I would like to say a few words on this. I am in considerable difficulty about the matter because it seems to me to raise two conflicting principles of equal importance, practically. In the first place, the Minister's case is that this is necessary to ensure the supremacy of the civil courts, of civil law generally. As against that, Deputy Cowan, Deputy de Valera and Deputy Collins quite properly raised the question of double jeopardy, that is, that no man should be put on trial twice for the same offence. These are two extremely important principles and it is very difficult to decide which of them supervenes over the other.
From the Minister's point of view, I take it that he is trying to cover a situation which would be extremely unusual and, I hope, infrequent, where it might be determined that a court-martial, for some particular reason, be it a political one or be it one relating particularly to some military department, had not dealt with an accused soldier in the same manner as a civil court would have done. It is difficult to think of instances. We know that we have had a good deal of trouble since the establishment of the State where very often the military personnel might have taken a different view from the view taken by the civil personnel, but one can visualise cases of offences that might be regarded rather leniently by a military court, whereas a civil court might take a very serious view of them ; in other words, where you have a conflict, if you like, between the military view and the civilian viewpoint. It is possible to visualise cases where that would arise in a bona fide fashion. So that I think there is something to be said for the Minister’s contention. Equally, I think it is highly dangerous to create a situation where a man can be tried twice. I think no exception should be made to that rule if at all possible.
The more I think about this the more I think it is a matter that should be reconsidered very carefully by the Minister in conjunction with the Attorney General. What position would arise, for instance, if a man were to be acquitted, say, by a court-martial of an offence and was convicted the following month by a civil court of having committed that offence, or was convicted by the military court and was then put on trial by the civil court and acquitted of that offence ? Would not the Minister, would not the Department of Justice, would not all the Departments of State find themselves in an extremely difficult position as to which decision supervened—the decision of the military court or the decision of the civil court ?
Furthermore, since the discussion opened I looked at the Constitution. It seems to me that we are treading on very dangerous ground. First of all, Article 30 of the Constitution provides —paragraph 3 :—
" All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other person authorised in accordance with law to act for that purpose."
That is the constitutional provision and we must be careful not to infringe it. Turn, then, to Article 38 of the Constitution. It provides :—
" 1. No person shall be tried on any criminal charge save in due course of law."
Then it proceeds to describe the courts before which he may be tried. It provides :—
" Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order."
That is a very limited purpose. In other words, a court other than a court established under the Constitution is not entitled to try any case except where it is determined that the effective administration of justice and the preservation of public peace and order cannot be achieved by pursuing the ordinary course. Then you find that Section 4 of Article 38 provides for military tribunals :—
" Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law, and also to deal with a state of war or armed rebellion."
That is the case of a court-martial. A court-martial may be established for the trial of offences against military law—not against the civil law—and only in regard to persons subject to military law at the time.