Dáil Éireann - Volume 67 - 02 June, 1937

Bunreacht na hEireann (Dréacht)—Coiste (d'ath-thógaint—Airteagal a 20).

[1483] Articles 20, 21, 22 and 23 agreed to.

ARTICLE 24.

1.—If and whenever on the passage by Dáil Eireann of any Bill, other than a Bill expressed to be a Bill containing a proposal to amend the Constitution, the Taoiseach certifies by messages in writing addressed to the President and to the Chairman of each House of the Oireachtas that, in the opinion of the Government, the Bill is urgent and immediately necessary for the preservation of the public peace and security, or by reason of the existence of a public emergency, whether domestic or international, the time for the consideration of such Bill by Seanad Eireann shall, if Dáil Eireann so resolves and if the President, after consultation with the Council of State, concurs, be abridged to such period as shall be specified in the resolution.

. . . . . . .

Professor O'Sullivan: I move amendment No. 88:—

In Section 1, lines 10 and 11, to delete the words “and if the President, after consultation with the Council of State, concurs.”

This amendment is in the name of Deputies Costello and McGilligan. I do not see why this power should be given to the President. I do not see why this power should not be in the hands of the Dáil and the Government. Again, Sir, it is being assumed that the President will be a non-political personage, but of course that is all camouflage. That, however, is at least the pretence—that he will be a non-political personage and will be above politics—but this Article, as it stands, means that the President will be brought into the most controversial matters.

The President: The principle behind this Article, Sir, is that where the Seanad—as Deputies who have read the Constitution know—has relatively [1484] limited powers in this Constitution, and when there is a question of still further encroaching on these limited powers, it is advisable that that should only be done in such circumstances as are provided for—such as a case of emergency, and so on.

Mr. MacDermot: Hear, hear!

The President: It must be remembered that such a thing can happen. There might be an emergency of a kind in which the Seanad would have to pass a Bill at whatever time the Dáil would say was necessary. Consequently, we should have whatever checks we can possibly get in connection with that time limit and the power of the Seanad; and obviously, as the President is there as an extra party, it is right that he should be used as a check. After all, the President would be in close touch with the Government, and there can hardly be any doubt that, if there were a reasonable case to be put forward that there was a state of emergency, he would concur in that; but you have that check, at least, that a man, not immediately in the Government, but who has placed on him a special responsibility to see that the Constitution is properly worked, can exercise that function. That is the intention in bringing in this provision, and I think it is a good provision. I think it is a safeguard against the possible abuse of the very great powers that are here given to the Dáil.

Professor O'Sullivan: I cannot agree, Sir, with what the President has said. I cannot believe that the President is still serious in saying that this President that he now proposes would be above politics and Party. I find it is extremely difficult to debate a Constitution of this kind on that presupposition, and I hold that the continued repetition by the President of that phrase throws a doubt on the case he makes for this Constitution, or for any portion of it, or for the fairness of it. One or other of two things can occur, and one of these is the most dangerous thing that could occur—so far, at least, as being a safeguard for any alleged rights is concerned. The President, whoever he may be, will have the same [1485] political views as those of the Party to which he belongs, and he will be the nominee of the Party that is dominant in the Dáil.

The President: That is looking very much ahead at the case.

Professor O'Sullivan: I did not catch what the President said.

The President: I said that the Deputy was looking ahead very much. I simply said that he was predicting what would happen.

Professor O'Sullivan: I did not use the word “predict.” I was pointing out that there were two alternatives. Surely the President can understand the difference between two alternatives, as I said, and actual prediction. My point is that the future President will be in close touch with his Party, and that he will be the nominee of the Party in power. I do not see how any person can be elected as President, under this Constitution, unless he were a member of the dominant Party. Therefore, the holding of a so-called watching brief for the rights of the people and the rights of the Seanad, as suggested by the President, will be non-existent, or else the proposed President will be a person who, in a time of crisis, will use that time of crisis to embarrass the Government or to embarrass whatever side is in opposition to him. Even, as I said, if there were any likelihood or possibility of the man concerned, by virtue of his office, becoming a non-Party man, I suggest that bringing him into a thing like this will only stultify that intention.

Mr. MacDermot: It seems to me that this is an amendment without a single spark of merit. I also think that it is an amazing amendment to be introduced by a Party that always stood for a strong Second Chamber of some kind. It is amusing to hear Deputy O'Sullivan using the same old argument now, in connection with the President, that he always characterised as contemptible when applied to a Second Chamber. What is the issue here? The Constitution is providing for a case where it should be possible [1486] to abridge the very limited period of time during which the Seanad is to be entitled to delay the passage of a Bill into law; and, so that that power of abridgement by the Dáil shall not be abused, it is provided that such abridgement shall not be carried out without the consent of the President after consultation with the Council of State. I cannot imagine a more reasonable or a more desirable provision, and, as I have said, the amendment which seeks to remove that provision seems to me to be without a single spark of merit, and to be in flat contradiction of the theory and record of the Opposition with regard to a Second Chamber.

Professor O'Sullivan: I want to point out, Sir, that my idea of the function of the future President is that he should be a purely ceremonial head, and I object to any powers being given to him.

An Ceann-Comhairle: Is the amendment withdrawn?

Professor O'Sullivan: No, sir.

Question—“That the words proposed to be deleted, stand”—put and declared carried.

Amendment accordingly declared defeated.

Article 24 put and agreed to.

ARTICLE 25 (2).

Save as otherwise provided by this Constitution, every Bill so presented to the President for his signature and for promulgation by him as a law shall be signed by the President not earlier than five and not later than seven days after the date on which the Bill shall have been presented to him.

The following amendments appeared on the Order Paper in the names of Deputies Costello and McGilligan:

89. In Section 2, sub-section 1º, line 4, to delete the words “not earlier than five and not later than seven” and substitute therefor the words “not later than two”.

90. In Section 2, to delete sub-section 2º.

Professor O'Sullivan: I beg to move these amendments. Will the President accept them?

[1487] The President: Oh, no.

Professor O'Sullivan: Why not? It is only limiting the power of the President.

The President: It is contrary to the whole scheme.

Professor O'Sullivan: I wonder whether the President has consulted his lawyers in connection with this matter? He made a reference last week to Article 25, Section 2, and said that this was a compulsory power in connection with the President. I do not think it is a compulsory power. It merely delimits the time. He told us the last day, before he consulted his lawyers, what the lawyers would say. I should like to know whether he since has found out whether this does anything more than to delimit the time so far as the President is concerned?

The President: It seems to me that the paragraph is quite clear. It says that every Bill shall be signed by the President not earlier than five and not later than seven days after the date on which the Bill shall have been presented to him.

Professor O'Sullivan: There is no compulsion there on the President to sign at all.

The President: If Deputy O'Sullivan has to do something between 1 and 2 o'clock on any day, and that it is laid down that he shall do it between 1 and 2 o'clock, it is surely obligatory on him to carry out that duty.

Professor O'Sullivan: I suggest that the obvious meaning, the only legal meaning of the section, is that the thing, if it has to be done, must be done within these times. The effect of the section is to delimit the time but there is no provision to compel him to do it.

