It is, I think, no exaggeration to say that the provisions of the order which we are discussing have shocked both lawyer and layman. In discussing this motion, we have to approach the question of whether or not this order shall get from this House continued validity in the light that each Deputy here is exercising the last safeguard provided by our Legislature for the preservation of individual liberty. This order has been the subject of very serious argument and consideration in our courts for the last few weeks. The decision of our Supreme Court was given yesterday. In the concluding words of his judgment, the Chief Justice in referring to arguments of counsel for the appellants made the following statement as reported in the Press of to-day—I quote from the Irish Times and the Independent:
"It has been strenuously urged upon the court by counsel for the appellants that the orders in question were manifestly oppressive and unjust to accused persons and that, if that court refused the relief sought, it would be sanctioning an improper exercise by the Government of the powers vested in them by the Legislature. In our opinion, this contention is based upon a misconception of the duties and functions of the court. This emergency legislation is of a temporary character, passed for the purpose of securing the public safety and the preservation of the State during a time of national emergency. During such period, the duty of determining what provisions are necessary for securing that object is vested in the Government, but every such provision must be laid before each House of the Oireachtas and may be annulled by resolution passed by either House. Many of the arguments addressed to us would be more fittingly addressed to either House of the Oireachtas when considering the propriety of, and necessity for, the order in question. They are not matters which can properly be relied upon in a court of law."
The judiciary has, accordingly, passed the ball to the Legislature and a very grave responsibility lies upon each Deputy, in exercising this last privilege in favour of the liberty of the citizen, to consider whether or not he should vote for this motion. This motion, in my opinion, is one that must be given consideration on its merits or demerits, as the view may be. It is a decision which should not be made lightly on a mere Party vote. I approach this question, therefore, with a full sense of the personal responsibility that I, as a Deputy, have to exercise by voting for or against this motion. Before I shall finally determine how that vote will be cast, I shall await to hear the case that will be made by the Government. I have pointed out, and I wish to emphasise, the heavy responsibility that rests upon each Deputy in connection with this vote. The heavier responsibility, however, is upon the Government. The duty is cast upon the Government of making such a case for this order as will satisfy the minds and the consciences, not merely of each individual Deputy of this House, but of every right-thinking citizen in the country.
One of the judges of the High Court in his judgment stated that
"the plain effect of the provisions of the Constitution and of this legislation was that the natural guardian of the citizen's constitutional guarantees, the High Court of Justice in this State, had for the time being relinquished its guardianship and the inescapable effect of the war-time enactment is to deny the protection of the High Court to the citizen."
We find, therefore, that, in effect, every fundamental constitutional right of the citizen has been abrogated by this war-time legislation and that further serious in roads are being made by the provisions of this Order No. 139. The only safeguard the ordinary person now has from being caught up in the net of the provisions of this particular order is the decision of this House of the Legislature on this motion. Therefore, I approach this and I think all my colleagues on this side of the House also approach it, with a grave feeling of responsibility.
I want to make at the very outset of my remarks my position clear. Every legal instinct that I possess, all my training and all the experience I have had in the last 27 years in court, is against this order but, notwithstanding that, if the Government can make a case within the scope of the Long Title of the Emergency Powers Act, 1939, then I am prepared to consider whether or not in the public interest such a drastic order, such an unprecedented order as this is, should be given effect to, in so far as my personal vote is concerned.
Deputy Norton has said that no precedent can be found in any democratic country for the provisions of this order. It may be that the Government can make a case for such drastic legislation, and they owe it not merely to the House, they owe it to the people of the country, they owe it to the people who will come after us in this House, to make a strong, cogent and coercive case for the drastic provisions of this order. Should they make such a case, then I personally shall, much as I dislike the order, go into the Lobby with the Government. Should they fail to make such a conclusive and coercive case for this order, should they be unable to give evidence of such a state of public disorder, such a state of menace to the State and the Government of the State, either from internal aggression or from external sources allied to such internal aggression, then, as far as I am personally concerned, I shall vote against this order. Not merely must they, in my submission to this House, make a strong case, corroborated by facts and evidence, that the Government require this particular drastic instrument for the purpose of maintaining the safety of the State and public order, but they must go further and show that there are no other methods by which the safety of the State can be achieved. Even with those considerations overcome, and with that cogent evidence produced in this House, I would suggest that this order should be limited in its scope to the narrowest possible compass.
