Tairgim: "Go léifear an Bille an Dara hUair anois."
I move: "That the Bill be now read a Second Time."
I am pleased to present to this House today the Twenty-first Amendment of the Constitution (No. 2) Bill, 2001. The enactment of this Bill will enable the Government to proceed with the referendum to abolish the two references to the death penalty in the Constitution and to prohibit its reintroduction in any circumstances by the inclusion of specific provisions to that effect.
The Criminal Justice Act, 1964, abolished the death penalty for offences other than treason, capital murder and certain military offences. The death penalty was finally abolished in our statute law under the Criminal Justice Act, 1990, but not in our Constitution. Therefore without a constitutional prohibition it could be reintroduced by statute. The Constitution still contains two references to the death penalty and these are to be found at Articles 13.6 and Article 40.4.5.
Article 13.6 provides that the right of pardon and the power to commute or remit punishment are vested in the President but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities. Article 40.4.5 is part of thehabeas corpus provisions of the Constitution and provides that where an order is made by the High Court or a judge thereof for the production of the body of a person who is under sentence of death, the High Court or such judge thereof shall further order the execution of the said sentence of death shall be deferred until the body of such person has been produced before the High Court and the lawfulness of his detention has been determined, and if, after such deferment, the detention of such person is determined to be lawful, the High Court shall appoint a day for the execution of the said sentence of death.
In addition, Article 28.3.3 is also relevant. That Article,inter alia, provides that nothing in the Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion.
The Bill, therefore, is proposing the making of amendments of a technical nature to enable the referendum on this issue to be held. These technical amendments are intended to reflect the situation which pertains in Irish law since the passing of the Criminal Justice Act, 1990, and to take account of our international obligations. The Bill comprises two sections and a Schedule. Section 1 details the proposed changes to the Constitution by reference to the Schedule and section 2 is a standard citation provision. The proposed changes set out in the Schedule relate to four Articles of the Constitution, Articles 13, 15, 28 and 40. These changes are as follows.
There will be the deletion of the reference to the death penalty in Article 13.6 which deals with the commutation and remission of sentences and specifies that such powers cannot be used in capital cases except by the President. There will be the deletion of Article 40.4.5, which makes provision forhabeas corpus proceedings in respect of a person who has been sentenced to death. There will be a new subsection 15.5.2 to the effect that “the Oireachtas shall not enact any law providing for the imposition of the death penalty” which is to be inserted in Article 15.5 which deals with the powers of the national Parliament. There will be the amendment of Article 28.3.3 to exclude the new Article 15.5.2 from the override provisions of that Article so that the prohibition on the reintroduction of the death penalty will apply even in time of war or armed rebellion.
The approach taken in the Bill takes into account the views and recommendations of a number of important bodies. In proposing the removal of the words "except in capital cases" in Article 13.6, the Bill reflects the recommendation of the All-Party Oireachtas Committee on the Constitution on that provision. Likewise, in proposing the prohibition of the death penalty by the inclusion of a new section, in Article 15.5, the recommendation of the Constitution Review Group is being implemented in the Bill.
The Government is of the view that mere deletion of the references to the death penalty in Articles 13.6 and 40.4.5 is not enough and that any constitutional amendment relating to the death penalty should include a constitutional ban on its reintroduction. This is reflected in the Bill by the insertion of a provision in Article 15.5 to the effect that the Oireachtas shall not enact any law providing for the imposition of the death penalty. This approach is also in line with the recommendation of the Constitution Review Group. That group further recommended that, in the event of a provision being included in the Constitution prohibiting the reintroduction of the death penalty, Article 28.3.3 should be amended so that the death penalty could not be imposed even in the circumstances contemplated by Article 28.3.3, that is, where a state of emergency is declared in accordance with that Article.
In their consideration of Article 40.4.5 the Constitution Review Group, noting that the death penalty had been abolished in 1990, pointed out that unless the death penalty were to be specifically prohibited by the Constitution and an appropriate amendment made to Article 28.3.3, then Article 40.4.5 would not be redundant and should be retained. Their reasoning was as follows. Article 28.3.3 provides that nothing in the Constitution should be invoked to invalidate any law passed by the Oireachtas which expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion.
The Constitution Review Group pointed out that unless an appropriate amendment was made to Article 28.3.3 the override provisions of that Article which permit the declaration of a state of emergency together with legislation in pursuance of that emergency could be used by a future Government to re-impose the death penalty and it would be necessary, as a minimum check on the legality of the operation of such emergency legislation, to retain the provisions of Article 40.4.5. The Bill follows the recommendations of the review group in relation to the amendment of Article 28.3.3. The amendment comprises an insertion into that subsection to exclude the new Article 15.5.2 from the override provisions of the Article so that the prohibition on the re-introduction of the death penalty will apply even in time of war or armed rebellion. The Government fav ours this approach on the basis that since, as a matter of principle it is of the view that the death penalty is wrong in all circumstances, Article 28.3.3 should be amended accordingly.
In making the proposed changes to Articles 15.5 and 28.3.3 the retention of Article 40.4.5 as a safeguard provision would not arise. There are further provisions relating to our international obligations which are of relevance. Ireland has ratified two international instruments relating to the abolition of the death penalty. They are Protocol 6 to the European Convention on Human Rights ratified on 24 June 1994 which abolishes the death penalty but allows for a derogation in time of war or imminent threat of war and the Second Optional Protocol to the UN International Covenant on Civil and Political Rights, ratified on 18 June 1993, which also abolishes the death penalty but allowed for the possibility of a reservation in time of war, which possibility the Government in 1993, on ratification, declined to avail of.
Given our stance on the subject at international level and our ratification of the Second Optional Protocol to the UN International Covenant on Civil and Political Rights, the proposals as outlined in the Bill are in line with our international commitments. Sweden has recently introduced a proposal for an additional protocol to the European Convention on Human Rights to abolish the death penalty and the Government has supported this proposal.
The terrible reality of the death penalty has not been a part of our criminal law system for some time now. Although only finally abolished by the Criminal Justice Act, 1990, the death penalty has not been used in this country since 1954. The deletion of the references in Articles 13.6 and 40.4.5 and the insertion of a prohibition in Article 15 give constitutional protection to what has already been done by statute. More importantly, however, the amendment relating to Article 28.3.3 means the override provisions of that Article enabling the re-introduction of the death penalty in time of war or armed rebellion will not be used at any stage in the future. That sends out a forceful message to the international community of Ireland's strong stance against the use of the death penalty and is one of which we as a modern democracy can be rightly proud.
I commend the Bill to the House.