Mr. MacDermot: It is rather like “the oath to be taken.”

Professor O'Sullivan: It is a question of law.

The President: There is no comparison whatever. It is quite clear that [1488] the section provides that a certain thing shall be done by the President. It says that a Bill shall be signed by the President not earlier than five days and not later than seven days after the Bill shall have been presented to him. What else can it mean?

Professor O'Sullivan: Has the President consulted his lawyers?

The President: I do not think this was the question upon which I was to consult them. I do not remember having promised to get the opinion of lawyers on this question.

Professor O'Sullivan: The President might get the opinion of his lawyers without being asked.

Mr. Donnelly: The amendment would not make it any more compulsory.

Mr. MacDermot: I must say it seems to me as clear as noonday.

The President: The Deputy is confusing this matter with something else, I think.

Amendments, by leave, withdrawn.

Professor O'Sullivan: I move amendment No. 91:—

Before Section 4 to insert a new section as follows:—

If the President fails or neglects to sign within the respective times appointed by paragraphs 2 and 3 of this Article, a Bill presented to him in accordance with the said Section 2 or Section 3 of this Article, such Bill shall be signed by the Chairman of Dáil Eireann.

The remarks I made just now apply to this section. I suggest to the President that it does make it definitely compulsory and that if the President fails there will be power given to somebody else to sign a Bill.

The President: Now we are on quite a different thing. A man may have a legal obligation to do something and fail in doing it or neglect to do it. In that case something [1489] may be said for making certain that through his neglect the thing which was to be done, will not cease or fail to be done. Consequently you may have to make further provisions to ensure that in the case of failure, the act which he should have done will be performed by somebody else. That matter did arise in another connection and we had the general Article which says that in case of failure by the President to do certain things, the acts which he should have performed, will be performed by a certain commission and that the Council of State, as a further reserve, would come in to do it. There is just a small point arising here as to when failure has occurred. If the Bill has to be signed within say a period of from four to seven days and you do not know until after the seven days whether he has or has not failed, the question is to ascertain when the time has passed by which the action should be performed. We would want to make provision for that, possibly. We shall look into that point and we can decide the matter on the Report Stage. This is quite a different matter from the question as to whether it is or is not obligatory on him to sign. It is obligatory on him to sign. He must do his duty and you will have to make provision as to when that duty will be done. You will have to make provision for somebody else doing it after the time within which it should have been done by the President, has elapsed. I do not accept the amendment, but I shall see about a later amendment.

Amendment, by leave, withdrawn.

Amendment No. 92 not moved.

An Ceann Comhairle: Amendment No. 93 is governed by the decision on amendment No. 39.

Amendment not moved.

Article 25 put and agreed to.

ARTICLE 26 (2).

The Supreme Court consisting of not less than five judges shall consider every question referred to it [1490] by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney-General and by counsel assigned by the court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than 30 days after the date of such reference.

Amendment No. 94 not moved.

The President: I move amendment No. 95:—

In Section 2, sub-section 1º, to delete the word “thirty” and insert in lieu thereof the word “sixty.”

The purpose of that amendment is to give a longer time to the courts to hear a case and to arrive at a decision. It is hoped, of course, that the court will do it as soon as possible, but it has been represented to me that to fix the time that we have in the Draft at 30 days might make it difficult for the court to examine fully the questions involved, and consequently we are extending the period from 30 to 60 days.

Amendment put and agreed to.

Article 26, as amended, ordered to stand part of the Draft.

Amendment No. 96 not moved.

Article 27 ordered to stand part of the Draft.

ARTICLE 28 (5).

1º. The head of the Government, or Prime Minister, shall be called, and is in this Constitution referred to as, the Taoiseach.

2º. The Taoiseach shall keep the President generally informed on matters of domestic and international policy.

An Ceann Comhairle: Amendment No. 97 is ruled out by the decision already come to on amendment No. 31.

Professor O'Sullivan: I move amendment No. 98:—

In Section 5 to delete sub-section 2º.

[1491] The objection here has been urged already, namely that it practically means that the Government of the State will consist of two people, the Prime Minister and the President. I think a decision was taken on that.

The President: That is an extraordinary statement.

Amendment, by leave, withdrawn.

Mr. MacDermot: I am prepared to treat amendment No. 99, standing in my name, as governed by the decision on the question of the Taoiseach.

Amendment not moved.

Amendments Nos. 100 and 101 not moved.

Article 28 put and agreed to.

ARTICLE 29.

Amendment No. 102 not moved.

Article 29 put and agreed to.

ARTICLE 30.

1.—There shall be an Attorney-General who shall be the adviser of the Government in matters of law and legal opinion, and shall exercise and perform all such powers, functions and duties as may be conferred or imposed on him by this Constitution or by law.

The President: I move amendment No. 103:—

In Section 1 to delete the words “may be” and insert in lieu thereof the word “are.”

Amendment agreed to.

Article 30, as amended, put and agreed to.

ARTICLE 31.

The following amendment stood in the name of Deputy O'Neill:—

104. At the end of the Article to add a new section as follows:—

No member of the Council of State shall receive any monetary reward or emolument in respect of his services as member of the Council.

Mr. MacDermot: Perhaps the President might indicate whether it is intended that the Council of State should be remunerated for their services.

The President: I was rising to say that, but I was not sure if it would be in order when this amendment was not being moved.

[1492] An Ceann Comhairle: Strictly speaking it is not in order but the President may make a brief statement.

The President: The intention is that these should be honorary positions, but I do not think it is necessary to put it in the Constitution.

Amendment No. 104 not moved.

Articles 31, 32 and 33 agreed to.

ARTICLE 34.

3 (1º). The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact, civil or criminal, not including the question of the validity of any law.

4 (3º). The Supreme Court shall have full original jurisdiction in and power, exclusive of all other courts, to determine questions as to the validity of any law having regard to the provisions of this Constitution.

The following amendments were on the Order Paper:—

105. In Section 3, sub-section 1º, to delete the words “not including the question of the validity of any law”.—An tUachtarán.

106. In Section 3, sub-section 1º, line 4, to delete the word “not.” —Deputies Costello and McGilligan.

107. In Section 3 to insert before sub-section 2º two new sub-sections as follows:—

2º. The jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of this Constitution.

3º. In all cases in which such matters shall come into question, the High Court alone shall exercise original jurisdiction.—An tUachtarán.

108. In Section 4, sub-section 3º, to delete the sub-section.—An tUachtarán.

109. In Section 4, to delete sub-section 3º.—Deputies Costello and McGilligan.

[1493] 110. In Section 4, sub-section 4º, line 1, after the word “exceptions” to insert the words “(not including cases which involve questions as to the validity of any law)”.—Deputies Costello and McGilligan.

111. In Section 4, sub-section 5º, before sub-section 5º, to insert a new sub-section as follows:—

5º. No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to the validity of any law having regard to the provisions of this Constitution.—An tUachtarán.

An Ceann Comhairle: There is a series of amendments to this Article. I do not know to what extent they are met by the Government amendments which were submitted after the others had been circulated.

