That the Emergency Powers (No. 139) Order, 1941, made by the Government on the 30th day of December, 1941, be and is hereby annulled.
Conviction and acquittal are but mere incidental matters to a court. The main and fundamental thing in a court is the administration of justice, and the efforts of everybody connected with the administration of the court are directed towards the securing of justice. Those engaged in the prosecution of a person accused of an offence against the community should not strain any evidence at their disposal in order to secure conviction—conviction not being the end, but administration of justice being the end. Therefore, judges jealously guard the methods by which evidence to secure a conviction or acquittal is safeguarded. It has been said often—and sometimes it is accepted—that "the law is a hass", but there is one branch of the law which is pre-eminently removed from that slur and that is the law of evidence. The law of evidence is not a set of arbitrary rules drafted by people far removed from the administration of law and unaware of the pitfalls lying across the path of the accused, whether innocent or guilty, and then imposed willy-nilly upon the court. The law of evidence is a growth, an evolution, and has for its object the protection of people accused and the securing of justice—whether that justice is conviction or acquittal.
The ordinary courts in this State are a very good example of the value of the law of evidence. They give the courts a status in the minds of the citizens which is both desirable and justified. The accused in the dock feels that he has not alone his own counsel or advocate to rely upon but also the protection of a judge on the bench who, acting according to the rules of evidence, can decide whether fair play is being accorded to him or not. It would be highly undesirable to suspend the rules of evidence in the operation of those ordinary courts, but so deeply embedded are the rules of court in the operation and tradition of those courts that you possibly could do it without any great harm. Judges and advocates would probably carry out the rules of evidence even if they were suspended.
Emergency Powers (No. 139) Order is not dealing with the ordinary courts. It deals with another type of court— a military court. This is a court which has not any tradition as a court of justice and no great experience in the administration of justice. I say this without any attempt to reflect on the personnel of the court, who may be very excellent in other ways. But military men are essentially unsuited for the position of judges. They cannot be expected to be experts in matters in which they have not been trained, and by their peculiar training and outlook they are entirely unsuited to weigh judicially the pros and cons of a case. They are trained to secure success by force at almost any cost, and to take risks with men's lives in securing that success, and given a free hand without rules of evidence, scarcely anybody will expect that they will not be influenced by their peculiar psychology, consequent on their training. If it has been found desirable to preserve and to enforce the rules of evidence for so many years, you may be sure it is more necessary to have rules of evidence in a court endowed with such terrible powers as the military courts, and given to men with such little experience.
Contrast the position of a person who comes before one of the ordinary courts on a capital charge and a person who comes before a military court on a charge involving the death penalty. The person who comes before the ordinary court has a lawyer, whose status cannot be questioned, to preside; he has had a training in the law and has had experience in the administration of it. He has peculiar training in that matter. He can apply his legally trained and experienced mind to the decision of any points that may arise as to the admissibility or inadmissibility of evidence, or questions of any kind of evidence. There are 12 free citizens sworn to hold the scales between the accused and the State on matters of fact. He has the right to challenge several of these men before they come into the box. If he has no advocate he can be assigned one, and the court is freely open to the public. Yet, in that court, with all its advantages on the side of the accused, the rules of evidence are strictly observed and jealously guarded. The accused person before the military court has no person with a legal training presiding or taking part in the examination of his case. Three military officers decide on law and fact and permit or refuse certain types of examination. Under the operation of Emergency Powers (No. 139) Order, the rules of evidence need not operate. His counsel may be the most brilliant advocate at the Irish Bar and the most experienced lawyer but, if the rules of evidence are suspended, how can he protect his client?
No rules can be violated if there are no rules. If there are no rules counsel for the accused cannot take the necessary steps to protect him. Take just a sample case. Take a person on a capital charge. In criminal charges the State cannot produce as evidence the character of the accused unless the character has been put in issue by himself. That rule has a long literature of recommendation by experienced judges and advocates. Yet we know that because counsel has simply referred to some charge in the previous character of the accused juries have been discharged, and fresh juries empanelled. The accused is being tried on one indictment. He is not being charged on his life history. That protection is given to him unless his character is put in issue by himself. Yet, in a military court, with the rules of evidence suspended, one can go back almost any length and put the whole life of the accused on trial before three military officers. There is no need to be careful as to how questions are put. There is no reason why leading questions should not be put bluntly by counsel for the prosecution. There is no reason to take the care that is taken in the ordinary courts. Such questions as: "Did you see John Murphy with the revolver?" or "Did you see Pat Murphy fire the shot?" will be quite entitled to be put by the prosecution in a military court. No ordinary court would allow questions of that kind to be put because the law of evidence would not allow prosecuting counsel to do so. If there is no law of evidence to operate, hearsay evidence of the most flagrant kind may be put in evidence. Unsworn and unsigned statements can be put in evidence. In an ordinary court every document put in evidence must be proved.
