase "known friend". I think if the House would look at the pages I have referred to Deputies will see that every conceivable difficulty is interpreted in that particular section but the words "known friend" are not interpreted and they have no meaning or can have no meaning so far as this House is concerned unless some precise interpretation is given to them.

If the Minister had said to me that he realised that there was a gap or a hiatus in regard to the meaning of this particular phrase in the definition section of the Bill and that he would endeavour to put that right, or that he gave me what he considered to be a precise definition of the words "known friend", then I would have no difficulty in appreciating the meaning of the section and dealing with it accordingly, but I think the House must agree that we cannot pass into law a punitive section of this kind in which the phrase "known friend" exists and which I submit has not been in any way improved by the interpretation the Minister has placed upon it. That is my difficulty in regard to this particular phrase. If I am to accept what the Minister says, how far does it bring one in an interpretation of the phrase: "who fails to relieve or assist a known friend"? The main problem, as I say, is concerned with the phrase "known friend". If I knew what these words meant, then I could deal with the other words "relieve or assist" which are of vital importance to the sub-section. I asked the Minister the question: did "known friend" mean a comrade officer, did it mean a comrade soldier, did it mean a unit or was it confined entirely to the military personnel? Did it include civilians or was it limited to persons who were in fact actively assisting in the operation in which the commander concerned was engaged. That is my difficulty in regard to the section. I have asked for help, I have asked for assistance and the Minister has not been able to say anything more to me than that it means, in army parlance, a person who is not against the commander.

I think it well that one should in examining this particular section look at the opening words of the section because incorporating the two opening words of this section and this sub-section the provision reads as follows:—

"Every officer subject to military law and in command of a State ship, service aircraft, defence establishment, unit or other element of the Defence Forces,

(f) who improperly——"

The Minister proposes to insert there the word "unjustifiably"——

"fails to relieve or assist a known friend to the utmost of his power, is guilty of an offence against military law and shall on conviction by court-martial be liable to suffer death or any less punishment awardable by a court-martial."

Now it will be noticed that in sub-section (a) the offence is limited to a person who is under orders to carry out an operation of war or who comes into contact with an enemy that it is his duty to engage. Again, paragraph (c) says:—

"who when capable of making a successful defence surrenders... to the enemy"

while paragraph (d) says:—

"who, being in action, unjustifiably withdraws from the action",

and (e) says:—

"who unjustifiably fails to pursue an enemy or to consolidate a position gained."

In all these sub-sections, it is clear that they cover a period of active service, in fact more than active service, as they refer to an engagement with the enemy.

An Leas-Cheann Comhairle

The Deputy has gone over all this before.

Captain Cowan

No; I have not, with respect.

An Leas-Cheann Comhairle

The Deputy is repeating himself and repetition is not in order. The Deputy should have some regard for the Rules of the House.

Captain Cowan

With respect, I am pointing out—and it is the first time I have touched on the matter—that sub-sections (a), (b), (c), (d) and (e), deal with an officer in command of troops in an active engagement with the enemy whereas paragraph (f), with which I am dealing, has no connection, good, bad or indifferent, with the enemy. With respect, that is the first time I have touched on this particular topic in regard to that sub-section. In every one of the previous sub-sections, it is clear that the offence is committed when the commander is in actual touch with the enemy. In sub-section (f) it simply says:—

"Every officer in command of a ship," etc., "who unjustifiably fails to relieve or assist a known friend to the utmost of his power is guilty of an offence against military law."

It may be said in reply to that that the title on the side of the section heads it: "Capital offences by commanders when in action." But I submit that that is insufficient as a matter of interpretation of this particular phrase which does not allege that the offence is committed when the troops are in action. Similarly, in regard to the last sub-section where the wording is that he "forsakes his station". The Minister has dealt with that phrase. I am just anxious to deal with the Minister's interpretation of that. The Minister says—I have to interpret from recollection what he said in regard to that because I just cannot find the note that I took down in regard to it—but he used language that would indicate that in his opinion "to forsake" meant "to abandon" or "to leave unjustifiably" or "to leave entirely" from a particular place. I submit that that is not going to help us in the interpretation of that particular section; that the same difficulty arises in regard to it as I have raised in regard to (f); and that the very fact that a person leaves a particular place, if we are to assume that this section refers entirely and only to active service, does not mean that he "abandons" it, that he "leaves it entirely", or that he leaves it without just cause.