Professor O'Sullivan: I think our purpose was to see that the Habeas Corpus Act should be really effective, and that there should be therefore with the High Court the possibility of discussing or taking into account the question of the constitutional validity of a law. I think that is the purpose of the amendments.

The President: I think the intention of this set of amendments is rather to change the position in regard to the testing of the validity of a law—to take it from the Supreme Court, and put it back to the High Court as before.

Professor O'Sullivan: Quite.

The President: There was an alternative there, to leave it to the High Court alone. There is something to be said for that inasmuch as you would have the same court dealing with constitutional matters all the time, but then there are objections from another point of view. We understood that, on the whole, it would meet with a greater degree of approval to have it go to the High Court. On that account we changed back, and this series of amendments is simply to make that position clear.

[1494] Professor O'Sullivan: If that position is clear, namely that the High Court would have jurisdiction in taking into account the constitutionality of a law, I am satisfied, but it is not quite constructive, if I may suggest that to the President. Take the case of the habeas corpus. Unless a judge of the High Court can take into account the constitutionality of a law, a citizen of this State who was arrested under a law the constitutionality of which he contested, could not apply to a judge of the High Court for a habeas corpus. This is not a case of tweedledum and tweedledee between the High Court and the Supreme Court; it is a matter of great importance to the liberty of the subject that that particular right should not be taken from him. If the President is quite clear that his amendments will allow that jurisdiction to remain in the High Court I am satisfied.

The President: That was not the point on which we were deciding; as a matter of fact that only emerged at a later stage. We were dealing with the general question as to whether it is better that the High Court should have the initial jurisdiction as regards the constitutionality of laws, with an appeal to the Supreme Court, or whether you should have the Supreme Court being the first court to deal with it, and have no further appeal. Much could be said on both sides, and it was not easy to make up one's mind as to which was the better. The point brought out by the Deputy is undoubtedly an extra reason why it is well to have the High Court having the original jurisdiction in that case.

Amendment No. 105 agreed to.

Amendment No. 106 not moved.

Amendments Nos. 107 and 108 agreed to.

Amendment No. 109 not moved.

An Ceann Comhairle: It is not clear to the Chair that amendment No. 110 is one of the series.

Mr. MacDermot: It is one of the series surely.

[1495] The President: I think it is a consequential amendment.

Amendment No. 110 not moved.

Amendment No. 111 agreed to.

Question proposed: “That Article 34, as amended, stand part of the Bill.”

The President: In case there should be any point that the Opposition wishes to raise upon it when it is in its new form, I suppose they will be at liberty to do that?

An Ceann Comhairle: Yes, when those amendments have been embodied.

Question put and agreed to.

ARTICLE 35.

Question proposed: “That Article 35 stand part of the Bill.”

Mr. Norton: On Article 35, Section 5 provides that the remuneration of a judge of the Supreme Court or of the High Court shall not be reduced during his continuance in office. I take it that that is intended to establish the independence of the Judiciary which function through those two courts, and is probably intended to demonstrate to the community as a whole and to judges in particular that judges are not liable to have their salaries reduced if for any reason they do things which incur the displeasure of the Executive Council. I should like to know why the same principle is not extended, for instance, to District Courts, where it is just as necessary to demonstrate the same considerations. The District Court, in the main, is the poor man's court. District justices may from time to time do things which the Executive Council may dislike, and if the Executive Council dislikes the decision of the District Court they would appear, under this Constitution, to have power to reduce the salary of the district justice. At all events, the district justices are being treated differently from judges of the High Court and the Supreme Court, and I should like to know from the President why there is that distinction.

[1496] The President: Here we are dealing only with the Supreme Court and the High Court. Those are the only two courts explicitly dealt with here, but the law gives, as I understand it, to to the District Court the same immunity as is given here to the High Court and Supreme Court.

Mr. Norton: But does the law not give immunity to the judges of these two courts?

The President: To these two as well?

Mr. Norton: Yes.

The President: The point is that here you do not go further down the list than the Supreme Court and the High Court.

Mr. Norton: If the President makes the point that there is already immunity in law in the case of these two courts, why repeat it and single out the members of these two courts for this fortified declaration as to their rights, while not at the same time giving the same rights to people in a lower court?

The President: The Deputy seems to have missed this point; if we were dealing here with the District Court we would undoubtedly have used the same terms in regard to it, but we simply have not got it here at the moment in this scheme.

Professor O'Sullivan: Why?

The President: They are not explicitly mentioned; neither are they in the old Constitution.

Professor O'Sullivan: Now, what an excuse when making an entirely new Constitution!

The President: Otherwise you would have to go through a very lengthy code.

Mr. Norton: By virtue of the fact that you declare that the remuneration of judges of the Supreme Court and of the High Court is not reducible during their continuance in office, you appear to imply that the judges of another court have no such protection. It is much better, it seems to [1497] me, to leave out the section and to let the judges as a class have whatever rights they have, rather than to appear to give a benefit to two sections and by inference deprive another section of such rights.

Mr. MacDermot: Either Deputy Norton or I appear to be under a misapprehension. My impression is that we are confirming the existence of the Supreme Court and the High Court in the Constitution, with the idea that these courts cannot henceforth be changed in their structure, except by amendment of the Constitution, and consequently a referendum. It is not the desire to create that position with regard to district justices. Any future Courts of Justice Act might reconstruct the whole of the legal system as far as district justices are concerned, and it is only because they do not come, in any shape or form, into the Constitution, that they do not come in with regard to this particular protection and their salaries.

Professor O'Sullivan: I merely want another excuse than that it was not in the original Constitution. Many people are persuaded that a provision of this kind, which applies to the other courts and safeguards the judges of the High Court and of the Supreme Court, should apply also to the district justices, both as regards fixity of tenure and their salaries. The President knows possibly that there is a tendency to treat district justices as if they were civil servants.

The President: Oh, no.

Professor O'Sullivan: That is a feeling that is abroad, that they are more under the thumb of the Department of Justice than the judges of the Supreme Court or of the High Court. That feeling is abroad. District justices can be changed, while other judges cannot be changed, their salaries can be interfered with in a way in which the salaries of the others cannot be interfered with, and they can be brought to book in a way that the other judges cannot be brought to book, so that there are possibilities of interference with their [1498] independence. If the President gives the matter consideration he will find that they deal with more numerous cases than the other judges. As far as the ordinary man is concerned, it is the fair administration of the law by these judges and district justices that gets good repute or bad repute for the administration of the law, more than the conduct of the judges of the Supreme Court or the High Court. A great deal of the respect that the administration of the law has gained in the last 15 years is in no small measure, due to the manner in which the district justices carried out their duty. All these considerations and the merits of the case are in favour of putting them in the same privileged position as the judges of the Supreme and High Courts. I would be more eager to safeguard their independence and judgments than the independence and judgments of the Supreme and High Courts. Now that we are completely re-amending the Constitution some definite reason must be given for the exclusion of this particular class.