Deputy Norton has referred to Article 2 A. I do not wish to refer to it except to make two points. When Article 2 A was being introduced into this House there was, I think, nobody in the country who appreciated more what was intended to be achieved by the provisions of that Article of the Constitution and the necessity for introducing these provisions in the circumstances of that time, than the then President of the Executive Council, the present Leader of the Opposition. He did not introduce those provisions lightly or without full consideration or without having, over the years, previously taken every possible step that legal ingenuity had devised or could devise before these drastic provisions were introduced as an amendment to the Constitution. And, in introducing Article 2 A to this House, he made a case, corroborated by evidence and documents and facts, and the case that he made, however it was criticised by the members of the present Government Party, who were then on this side of the House, at all events convinced the majority of the people that there was a necessity for that instrument which he asked the Legislature to forge and put into the hands of the then Government.
I merely ask the present Government to do what Deputy Cosgrave did when he was the Head of the Government— to make a case for drastic provisions, far more drastic than ever were contained in Article 2 A of the Constitution. It is not unreasonable. So far from being unreasonable, it is the duty of the Government to make that case for the information of the Deputies, for the information of the country. If they make that case, then my attitude is clear but, having made that case, they must go further and show that there is no other way than this order of doing what they wish to achieve and then, I think, they should limit the scope and application of this order.
Like Deputy Norton, I do not wish nor do I intend to make more than one reference to the case which was the subject matter of court proceedings, just to warn the Government and ask them to make it clear to the people who think what I think, that this order is an ad hoc order, adapted to particular cases and not required for general purposes. It would seem a reasonable criticism of this order to state that it bears upon its face every evidence of being framed to meet a particular set of circumstances governing a particular case or cases. That criticism, in my submission to the Government, must be answered. When the Offences Against the State Act was going through this House, I put down an amendment, which was subsequently accepted and is now the law, that there should be a right of appeal from a decision of the Military Tribunal established under that Act. I justify that, not on abstract grounds of constitutional rights of citizens, not on mere grounds of justice, but upon the necessity for the Government or any Government to secure the public confidence in such a tribunal, and I suggested, and apparently I convinced the Government at that time, that there would be far more authority vested in the tribunals to be established under that Act if they felt that public confidence in those tribunals was a fact which could be relied upon.
In Article 2 A of the Constitution it was clear, implicit at all events, if not clear, that the laws of evidence bound the military tribunals set up under that Act and, so far as I was concerned, when I was charged with the very invidious duty of conducting prosecutions under that Article, my clear and explicit instructions were that the laws of evidence bound those tribunals and bound the people who were appearing on behalf of the prosecution before those tribunals. From that, so far as I was concerned, I never departed. This order, in effect, abrogates, or puts into the power of the courts set up under this order the authority to abrogate, every single rule of evidence.
There is in some quarters a popular delusion that, in dealing with the rules of evidence in courts, lawyers and judges are playing merely a technical game in which the rules of the game are far more important than the game itself. There is nothing further from the truth. Rules of evidence were established, and have been adopted under the Constitution of this State from 1922, as the law of this State. They grew up, the result of centuries of experience, framed in the interests of extraction of truth and justice. Rules of evidence, in particular in relation to the conduct of trials in criminal courts, had their existence in the desire of the courts to favour life— in the Latin phrase, in favorem vitæ. From the 18th century onwards, these rules were formulated and put into practice by the judges in favour of life as a reaction against the very stringent penalties that existed at that time but, so far as every judge and every court of any kind in England or in this country is concerned, where the trial of a person involved his life or his death, the rules of evidence were given the strictest interpretation and the prosecution was placed in the position of having to discharge the onus of proof. Rules of evidence are not mere rules of a game played by lawyers and judges. Evidence is the basis of proof. Without evidence you can have no proof of a crime. Nobody can controvert these propositions. This order allows a person to be tried, convicted and sentenced to death and lose his life without evidence and, therefore, without proof. I think we should pause before we allow such an order to get continued validity from the act of this House of the Legislature. We should require a very strong and cogent case to be made before we allow any such order to have continued effect.
