This is the essential clause of the Bill and I think it ought to be opposed, and I think all those who are against the Bill ought to have their names recorded. I will ask the House to divide on this motion.
Constitution (Amendment No. 17) Bill, 1931—Committee.
Question proposed: That Section 1 stand part of the Bill.
Question put.
The Seanad divided: Tá, 37; Níl, 10.
Tá
- Bagwell, John.
- Barniville, Dr. Henry L.
- Barrington, William.
- Bellingham, Sir Edward.
- Bigger, Sir Edward Coey.
- Brown, Samuel L., K.C.
- Browne, Miss Kathleen.
- Byrne, Right Hon. Alfred.
- Costello, Mrs.
- Counihan, John C.
- Desart, The Countess of.
- Dillon, James.
- Douglas, James G.
- Esmonde, Sir Thomas Grattan.
- Fanning, Michael.
- Granard, The Earl of.
- Griffith, Sir John Purser.
- Hickie, Major-General Sir William.
- Kennedy, Cornelius.
- Linehan, Thomas.
- McGillycuddy of the Reeks, The.
- MacKean, James.
- MacLoughlin, John.
- Milroy, Seán.
- Molloy, William John.
- Moran, James.
- Nugent, Sir Walter.
- O'Connor, Joseph.
- O'Hanlon, M.F.
- O'Neill, L.
- O'Rourke, Bernard.
- O'Sullivan, Dr. William.
- Parkinson, James J.
- Staines, Michael.
- Toal, Thomas.
- Vincent, A.R.
- Wilson, Richard.
Níl
- Chléirigh, Caitlín Bean Uí.
- Comyn, Michael, K.C.
- Connolly, Joseph.
- Dowdall, J.C.
- Farren, Thomas.
- Foran, Thomas.
- Johnson, Thomas.
- O'Doherty, Joseph.
- O'Farrell, John T.
- Robinson, Séumas.
Tellers:—Tá: Senators MacLoughlin and O'Hanlon; Níl: Senators Connolly and Johnson.
Question declared carried.
Section 2 put and declared carried.
THE SCHEDULE.
I move amendment 1:—
1. Schedule. Section 1. To add at the end of the section a new sub-section as follows—
"(4) If at any time when an Order is made under this section the Oireachtas or either House thereof stands adjourned to a day and hour more than five days after the making of the Order, the Order shall be expressed and shall operate to summon the Oireachtas or such House thereof (as the case may be) to reassemble at a convenient hour to be specified in the Order on a convenient day to be similarly specified not less than three nor more than five days after the making of the Order, and in every such case the Oireachtas or such House thereof (as the case may be) shall reassemble on the day and at the hour so specified as if it had stood adjourned to that day and hour."
The proposed new sub-section provides that when an Order is made setting up the Tribunal the Order shall be submitted to the Houses of the Oireachts in the usual form. The formula is taken from the Public Safety Act of 1927. Part IV of that Act provided for the establishment of Special Courts which at the discretion of the Executive Council might be wholly military courts, but any Order that was made, or proclamation, as it was then called, to establish such a court, had to be presented to the Oireachtas. And if the Houses were not sitting the issue of the proclamation had the effect of calling the Houses into session. I think, not to occupy too much time in presenting the argument for this amendment, I cannot do better than quote Senator Brown on this same question. The wisdom of setting up military courts was under discussion, and I quote Senator Brown's speech from column 365 of Volume 9, in the Seanad Debate of 10th August, 1927:—
As a lawyer, I view with the utmost dislike the setting up of military courts. Their existence and their operation can only be justified by a state of absolute emergency. I would have opposed these provisions of this Bill if it were not for the safeguards to which the President has just referred. If a military court is set up in this country, this House would have the responsibility. No military court can be set up without a proclamation, and no proclamation can be made without calling together both the Houses within five days, and each of these Houses will have the responsibility for the setting up of military courts. If the two Houses are satisfied that such a state of affairs exists in the country as justifies and calls for military courts, then my objection as a lawyer is gone.
The safeguards that the President referred to were the facts that the Houses were to be called together and that regulations were to be presented to the House, regulations setting forth the procedure under which the military courts should act. The Houses were to have control, the last say, and the former right to annul the proclamation. With these safeguards the Senator and those usually associated with him thought that they could, under these circumstances, concede the setting up of these military courts. This Bill as it stands leaves the discretion to set up a tribunal absolutely to the Executive Council. The tribunal is to consist of military officers. There is no provision here that any member of the Court will have legal experience and no provision that the procedure of the Court will be according to any regulations provided by the Ministry. The tribunal will have absolute authority in all respects regarding procedure, sentences, publicity and whether there is any report to be made to the Executive Council as to whom they have sentenced; what sentence has been imposed and who carried out that sentence. All these things are left to the absolute discretion of the military courts. The arrest can be secret, the trial can be secret, the sentence can be secret, and no one but the military courts and the people who carry out the sentence need know anything about the trial, the sentence or the execution. It will be all legal under the Constitution.
I am seeking, that, at least, when the order is made to set up the Court the Houses will be automatically called together, and will have an opportunity of discussing whether the emergency requires the Court, what the circumstances are, and exercise immediate authority over the Executive Council. These tribunals may be set up while the Houses are adjourned. I would ask the Seanad to project their minds ten years hence. Do not think only of the present situation or of October, 1931. Think of the possibilities five or ten years hence when making up your minds on this amendment. If you do give any consideration to the matter, except merely acquiescing without discussion and without consideration in the dictates of the Executive Council, I am sure you will vote for this amendment.