The President: If Deputy O'Sullivan had listened to what Deputy MacDermot said, he would realise what the position is. Here in the Constitution we are providing special mention for constitutional courts. If the Deputy looks at Article 36 he will see that it states:

“Subject to the foregoing provisions of this Constitution relating to the courts the following matter shall be regulated in accordance with law, that is to say:—

i. the number of judges of the Supreme Court, and of the High Court, the remuneration age of retirement and pensions of such judges,

ii. the number of the judges of all other courts, and their terms of appointment, and

iii. the constitution and organisation of the said courts, the distribution of jurisdiction and business among the said courts and judges, and all other matters of procedure.

[1499] In other words, we have not set out to deal with all classes of courts, their organisation and terms of appointment. We have dealt, to a certain extent, with the Supreme Court and High Court and, having done so to that extent we lay down the terms of appointment and the remuneration of the judges of the Supreme Court and of the High Court. The immunity that the rest of the judges get is a question of law. By the Courts of Justice Act which was passed recently the circuit judges are given practically the same immunity as judges of the High Court. The only way to deal with the matter Deputy O'Sullivan is raising would be to put in the whole legal scheme here or a great part of it. We cannot afford to do that. We think it would be an unnecessary overloading of the whole system. No one has suggested at either side of the House that the same position will not continue in the future as existed and we may take it that all are anxious to preserve the independence of the Judiciary.

Professor O'Sullivan: It is not an answer to my argument that this was not in the Constitution. I am protesting against the fact that it is not in it. The reason given by the President is the usual one, that it was not there already, and that he does not want to put it there, as it would occupy another page.

The President: The Courts of Justice Act is there to deal with that.

Professor O'Sullivan: We are dealing with the Constitution. Can the President explain why certain judges are put into a privileged position while others are not? Practically the only argument he made was that it would occupy one or two more pages in the Constitution. Why are these people not protected by the Constitution? The President said they were not protected by the original Constitution. That is no argument. I am protesting against the fact that they were not protected. I want to have Circuit Court judges and district justices put on the same basis as the other judges, as regards [1500] immunity and fixity of tenure. Why are they to be removable by a different method to the other judges? The President told us that that will be decided by law, but he refuses to do it by any constitutional safeguard. For them there is to be no constitutional safeguard and they can depend on the law. The President has said nothing to show there should be a distinction between these two classes. He must know that it is highly desirable there should not be interference, especially with these two classes of judges, and more particularly with justices in the District Courts.

Mr. MacDermot: Possibly the President may have been influenced by the consideration that was so strongly impressed on us yesterday by Deputy Fitzgerald-Kenney that the less we put into the Constitution the better. It is obvious that the Supreme Court and the High Court ought to go in because they have constitutional functions. It is equally obvious that with the rest that does not happen.

Mr. Norton: The President has certainly made some effort to explain why district justices and Circuit Court judges are not included in the protective provisions of Article 35. Of course, his case was a most unconvincing one. The President says that it is necessary to set out the structure of the High Court and Supreme Court in this Constitution. That is so, perhaps, and we do it. But would the functions of the Supreme Court and High Court, as set out in the series of Articles dealing with them, be incomplete and unworkable if Section 5 of Article 35 were excluded? I suggest that the structure is there, just as strong, just as effective, just as immutable, if Section 5 were not included. The President goes on to say to judges of the Supreme Court and High Court: “Your remuneration shall not be reduced during your continuance in office.” I urge that district justices and Circuit Court judges should be made as independent of the Executive as Supreme Court and High Court judges are. The [1501] President says these people have rights in law at present. So also have High Court and Supreme Court judges rights in law. Why not, therefore, either leave the whole class to have their rights in law, or give the whole class constitutional protection in the manner that the President is giving this special class of Supreme Court and High Court judges that protection?

It is most vital, if we are going to have a satisfactory kind of legal and communal life, that the judges should be absolutely as independent as the Legislature can make them. One of the most effective ways to make judges independent is not to give the Executive Council of the day a grip on the pockets of the judges. But, as the President knows, when this Constitution is passed, the position will be that he dare not introduce a Bill to reduce the salaries of the Supreme Court or High Court judges, unless, of course, he can get endorsement for his proposal through the medium of a referendum. But he can introduce a Bill and say to these Circuit Court judges and district justices that their remuneration can be cut. The fact that the President is seeking to put the Executive of the day in a position to cut the remuneration of certain judges, while not being in a position to cut the remuneration of other judges, is a most serious anomaly and, it seems to me, is calculated to demonstrate that the Legislature and the Executive Council do not regard Circuit Court judges and district justices as being entitled to the same measure of independence from the point of view of exercising their normal functions.

Deputy O'Sullivan is perfectly right when he says there is a mentality which regards district justices as civil servants. Of course, there is. The Department of Justice and the Department of Finance are responsible for the creation of that mentality. We frequently read in the newspapers outbursts by district justices, when they receive a circular from the Department of Finance, or from the Department of Justice transmitting a communication received from the Department of Finance. These justices are [1502] compelled to complain that they are not civil servants and that they are not subject to instruction in that way from the Department of Justice. Because the Circuit Court and the District Court are poor men's courts, I want to ensure that, so far as possible, those who dispense justice and equity in these courts will be as independent as it is possible to make them. I do not think this Constitution does that. Section 5 ought to go entirely and let all the judges have their rights in legislation. But, if the President is sticking to Section 5, he ought to extend the same guarantee to all judges, so as to indicate that, so far as salary is concerned, they are all regarded as independent.

This is a fairly verbose Constitution. It has not suffered any great pruning. Another few lines in it would not outrage anybody's feelings. Article 36 deals with courts other than the Supreme Court and the High Court. What is the difficulty of declaring somewhere in that Article the same principle as is enshrined in Article 35, Section 5? I think there can be no real difficulty in doing it. I cannot imagine that the legal advisers of the President or the Parliamentary draftsman could not devise a form of words which would not take up very much space to demonstrate that the remuneration of judges is untouchable in order to show that the Legislature regards these persons as being as independent as it is possible to make them.

The President: With regard to the general independence of the judiciary, you have Article 35, Section 2, which states: “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.” So that, so far as stating the principle is concerned, it is stated in the most general terms. Obviously it is important to have the higher courts dealt with, because if the higher courts are all right, then, by appeal, you can get to them in any case, so that you have the position safeguarded.

Mr. Norton: Who can get to them— a penniless man?

[1503] The President: I am talking about the general principle. It is important to have the higher courts definitely safeguarded by the Constitution itself. In this Constitution, as in the old Constitution, having dealt with these courts, the organisation of the other courts is left to law, and I think for a very good reason. The organisation may have to be changed from time to time. The case that Deputy Norton is making is that, if we leave this in here—which he does not object to, I take it, in its own particular application—and if we do not put in something about the other courts, by implication, perhaps, we suggest that the other courts which are to be organised by law need not have the same immunity as regards interference with salaries. Anything that would shake their independence will be contrary to the general spirit of the Constitution. Therefore, to do anything by direct method like that would be in itself contrary to the spirit of the Constitution. I cannot and will not undertake to set out the organisation of these courts and go into the Circuit Court and other courts. It is all very well to say that it will only mean an extra section. It is advisable not to do what is not necessary. What I will do is this. I will examine the question to see whether we can put the word “judges” in the full sense there—whether we can bring it into this without upsetting the general scheme, if that will satisfy the Deputy.