Deputy Norton has given some instances of the effect of this order and I do not propose to occupy the time of this House by giving much further exposition of the effects of this order, but I do think that I should occupy the time of the House for a very few moments in directing the attention of the Deputies, or of those Deputies who wish to take an impartial and a reasonable view of this matter and approach the consideration of this motion in the spirit in which I certainly am approaching it, to this order for the purpose of seeing what it is doing; how can it be justified and then, finally, considering the Government's case—how does the Government justify it. The order, roughly speaking, is divided into three parts. The first part allows to be put in evidence before a military tribunal statements made by persons, which need not be signed, which may be given in evidence without the witnesses being present before the tribunal, without it even being demonstrated to the satisfaction of the tribunal that the witness is not available. That is, to my mind, one of the most serious effects in the scope of this order. The ordinary rules of our courts only allow the sworn testimony of a witness in a criminal case to be given in evidence when it is proved that that witness is dead.
In England, the sworn testimony of a witness can be given in evidence, if it is proved the witness is ill. Here, as a result of a decision of the Court of Criminal Appeal, it has been held that even in the case of a witness who had given sworn testimony before a district justice and who was ill and unable to attend when the case came for trial before the circuit judge, his deposition could not be given in evidence, notwithstanding the fact that counsel for the accused person consented to that deposition being given in evidence. Counsel for the accused, in the interests of his client, thought he would be entitled to admit that deposition by consent. His client was convicted and appealed to the Court of Criminal Appeal, not on that ground. Counsel who defended the person accused expressly disclaimed any intention of raising that point before the Court of Criminal Appeal. The courts were so jealous of the rights of persons charged with a crime when it was a crime triable before a circuit judge that the Court of Criminal Appeal set aside that conviction, although evidence was given on oath that the witness was ill and counsel for the accused person consented to the deposition being given in evidence.
All that need be done here, however, is that any person should come forward—he need not be a police officer or a member of any of the services, military or civil, of the State—and say: "A certain person made this statement and acknowledged it before me and did it voluntarily." It need not be made on oath before a judicial officer like a district justice, and there is no necessity to give evidence before the tribunal that a witness has gone back on his statement, has refused to give evidence, or is not available by reason of illness or other cause. The provision with reference to the giving in evidence of statements might possibly be considerably softened down, if the prosecution, in whom is vested the sole privilege of giving these statements, had placed upon it the duty of showing that the witness had refused to give evidence, had gone back on his statement or was not available by reason of illness, by reason of being kept away by force or some other circumstance of the kind. There might be something to be said for such an order—very little, but something—in that case. What is the justification for making it in the form in which it stands at the moment?
Those of us who have to practise in the courts and who are dealing every day with the evidence of witnesses know that we have before us in our briefs what is called a proof of the evidence of witnesses. That is a statement, prepared usually by a solicitor or by an experienced clerk in a solicitor's office, setting forth for the use of counsel a statement of the evidence which a particular witness is going to give. We, all of us who have to practise in the courts, go into court with this in front of us. We find the witness getting into the witness box and see how entirely different is the evidence given orally from what we have in our proof. The reason for that is obvious. A trained man has taken the evidence and has written it down in his own words. It is beautifully written in logical sequence and every point is brought out. The witness, a layman, although he may have read his proof of evidence before he goes into court, has to give his evidence in answer to questions and an entirely different complexion is very frequently put on that evidence by such a person's answers. In this case, this proof of evidence can be given and it can be given when it suits the prosecution. Everybody, I suppose, has heard the expression after a court trial or during a court trial: "So-and-so was a very good witness and so-and-so was a very bad witness." I have my own views about what is a good and what is a bad witness. The glibber a witness, the less I believe him. Many a bad witness, or so-called bad witness, is a man suffering from conscientious scruples, who wants to give his evidence fairly and truthfully and is halting and hesitating. The proof of his evidence, however, is cogent and clear, and if it be given in court, what a different complexion might be placed on that evidence.