The quotation which Senator Johnson has read from my former speech is perfectly accurate, I need scarcely say. I then had, and I still have, the objection which every lawyer has to the setting up of any courts other than our own civil courts, and especially a military court. I have it still. The circumstances under which the question came before us when I made that statement were entirely different to what they are now. There was then no such emergency as there is now. There was then no state of war in this country. You are not entitled to set up martial law as a matter of constitutional law unless there is something in the country which amounts to a state of civil war. In this country at the present moment, if the facts which the Ministers have put before this House, and before the Dáil, are accurate, there is a state of civil war and it is that civil war which is being carried on by the only means in which civil war in a country like this can be carried on, and effectively carried on. Therefore, although I was, and am still, most reluctant to give my assent to the establishment of any military court, I do so because I feel that the emergency is entirely different from what it was then, and that there is such a state of affairs in this country as makes this Bill absolutely justified.
The conscience of the learned Senator is easily satisfied. He says there is a state of civil war in the country. Even if there were a state of civil war here the military courts proposed to be set up by this measure could not be justified. What are they? They are courts consisting of three military officers without a legal adviser, without confirmation of the sentence, courts which can condemn to death a prisoner taken in cold blood. During the British occupation of this country there was a question whether or not there was civil war in Ireland, and military courts were set up. Of course the gentlemen who are now on the Treasury Bench have got the full advantage of the exertions of counsel in those days, and of the success with which we proceeded against these military courts. During the British occupation, when military courts were set up, somewhat similar to the courts now proposed to be set up, we broke these courts and we broke them by writ of prohibition, which went to the House of Lords, and in respect of which the President of the Executive is fully aware. We broke these courts because they were contrary to law and to the principles of liberty. The breaking of these courts as is disclosed in General Macready's reminiscences, was the cause of the Truce coming about. General Macready's words were that if he could have shot the barristers and lawyers he need not mind shooting the others. The President knows all that. He knows that he is now establishing courts which cannot be prohibited, under which the citizen will have no chance of any defence, courts which cannot be prohibited, and which are contrary to law. My friend Senator Brown has his conscience to salve. He is quite satisfied. He says that there is a state of war in this country. I have been all through the country and I have not seen any state of war.
I am firmly of opinion, that if any court of justice was asked to decide whether or not there was a state of war here it would decide to the contrary. Nothing could be more absurd than to suggest that there is a state of war when everyone may drive about the country in motor cars and railways with perfect freedom. There is no army here that could face the Free State forces. There is no state of war except a few odd murders.
Senators
Oh.
There are a hundred murders in England for every one murder in this country, and not only that but there are disturbances in the streets there. No one in England proposes to change the whole Constitution because of that. Quite the contrary. It is only here that we have people who try to do these things and who say: "We must assemble our cannons and our soldiers to meet three or four people." The thing is most absurd. There is no state of war in this country and therefore this section is wrong and is unnecessary.
Since 1922 ten members of the Gárda Síochána, the people's Guards, have been foully murdered. Only one of these men was a detective, the other nine men who were shot being in uniform. The cowards who would not shoot the detectives set a trap mine for Tadhg Sullivan in Clare. I want to tell Senator Colonel Moore about the "odd murders." The Senator seems to think that because we have not as many political murders in this country as ordinary murders in England there is no necessity for the Bill. As far as I know there are no political murders in England. I am only referring to political murders in this country.
Is it worse to have political murders than to have unfortunate women strangled or cut up?
A woman has been murdered since the "cease fire" order was given in 1923. Since then there have been 28 political murders.
That is eight years ago, and we are at war now for something that happened eight years ago.
There have been twentyeight political murders of civilians, twenty-five men, one woman and two babies—twenty-eight civilians and ten members of the Gárda Síochána. That is thirty-eight.
What happened?
Senator Colonel Moore is not satisfied because there were not more.
That is eight years ago.
I will come down to more modern times. Kevin O'Higgins—
That is how many years ago?
I am starting with him. The Minister for Justice was murdered in 1927.
By whom?
Probably when you know so much about it you might tell us.
Tell us.
We did not hear any denunciations from the people who are now denouncing this Bill at any rate.
Oh, yes.
There were.
I accept the correction of Senator Mrs. Wyse Power. A public Safety Bill was brought in then. There was no murder while that Public Safety Bill was in force. When the Public Safety Bill was repealed, Albert Armstrong was murdered on the 20th February, 1929. In the year 1930 there was no political murder, either of Guards or of civilians. In the year 1931 we had five murders. None in 1930 and five in 1931.
Were they all political?
Where were the five?
I will give the names. There was Carroll, there was Ryan in Tipperary, there was Superintendent Curtin, and his two babies. Do not forget it, that when people go out to murder, anybody who is killed as a result of that shot is murdered just as well as the man they intended to murder. There may be a difference in the law of the land about a thing like that but there is no difference in the teaching of God, the law of God that has been taught to us all these ages by the Catholic Church. Then when the Government tried to stop this, when they found these murders increasing and when they tried to stop them, you got the three wise men of Galway, Sligo and Westmeath calling meetings of the public bodies in the country to protest against this terrible Bill. How many of them protested against these murders?
Every one of them.
Well some of the councils did, but it was not the same people on these councils who are protesting against this Bill.
What do you mean?
I mean that the people who are protesting against this Bill are not the people who protested against the murders. The people who are protesting now, ostrich-like shoved their heads into the sand and their brains along with them, until that business passed over.
The question is whether there is a state of civil war or not.
I am not a legal man, and I am not in a position to judge. This is a very urgent matter now. I am glad the Minister for Finance is here. It is a great pity he took the boots off the Civic Guards. If the Civic Guards were about they could give these people who stuck their heads into the sand the treatment they deserve. When the Fianna Fáil Party come into power and become the Government of the Free State, I understand that they will present each Civic Guard with a pair of kid gloves to fight this sort of thing.