I think I have dealt with the points that have been made by the speakers who have dealt with this section. I am sorry that the House did not have the benefit of the contributions of other members who would be interested if there was a matter before the House in regard to the treatment of horses or cats or in regard to the treatment of animals. We would have many contributions in regard to these from many sides of the House but where it is a matter of the lives of military officers that is left entirely to the Minister and a few Deputies who spoke and it is assumed by the House—and I think that should be on record—that there is no necessity to bother themselves about that provision and that any Deputy who worries himself about it is just wasting his own time. I am sorry that should be the view of the House in regard to a serious matter such as this, a matter which in the future may involve the lives of commanding officers of particular units of the Defence Forces.

The Minister says that it is foresight to include a section such as this in the Bill. I wonder if it is. That is one of my difficulties in regard to it. I think it is not good foresight. I think it is unwise. I think it is detrimental to the best interests of the Defence Forces. I think it is contrary to our conception of law. I think it is contrary to our conception of human rights that such a provision should be there, and I wonder if it is strictly in accordance with the provisions of the agreement or convention on human rights which we, as a nation with other nations, signed recently. I admit I have not had time to examine that point, but I just wonder if a section such as this which is so much opposed to the fundamental law not only of this country but of all countries that exist under what is known as the British system of law, does not infringe too much in regard to human rights.

The Minister says that my conception of modern warfare does not take into account the type of war or fighting that we had in Korea, in the last few years, when you had the troops fighting hand-to-hand and when you had, as he says, very stubborn battles of the old style in which everything from knives and forks to bayonets were used from time to time. I do not like to take Korea as an example because there are factors in connection with the Korean war that I think would not-exist in any other fight in which we would be engaged or which would take place in any part of Europe as we know it. I think the Minister is as well aware as I am of the considerations that apply in Korea and which brought about the sort of fighting that they had in Korea in recent times, just as there are particular factors that govern the type of fighting that one gets in Kenya to-day. I think that, from our point of view as a Defence Force, we have to consider a different type of warfare in the future, and that the views expressed by Deputy MacEoin as to the type of warfare in which we are likely to be involved do not take account of modern developments, not only in other defence forces but in our own Defence Forces.

These are my contributions to this section. I felt it was necessary to examine it in detail and to get all the information I could from the Minister in regard to every sub-section and in regard to every word related to it. It seems to me clear that, even the Minister himself, although he has a broad general view of how the section may be operated and takes, as he always does, the charitable approach that it will be used by the angels for angels, has, nevertheless, been unable to establish on the records of this House that there is any necessity for this particular section.

I regret that it is, apparently, going to be passed into law. I only hope that, when it reaches the other House, the volume of opinion there in regard to fundamental factors, such as these, may bring about a change of mind on the part of the Minister, and that this section which is unnecessary, which is retrograde and which holds the Army and Army officers in a very poor light, will be there deleted from the Bill. I only want to say this in conclusion, that, in the years in which the Army has been established, if we had had any samples of treacherous conduct, of cowardice or of the heinous conduct which this section is intended to deal with, there might be some grounds for introducing it; but we have had no examples of the types that I have referred to. The Minister, the country and this Parliament have had nothing but the most excellent services from all ranks in the Army, whether members of the Regular Forces or members of the Reserve, and no officer in the Army felt that it was necessary to have powers such as are in this section to force him to do his duty.