Here, under the provisions of this order, power is vested in the prosecution to say, having seen a witness: "That fellow will be a terribly bad witness and counsel for the defence will make bits of him under cross-examination. We will take a statement from him and give it in evidence, while we send him back to the country." That can be operated, acted upon and accepted, and a man may lose his life on that evidence. Where is the justification for that? I want to know from the Minister for Justice if he cannot find some other means short of that even to try to achieve what he wants to achieve here. What is the necessity for going so far? Why could he not at least make it incumbent on the prosecution to say that no statement will be admitted in evidence unless a man is dead, has gone back on his statement, will not give evidence or cannot attend? There should be a statement on oath by some person in authority or responsibility before any such evidence as this is taken into consideration.
The second part of this order deals with statements made by accused persons and is not so drastic as the part of the order to which I have referred. To depart from the ordinary rule of evidence that the statement of one accused person against another person is not evidence against the other person, except in cases of conspiracy, and then only when done in furtherance of acts in connection with the common design, the subject of the conspiracy, is not so drastic as the other provision, although it is drastic enough, if I were to analyse it further. I think I ought to have satisfied the House that the provisions of the first part of the order as to the admissibility of statements will require very serious justification indeed and will require from the Minister for Justice or the Government some indication as to why some other safeguards ought not to be put in, even in an amending order, if the order is required for other reasons and can be justified on other grounds.
That, however, is not the end of this story, because the provisions of clause 3 and clause 4, dealing with the admission of statements by anybody and everybody, by an accused, introduce rules of evidence, new rules of evidence doubtless, drastic rules of evidence, but clause 5 enables the special tribunal or the military court, as it is more technically called, to make up its mind that it will not be bound by rules of evidence. The clear construction of that part of the order is that if the military court is entitled to hold that it is not bound by any rule of evidence, it is entitled to hold that it is bound by no rule of evidence and entitled to hold that it is not bound by clauses 3 and 4 of this order. These clauses provide certain conditions—very meagre conditions—under which even statements which are admissible by virtue of these provisions can be accepted by the military court. Clause 3 provides, in the first place, that it must be a statement relevant to the offence—every student of law knows the smack of that phrase "relevant to the offence"—and secondly, that "such statement was made voluntarily, was lawfully taken down under any enactment, was taken down in writing and was acknowledged by the person who made it, and the prosecution at any stage elects to read such statement as evidence."
Those would look on their face to be some safeguards. Actually, under clause 2, the military court can say: "There is a rule of evidence. We are entitled to abrogate any rule of evidence. We are entitled to abrogate that rule of evidence. You need not bother about proving that this was made voluntarily. Put it in without proving that it was made voluntarily." You have the position, therefore, that it is possible and conceivable that a statement which was extracted by force, threat, inducement or promise can be put in evidence without any evidence being given, or any suggestion made to the court, that that statement was properly obtained by some person whose duty or right it was to obtain it. Each of the provisions in clauses 3 and 4 can be abrogated by the military court itself so that there was no necessity for them.
This order, in effect, is clause 5. Clause 5 of this order, in effect, means this: that although the rule in pretty well every system of jurisprudence, certainly in our jurisprudence and in the British system of jurisprudence dating back to the Roman law, the principle applied that "he who asserts must prove" is completely abrogated, or may be completely abrogated by this order. An accused person may find himself in the position in which it is asserted that he is guilty of murder, guilty of treason or guilty of common assault, and he must prove the negative: that he is not guilty of murder, treason or common assault, and if he does not prove that negative, without a single tittle of evidence being adduced on behalf of the person prosecuting him, he can be condemned to death and suffer death. It is believed that this order is confined, or ought to be confined, to cases where witnesses have made statements and have gone back on their statements. One would think, by this order having come out, that the fact of persons going back upon their statements and on their depositions before district justices was a new occurrence. It is as common in our courts as perjury is common, unfortunately, and although in many cases—I suppose in numerous cases every year in every one of our criminal courts—witnesses go back on their statements and depositions, the whole machinery of the criminal law is not set aside in order to meet these particular cases because it is recognised they are exceptional cases: that in the ordinary case it is right that the ordinary rules, sanctified by antiquity and with their force and effect sanctified also in favour of innocence being proved in hundreds and thousands of cases in our courts and in courts abroad, should be let have their usual and proper run.