We have been treated to various comments on this Bill and various suggestions have been made, but really I am at a loss to know what Senator Staines is driving at or what charges he is making.
That there is necessity for this Bill.
He talks vaguely about Fianna Fáil, ostriches and all sorts of things. I do not know where he is, and I may mention that it is only by the grace of God and by the exercise of a certain judgment that he is on the opposite benches instead of being on these.
That is a lie. I was going up as an independent candidate. I was asked to join a certain Party and I refused.
Is it in order to say that a Senator has told a lie?
Cathaoirleach
This really is not relevant.
He proceeded to tell Senator Colonel Moore about murders. There may have been murders. What has that to do with it unless we know who the murderers were or what the proof was? Civic Guards may murder one another.
What! May they?
Or they may murder the Minister for Justice.
I would appeal to you, sir, that the discussion should be confined to the amendment. The main principle of the Bill is being discussed now instead of the amendment. I suggest most of the speeches are entirely out of order.
I agree with Senator O'Farrell but when such ridiculous statements as Senator Staines made are put forward one has to say something about them. I would like to ask Senator Brown á propos of his remarks, in reply to the criticism of Senator Johnson, if he is really in favour of these drastic regulations and if he is satisfied in his mind that a state of war really exists in this country.
I certainly am.
I am amazed that a lawyer of Senator Brown's experience has reached the point when he is going to stand for the negation of all law, when for political expediency he will stand behind a movement to abolish all law, that he will not even allow what has been the procedure of the ordinary courts-martial. Remember under the King's code in courts-martial such procedure as we are dealing with now never existed and could not exist. There was always the right of the prisoner to be professionally represented, so far as I understand.
No. There was a practice of allowing a professional gentleman to appear as the prisoner's friend but only by leave. They always did give leave. That was the way it was arranged.
There was a law that there should be a legal man on the tribunal to advise them.
Cathaoirleach
Would you not allow Senator Connolly to develop his argument? He is doing very well.
What Senator Brown stated is not correct. The prisoner was entitled to have a friend to represent him.
Even accepting what Senator Brown states, that a friend of the prisoner was allowed to appear, I call his attention to the fact that no such provision is being allowed in this Bill. I call his attention to the fact that there is no evidence to be submitted on behalf of the prisoner, that there is no report to be made of the court-martial and that there is to be no publicity in the Press or otherwise. Senator Brown will sit here smugly accepting that. He is a man who would a week ago have stood in my estimation as an honest, clean man, but to-day he sits there as a man blinding himself deliberately to the ordinary sense of justice.
Senators will insist on going back to discuss a lot of matters that have nothing to do with the amendment. The necessity or otherwise for the Bill does not arise in regard to this amendment. The position is that the Bill provides for power to be given to the Executive Council of the day, without any other authority whatever, to set aside the guarantees embodied in the Constitution as we have known it up to the present. The amendment suggests that at the same time that is done Parliament will be summoned so that it may have an opportunity of stating whether the necessity for enforcing this measure has or has not arisen. Surely that is not an unreasonable request.
This is the most drastic Bill that has ever been introduced here because it is an amendment of the Constitution and it sets aside every guarantee that is normally given to each citizen in every civilised democratic country. There may be occasions when these powers may require to be used and it may be argued that the present is one such occasion. This amendment does not prevent the use of these powers. It merely suggests that Parliament shall be summoned at the same time that these powers are put into operation. As Senator Johnson points out we must not look only to the present time or the immediate future; we have to look to all the future, and there may be a Government in office that may make very drastic and improper use of these powers. Even to-day there are people aspiring to power in this country and one would have very serious qualms of conscience about placing these powers in their hands. As it is, they can be used without even the assembling of Parliament at the same time as they are put into operation.
If this were a temporary Bill there might be some justification for opposing the amendment, but as it is going to be enshrined in the Constitution, and will become the fundamental law of the State in future at the behest of any Executive Council, I think it is absolutely essential that we should have some sort of a safeguard, inadequate though this particular safeguard may be, and I hope Ministers will see the reasonableness of accepting this amendment.
I agree entirely with what Senator Brown said. It is highly undesirable and really a hateful condition of affairs that it is necessary to set up abnormal courts of this nature. It is known to every single person in this country that as long as it was possible for us to carry on under the ordinary every-day system to which we have been accustomed, we have done everything we could do to preserve the jury system, and it is now because the jury system has broken down, it is now because jurymen have been terrorised into giving verdicts against their oaths, that it is perfectly plain, patent and apparent to everybody that courts of this nature must be set up.
We do what we are doing lamenting deeply that such an occasion has arisen and that there are people in this country actuated by motives so vicious that the setting up of these courts has become an imperative necessity for the preservation of the State, for the preservation of the Oireachtas, and even for the preservation of persons like Senator Colonel Moore sitting in this Assembly. I must deal now with what has been said about the state of war. I do not know whether there is a state of war.
On a point of order, I think the Minister should also be asked to keep to the amendment under discussion.
Cathaoirleach
That is a perfectly sound point. We are digressing from the amendment, but I think it will clear the air and help to lead our discourse into calmer waters if this thing is settled once and for all. That is why I have allowed the discussion up to now. On further amendments I will keep Senators close to the letter of the amendment. I think it would be unfair not to allow the Minister to reply to charges that have been made.
It is really wasting time.
Cathaoirleach
I grant it.
