There will be an amendment to this Article also.
In Committee on the Constitution of Saorstat Eireann Bill. - ARTICLE 71.
"No person shall, save in case of summary jurisdiction prescribed by law for minor offences, be tried without a jury on any criminal charge."
Mr. KEVIN O'HIGGINS
Mr. EAMON DUGGAN
I beg to move an amendment to that. The amendment is:—
"To delete Article 71, and to substitute as follows:—`No person shall be tried on any criminal charge without a jury, save in the case of charges in respect of minor offences triable by law before a court of summary jurisdiction and in the case of charges for offences against Military Law triable by Court Martial.' "
That is a necessary amendment, because, of course, in a Court Martial case there would not be a jury, and as the Article stands we cannot have a trial by Court Martial.
Mr. GAVAN DUFFY
I am very glad that the Minister sees the necessity for providing for Courts Martial by law, which is omitted from the Draft Constitution, but there is a very curious thing in the wording of this amendment. If Deputies look at the amendment they will see that it prohibits trial without a jury except in two cases—(1) offences triable by law before a Court of summary jurisdiction, and (2) offences against Military Law, triable by Court Martial. There is a distinction made there between offences triable by law in a Court of Summary jurisdiction and offences triable by Court Martial. I think that wording wants toning up to make it quite clear you are not dealing with some emergency legislation, but the permanent legislation of the country. I do not know whether it is intentional or not, but the wording seems to suggest a subtle distinction between the cases where you allow no jury for summary jurisdiction and the exceptional cases which seem to be indicated where you would allow trial without jury by Court Martial.
Mr. E.J. DUGGAN
I would like to assure the Dáil that what is in the mind of Deputy Duffy is not the intention of the amendment.
Mr. G. GAVAN DUFFY
Will the Deputy agree to "legally triable by Court Martial," so as to make it correspond with summary jurisdiction? If he says that, I am quite satisfied.
Mr. ERNEST BLYTHE
What Deputy Duffy says is quite unnecessary. Triable means that in any case, and you can see the necessity for prescribing by law in these other cases.
Mr. G. GAVAN DUFFY
Why, what is the difference?
Mr. ERNEST BLYTHE
What is the resemblance?
The amendment was put and agreed to.
Motion made and question put: "That Article 71, as amended, be added to the Bill."
Agreed.
Mr. THOS. JOHNSON
At the request of Deputy O'Shannon I beg to move the following Amendment:—
"To insert, after Article 71, new Article 72:—`The liberty of the Press and of the expression of ideas and opinions in writing, print, pictorial representation and sculpture is inviolable, and shall be guaranteed. The Press shall not be subject to any censorship, political or military, and shall not be subsidised out of the national funds or by the Government No law or court or other authority shall have the right to penalise any person engaged in the act of expressing or publishing ideas or opinions in the manner herein stated, except such person shall have violated the criminal laws respecting private life or public morality. Under no circumstances shall a printing press or plant be sequestrated as the corpus delicti. No offence under this Article shall be tried under any court except the ordinary civil courts. The courts shall not have power to determine responsibility except in cases previously prescribed by law.' ”
There is one Article in the earlier part of the Constitution which may be said to ensure the right to free expression of opinion, but that is so very wide a liberty it seems necessary to ensure there should be some liberty of the Press and for the general expression of ideas in writing, print and pictorial representation. This is a right guaranteed under the Constitutions of most countries and is a very necessary right, and I hope it will be accepted in this form or some other amended form. I am not responsible for the language of this Amendment, but I see no objection to it of any kind. Certainly the idea that is expressed here has my strongest support. There is, of course, under every Government, a danger that the Press will be suppressed if it attempts to oppose the views of the Government in times of crisis, especially when the Government is weakest; then the Government tries to be strongest by suppressing the opposition. I think that ten years ago everybody in this country who has been interested in the generation of ideas that have led to the establishment of this Dáil, would have been enthusiastically in favour of such a provision, and, having achieved that object—the establishment of a new Parliament—we ought to inscribe on the Constitution the liberty which we demanded when we were striving for this liberty. I beg to move this Amendment.