Certainly, as far as I am concerned, I was rather disturbed by the view expressed by Deputy MacEoin that there were occasions in our recent history in which incidents occurred which necessitated a section such as this is to deal with them. I was rather disturbed by the view that he expressed, that the very fact of having a section such as this would ensure that officers in the future did their duty to the country. I would like it to be on record, as far as I am concerned, that I do not believe that. I do not believe that the Irish character or the Irish temperament or our Irish characteristics necessitated a loaded whip such as this section is to force or compel our Irish officers to do their duty. I think the section is an insult to the Army; I think it is an insult to Army officers and I have done everything in my power to oppose it. I can only hope that, before the Bill is finally law, this particular section will be deleted from it.

Question—"That the words proposed to be deleted down to the word ‘engage' in line 36, stand part of the Bill"—put and declared carried.

Amendment put and negatived.

Mr. Traynor

I move amendment No. 78:—

In page 60, Section 123 (a), line 36, to insert "negligently or through other default" before "does".

This amendment is the first of six which I have made to this section following discussion with the authorities concerned of the various points raised in the Special Committee. The amendment modifies paragraph (a) of the section to the extent of providing that it shall be an offence negligently or through other default not to endeavour to carry out orders to go into action when ordered. It thus becomes necessary to prove negligence or other default when bringing a charge under the paragraph and grounds for a defence are also thereby provided. With this amendment, I think that any objection to the paragraph is removed.

Amendment put and agreed to.

Mr. Traynor

I move amendment No. 79:—

In page 60 to delete Section 123 (b), lines 39 to 41.

Amendment put and agreed to.

Mr. Traynor

I move amendment No. 80:—

In page 60, Section 123 (d), line 45, to substitute "unjustifiably" for "improperly".

Amendment put and agreed to.

Mr. Traynor

I move amendment No. 81:—

In page 60, Section 123 (e), line 47, to substitute "unjustifiably" for "improperly".

Amendment put and agreed to.

Mr. Traynor

I move amendment No. 82:—

In page 61, Section 123 (f), line 1, to substitute "unjustifiably" for "improperly".

Amendment put and agreed to.

Mr. Traynor

I move amendment No. 83:—

In page 61, Section 123 (g), line 3, to substitute "unjustifiably" for "improperly".

Amendment put and agreed to.

Captain Cowan

I move amendment No. 84:—

In page 61, Section 123, line 5, to delete "death" and substitute "penal servitude".

I think we did not deal with this amendment in the general series of amendments that we have just been discussing. I will be very brief in regard to it.

Mr. Traynor

I think we should get clear on this. Did we not agree to discuss amendments Nos. 77 to 84, inclusive, and did not the Deputy deal with all that?

An Leas-Cheann Comhairle

Amendments Nos. 77 to 84 were debated together, and other amendments cognate to No. 84.

Captain Cowan

There is no doubt that it was mentioned that we were to discuss amendments Nos. 77 to 84. I think, Sir, that you were in the Chair at the time. You mentioned also amendments Nos. 92, 95, 96—a whole series of amendments—and I said I would have to look into those as we went along. I do not want to be unfair, but I want to put the point of view that I was endeavouring to delete Section 123 in its entirety and the Minister has rejected that. The Minister has now proposed certain amendments. We come to amendment No. 84 in which I propose to insert "penal servitude" instead of "death". I suggest that is an entirely different matter.

Mr. Traynor

I am not objecting. All I am saying is that we arrived at an agreement, to which the Deputy was a party, that we would discuss amendments Nos. 77 to 84, inclusive.

Captain Cowan

I agree. The Chair then said that we would deal with these others and I mentioned that, while I accepted that, I reserved the right to refer specifically.

Mr. Traynor

That is correct.

Captain Cowan

What is the ruling? I proposed to delete the section entirely. The Minister proposed certain amendments. Obviously when we were discussing it I was trying to prove to the House that the section should not be there and, while I accepted the Minister's amendments, I could not tie myself down—I think I made that clear—not to debate the maximum penalty

Mr. Traynor

What the Deputy wants to talk about comes up in numerous ways almost immediately after we deal with a few ministerial amendments.