But here, I am afraid, there is only one conclusion I can come to, and I hesitate to come to that conclusion. I certainly will not come to it until I hear the Government case. It would look prima facie at all events that there is only one conclusion I can come to, and that is that this particular order was framed, drafted and put into effect under the drastic provisions of the Emergency Powers Act because in a particular case, or series of cases, justice appeared to have been cheated of its prey. Now, I have had some experience, over a period of nearly ten years, of prosecutions in criminal courts. I have listened again and again, and I have read in books, where police officers and people in charge of the investigation and conduct of criminal cases have said: “We know A. B. is guilty but we cannot prove it.” There are many such cases. We know that many crimes in this State, and in every State, go unpunished for want of legal proof. But I have also had this experience. Police officers, high police officers, have come to me in certain cases when I occupied a position of authority in this country, and, producing serious charges against well-known citizens, said: “We know that to be true but cannot prove it.” I knew the contrary to be true, and had sense enough at the time to know that it was a matter in which we ought to go very warily and very cautiously. I was satisfied with the zeal, the honesty and integrity of the officers in question in those cases: that they were convinced in their hearts and in their consciences that the particular persons whom I was asked to prosecute, even at the risk of an acquittal, were guilty of the charges they were putting forward against them. In view of my experiences of actual cases where innocent men might perhaps have got their verdict of not guilty but have stood in open court with the obloquy of a criminal charge hanging over them because zealous, efficient police officers were satisfied in their minds that they were guilty but could not prove it, I am hesitant about this order. I had strong, solid reasons to believe, however much those police officers believed that in a particular case, that they were wrong and that the persons concerned were, in fact, innocent.
Is it not easy, therefore, to envisage zealous police officers anxious to put down crimes which menace the safety of this State going to the Attorney-General and saying: "We believe this man to be guilty but, unfortunately, we have not legal proof. We think this, that and the other," and this, that and the other will be told perhaps in secret before a military court, but certainly contrary to the rules of evidence, so that a person the police believe to be guilty may, in fact, be quite innocent of the charge. Every person knows the grave dangers that arise in dealing with circumstantial evidence, and of how many innocent people have lost their lives and liberties by being convicted on circumstantial evidence.
Is there not a very much more serious risk of innocent persons being convicted and perhaps sentenced to death by zealous, efficient and conscientious police officers? I fear the police official who is out to get a conviction, and there are many of them, I am sorry to say, even at the present time. We have all come across them in our experience. There are many of them who will extract a statement at all costs. I fear them, but I have nothing but contempt for them. But, in connection with these provisions, the man I fear most is the conscientious, truthful, efficient, zealous police officer who will convince himself on hearsay evidence that a person is guilty of a crime, and who will go all out, as any advocate will go all out, to secure a conviction in a case where he conscientiously believes that it is his duty to the force and to the Government of the State to secure a conviction. That is the person who is most seriously to be guarded against, the man who is doing his duty as he sees it. Nothing can be said against him. Because of the very fact that these police officers—and there are far more of them than the ones I have referred to in the Guards even at the present time—are known to the officers who will man those military courts to be above reproach, they will undoubtedly—they would not be human if they did not—believe the efficient, zealous and scrupulous police officer who says that by hearsay or by other means that he had at his disposal to get information as a member of the Guards, he is convinced the man is guilty, but he cannot prove it by legal methods.
That man has not a chance in a million. He may be innocent, but there are no safeguards for him in this. The only safeguard is the review by the Government. If the Military Tribunal is affected by considerations such as I have adverted to, will the Government, whose officer is in question, not be still more inclined to say: "Well, chief superintendent so-and-so, or Gárda so-and-so, is a man whose word can be taken by anybody, is above reproach and why should we turn him down?" But he is human and he may be wrong. Hearsay evidence has been excluded in our system of jurisprudence because of the fallibility of human testimony, because of the changes that take place by the narration of a particular fact from one person to another. It is a well-known fact that every story changes in its telling. Hearsay evidence had been excluded because, although on some occasions it may lead to eliciting the truth, there is a grave danger that it may, in fact, do the contrary.
