Could I have your leave and that of the Seanad for bringing forward a matter of importance?
DEFENCE FORCE (TEMPORARY PROVISIONS) ACT, 1923. - SPECIAL RESOLUTION.
AN CATHAOIRLEACH
I am sure you will have my leave. You have explained to me what it is you want to bring forward, but it is better first to inform the Seanad of the facts.
The question is this— to-day we passed the Defence Force (Temporary Provisions) Bill, 1923. It is under that Bill in fact that all prisoners are held by the military for military offences. We are not now talking of political offences. It is under that Bill that all prisoners held by the military will be held in the future after a state of peace has been declared by the Courts to be now in existence, and a state of war at an end. That Bill was passed this afternoon. The Minister for Defence informs me that under Article 47 of the Constitution this Bill does not become law for a week. Article 47 says "not later than seven days from the date on which Bills have been passed or deemed to have been so passed," and they interpret that clause to mean that the Bill does not become law for seven days after it is passed. I believe that is the state of affairs. The result would be, if that is so, and I am told that is the decision of the Courts, that all military prisoners would have to be let out practically to-morrow morning. Whoever drew Article 47 apparently anticipated that some such difficulty as that would arise. So they put in these words: "These provisions shall not apply to Money Bills or other such Bills as shall be declared by both Houses to be necessary for the immediate preservation of the public peace, health or safety."
Now I am informed by the Minister for Defence that the letting out of these military prisoners would be most dangerous to the peace of the realm. I think with that information before us, that the Seanad would pass a resolution necessary to make this Act effective at once. The resolution that I have to bring before the Seanad is in these words:—
"That it is hereby declared that the Bill entitled the Defence Forces (Temporary Provisions) Bill, 1923, which has this day been passed by this House is necessary for the immediate preservation of the public peace and safety and accordingly that the provisions of Article 47 of the Constitution of Saorstát Eireann shall not apply to that Bill."
That is the whole question before us so far as the Minister for Defence has explained it to me. I think it is now for the Seanad to endorse the statement of the Minister for Defence, and to enable him to take care of the peace of the realm in the way in which he wishes.
I beg to second the motion. This matter appears to be a matter of military discipline, and as Senator Jameson has said, the Minister for Defence is anxious to have himself quite square with the Constitution We are living under a new Constitution and we have not quite explored all its details. In circumstances of stress and hurry, such as we have been legislating under, it is only natural that some small points like this may have been overlooked. For the purpose of maintaining discipline in the Army, I am seconding this motion.
Is it possible for the Seanad or the Oireachtas to pass a law which is contrary to the Constitution?
AN CATHAOIRLEACH
The position, as I gather it, is this: speaking from memory, under Section 47 of the Constitution, there is a provision that a Bill has to be passed, and ratified by the Governor-General in not less than seven days, and then the provision goes on to say that it will not come into operation until the seven days have expired, unless the Oireachtas passes a resolution certifying that in the interests of the public safety it is desirable it should come into force at once. We passed to-day a Bill to enable the Government to maintain an Army for the next twelve months. That Bill, though passed by us and passed by the Dáil, will not become law until the expiration of a certain number of days, unless both Houses pass a resolution in the words of the resolution proposed by Senator Jameson. The Army to-day would not be legally existing, nor would the military prisoners be in legal custody unless and until the resolution is passed.
I did not know that.
I do not think it is good enough that these things should be thrown at us like this. We do not exactly know where we are. We had before us to-day a Bill of some two hundred clauses dealing with the setting up of the Army and the regularising of the Army. That was passed through without question. Now, immediately following that, comes another question in connection with the Bill. It is most unfair that we should be getting those things thrown at us in this manner without being given an opportunity of really understanding them. If it was legal for the Army to hold prisoners up to to-day, before the Army Bill was passed, why would it not be legal to hold them until to-morrow?
Really it is the Defence Force (Temporary Provisions) Bill that gives them power to hold prisoners. The matter has arisen because of an interpretation of Article 47 by the Courts. That interpretation has been given to-day and it had not existed at the time the Bill was brought before the Seanad. The words of Article 47 are: "Any Bill passed or deemed to have been passed by both Houses may be suspended for a period of 90 days on a written demand of two-fifths of the members of Dáil Eireann or of a majority of the members of Seanad Eireann, presented to the President of the Executive Council not later than seven days from the day on which said Bill shall have been so passed, or shall be deemed to have been so passed." The Courts have held that should be interpreted that the Act cannot be a complete Act until those seven days have expired, and that interpretation of the Act was pronounced by the Court a short time ago. That is the difficulty. As Senator Sir Thomas Esmonde has said, "We are in a great state of flux." and are acting under a considerable strain even as regards the Constitution.
It is quite evident that the Minister for Defence did not know when he asked the Seanad to pass this Bill that it could be held up for seven days and that the only way he could get it made into effective law, if that decision was given, was to appeal to us to pass this resolution which is now before us. That is the period of seven days we are now asking the Seanad to bridge. It has admittedly been an oversight, but the situation that has now arisen is due to a decision of the Courts, which I do not think any of us could have foreseen. Whether the Law Advisers of the Government ought to have seen it and given us this Bill seven days ago is another matter; anyhow they did not do it. Now we are faced with the proposition that the Minister for Defence has told us that all military prisoners will have to be let out and that such a proceeding would be against the public safety and he asks us to pass this resolution. As to who is responsible for asking us to do it in a hurry the Seanad need not worry about. The difficulties we have to meet are what we have to worry about.
Is the Senator referring to a decision of the Courts of yesterday or to a decision given to-day?
To-day.
It is an extraordinary state of affairs that the Law advisers of the Government never contemplated a situation such as this arising, and that they did not make some arrangement to have this Defence Force Bill brought in before the second last day of the present Oireachtas. The whole position is extremely irregular. We have passed this Bill without considering it, and now we are asked to pass a special emergency motion. To think that these things were not contemplated is inconceivable in these times, seeing that hostilities have ceased for such a length of time. Surely it could have been anticipated that the Courts could not have upheld for any length of time that a state of war existed. That was a thing that any reasonable man could have anticipated. I am going to vote against the resolution apart from the merits of the case, principally because of the way the Oireachtas has been treated in this matter.
I will vote against the resolution for another reason. This is a dangerous precedent to set up. If the Courts, which are the custodians of the liberty of the people, have decided on a certain thing, in order to violate that decision of the Court you can run to this House and get a resolution passed to upset it. By doing that you are doing a dangerous thing. It may be right in this case, but remember you are setting up a dangerous precedent. The Judges are there to interpret the law. They come to a certain decision, and if all you have to do is to come here or to another House and pass a resolution upsetting that decision, you are creating a very uncertain state of affairs in the country. For that reason I am compelled to oppose the resolution.
Motion put and declared carried.