Seanad Éireann debate -
Tuesday, 11 Dec 1973

Vol. 76 No. 3

Private Business. - Genocide Bill, 1973: Committee and Final Stages.

Section 1 agreed to.

SECTION 2.

Mr. E. Ryan

I move amendment No. 1:

To delete subsection (3).

The offence which we are considering can be described as an establishment offence. It is hard to imagine how an individual could commit an offence against the Genocide Act. Consequently, we are thinking in terms of some kind of institution or establishment or Government committing this offence. It is therefore singularly inappropriate that you should have this restriction which says:

Proceedings for an offence of genocide shall not be instituted except by or with the consent of the Attorney General.

It is difficult to imagine this kind of offence being committed in this country by a Government or any establishment in this country, but if we are to consider the Bill at all we must consider the possibility that at some time somebody will commit an offence against it, or do something which somebody considers to be an offence against the Act. It is almost inconceivable that any Government or establishment in this country would commit the kinds of offences which are defined under (a) and (b) of Article 2 of the Convention. It is just possible that somebody might commit an offence which is defined under (c), that is "deliberately inflicting on a group conditions of life calculated to bring about its physical destruction in whole or in part".

Without going into details, you could possibly take a group such as the people in the Gaeltacht areas or itinerants, and that some body or establishment might do something— perhaps not fully understanding the impact of what they were doing— which could be regarded as an offence under this Act. In these circumstances it is unlikely that the Attorney General, being an establishment figure, would move against them. For that reason it should be possible for a citizen who takes a view that what is being done is an offence under this Bill to move to institute proceedings against the establishment or the institution concerned because of the fact that the Attorney General is unlikely to do so.

At an earlier stage the Minister referred to the fact that this offence was of an international character and that it was desirable and appropriate that the Attorney General should be the person to institute proceedings. In moving this amendment I am not suggesting that the Attorney General should not be entitled to institute proceedings, and the fact that this subsection is gone does not in any way interfere with the right of the Attorney General to take proceedings if he wishes to do so. It merely means that he is not the only one who can do so.

The Minister pointed out on the Second Stage that, even if a citizen was entitled to institute proceedings, the proceedings could only go as far as return for trial. That is correct. Nevertheless, if you have a situation where a person has been returned for trial and if it is in one of these grey areas I mentioned earlier, it would be difficult for an Attorney General not to take up the proceedings from there on, unless he was a very ruthless or arrogant Attorney General. In such a grey area, where a citizen felt strongly that what was happening was an offence under this Act, it would be difficult for the Attorney General not to take up the proceedings from there on. He would certainly be subject to very severe criticism, and public opinion would look very critically on his lack of action if he refused to take the proceedings from there.

This is an offence where the opportunity should be available for a citizen to take proceedings, no matter how unlikely it may be that the kind of situation would arise where that would be done. We are talking about an offence and about a situation which is most unlikely to occur. Nevertheless, if we are to take the Bill seriously we must conceive the possibility that this kind of situation might arise, and there should be freedom for the citizen to move.

I should like to refer to one other matter. In having this subsection in this Bill, the Minister is, to an extent, taking a step backwards. There were many offences and proceedings in the past where the State was involved and where the citizen could not take proceedings without the permission of the Attorney General. That was a situation that went back for many hundreds of years: it went back on the basis that the king could do no wrong, and consequently you could not proceed against the king. When we no longer had a king, the same principle applied to the State—the State could do no wrong. Some years ago that restriction was removed. It meant that a citizen could now proceed against the State. In the same way to some extent this Bill is now taking a step backwards and is reintroducing the concept which it was thought well to get rid of several years ago. For that reason, as well as for the others that I have mentioned, I would ask the Minister to consider removing this subsection from the Bill.

Minister for Justice (Mr. Cooney)

I regret I cannot see my way to accept this amendment. In the opinion of the Government the restriction on who is to start proceedings under the relevant section, section 2 (3), should be maintained. The offence of genocide as defined in the Convention possesses certain peculiar features which make it appropriate that any prosecution for the offence should be instituted and conducted throughout in the name of the Attorney General as representative of the State. As I said on the Second Stage, this marks "national disapproval".

Another reason is the fact that the offence is defined in very wide and general terms. It is likely to be of an international character. These matters make it desirable that the decision as to whether a prosecution should be started in any particular case should be taken only after full consideration has been given at the very highest legal level and after weighing carefully all the available evidence and all the relevant arguments. It would be very difficult for a private person to be an effective prosecutor. Certainly in an area where such a heinous crime was even suspected it would be of prime importance that the prosecution would be effective, competent and highly technically advised from the very commencement of the investigation to the conclusion of the prosecution.

Without this subsection it would be open to some irresponsible person to seize on something in the literal wording of the definition of genocide and bring a vexatious prosecution. Senator Eoin Ryan gave examples which he admitted were clearly extremely unlikely of ever taking place in this country. The very fact that he could think of these examples adds force to the point I am making, that because of the necessarily loose wording of the offence which, as I explained on the Second Stage, is taken word for word from the Convention and does not have the precise definition which we normally import into our statutes, one could imagine an irresponsible person, a crank, to put it crudely, taking advantage of this to ride a personal hobby horse of the type mentioned by Senator Ryan. A vexatious prosecution could result which would be wholly unjustified in law and would be bound to fail. It would bring this whole concept into disrepute.