Since Senator Johnson has said that I may be wasting time, I will pass away from that question. I will also pass away from what Senator Connolly said about the procedure in these courts and I will not touch upon how, in advance, he condemned the system of procedure which is to be set up when really he has not the remotest idea of what the system will be. I will deal now with Senator Johnson's proposal. This is germane to the issue. We are now confronted with a completely different and a worse state of affairs than in the year 1927. These organisations have spread their criminal activities more widely and they are better organised and are more dangerous now than they were in 1927. You have to consider not what was considered to be right and proper legislation then, but what is and ought to be considered as right and proper legislation in this year of 1931 and in the condition of affairs which now obtains. Let me draw the attention of the House to what everybody here knows happened last week. We know there was a deliberate attempt made to terrorise members of the Oireachtas from coming here to do their duty. That is a fact you cannot leave out of consideration when you are considering this amendment. It is a vital fact. I know no such attempt was made as far as Senator Johnson is concerned or as far as Senator Johnson's Party are concerned. As far as Senator Colonel Moore and his Party are concerned, of course no such efforts were made. Senator Johnson is full of the spirit of liberty and the Senator is always on the side of a person who may be charged. He has no interest or sympathy with the liberties of the vast majority of the people.
What has this to do with the amendment?
It has everything to do with it.
It has not.
I say it has everything to do with the amendment.
The Minister is really making a Second Reading speech, and he is taking up our time.
Cathaoirleach
I think the Minister's statement has relation to the amendment in this way: if action could be taken which would prevent members of the Oireachtas from assembling, then such courts could not be set up.
That is precisely what I was coming to, and Senator Johnson must have seen that. He is not so dull as he tries to make out at the present moment. Senator Johnson and others like him are not visited, but other members of the Oireachtas have been visited, and everybody knows that. For what purpose were they visited? It was to intimidate them from coming here and voting. Is there no danger that that may be carried further? Is there no danger that attempts may be made by physical force to prevent them coming here? Is there no danger that even worse than that might be done— no danger that there might be, amongst members of the Oireachtas who believe in the preservation of order, two or three odd murders? Senator Colonel Moore, of course, would brush aside such a possibility.
What would happen then? An emergency worse than the emergency that has arisen. What would happen in every other emergency would, I am sure, be exactly the same as happened in this emergency. An attempt would be made to intimidate members of the Oireachtas, probably to kidnap, and possibly to murder members of the Oireachtas for the purpose that a majority might be turned into a minority. We know that. We see it already. Senator Johnson comes along and says that it should not be done until these murder gangs have got a fair and open opportunity of turning a majority into a minority by murder and the like.
I say that when an occasion like this arises the responsibility is upon the Executive. It is not right or fair that the members of the Oireachtas should be exposed to the extra risk that Senator Johnson wishes them to be exposed to. It is all right for him. Senator Johnson's soul is filled with sacred theories regarding the liberty of persons who join criminal conspiracies; he is perfectly safe. But there are other persons who would be in danger, and it would be perfectly wrong that these persons should be exposed to unnecessary risks and dangers and that the Constitution of the State should be challenged as it has been challenged within the last few days. Apart from that consideration, suppose there was a general election being held, suppose that there was no Dáil or no Oireachtas, and suppose that an effort was being made by these criminal organisations over the country to prevent the holding of a general election? Suppose it were necessary to have the courts to deal with the matter, then the hands of the Executive are to be entirely tied and they are to go on. What the Executive Council asks the Oireachtas to do is to give the Executive, in times of emergency, sufficient powers to deal with each particular emergency as it arises. They are responsible to the Dáil and the Seanad. That is the court to which they are responsible. There is a higher court still to which they are responsible. We now, and our successors, are responsible to the highest court of all, the people of this country, and it will be for them to say whether we have acted wisely or wrongly in any emergency. We ask that the Executive should have this power, and that the members of the Oireachtas should not be exposed to any unnecessary risk. For that reason I ask the House to reject the amendment.
I would like to remind Senators what the amendment proposes. The amendment proposes:—
"(4) If at any time when an Order is made under this section the Oireachtas or either House thereof stands adjourned to a day and hour more than five days after the making of the Order, the Order shall be expressed and shall operate to summon the Oireachtas or such House thereof (as the case may be) to reassemble..."
The Minister says that the reason why he refuses to make this provision is that it would expose members of the Oireachtas to danger, that there would be attempts to turn a majority into a minority and that the lives of Senators and Deputies would be endangered. I take it from that that it has been decided, at the instigation of the Ministry, that the Dáil shall not meet until the emergency has passed because of the danger! If the Minister says "No" then what is the value of his argument? The Order, supposing there was such danger, would be enforced, notwithstanding that the Deputies or Senators were not able to attend. The fact that there had been danger abroad of attacks upon Senators and Deputies would not make the Order ineffective under this amendment, and whatever danger there is in the plea of the Minister applies equally on Monday, Tuesday or Wednesday next. That argument will not stand.
This Order that is in mind presumably is going to be issued immediately, and if this amendment is inserted in the Bill it will make no difference at all on this occasion because it only applies to any time when an Order is made and either House is adjourned for a period of more than five days. The Dáil, I understand, is adjourned until Wednesday next. If the Order is made this week-end, as has been suggested, the Order will not have any effect whatever in respect of this emergency. Now as to future emergencies, the Minister says that there would be danger in framing the Order in such a way as would automatically call the Houses into being. As I have said, under the section as amended, the Order will still continue. It will not be annulled. It does not mean that it must be ratified by the Houses of the Oireachtas. It means that the issuing of the Order will automatically have the effect of calling the Houses into being, so that if the Houses decided that the Ministry could not make an effective case for the issue of such Order then the Houses can annul it and the Ministry will resign.