Mr. Norton: As long as you make the judges independent, I am quite satisfied.

The President: The judges are made independent by Article 35 (2).

Professor O'Sullivan: Why will the President not apply Article 35 (4) to all judges?

The President: Article 35 (5)?

Professor O'Sullivan: Article 35 (4) (1). Look at the last paragraph of page 76.

The President: Because of the fact that we cannot go right through the whole; we want a clear picture. The Deputy had an opportunity of discussing [1504] these principles when the Courts. of Justice Act was going through and when all these things were dealt with. I am not prepared to state generally how the matter stands. I would want to examine all possible classes of judges in the State to see whether it would be right that a judge appointed in some petty capacity could not be removed except by some extraordinary resolution here in this House. This Article is in accordance with the principles adopted here on the Courts of Justice Act when that measure was debated here. I was not here then but I expect the whole matter was debated. What we are doing in this Constitution is this: first of all we are dealing with the special courts and making them as copper-fastened as possible. In Article 35, Section 2, we state: “all judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.” That states a general principle.

Professor O'Sullivan: May I ask what the word “judges” does mean in this phrase in Article 35, Section 2? I want to know what “judge” means in this Constitution?

The President: I am afraid the Deputy is asking me to answer a question that would take some time to examine. I could not give the Deputy the answer off-hand.

Professor O'Sullivan: But the President is asking the House to pass this section.

The President: Yes, but I would not like to give a definition straight off.

Mr. Donnelly: The word “judges” has the same meaning in Section 2 as in Section 1 of Article 35.

The President: I would say that the judges would be defined both by the Constitution and by law as “judges.” They would be so defined. We have certain judges here defined in the Constitution. Their class is defined but their number is not. It is left to law to settle that. With regard to the other judges, these would be defined by law. The House has a general idea what judges are and, when the law is being passed, every person who would [1505] be set up would be defined and characterised as a judge, how they were to be appointed, what qualifications they would have before being appointed, and so on. When you say “qualifications of judges” I take it they would be classed as the judges that are here mentioned in the Constitution and such other judges as would be set up or provided by law. And all such who would get the character of judge, whether by Constitution or by law, would be independent in the exercise of their judicial functions. That is how I read the section. It is the clear meaning of it.

Professor O'Sullivan: I understood the President to say that he is anxious to fix definitely that there shall be a Supreme Court and a High Court, but he regards all other courts as being in a state of flux. Surely the continued existence of courts of the type of the District Court and the Circuit Court is inevitable. Remember the amendment of the Constitution is always possible. We might take it for granted that these four types of courts will continue to exist—the Supreme Court, the High Court, the District Court and the Circuit Court. Why not give these four courts full immunity? Why not give the judges in the Circuit Court and the District Court the advantages that Section 4 of this Article gives the judges of the Supreme Court and the High Court? If you say it is against the spirit of the Constitution that they are to be interfered with, now that we are legislating and making a new Constitution, why not put that in?

Mr. MacDermot: The Opposition feels so strongly about this that it is very surprising they did not put down a series of amendments for the purpose of achieving the object they are aiming at now.

Mr. Donnelly: Or why did they not put it into the old Constitution?

Mr. MacDermot: I very much doubt whether any Minister for Justice would be in favour of this amendment. I wonder what Deputy Fitzgerald-Kenney would have said about [1506] it when he was Minister for Justice. It would surprise me if there is such a provision in any Constitution in the world. I wonder if there is such a provision which lays down such hard and fast rules for every type of judicial official, even petty magistrates, as Deputy O'Sullivan seems to look for. I cannot feel that his arguments are seriously addressed to the House at all.

Mr. Donnelly: Nobody knows better than Deputy O'Sullivan himself that there is no analogy between the High Court and the District Court.

Professor O'Sullivan: Why?

Mr. Donnelly: The High Court is the last word in the land in legal matters.

Professor O'Sullivan: We have the Supreme Court as well.

Mr. Norton: Apparently Deputy Donnelly is on common ground with the President. The President says you can start an action in the District Court and you ultimately get a trial by a judge in the High Court. I am sure that information will be a powerful revelation to the people in Gloucester Street. It will be a great revelation to them to know that a penniless man can get into the High Court and the Supreme Court. The courts, he says, are open. It is nonsense to tell people that the courts are open to them. One might as well say that the Gresham Hotel is open to everyone, as to tell the people that the courts are open to them. You can go into court if you have a pretty big bank account and if you are capable of paying cheques to a bevy of legal men in order to get a verdict from the courts. I think it is very important in the interests of the judiciary and of everybody else to ensure that the persons who dispense judgment are as independent as we can make them.

The President says there is a declaration in Article 35, Section 2, that the judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law. That is a platitudinous declaration. The British Parliament once passed an Act saying that everybody [1507] was entitled to the wherewithal to live, but they took very good care not to say who was to provide the wherewithal. Now we are making a provision that all judges shall be independent but we are not doing the obvious thing to take steps to ensure that when they exercise that independence it will not be possible for the Executive Council to get at them. I want to guard against a position arising like that where a person was reported as saying that his soul was pure though his tongue had been sold. I want to prevent the possibility here of the District Court and the Circuit Court judges suffering retaliation. I want to protect them against that. If, for instance, the Department of Finance and the Department of Justice mentality were to develop to a degree greater than exists to-day, I want to prevent the judges from suffering or from the possibility of suffering from that mentality. Deputy Donnelly says there is no reason for protecting the judges of the District Court and the Circuit Court. I think there is. These two courts dispense more justice than the High Court or the Supreme Court. They affect closely and intimately the lives of the poorer people. These courts are the courts to which the poor people go for justice, and they are, to me at all events, of much more importance than the High Courts. They have to deal with a type of case which ordinarily does not trouble people higher up. These courts affect the lives of the ordinary plain people of the country.

The President: The Dáil has recently passed a Courts of Justice Act which deals with the organisation of the courts and the judges in the various courts. Certain immunities have been given to the judges, but we cannot, in this Constitution, cover the whole domain. I am just as anxious about the independence of the judiciary as Deputy Norton is; I am just as anxious that the poor man's court would be as free from interference by the Executive as any other court; but there is a limit to what can be done in a Constitution, to what it is reasonable to do in a Constitution. Does anybody imagine that we can prevent injustice [1508] or wrong things being done by legislation in the future? We cannot, and it is an idle dream to think that you can. You cannot possibly meet in the Constitution every case where an injustice or a wrong thing may be done by a future Legislature. You cannot do it. It would be an absurd thing to attempt it.

The only question worth examining is whether it would be possible to extend that phrase, the remuneration of a judge of the Supreme Court or the High Court, over a wider field. I will have that matter examined. As long as you leave things to legislation that is only one of the ways in which the independence of the judiciary might be interfered with. There are a number of other things, too, if we were to think of them, a number of ways in which their independence might be sapped and interfered with. Can we provide for all these things? We cannot. Certain of the arguments have impressed me, and if it would be possible, by means of a simple amendment, to meet the views that have been expressed, then that will be done. I will promise to have certain aspects examined. I will not promise to change it, but I promise to have the matter examined to see if we could extend that clause 5 to the cases of all judges. I am just a little bit doubtful whether it is possible to do it. We might deal with a class of judges, but we are not able to anticipate future arguments, and future legislation may possibly mean something of the kind where it would be inadvisable to have this thing. I will consider carefully what the possibilities are.

