Dáil Éireann díospóireacht -
Tuesday, 10 Oct 1922

Vol. 1 No. 20

In Committee on the Constitution of Saorstat Eireann Bill. - ARTICLE 70.

"A member of the armed forces of the Irish Free State/Saorstát Eireann, not on active service, shall not be tried by any Court Martial for an offence cognisable by the Civil Courts."

Mr. EAMONN O DUGAIN

I move the amendment standing in my name to Article 70,

"to delete, at the end of Article 70, the full stop, and add the following words:—`Unless such offence shall have been brought expressly within the jurisdiction of Courts Martial by any code of laws or regulations for the enforcement of military discipline which may be hereafter approved by Parliament/Oireachtas.' "

The effect of the Article as it stands is to tie the hands of the legislature and deprive it of the power at any time for making provisions for trial by Court Martial of soldiers not on active service. The effect of the amendment is to leave it an open question, so that the Dáil will have the power of approving, or disapproving, of any regulations that may be proposed by the Military Authorities for the purpose of preserving discipline when dealing with soldiers not on active service.

Mr. GAVAN DUFFY

I think it is a dangerous amendment as it stands. I should have no objection to it if it was confined to soldiers on active service, but I have every objection to taking away a soldier's rights as a citizen in peace times. I suggest to the proposer to postpone this amendment to the next Reading, as it more or less touches on my amendment, so that the two might go together. I feel a great objection to inserting in the Constitution something that will take away the soldier's civil right unless that be confined to times of active service. I suggest to the Ministry to let this stand over, so that the whole thing might be considered on the motion.

Professor MAGENNIS

It is a matter of considerable importance on account of the fact that it is calculated to deter men from joining the army if it is going to deprive them of their civil rights by coming under another jurisdiction. I should ask the Minister to consider this.

Mr. KEVIN O'HIGGINS

I think it is rather a sweeping description of the force of the amendment to say that it involves loss of civic rights. "A member of the armed forces of the Irish Free State/Saorstát Eireann not on active service shall not be tried by any Court Martial for an offence cognisable by the Civil Court unless such offence shall have been brought expressly within the jurisdiction of Courts Martial by any code of laws or regulations for the enforcement of military discipline which may be hereafter approved by the Parliament." I do not consider that any case has been established against that amendment. Soldiers not on active service may be guilty of breaches of discipline—may be guilty possibly, and not impossibly, of assault and offences of that kind, that are cognisable by the Civil Courts, and yet it might be considered eminently desirable from the point of view of army discipline that they should be tried by Court Martial. I think without the amendment the Article would make it impossible so to try them, save on active service. The amendment merely provides that Parliament may approve that certain specified offences can be tried by Courts Martial. To that extent, and only to that extent, would there be the loss of civil rights that Deputy Magennis speaks about. But it would not be true to say that men would be deterred from joining the Army because of this amendment, or because, as suggested, they are brought under an additional code of laws, and suffer a complete loss of civil rights.

Professor MAGENNIS

To be tried twice for the same offence is contrary to all Justice.

Mr. KEVIN O'HIGGINS

I do not see how the amendment provides for two trials. It provides for one only.

Professor MAGENNIS

Because if the soldier remains a citizen he will always be amenable to the civil court for offences against the civil law. If you declare by the Constitution that he is not, well and good. Then he will be tried only once, as I understand, or misunderstand, the amendment, for a breach of the military code, by a military tribunal. I object altogether to anything that deprives the soldier of any right of citizenship to any extent.

Mr. KEVIN O'HIGGINS

It is to be presumed that Parliament, in providing hereafter that certain offences can be tried by Courts Martial, will take care to ensure that a soldier cannot be tried first by Court Martial and later in the Civil Court. At the moment I do not see that the amendment is at all dangerous. I think it is a most proper amendment. I think without it that it would be impossible to enforce proper discipline in the Army in peace time, and I see no reason to withdraw it.

Mr. GAVAN DUFFY

The Ministry show that, in dealing with these Articles, they are in some confusion. First of all because there is not any proper code of laws which we are administering in regard to this matter. That code has still to be set up. Secondly, because the Constitution, as drawn, does not provide for establishing Courts Martial at all, and that is why I think, believing as I do that Courts Martial ought to be restricted to the smallest possible number of people, that it would be wise for the Ministry to recast these two or three clauses altogether, instead of agreeing to recast one of them, and passing an amendment to the next one. The whole thing is a matter of a code that you want to summarise here, and I think it a mistake to say, in respect of 69, "We have a good amendment which we will probably accept," and of 70 to suggest an amendment now. Would it not be wiser to leave the whole matter over until the Ministry have an opportunity of going into this whole matter?

Mr. KEVIN O'HIGGINS.

Suppose I attempt to give a candid exposition of my state of mind. We feel that in the discussion that has taken place—perhaps we are biassed—that the balance of the argument is in favour of the amendment going through—and we will put it through. We would undertake to consider it very carefully when considering Article 69.

Mr. DARRELL FIGGIS

There is one matter, I think, that ought to be considered in respect of this, and I just suggest it quite briefly. So far as this amendment is concerned I think that, seeing that it leaves the matter over to the future discretion of Parliament, by whom it will be decided, no harm will be done in passing it, inasmuch as anything that opens liberty to future Parliaments will be all for the good. It could be left for the Parliament to decide one way or another, and could be decided with the mature wisdom and consideration such as will then be given to it But in accepting the two amendments to Article 69, it was decided to substitute the words "Military Tribunals" for "Courts Martial." If the words "Military Tribunal" are to appear instead of "Courts Martial" in 69, then in 70, to have one in conformity with the other, you would still have to get that substitution. I think the best way would be to adhere to the words "Courts Martial" in 69 and 70.

Mr. GAVAN DUFFY

I think "Military Tribunal" is rather a wider term.

The amendment was agreed to.

Motion made and question put: "That Article 70, as amended, stand part of the Bill."

Agreed.