Let me remind the Seanad that the Dáil adjourned in July. It met in October. If, in some future July, the Ministry decided that there was an emergency and issued an order setting up military courts without this amendment there is no need for the Houses to meet until October, and whatever may be the case against such order it could not find expression in the Houses of Parliament. Therefore, for the four months the Ministry is absolute, dictating the course of justice and exercising power without any check whatever of a Parliamentary nature. Now that is a possibility under this Constitutional provision in respect of future emergencies. I ask the Seanad does it really intend that that shall be a power of the Executive? Bear in mind it does not affect this particular emergency in the slightest possible degree. The amendment has no effect upon this emergency. It only will have effect in respect of future emergencies.
The passing of the amendment would, of course, have one effect on the emergency which no doubt Senator Johnson has in mind. It would delay the passage of the Bill, and that I think is what he is after. As regards future emergencies, the Senator has made no attempt to reply to the Minister for Justice. I am certain that one of the causes for the great increase of activity in the case of these organisations last spring was the hope that there would be a general election this year, that during the time the Dáil was dissolved they would have an opportunity such as they never had before, and that at a time when the Executive was weak, when there was no Parliament and when the civil law had already proved ineffective, they could create turmoil, if not chaos in the country. I am quite satisfied that if you had a section like this in the Bill and a similar crisis arose again, the time for the conspirators to take action would be immediately after the dissolution.
I am satisfied, as I say, that one of the reasons for the special spurt was the belief that in the present Autumn there would be an election and that during that period there would be sufficient activity possible by these people to secure that there would not be a free vote of the people and that a Government which they, at any rate, thought would be more or less gentle to them would be returned.
As regards leaving the Executive several months without any possibility of the Parliament meeting, the Senator knows perfectly well that what he was talking in that respect was absolute nonsense. There is nothing to prevent the Seanad, if it has not done it already, passing a Standing Order saying that if a case of emergency arises the Cathaoirleach or the Clerk can summon the Seanad. The Seanad can make any arrangement it likes in Standing Orders to provide that on any special occasion whatever it shall be summoned. Without putting this in the Bill, and having the possibility of making the Bill inoperative, there is nothing to prevent the Dáil passing a Standing Order declaring that the Ceann Comhairle, if this section as it stands is put into operation, can immediately summon the Dáil. Senator Johnson knows that well and he knew it when proposing the amendment. I think his object in proposing it is not any one of those he has declared, but the one I mentioned.
I should like to ask if a person is arrested and charged under this Bill will he be permitted to have legal assistance if he desires it?
That is the intention.
Amendment put:
The Committee divided: Tá, 15; Níl, 40.
Tá
- Chléirigh, Caitlín Bean Uí.
- Comyn, Michael, K.C.
- Connolly, Joseph.
- Cummins, William.
- Dowdall, J.C.
- Duffy, Michael.
- Farren, Thomas.
- Foran, Thomas.
- Johnson, Thomas.
- MacEllin, Seán.
- Moore, Colonel.
- O'Doherty, Joseph.
- O'Farrell, John T.
- Phaoraigh, Siobhán Bean an.
- Robinson, Séumas.
Níl
- Bagwell, John.
- Barniville, Dr. Henry L.
- Barrington, William.
- Bellingham, Sir Edward.
- Bigger, Sir Edward Coey.
- Brown, Samuel L., K.C.
- Browne, Miss Kathleen.
- Byrne, Right Hon. Alfred.
- Costello, Mrs.
- Counihan, John C.
- Desart, The Countess of.
- Dillon James.
- Douglas, James G.
- Esmonde, Sir Thomas Grattan.
- Fanning, Michael.
- Gogarty, Dr. O. St. J.
- Granard, The Earl of.
- Griffith, Sir John Purser.
- Guinness, Henry S.
- Hickie, Major-General Sir William.
- Jameson, Right Hon. Andrew.
- Keane, Sir John.
- Kennedy, Cornelius.
- Linehan, Thomas.
- McGillycuddy of the Reeks, The.
- MacKean, James.
- MacLoughlin, John.
- Molloy, William John.
- Moran, James.
- Nugent, Sir Walter.
- O'Connor, Joseph.
- O'Hanlon, M.F.
- O'Neill, L.
- O'Rourke, Bernard.
- O'Sullivan, Dr. William.
- Parkinson, James J.
- Staines, Michael.
- Toal, Thomas.
- Vincent, A.R.
- Wilson, Richard.
Tellers:—Tá: Senators Johnson and O'Farrell; Níl: Senators O'Hanlon and O'Rourke.
Amendment declared lost.
I move amendment 2:
Schedule. Section 1. To add at the end of the section a new sub-section as follows:—
"(4) Every Order made by the Executive Council under this section shall forthwith be published in the "Iris Oifigiúil" and shall also be laid before each House of the Oireachtas as soon as may be after it is made, and if either such House shall within the next subsequent twenty-one days on which such House has sat pass a resolution revoking such Order such Order shall forthwith expire, but without prejudice to the validity of anything previously done under such Order."
This surely is an amendment which should be accepted. It also is taken out of the 1927 Act. It provides that when an order is made by the Executive Council under this section it shall forthwith be published in "Iris Oifigiúil" and shall be laid before both Houses in due course, and if either House shall, within the next subsequent twenty-one sittings, pass a resolution revoking such order, such order shall forthwith expire. That does not make the order invalid. It makes it imperative by authority of the Constitution that the order shall be made public. There is nothing in the Bill at present to ensure that when the order is made it shall be published.