Mr. ERNEST BLYTHE
It seems to me that all that it is necessary to say about this matter has already been said in connection with Article 9, where it says "the right of free expression of opinion, etc., " is "guaranteed for purposes not opposed to public morality." That seems to me to be quite as much as is necessary in the Constitution. This Amendment is more wordy, but for the most part it does not say more. It says: "The liberty of the Press and of the expression of ideas and opinions in writing, print, pictorial representation, and sculpture is invioable and shall be guaranteed." I do not see any advantage in putting that in, in addition to where it states that "the right of free expression of opinion is guaranteed for purposes not opposed to public morality." Then coming to the next paragraph: "The Press shall not be subject to any censorship, political or military, and shall not be subsidised out of the National funds or by the Government," of course in normal times everybody will agree the Press should not be subject to any censorship. On the other hand, whatever one might think, even in recent times, about the censorship on expression of opinion, everybody will agree that a censorship excluding information in regard to military movements from the Press was justifiable and necessary. Consequently a sweeping amendment of this nature should not be accepted. The next paragraph is implied in the guarantee to a right of expression of opinion. Then the suggestion is that the printing press or plant should not be sequestrated. There is no reason for attaching any special sanctity to a printing press or plant, and in time of war there might be every reason for trying an offence under this Article in Courts other than the ordinary Civil Courts. In general, the proposed amendment is one that is very wordy, and it does not contain much that is new. What it does contain new, is not of a nature that could be accepted. When we are devising a Constitution, we have to think more than of what would merely suit ourselves, or the propaganda we are carrying on. Some years ago we might have liked an Article such as this, but in desiring such an Article, we would not be thinking of framing a Constitution for the Irish Nation. We would merely have been thinking of something which would be a convenience and a protection to us individually. We would have been looking at it, purely, from an individual point of view, and those of us who might have looked beyond the individual point of view, and at what would serve our own party best, might not have desired particularly the abolition of all censorship, because censorship, wrongly exercised, hits the person using it, rather than those whom it is used against. It is not a matter that really needs debating at great length. We are all aware of the limitations of use that can be made of the censorship. Most of us will be agreed that there are times when censorship will serve a definite public purpose, be an advantage to the State and the Commonwealth, and that the possibility of establishing the censorship should not be taken away. That question of the censorship is, perhaps, not dealt with in Article 9 of the draft that has been adopted, and which only talks of the free expression of opinion, whereas the censorship should only deal, and naturally would deal, mostly with matters of information rather than of matters of opinion. The Amendment is one that I would ask the Dáil not to accept.
The amendment was put and negatived.
Mr. T. JOHNSON
As requested by Mr. Cathal O'Shannon, I also move this new amendment to the Article:—"The secrecy of correspondence and communication by post, telegraph, telephone, or other common means is guaranteed and is inviolable. The law shall determine who are the agents responsible for any violation of the right and secrecy of correspondence and communication. The Courts shall not have power to determine responsibility except in cases previously prescribed by law." This, at least, is a right that should be assured to citizens, and has not, so far as I can gather, been included in any Clause so far considered. It is very important that the post, particularly, should not be allowed to be tampered with, by officials, or by the Government, or any authority acting under the Government. I think this ought to commend itself to the House, and I do not imagine there is any need for further argument in the matter. Every citizen wants to communicate with his friends, and surely he has a right to the knowledge that, in using the public postal service, no person, representing the Government, has a right to open that correspondence and read it. I beg to move the amendment.
Mr. KEVIN O'HIGGINS
We should be careful against falling into the error that, because certain measures were taken against ourselves, in the past, consequently that particular precaution, for the preservation of the State and for the preservation of public morality, should be entirely abandoned. It is a rather natural line of argument to take, and Deputy Johnson took it, of course, quite readily. It was the obvious course. But if we are to be frightened off certain courses, because these courses were taken by the British in the past, when they had the responsibility of government of the country, then we will have to abandon very many useful precautions, and very many useful weapons for the preservation of the State. If this proposed new Article were accepted, it would prevent measures to check very grave abuses that exist here, as in practically every modern country. It would exhaust measures to check betting and lottery correspondence, and, what is still more serious, it would prevent measures to check the spread of indecent and immoral circulars and advertisements, and in most countries these are now growing to be serious menaces. Most of the Deputies are probably aware of the kind of material I refer to. Advertisements, encouraging the limitation of childbirth and advertising all kinds of immorality, and all kinds of indecent devices are sent through the post; and if the State does not keep to itself the right of opening correspondence in cases where it thinks fit to do so, there will be really no means of coping with that particular vice and that particular danger to society and to the country in general.
Amendment put and negatived.
AN LEAS CHEANN COMHAIRLE
The Committee that was appointed on Friday last to report or to go into Articles 58-59 inclusive, have, I understand, agreed on their Report, and this Report will be in the hands of the Deputies to-morrow evening.
Mr. GERALD FITZGIBBON
The Committee has not quite concluded. We would want one more meeting to-night, but I have very little doubt we will be able to present this Report to the Officer of the Dáil this evening. I think there is very little doubt about that. Then he would be able to make arrangements as to when this Report would come before the Dáil.
AN LEAS CHEANN COMHAIRLE
I understand that this Report is to come before the House on Thursday.