Mr. Norton: It may be possible to catalogue certain cases.

The President: It may be. However, I will have the matter carefully examined.

Professor O'Sullivan: The President limits himself to what I consider to be the less important portion. The President said there was no use in members of the Dáil thinking that we can prevent Legislatures doing injustice by legislation. That is quite an interesting commentary on the value of the Constitution.

[1509] The President: It would apply to every Constitution.

Professor O'Sullivan: I say that it is one of the harshest judgments that could be passed on any Constitution. Apparently it is the President's idea of a Constitution. He cannot do it here, but still in Article 35 (4) he takes steps to do it as regards two classes of judges. Why can he not do exactly the same thing for the other two classes of judges whom I mentioned? The President says that we cannot cover everything, that if future Dála wish to do injustice in this respect they can do it and the Constitution cannot prevent them. But the man who says that, definitely tries to prevent that type of injustice being done as regards two classes of judges and he will not make the endeavour with regard to two other classes who are much more amenable to pressure from Departments and on whom Departments try to exercise more pressure than they do in respect of the others. I got the impression from some speeches that not merely is it impossible to do this but that it would be undesirable in any case to do it. The idea conveyed to my mind was that it was wrong that this independence should be secured to this low type of judges. I do not share that view. I think it is more necessary to guard the independence of that class of judge than the more highly paid judges, the men of higher status. It is, in my opinion, supremely important, and that is the reason that I urge on the President to give consideration to a modification of Article 35 (4).

Mr. Rice: I agree with the observation made by Deputy Norton that from many points of view the independence of the lower grades of judges, the District Court and Circuit Court judges, is more important than that of the higher judges. The people they have to deal with are the poorest and most helpless class and it is supremely important that the independence of the judicial officers who deal with their rights should be strictly preserved. The President says that you cannot guard the independence of the judges in every way, that there are many ways in which their independence [1510] could be sapped otherwise than by the way it is suggested it could be done here. I agree with that, but is that an argument against taking such steps as can be taken to guard the independence of the judges? One way in which it can be done is to preserve the rights of the Circuit Court judges and the district justices in the same way as it is proposed to do it in Article 35 (5) of the Constitution. I do not see what difficulty there can be in the way of including the other class in this Article, in mentioning the Circuit Court judges and district justices as well. I agree with Deputy Norton that that is even more important than the preservation of the independence of the judges of the Supreme Court and the High Court. The people these judges have to deal with are quite defenceless people. They have not the same safeguards against injustice as people whose rights are being determined in the higher courts. I suggest that the President should reconsider this matter and include these other classes.

The President: I promise to do that.

Mr. Haslett: As a layman trying to follow the arguments in reference to the courts, I will say that I followed the President closely when he said that the Supreme Court and the High Court are more associated with the Constitution. Then there was his point about bringing in the lower courts. Might I draw his attention to the fact that they are already brought in? In Article 34 it is stated that the courts of first instance shall include courts of local and limited jurisdiction, with the right of appeal as determined by law. I suggest that they are already included as courts of first instance. Would it be possible to give them the same status, from certain points of view, as you give the judges of the higher courts in Article 35?

Mr. Costello: There is one point which arises on Article 58 which is relevant to the present consideration. In Article 58 there is a distinction drawn between a judge and a justice. In the Irish text judge is translated as “breitheamh” and a justice is translated [1511] as “iúistis.” In the Courts of Justice Act of 1924, district justices were called judges of the District Court and the Irish translation of that text was “breitheamh.” The particular use of the word “breitheamh” in the 1924 Act gave a very considerable solace to the judges of the District Court in reference to their tenure of office. If the distinction is now made in this Constitution, particularly in the Irish text which it is intended shall be the dominant text, between “iúistis” and “breitheamh,” that will tend to start an argument that the justices of the District Courts are not judges in the proper sense at all. I would like the President to consider that point.

The President: I will do that.

Articles 35 and 36 agreed to.

ARTICLE 37.

Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

Professor O'Sullivan: I move amendment No. 112:—

To delete the Article.

Perhaps the President will explain the purpose of the Article. Is it not the purpose to give Departments judicial functions? Is it not the purpose to allow Departments to exercise judicial functions, and that, if they do, it cannot be said that they are going beyond their Departmental powers and usurping judicial powers? Is that not really the purpose of the Article?

The President: No.

Professor O'Sullivan: Will it not have that effect?

The President: I do not think so. There were questions about the Land [1512] Commission, as to whether their functions were of a judicial character or not, and, keeping to that case alone, it is quite obvious that those commissioners have been set up for a certain purpose with limited and well-defined functions, and it would be ridiculous to leave any doubt whatever as to that position by law. This particular Article is designed to cover a case like that. It is very difficult to define exactly when a body is exercising a judicial power or performing a judicial function, and so as not to get tied in the knot that judicial powers or functions could only be exercised by the ordinary courts established here, you have to have a provision of this type.

What we say is that “Nothing shall invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions”—such as the Land Commission, for example—“notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.” In other words, you have to make provision for bodies of that sort, and you have to provide that the Constitution does not get you into a position in which such bodies could not function.

Professor O'Sullivan: I put a definite question to the President which he has not answered. Will this not make it possible to confer by ordinary law on Departments—not merely the Land Commission, but an ordinary Department—power to exercise what are really judicial functions and to give judicial decisions? The President is not quite so innocent as not to know that this matter has come before the courts in connection with certain Departments and that it was held that certain Departments were exercising judicial functions and against the Constitution. Suppose the purpose is what the President says, does he not realise that he is opening the door wide to conferring on Departments full judicial powers in everything that does not concern life or liberty, and that so far as property is concerned he is giving by the Constitution power to hand that [1513] power over to a Department? The tendency of Departments of Government everywhere will be to arrogate more and more functions to themselves and to usurp, if they can, the place of the courts. This seems to invite that. The President might have in his mind a case like that of the Land Commission where a court has been set up, but I suggest that it is plain that this Article has a much wider scope than anything indicated by the President and really means that our Departments in the future can be given almost unlimited authority to deal with property of various kinds, to exercise what are really judicial functions and to oust the courts altogether. There is no remedy in that case of an appeal to the courts against them on the ground that it is against the Constitution. That appeal was possible before, but it will be so no longer.

Mr. MacDermot: Does this create a new position with regard to Departments? Is there anything to stop the Departments from being invested with judicial powers by law at present, if it is desired to do so? There seems to be nothing in the old Constitution explicitly to guard against the dangers of the kind mentioned by Deputy O'Sullivan.

Professor O'Sullivan: I said that there were cases brought before the court on that particular point.

Mr. MacDermot: With regard to the Military Tribunal?

Professor O'Sullivan: Not at all; with regard to ordinary Departments of Government.