If a private person were free to start a prosecution in a case of this kind, the District Court would almost certainly have to find that there was insufficient evidence to send a person forward for trial. If it should happen that a person went forward for trial— I cannot conceive of a situation where a private individual could be in a position where he would move because of the failure of the Attorney General to move but if there were such a situation, highly unlikely though it may be —then, as Senator Ryan pointed out and as I had said on Second Stage, the prosecution must be taken over by the Attorney General.

It is then entirely up to the Attorney General as to whether an indictment is to be filed. If he decided it would go no further, no indictment would be filed and the right which Senator Ryan wants to restore would be nugatory and pointless. Nevertheless, a lot of harm might have been done by reason of a vexatious and irresponsible and possibly quite ridiculous prosecution. The fact that the Attorney General can come in and influence proceedings at the critical stages of the indictment, and that that is there as part of our law, in the particular circumstances of this specialised type of Bill renders the presence of a private prosecutor completely unnecessary.

Senator Ryan, on the Second Stage and again today, argued that, even though it might be unlikely, some group, or even the Government of the day, might embark on a policy of genocide "of a relatively minor kind". The Senator gave an indication today of what that might be. It might be an offence under Article 2, subsection (c) that is:

inflicting on a group conditions of life calculated to bring about its physical destruction in whole or in part.

It is difficult to see how any body of persons outside a Government could do this. If they did, there is no reason why the Attorney General should not be trusted to prosecute those responsible. In the highly unlikely event that these conditions would be brought about by the Government one can surely not conceive the possibility of their doing so with this Act in force or with the ordinary constraints of civilisation to restrain them from it. If conditions in this society, or indeed of civilisation in this society, had fallen to such a low pitch it would be quite pointless to imagine that a Government so oppressive as to be guilty of genocide within their own country would permit any citizen to bring a prosecution against them for their activities.

Senator Ryan suggested that perhaps the offending persons or Government might engage in such a policy without really knowing what they were doing—"without realising the full import of what they were doing" were his words on the Second Stage. If private persons did so the appropriate person to prosecute would be the Attorney General. But in the case of a Government the idea that a criminal prosecution might be needed in order to remind a Government of the possibility that the policies on which they were engaged could be genocidal in intent or conception is too far-fetched—I say that with respect—to be contemplated.

The provision here, while Senator Ryan suggests that it is a backward step from the removal of the necessity to have the Attorney General's fiat for proceedings involving the State, is a different type of case. It is an offence of international character. In bringing in this Bill, we are fulfilling our obligations under the Convention. I would suggest to the House and Senator Ryan that this situation is analagous to our position under the Geneva Conventions Act, 1962, and section 3, subsection (3) of that Act provides that prosecutions for the comparable offences of grave breaches of the Geneva Conventions, which consist of ill-treatment of persons protected by these Conventions and by the Red Cross Conventions, are to be prosecuted by the Attorney General and the right to prosecute is reserved to him.

I regret that for these reasons I cannot accept the amendment. It can in no way improve the position of a person who has a complaint to make. If civilisation has so broken down that the Attorney General is unwilling or unable to bring a prosecution for genocide, then I cannot conceive that in that situation a private person could bring it.

Mr. E. Ryan

The Minister has opposed this amendment principally on two grounds. The first is that it is unlikely that this kind of a situation would arise and, consequently, there is no need for any special measures. Of course, that is the appropriate Establishment attitude to take. I do not mean to be offensive to the Minister. If the Establishment does not believe that it will ever do anything of this kind, consequently we need not take any special measures to deal with a situation which will not arise. I have conceded that it is not likely to arise, but because of the fact that the whole situation is unlikely to arise the Bill should be as flexible as possible to allow such a situation to be dealt with if it should arise.

The second point I should like to comment on is that the Minister has relied rather heavily on the fact that, if this amendment were agreed, cranks might institute proceedings. It must be stressed that one of the fundamental rights of our legal system is the right of a crank to institute proceedings. That is a fundamental right, no matter how much of a crank a person is, no matter how wrong he is. In other words, no matter how wrong other people or the Establishment think they are, cranks have the right to bring proceedings if they think some right or liberty is being infringed. Consequently, it is one of the things I have seen in courts again and again: the time of the court being wasted by cranks who are arguing cases which are unarguable.

Nevertheless, this is something with which we have to put up if we are to have our present legal system. We cannot say he can bring a good case but he cannot bring a bad case. It is a fundamental right although it is a nuisance. It is something which wastes time; but, nevertheless, if you once infringe on the right of cranks to institute proceedings, then you are undermining the whole rule of law and the whole legal system. I certainly would not regard the fact that cranks might institute proceedings under this Bill as a reason for rejecting the amendment which I have suggested.

Amendment, by leave, withdrawn.

Section 2 agreed to.

Sections 3 to 8, inclusive, agreed to.

Schedule agreed to.

Title agreed to.

Bill reported without amendment, received for final consideration and passed.

The Seanad adjourned at 9.42 p.m. until 3 p.m. on Wednesday, 12th December, 1973.