This divides itself into two parts. As far as the second part of the amendment is concerned, it comes under precisely the same objection which I made to the previous amendment. I will not repeat my speech. As far as the first part is concerned, that is publication in "Iris Oifigiúil," no doubt every order will be published in "Iris Oifigiúil" because it will facilitate in the greatest possible manner the proving in court of the existence of the order, as of course the order will have to be proved in court. A copy of "Iris Oifigiúil" will be evidence that such order has been published. Therefore, as a matter of ordinary precaution, the Senator may be perfectly certain that it will always be published. But I object to making, and I ask the House not to make that anything like a condition precedent to these courts functioning. I have already stated that everything that possibly can be done will be done by certain ill-disposed persons to prevent these courts operating and it might be quite possible that it could not be published forthwith for this reason. It is pretty well known, or can always be discovered, where "Iris Oifigiúil" is being published. There are methods of dealing with and terrifying even printers. Buildings even in Dublin can be blown up. It would be simply asking for trouble if this were made a condition precedent. I tell the Senator that he may be perfectly certain that it will be published, because, as I say, it will very much facilitate the working of the courts that it should be published, but I ask the Seanad not to make it a condition precedent.
Leave it to the discretion of the Minister!
Amendment put and negatived.
I move amendment 3:
Schedule. Section 2. After the word "Constitution" in line 48 to insert the words and figures "save Articles 18, 19, 20 and 24 thereof."
The object of this amendment is to secure the privileges of Parliament. Under this extraordinary measure every Article of the Constitution after and including Article 2 stands suspended. I ask the House that Articles 18, 19, 20 and 24 of the Constitution should not be over-ridden by this new Act. These Articles of the Constitution provide for immunity from arrest in coming to the Seanad and Dáil and in going from the Seanad and Dáil. They provide freedom of speech in this Assembly—I hope not too much of it—freedom of discussion in this Assembly and that the Assembly shall have control of its own proceedings. If the Minister is going to accept any amendment I hope he will accept this. Of course I know it will delay the passage of this Bill which is supposed to be most urgently needed; a Bill that could stand over the long vacation and is now so urgently needed! Of course the T.D.'s would have to come back to the Dáil if this amendment were carried. These are the pros and cons of this motion. I will say no more about it.
I do not know what Senator Comyn thinks will happen if this amendment is not accepted. If the Senator imagines that this particular Bill is going to be used, that you are going to have a Government that will attempt to set up a dictatorship, which seems to be what the Senator is suggesting, then you are not going to prevent that happening by the amendment that he has put before the House. There is no intention of interfering with a member of the Oireachtas who is going to or returning from the House—not for any Parliamentary action.
I certainly think we have not just at present the sort of Deputies in the House who are engaged in any sort of murder conspiracy. We know that the members of the Dáil at present and more so the members of the Seanad are members who, whatever affiliations they may have had in the past with an armed conspiracy against the State, have broken that connection and there is no likelihood that I can foresee that action is going to be taken against one of them. But you can have the position arising where the immunity of a Deputy would be a most undesirable thing. In other countries it has often been found that acts of violent criminality by Deputies have escaped punishment for a very considerable period because of this immunity of a representative. We have, as I stated to-day in the Dáil, quite a new situation arising, not in this country alone but in many other countries in regard to opposition to Parliamentary Government. We have in most countries in Europe Communist parties which are determined so far as they can do it to break down the Parliamentary system and to put an end to democracy— people who believe in the gun for themselves and who believe in establishing the rule of the minority by the use of the gun. I hope we are not going to amend or enlarge or, in any way, extend the scope of this particular amendment to the Constitution. We are now putting into the Constitution emergency powers which should be ample for every possible occasion. You might have, in future, your Communist Deputy coming into the House with a gun in his pocket. It is not so long ago since in this Parliament it would have been conceivable to have a Deputy coming into the House with a gun in his pocket. You might quite possibly have had one of the men who had just emerged from the campaign, or armed conspiracy, in the early days when they were new to their Constitutional faith, coming into the House with a gun in his pocket. I think it should be possible to deal with the situation that is developing, or any similar situation with these powers, and, for that reason, I do not think that this amendment should be made.
It is provided that reports and publications of the Oireachtas are privileged and that utterances made in either House, wherever published, are privileged. It seems to be assumed that the power in this Bill is going to be used to prevent ordinary discussion in the Houses of the Oireachtas. That is utterly absurd. But I heard, for instance, one member of the Dáil making very violent statements. He is not of any consequence and I would not pay any attention to what he says, but I do say that I would not allow a man to preach murder in the Dáil and I would not allow a newspaper to publish direct incitements to murder. We have to-day a man in the Dáil who was rather talking about the past, but he is a man who professes fairly violent principles. We might easily, in a year or so, have in the Dáil men who profess Communist principles. We might easily have men who would, as people have done outside, point to their opponents opposite and assert that they should be murdered. As far as I am concerned, I do not believe that Parliamentary immunity should be carried to that length. I do not believe that newspapers should be free to come along and say that President Cosgrave should be murdered, and so on, because somebody might have got up in the Dáil and expressed a sentiment of that sort.
This whole Bill is based, and has to be based, on some belief in the decency of the Executive. If you do not believe in the decency of the Executive, you should not pass the Bill. You should turn the country over to the gunman. You have got to believe that the standards of the elected Executive—the Executive which obtains its place by vote of the majority of the representatives of the people—you must be prepared to believe that that Executive has higher standards than the murderers of Curtin or young Ryan. If you do not believe that, there is nothing to be done; one side is as bad as the other and it would perhaps be just as well not to pass the Bill but to let the murderers have their fling and let the worst come as early as possible. So far as the present Executive is concerned—and I am prepared to believe it of any other Executive, no matter what Party it may belong to—you are not going to find any gross abuse of powers which are put into their hands. What I would fear in a change to another Executive would be not so much violence as yielding to violence and a refusal to deal with the worst elements in the country. The present Executive has never used its powers immoderately.