Mr. MacDermot: Am I right in thinking that the cause of this Article 37 is the fact that Section 1 of Article 34 says that justice shall be administered in public courts? Is that the reason it was thought necessary to put in Article 37, or what is the new situation which led the President to believe that the powers of the Land Commission might be brought into question if this Article were not put in?

Mr. Costello: Deputy MacDermot is apparently quite unfamiliar with the provisions of Article 64 of the existing [1514] Constitution which declares that the judicial power of the Irish Free State was vested in the judges appointed under the Constitution. On that particular Article, a number of cases came before the courts, entirely irrespective of Article 2A or the Military Tribunal, and in point of fact, the President, I think, has quite overlooked the fact that the Supreme Court has declared that the Irish Land Commission, in the exercise of its functions, does not infringe the provisions of Article 64 in the case of Lynam and Butler. That decision—I am speaking from recollection—was to the effect that the Land Commission, in exercising their powers, did not exercise powers of such a judicial nature as to infringe the provisions of Article 64 of the existing Constitution, and, in the course of delivering judgement in that case, the late Chief Justice Kennedy gave a very illuminating exposition of the meaning of the expression “judicial power.” From that case, and as a result of his decision, it has been possible to determine with fair exactness, but not with complete precision, whether or not the exercise by any particular body of persons, whether departmental or otherwise, would or would not have infringed the provisions of Article 64 in reference to judicial power.

It is not possible to define precisely what is meant by the exercise of judicial power. There are a number of bodies exercising administrative functions in the machinery of the State as it exists at the moment. Certain enterprising lawyers, not confined to this side of the House, were disposed to test the issue as to whether certain bodies of that nature, in the exercise of their functions, were contravening the provisions of Article 64. In Lynam and Butler, a definition was not possible, but an exposition of the meaning of the expression was given by the late Chief Justice which was about as illuminating and comprehensive an expression as it could possibly be hoped to obtain, and that case has ruled all the efforts that have since been made to determine whether or not certain bodies were exercising powers in contravention of the Constitution. We [1515] have the special Commissioners of Revenue—that is one case; we have the lay commissioners—another case; and there are other matters. We set up here last year machinery under the Insurance Act by which the rights of people in connection with policies of industrial life assurance were to be determined by some officials of the Department of Industry and Commerce. That is the position when this Article is brought into this Draft Constitution. We had the position under the existing Constitution— Articles 64 and 65—that the general intention was that judicial power should be exercised in public by the public courts, paid for by the taxpayer, and that that judicial power should be exercised by judges who would be independent of the Executive in the exercise of their judicial powers. That was the paramount intention of the Constitution, that they should have the right to determine the existence or non-existence of rights and wrongs as between the citizens of this State, and the idea at the back of it was to prevent that growth of bureaucracy which was eating into the exercise by judges of judicial power.

We know that all judges are jealous of the infringement of their prerogatives in connection with the exercise of their powers. All permanent Departments are equally anxious to grasp the right to determine certain issues and certain questions without giving the ordinary citizen any right of being heard. In some of our statutes we have gone very far, indeed, in that connection and I am prepared to admit that some of the statutes passed before 1932, when the present Government came into office, offended against the principles of which I am now speaking. But the present Government have, in some of their legislation, exceeded anything perpetrated in the statute law in this country before 1932. I need not refer specifically to any of these powers. If necessary, I could furnish a list. It would rather appal the ordinary citizen when he discovered the vast powers arrogated by Departments to [1516] themselves, which powers really amount to the determination of rights as between citizens and public Departments—that is to say, the arrogation by Departments of judicial power to themselves.

We had reached a point where, in consequence of the practice over 15 years and the decisions of our own courts, we had arrived at an approximate idea of the limitations that could be imposed upon Departments or other bodies in whom powers of a quasi-judicial nature were vested, and I think the position would have been met by leaving matters as they were. This Article opens the door wide to complete bureaucracy. I do not for a moment say that it is the intention of the Government to do that. But that is not the test which you apply to the provisions of any Constitution. You test it on broad principles, irrespective of present-day considerations. When an elaborate system of court machinery is being established under the Constitution, the least we should see is that the functions of the judges who will man that machinery will be guarded from encroachment by departmental action. It is natural for Departments to consider that they are the best judges in reference to a particular matter. We have a provision in a statute at present by which the mere certificate of an official is conclusive proof of a certain matter without the necessity for doing any of those things which the ordinary citizen has to do. By that example we see the extent to which these powers could be pushed by an unscrupulous Government if they so desired. You cannot test this Article by thinking of the present Government or the past Government. This Article takes away the entire effect of the opening words of Article 34, which provides that justice shall be administered in public courts. The real safeguard a citizen has against any tyranny on the part of an Executive or a Department is an independent judiciary. The real safeguard in respect of any rights that may be given in any Constitution is to be found in the exercise of judicial power in public by independent judges. Article 37 provides that judicial [1517] powers of a very serious character may be exercised in public or in private by people without any knowledge of law, without any experience of the administration of law, without any experience of the construction of statutes, and without any experience of the way in which a case is conducted in court. This provision may lead to injustice. As we are laying down what is intended to be the fundamental law of the country, one of the basic principles contained in the Constitution should be to provide for the exercise of judicial functions in public courts by independent judges without danger of encroachment by any grasping Executive or Departmental authority.

Mr. V. Rice: I can quite understand that what was in the mind of the Government in drafting this Article was the desire to provide for cases such as the Land Commission, referred to by the President. The Article, however, makes too wide a sweep and provides a very big net. It is proposed to permit the exercise of “limited functions” of a judicial nature to persons other than judges. What is meant by “limited functions”? There is no definition given. It would be possible, under the Article as it stands, to give all the powers of a High Court judge to a non-judicial person, putting some limitation on these powers. These would still be “limited functions”.

I see a real danger in the point referred to by Deputy Costello—the invasion by Departments of the judicial office and of judicial functions. It is the tendency of Departments not merely in this country but in other countries to arrogate to themselves functions of a judicial nature. It is often hard to draw the line between administrative acts and judicial acts, but the tendency in Departments always is to extend the domain of their own jurisdiction. We have known instances of that in recent years. I think that the Article could be drafted in such a way—if it is necessary at all —as to prevent these dangers occurring but I think it would be better, as Deputy Costello suggested, to let the position remain as it is now—that is to say, as defined by Article 64 of the [1518] Constitution as clarified by a number of judgments given in the courts as to what is meant by the exercise of judicial power.

The President: I do not think that lawyers in general would agree with the views expressed by the two lawyer Deputies who have just now spoken. My information is that the existing position was anything but satisfactory and that it required a very great effort, indeed, to right the position by making fine distinctions between exercising functions of a judicial character and exercising judicial powers. It was very strongly represented to me that the present position should not be allowed to remain. It is to clear up the existing situation and make the position definite that we have introduced this Article. Everybody will admit that modern legislation requires that bodies other than the public courts should have power to exercise functions of a quasi-judicial character. You cannot precisely define those powers. You can only do your best to narrow the opening while allowing for the exercise of the necessary powers.