The only justification for this order would be a justification founded upon the Long Title of the Act under which the order is made. That Act is the Emergency Powers (Amendment No. 2) Act, 1940, an Act which has as its Long Title: "An Act to amend and extend the Emergency Powers Act for the purpose of making better provision for securing the public safety and the preservation of the State in time of war." I await the case of the Government; I await the evidence, not merely the arguments, and the facts which will be adduced by the Government spokesmen to demonstrate that this order is essential, is required for the purpose of making better provision for securing public safety or for the preservation of the State in a time of war. I await the case that will be made by the Government to dissipate the conception that may very easily arise, and has arisen on this order—that it is merely an attempt by the Government to throw a cloak of spurious legality around an executive act.
I await the case of the Government to show that there is some organisation in this country that is menacing either the public safety or the public peace. Must we mention the I.R.A.? Must we mention them in association with an external State, or without association with an external State? We need not tread as if we were on hot bricks in speaking about an external State when we are talking on this matter. Is that the case for the justification of this order? Is it the I.R.A.? Are they in such a state of strength, are they making preparations for such a conspiracy as will seriously menace the very foundations of the Government and of the State? If so, let the case be made by the Government, as it was made by Deputy Cosgrave, when he was President, in 1931 and was introducing Article 2A of the Constitution.
If I find a cogent case is made by the Government showing there is no other way of preserving the public peace or the safety of the State than drastic provisions of this kind, then I will say that Deputies might properly and conscientiously vote for the continuance of the validity of this order; but, if there is a case to be made, that case should be defined and confined to the scope of this order, and should be limited to the particular problem which the Government have to face. If it is the I.R.A., then name the I.R.A. in the order; it is not beyond the ingenuity of the draftsman to make such an order. As this stands, any person guilty of a common assault can be brought before the Military Tribunal, tried and sentenced to death without evidence. Why not confine the scope of this order? Having made it clear that it is essential for the preservation of the public peace and of the State, why not confine it to the particular problem that is to be dealt with and then see if there is any method short of dispensing with every single bit of proof in a capital case that can be resorted to?
In 1939 when the Government asked for wide powers, powers of a kind that never before had been vested in an Irish Government, to deal with the emergency with which they were confronted for the first time, we felt gravely doubtful as to the advisability of entrusting the Government with these powers. We expressed our doubt and hesitation, but notwithstanding our doubt and difficulty and hesitation we gave those powers to the Government. We took the view that we were here as an Opposition with responsibility to the people. The people had elected, by a majority, the present Government and for good or ill—we never concealed the fact that it was for ill that they were elected—they were the Government and they were entitled to the powers they required, and we gave those powers to them. Anything that has happened since has not justified our confidence in the exercise of those powers by the Government. We have had occasion to complain, and we felt that they far exceeded their powers, but even though that is our view, we still hold that if the Government make their case, while they are the Government they are entitled to get the powers they require to deal with any menace to the public safety or to the safety of the State.
Since the earliest times when States were organised and when they undertook the administration of justice, that administration of justice has been vitiated very largely by the cry that the administration of justice must be tempered by the safety of the State. Salus populi suprema lex has been a useful weapon in the hands of statesmen. L'êtat c'est moi—the State is myself. There is a tendency for every Government to regard itself as the State. That may be the view of the present Government. Instead of the public safety being involved, or the safety of the State being menaced, it is really the political prestige of the Government that is being menaced.
If the Government make the case by cogent argument and conclusive evidence that the State is being menaced or that the public safety is being so jeopardised that there is no other way of dealing with the situation than by drastic methods of this kind, then my vote will go for this order; but if they do not prove their case to the hilt, I could not conscientiously walk into the Government Lobby against this motion. I wish to make it finally clear that the views I have expressed are my own personal views, and that I have endeavoured to speak as far as possible with restraint on this matter, and I shall reserve judgment until I hear the Minister for Justice.