Yet it is proposed in this Order to put in evidence any document relevant to a charge made by any person or taken down in writing. And in passing I may say I cannot discover from Emergency Powers (No. 139) Order who takes down the statement, although it is stated "taken down in writing." Taken down in writing by whom? The person making the statement may be dead or may be present in court but will not be sworn or examined. The demeanour and the right of cross-examining a witness is denied to the court. His recollection of what he said, his faltering, his stammering, will be denied to the court. Every judge will tell you that the demeanour of a witness at the witness table is in itself a most valuable piece of evidence, and yet that is not given to the court and he cannot be cross-examined. You cannot cross-examine a document. In respect of documents, how many of us can say where we were a month ago? Yet if somebody unknown, somebody at large or in jail, writes a document saying we were engaged in some anti-State activity, that document, unsigned and unsworn, can be taken as conclusive proof and conviction secured on it alone. In the ordinary courts it would have to be proved and the maker would have to submit to being cross-examined. Denying the right of rules of evidence is simply turning the military court into a wild western executive of an experimental lynch law.
Setting up the military court without the rules of evidence is not dealing fairly even with the military court itself. It cannot be called a court at all if there are no rules of evidence to guide it. You may call it a sub-committee set up by the Executive to consider a charge made by order of the Executive and sometimes a type of charge created by the Executive. Is it a committee of three military officers considering a charge made against a person by the Executive? They can do practically what they like in the way of admitting leading questions, hearsay evidence, unsigned and unproved statements. No three men could conscientiously call themselves a court and try cases without being guided by rules of evidence. I do not believe the members of the Irish Bar, who may be prosecuting before the military court, are likely to take advantage of the suspension of the rules of evidence. They will observe them as far as their part of the proceedings may go, but they cannot control the Government in the matter of written statements that are submitted unsworn and unproved.
It is an innovation that is fraught with terrible danger. It will make room, I am afraid, for the agent provocateur to come amongst us and it may bite into our civil code. In the administration of the civil law, documents have to be proved and it is very hard to know, if this innovation is accepted, what may happen in the civil courts. When military men deal with military men in the Army, when a soldier is charged at a courtmartial with giving away military secrets or with cowardice in face of the enemy, the rules of evidence operate though he is being tried by his own comrades. It must be reasonably assumed that military men know more about the code of military law than they do about the criminal code operating amongst the civilian population. Yet, three military officers who would not officiate at a courtmartial at which the rules of evidence were not operating are allowed to operate in a court at which a member of the civilian population is being charged and at which the rules of evidence may be suspended.
I suppose the Minister will tell me that these courts will be held in public. They can be so held but they need not be held in public. Military men have a peculiar idea of what a public trial means. I am also sure that the Minister himself was tried by courtmartial at some time or other. I was and I know what "public hearing" means. The court was held in a low shed, surrounded by military barracks, with sentries posted at every corner. The president of the court had to send out a soldier to stop the rattle of machine-gun practice nearby. That is what the British military thought was a "hearing in public". I wonder what the Irish military think is a "hearing in public".
I know that the Constitution gave powers to set up these courts. I know that they were set up by legislation. The Emergency Powers Act gave very great powers to the Government. Under the Treason Act, whenever a person charged with treason is indicted before a criminal court, he shall be
"indicted, arraigned and tried in the same manner and according to the same course and order of trial in every respect as if such a person stood charged with murder...and shall be convicted and sentenced in the same manner as if he had been found guilty of murder".
I read, not in the Official Report, but in the papers, that the Taoiseach said that if definite evidence was obtained there would be a trial for treason. Does that mean that the fundamental principle, embodied even in the Treason Act, that no person shall be convicted of treason on the uncorroborated evidence of one witness will go by the board? Does it mean that, on an unsigned, unsworn and unproven document, a person can be convicted of the highest charge against the State? I hope that that is not so. I hope that the principle which has survived through all the ages—though it be embodied in British law it may not be so British after all—will not be done away with under these Emergency Powers Orders.
The Government have also got extensive powers under the Offences. Against the State Act, 1940, which gives a Minister of State power, by warrant, to order the arrest and detention of any person. A member of the Gárda Síochána may arrest, without warrant, any person in respect of whom a warrant has been so issued by a Minister of State and that person may be interned during the emergency. These are very extensive powers and the Emergency Powers Act of 1939 gave other special powers to the extent of 16 provisions under Section 2. The final paragraph of Section 2 sets out that the Government may suspend the operation of or amend or apply (with or without modification) any enactment (other than this Act) for the time being in force or any instrument made under any such enactment. That means that the Government is given power to suspend any law except the Emergency Powers Act—even the Constitution under which all laws are made. With these wide powers, one is entitled to ask if a case has been made for the introduction of this Order. I did not read in any Ministerial statement any case to show the necessity for this measure. There is sufficient power already in the Government's hands and they are credited with saying—we can all believe that at one time they did say—that the ordinary law was quite capable of dealing with any outburst of the kind to which they object at the moment.
This motion is not moved at the request or on the instructions of the I.R.A. or any organisation on the fringe of the I.R.A. I do not know any organisation on the fringe of the I.R.A. I have some experience of organisations such as the St. Vincent de Paul Society. I take it that that is not the organisation referred to. The Catholic Truth Society is not the organisation to which reference has been made and I am quite sure Senator Buckley will assure the Minister that it is not the Gaelic League to which reference has been made.