Some Senator was anxious to know this evening would death sentences by the Tribunal be reviewed by the Executive. Even during the civil war, there was never a sentence of any military court carried into execution without the facts being placed before the Executive and the Executive agreeing to the execution. When an ordinary murderer is convicted, we review the sentence most carefully and we have often spent a very long time upon its consideration. So far as this Bill is concerned, every sentence will be carefully reviewed. Any one who looks at the history of the last few years with an impartial eye will see that powers have been very sparingly used. We had powers of internment and we used them once—towards the end of the civil war. We had the Public Safety Act for eigtheen months and, except for one or two minor clauses, we did not put it into operation. The fact that the power was in existence caused a cessation of political crime during the period. Our whole policy has been to use the powers that we have as sparingly as possible. I do not believe it would be possible in this country for a Government, unless it was a Government of people utterly without principle who would use the worst elements in the country in a campaign of assassination—unless it was a Government representing the people who are now in the I.R.A.—even if it wished could step over the line and create a sort of dictatorship. Its own forces would fall away from it. All its own support would fall away from it. We come up from the people. We have no support at all except such confidence as the people have in us. We have no strength but that. We have no prestige such as monarchs have or such as exists in countries where you have aristocratic government, in which there is prestige of wealth and prestige of long tradition. We have nothing behind us, and no Government replacing us can have anything behind them, but the confidence of the people. Any Government in our position is bound, at all stages, to do what it can in every way, both by the use of power and by being sparing in the use of power, to retain the confidence of the masses of the people who provided their authority. This whole question depends on whether you are prepared to trust the best Executive that the majority of the representatives of the people can elect. If the representatives of the people are going to elect a crowd of ruffians, then it is all hopeless.
I take it that the next sentence the Minister would have uttered, if he had thought of it, would be that no Constitution is of any value; that you may trust any Executive that will be elected. I should like to find out from any person versed in the law whether the section which makes the various Articles of the Constitution of no effect does not mean that the provisions of the Constitution will be abrogated in respect of much smaller offences than murder and incitement to murder. "Sedition" is a word which covers a very big range of offences against the established order. I think it is very likely that there will be many utterances in the Seanad and Dáil which could be classed "seditious," which utterances will be published in the speeches of Senators and Deputies. Is immunity in respect of such utterances cancelled by the Bill as it stands?
I am bewildered. I never heard such a soothing speech delivered by any autocrat as the speech delivered just now by the Minister. I have always heard that you ought to beware of an autocrat when he speaks with syrupy sweetness. What did he say? "I do not want anybody to come here with a gun in his pocket." I have said nothing at all about guns in pockets. What I say is that the ordinary privileges of Parliament should be respected even under this dictatorship. "This is not a dictatorship," said the Minister. No. It is more than a dictatorship; it is a tyranny, under which any of you may be hauled up before three military officers, none of whom may be a lawyer, for an offence which may not be a crime and you may be, on their sentence, either hanged or shot. Is that a tyranny? The gentlemen of the Seanad have voted here to-day, as they have always voted, on their allegiance to the Ministry. You have a Ministry of decent men, we are told. What about the members of the Dáil and Seanad? Are they decent men? If they are decent men, why should they not have the ordinary privileges of Parliament?
They have.
Then let these four clauses be excluded from the provisions of your Bill. That is all I ask.
Amendment put, and declared lost.
I move amendment No. 4:
Schedule. Section 3, sub-section (1). To delete in line 9 the words "the word ‘offence' includes crime."
The result of the last amendment caused very great hilarity in the House so that perhaps another turn will not do any harm. Perhaps some Senators who have not closely studied this Bill will give me their attention while I explain the meaning of the amendment. If Senators will turn to Section 2 they will find that "the word ‘offence' includes crime." It is not that the word "offence" means crime, but that the word "offence" includes crime. There are a number of offences dealt with in the 34 clauses of this precious Schedule. I hope there will not be a Schedule of the same character before the Dáil or the Seanad again. Offences, treasonable acts and misdemeanours; also offences under the Juries Act, and offences under the Fire Arms Act; seditions, libel and other offences enumerated under this Bill. Here we have the most peculiar thing I have ever seen in any piece of legislation. The Minister for Finance seems to be acqainted with the legislation of various new countries in Europe, but has he ever seen anything to match this: "Any offence whatsoever (whether committed before or after this Article was inserted in this Constitution or before or after Sections 4 to 34 of this Article came into force) in respect of which an Executive Minister certifies in writing under his hand that to the best of his belief the act constituting such offence was done with the object of impairing or impeding the machinery of government or the administration of justice?" Supposing I said that Deputy Desmond Fitzgerald's parliamentary style was better than the style of the Minister for Finance.
I would admit it at once.
That might be an offence for which the Minister could certify that this man Comyn is making fun of us. Send him before the Three and have him tried for this offence and duly sentenced.
I think he would get out of it.
He might be fined or imprisoned. I hope I would have legal representation. We have the word of the President, and the Seanad is witness to it, that these men are to be legally represented. I might be hauled up and sentenced, not to fine or imprisonment, but to whatever punishment the three military gentlemen chose to inflict. I ask to have the operations of this measure confined to crime, and therefore to strike out the words "offence includes crime." By striking that out you will not interfere at all with the legitimate operation of this measure. You will not prevent them excluding from this House gentlemen who bring guns in their pockets. It will not help what they call the gunmen in any way if you do this, and it will bring us into some sort of conformity with the law as we have understood it up to the present.
To strike out these words would mean that crime, unless otherwise brought in, would not come into the Schedule, because Senators will notice that the Schedule refers repeatedly to "any offence." Coming to Clause 7, it says: "Any offence whatsoever whether committed before or after this Article was inserted in this Constitution." The words Senator Comyn wants struck out are the words "offence includes crime." The object of Clause 7 is that if we get the murderer of young Ryan we will put him before the Tribunal, and there will be no chance of intimidation, but if we accepted Senator Comyn's amendment we would have to put the murderer before the ordinary court.