An Leas-Cheann Comhairle

Since the House has already agreed to take amendment No. 84 with the others and since the Deputy has fully discussed the merits of the death penalty I cannot see how we can now reopen this amendment.

Captain Cowan

I am in the hands of the Chair.

An Leas-Cheann Comhairle

I can put a question if the Deputy wishes.

Captain Cowan

I would ask the Chair to put the amendment and have a decision of the House on it.

Question—"That the words proposed to be deleted stand"—put and agreed to.

Amendment declared negatived.

Mr. Traynor

I move amendment No. 85:—

In page 61, Section 124 (b), line 9, to substitute "treacherously or without due authority" for "improperly".

This is to meet the views expressed by the Special Committee and the amendments following are in the same category.

Amendment put and agreed to.

The following amendments in the name of the Minister were agreed to:—

86. In page 61, Section 124 (c), line 10, to substitute "treacherously or without due authority" for "improperly".

87. In page 61, Section 124 (h), line 20, to insert "treacherously or in a cowardly manner" before "discourages".

88. In page 61, Section 124 (i), line 23, to insert "negligently or through other default" before "fails".

89. In page 61, Section 124 (j), line 25, to substitute "treacherously or unjustifiably" for "improperly".

90. In page 61, Section 124 (k), line 28, to substitute "knowingly" for "improperly".

91. In page 61, Section 124 (l), line 31, to delete "or improperly".

An Leas-Cheann Comhairle

Amendment No. 92 has also been included with the other amendments Nos. 92, 95, 96, and so on.

Captain Cowan

That is so. In other words, we debate the whole lot together.

An Leas-Cheann Comhairle

The Chair understood that all these amendments, including amendment No. 92, were under discussion.

Mr. Traynor

No. Deputy Cowan is correct. He agreed to the ones I have mentioned—amendments Nos. 77 to 84—but he did raise the question that it would be necessary for him to consult his brief in relation to the other ones. I do not think it can be said that he agreed, although it was put to him in that way.

An Leas-Cheann Comhairle

The Chair understood Deputy Cowan agreed.

Captain Cowan

I agreed we should take amendments Nos. 73 to 83 together.

An Leas-Cheann Comhairle

All these amendments are cognate to the others.

Captain Cowan

No. The question as to whether one should shoot a man under Section 124 could not be cognate to Section 123. It is a different section altogether. Amendment No. 92 starts with Section 124.

An Leas-Cheann Comhairle

Does the Deputy agree then that the decision on amendment No. 92 will cover the other amendments Nos. 95, 96, 122, 123, 151, 154, 157, 163, 164, 165, 173, all these being cognate amendments?

Captain Cowan

They are cognate in the sense that you shoot or you do not shoot.

An Leas-Cheann Comhairle

They all deal with the death penalty.

Captain Cowan

I do not think one can discuss them all together. I might agree that one should shoot a man for one thing but I might not agree that one should shoot him for something else.

Mr. Traynor

Surely we cannot have another two hours' discussion every time we come to the words "death penalty."

Captain Cowan

I would not like to commit myself to say that because one shoots a man for larceny one should also shoot him for receiving.

An Ceann Comhairle resumed the Chair.

An Ceann Comhairle

The same principle seems to run through all these amendments. That is the attitude the Chair took towards them. One could not possibly discuss the amendments down the line without repetition of what was said on the main amendment.

Captain Cowan

That may be so, but I do not want to commit myself to saying that I will discuss them all together.

An Ceann Comhairle

The debate would be repetitive no matter what the Deputy endeavoured to say on the amendments down the line.

Captain Cowan

If a decision on amendment No. 92 relates to subsequent amendments, obviously we must take them together. What I am worried about is that one of these may relate to death for some other offence. If it relates to death only for what is provided here in Section 124 there will be no trouble about it.

An Ceann Comhairle

I do not intend to bind the Deputy rigidly. I am not putting him in irons, but the Chair and his advisers took the view that the death penalty was the main idea running through all these.

Debate adjourned.