I beg to move:—
Section 1, line 20, after the word "person" to insert the words, "subject to Article 18 of the Constitution."
The Minister made a statement a day or two ago that this matter might be brought before a Court of Justice. That is quite true, if the Bill is passed, but it is not passed yet. I remember the Minister stating in regard to a former Bill that every Bill was subject to the Constitution; that the Constitution was the touchstone of every Bill. He was quite right in that. I submit that this Bill is contrary to the Constitution with regard to certain persons. With regard to other persons it is not contrary to the Constitution. The Minister may state that he will not argue this matter here, but leave it to the Courts of Justice when the occasion arises. I think that before Senators are asked to pass a Bill which may be contrary to the Constitution, that they should be permitted to discuss and vote on the question. A Bill might contain something glaring which was contrary to the Constitution, such as to abolish the Treaty or something of that kind. I do not think any Minister would say that that should not be discussed here but before a Court of Justice, and ask Senators to pass a Bill so varying the Constitution. This is not so glaring a matter. But Article 18 of the Constitution reads:—
"Every member of the Oireachtas shall, except in cases of treason, felony or breach of the peace, be privileged from arrest in going to and returning from, and within the precincts of either House."
If that Article has any meaning, it must mean that a person must have the opportunity of going there. He cannot be locked up, and it cannot be presumed that he does not intend to go there. He must have an actual chance of going there if he was a member of the Oireachtas, and he could not be arrested. I presume he must be allowed to exercise that right, and see whether he will do that or not. Some of those who are interned have stated that they will not go to the Oireachtas. Some of them have not stated that. Even if they have stated it, they may have changed their opinion, or they may change their opinion at any moment. It seems clear to me that they must have that opportunity.
With regard to the exceptions made here that seems to me also to be clear enough; that these people, if they are members of the Oireachtas, can be arrested only on certain charges, and that those charges should be made against them, otherwise they cannot be stopped. It cannot be presumed that they have committed those crimes. I do not deny that they have, but it cannot be presumed until they are charged. Otherwise the Article would be null and void. All a Minister would have to do would be to arrest all his political opponents and put them into prison without making any charge at all. I do not say it is proposed to do that, but it may be done. Therefore, it is clear to my mind, that Article 18 prevents any member of the Oireachtas being arrested except for those particular crimes, and that then the charge must be made against him. I am not sure that it goes so far as to say they must be convicted, but I certainly think it means that they must at least be charged.
If I wished I could go into the question of what is being done in England and other countries. As the Chairman remarked, it is not very wise to be making reference to the Constitution in other countries, where things are different and where they have no written Constitution. That is so in England, too. All we have to do is to pass Bills according to our own Constitution. I do not think Senators can be asked to pass any Bill or Section of a Bill which might be contrary to the Constitution.