Amendment put and declared lost.
I beg to move amendment 5:—
Schedule. Section 4, sub-section (2). To delete the words "five members, all of whom" in line 33 and to substitute therefor the words "three or more members, of whom one (who may or may not be an officer of the Defence Forces of Saorstát Eireann) shall be a person certified by the Attorney-General to have legal knowledge and experience and the others."
This also is taken from the Public Safety Act of 1927. It was upon this proposition that Senator Brown uttered the words regarding the undesirability of military courts. He had certain assurances then from the President that it was not only Parliamentary control but that there was some legal knowledge in the constitution of the court. As the Bill stands there is no obligation upon the Ministry or the Governor-General on the advice of the Ministry appointing a court that it shall contain any person having any legal knowledge. Inasmuch as this court is going to have very wide jurisdiction, a very wide range of power and authority to try and sentence, my amendment provides that one member of the Tribunal should be a person certified by the Attorney-General to have legal knowledge and experience.
The difficulty about this is in a way the difficulty that there is about legal tribunals. Army officers by their profession are men whose duty it is to face any danger that may come up against them in the ordinary course of their work. If the military officer is not prepared to take the danger of being shot or killed in some other way when his duty requires it he is not fit to be a military officer. It is not the duty of civilians to undertake these things.
It might not be possible to get a suitable civilian to undertake the task. Remember he is a man who would be appointed for perhaps six months or a year. He might incur very considerable enmity. He would not always be living in barracks and perhaps carrying arms as a military officer would be. He would be a man who having undertaken this difficult and dangerous work would have to go out perhaps finding his practice at the Bar gone and finding himself in considerable difficulties about recovering it. We have come to the conclusion that in the circumstances we are up against it would not be fair to put a man into that position and it might not be easily possible to get a really suitable man, because for this work you would certainly have to get a very good man. I am satisfied that with a section drawn as this section is you do not really require a legal man. You require simply three intelligent, resolute and conscientious men who will bring commonsense to the problem. Legal technicalities will not come into the procedure of this court.
It is not tied up with all the forms that a civil court is tied up with. In one sense it is like one of the military committees that were set up during the civil war, except that of course it will ordinarily sit in public and except that it will have professional men appearing before it and that the members of the court will be permanently in their position, that as long as the court remains you will not have one set of officers trying one case to-day and another set of officers trying another set to-morrow.
The Cheka.
I do not know whether Senator Johnson would like the Cheka. If we took no measures we would have it here. It would grow up of itself and a very disorderly and undesirable Cheka with no principle or policy behind it. After all, as I say, this court has no civil jurisdiction. It is not going to be trying the question of the ownership of property. It is not going to be trying difficult, intricate matters at all. It will simply have to sift the evidence that may be put before it with regard to whether a man, say, was found in possession of a gun or not, the evidence as to whether a man was found in possession of seditious documents or not, the evidence as to whether a man was a member of an illegal organisation or not. As I say, no very intricate or difficult problems will come before it. It will have undoubtedly legal men on both sides who will have to prosecute and defend.
Is that certain?
Normally.
The Committee will have absolute authority over its proceedings.
We must assume that they will be conscientious men and that they would not take the risk of trying an undefended prisoner. After all no tribunal that I can imagine would like to have the responsibility of trying undefended prisoners.
Cathaoirleach
It being now 9.45 p.m. this amendment and all subsequent amendments fall. I shall now put the Question: "That the Schedule and Title stand part of the Bill."
Question put.
The Committee divided. Tá: 41; Níl: 15.
Tá
- Bagwell, John.
- Barniville, Dr. Henry L.
- Barrington, William.
- Bellingham, Sir Edward.
- Bigger, Sir Edward Coey.
- Brown, Samuel L., K.C.
- Browne, Miss Kathleen.
- Byrne, Right Hon. Alfred.
- Costello, Mrs.
- Counihan, John C.
- Desart, The Countess of.
- Dillon, James.
- Douglas, James G.
- Esmonde, Sir Thomas Grattan.
- Fanning, Michael.
- Gogarty, Dr. O. St. J.
- Granard, The Earl of.
- Griffith, Sir John Purser.
- Guinness, Henry S.
- Hickie, Major-General Sir William.
- Jameson, Right Hon. Andrew.
- Keane, Sir John.
- Kennedy, Cornelius.
- Linehan, Thomas.
- McGillycuddy of the Reeks, The.
- MacKean, James.
- MacLoughlin, John.
- Milroy, Séan.
- Molloy, William John.
- Moran, James.
- Nugent, Sir Walter.
- O'Connor, Joseph.
- O'Hanlon, M.F.
- O'Neill, L.
- O'Rourke, Bernard.
- O'Sullivan, Dr. William.
- Parkinson, James J.
- Staines, Michael.
- Toal, Thomas.
- Vincent, A.R.
- Wilson, Richard.
Níl
- Chléirigh, Caitlín Bean Uí.
- Comyn, Michael, K.C.
- Connolly, Joseph.
- Cummins, William.
- Dowdall, J.C.
- Duffy, Michael.
- Farren, Thomas.
- Foran, Thomas.
- Johnson, Thomas.
- MacEllin, Séan E.
- Moore, Colonel.
- O'Doherty, Joseph.
- O'Farrell, John T.
- Phaoraigh, Siobhán Bean an.
- Robinson, Séumas.
Tellers:—Tá: Senators O'Hanlon and Rourke; Nil: Senators Johnson and Robinson.
Motion declared carried.
The Seanad adjourned at 10 p.m. until 11 a.m. on Saturday.