Now the objection is made that, in opening the door, we are opening it too much. That, of course, is always a difficulty. You want to open it sufficiently wide to admit all the things that are necessary to be done and you do not want to open it so wide as to make it easy to have abuses. That is the difficulty we have here. It was attempted to narrow this down by the use of the words “limited functions.” The Deputies opposite rub their shoulders. I would be glad if they could do better. We say “the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters.” We clearly exclude criminal matters, and we say “by any person or body of persons duly authorised by law.” They must get their functions from law. What you are really trying to do is to prevent decisions of bodies like these being upset on a purely technical point: that they were exercising functions of a judicial nature, and, therefore, should not have functions at all. You want to prevent a technical plea of that sort [1519] from interfering with things that have to be done.

It is all very well to talk about bureaucracy and about the powers that Departments take to themselves, but, unfortunately, it is a fact that modern conditions of society demand that that sort of work be done by somebody. You cannot provide that the public court will deal with all matters that arise. Take, for example, the question of referees. In various cases, are they not more or less exercising functions of a judicial nature? I would be very glad if I could get an amendment from the opposite benches which would narrow the door so as to admit just the things that have to be faced. There is no disposition on our part to make bureaucracy easy or anything of that sort. When we use phrases about bureaucracy, we ought, I suggest, be careful to realise that modern conditions are of such a character and so complex that we must have machinery to deal with those conditions. The rigid watertight department arrangement for Government in the past is not possible to-day. The Department for Industry and Commerce has to do a number of things. Some of the functions relating to that Department are of a judicial nature.

Are you going to stop that Department from functioning, so that, everything that it does of a judicial nature will have to be brought into the public courts? Clearly, that is not possible. I I am not anxious to open the door one inch wider than it has to be, but I suggest to Deputies opposite that we have a position here that has to be dealt with. We want to put the position on a sound foundation, so that purely technical pleas will not be used to hamper the whole machinery. That does not prevent anybody from having recourse to the courts afterwards. There is no suggestion of that. This is only to prevent purely technical pleas being made.

Mr. Costello: Would the President accept an amendment in the following words?

The President: I would not be prepared to accept an amendment straight [1520] off. If the Deputy suggests an amendment I will examine it.

Mr. Costello: What I would suggest is that the Article should read:—

Nothing in this Constitution shall operate to invalidate the exercise of administrative functions involving the exercise of limited functions and powers of a judicial nature ....

and so on.

The President: Would the Land Commission work be of a purely administrative character?

Mr. Costello: I think there might be cases where, in the exercise of administrative functions, certain functions of a judicial character might have to be exercised. The Land Commission clearly would come within that definition.

The President: Some of the functions of the Land Commission are merely administrative. I think it would be necessary to define the word “administrative.”

Mr. Costello: The President asked me for an amendment and I have given him one.

The President: I promise that I shall have it examined.

Mr. Costello: In my recollection, the Land Commission is covered by the decision in the Lynam-Butler case.

The President: They do not seem to be too happy about it themselves.

Mr. MacDermot: They have, of course, acquired more power of late. As a lay man, it occurs to me that one word might possibly be added with useful effect: that is, where you speak of limited functions to say “limited specialised functions” so that there is no suggestion of anybody, except a judicial body, having a roving commission to decide all sorts of things.

Mr. Moore: I suggest it is a great pity that Deputy Lavery is not here for this debate, because I do not think he would be in agreement with his colleagues on this question.

[1521] Mr. Costello: I have not the slightest doubt that he would.

Mr. Moore: Deputy Lavery made a speech before the legal society of U.C.D. last winter very different in argument from the speech that Deputy Costello made here this evening. In that speech Deputy Lavery remarked that the courts were failing to meet the requirements of the public. He said that there ought to be power, and that it ought to be possible, for the ordinary citizen to go into the courts to get his rights either from his neighbour or from a public Department. He specially mentioned public Departments.

Professor O'Sullivan: Hear, hear!

Mr. Moore: There was evidence, he said, that the courts were failing to discharge their function, and because of the expense, and for other reasons, the ordinary citizen was prepared to suffer injustice rather than resort to the courts. Deputy Norton, a short time ago, pretty well supported that view when he said that to tell the people in Gloucester Street, or people with a great deal more means than the people in Gloucester Street, that the ordinary courts are open to them is like telling them that the Shelbourne Hotel is a very nice place to stop in when they have not got rooms of their own. It is all very well to talk about the encroachments of bureaucracy. Nobody wants bureaucracy entrenched at all.

But bureaucracy is better than nothing, and if the courts are not open to the ordinary citizen, as Deputy Lavery evidently thinks, and as most of us think, or open even for the middle classes—if the High Court and the Supreme Court only exist for people with very considerable means—then it is well to have at least a civil servant available that one can appeal to for certain rights. A civil servant, unless he is a very sinister person, will make an effort to do justice, and an effort to do some sort of justice is better than no effort at all.

Professor O'Sullivan: Are we to understand from the President that the [1522] purpose of this Article is as Deputy Moore has outlined it?

Mr. Rice: I would like to point out that the remarks quoted from Deputy Lavery by Deputy Moore, and the other things the Deputy has said, have nothing whatever to do with the subject before the House at the moment. Deputy Lavery was quite obviously referring there to the fact that litigation is too expensive.

Mr. Moore: Is not that a very important question?

Mr. Rice: Deputy Moore made the point that it is only people of means who can afford to go to the High Court or to the Supreme Court. I would like to remind him that people of no means at all are often at a very great advantage in the Supreme Court or the High Court, because if they fail in the proceedings they bring no costs can be recovered from them.

Mr. Donnelly: What do the lawyers do then?

Mr. Rice: The President referred to what he called the present unsatisfactory position with regard to the matter dealt with in this Article. It is perhaps unsatisfactory, but that is owing to the extreme difficulty, if not the impossibility, of drawing the line between what are purely administrative functions and purely judicial functions. That is the reason why the position is not so satisfactory perhaps. The President made the further point that the decision of a Department should not be set aside on a purely technical plea. We all agree with that, and that position is protected by the present state of the law. The courts have on a number of occasions refused to set aside acts done by Departments on the ground that they were not an infringement of the exercise of judicial powers.

Deputy Costello has referred to a specific case where the Land Commission were exercising functions which, it could be argued, were largely judicial, but the Supreme Court held that they were entitled to exercise those functions in the circumstances.

[1523] Question—“That Article 37 stand part of the Bill”—put and declared carried.

ARTICLE 38.

Question proposed: “That Article 38 stand part of the Bill.”

Mr. Costello: In connection with this Article, has the President anything to say about Article 2A of the present Constitution?

The President: I do not quite follow the Deputy's point.

Mr. Costello: Well, I suggest that, in reference to Article 38 of the Draft Constitution, something could be said with regard to the Military Tribunal. Does the President desire to continue the Military Tribunal? Does he think that it is desirable to continue the provisions of Article 2A of the present Constitution in this proposed Constitution?

The President: Which particular section is the Deputy referring to?

Mr. Costello: I am referring to Sections 3 and 4 of Article 38, which deal with the setting up of special courts, military tribunals, and so on.

The President: I have no hesitation whatever in saying that this is a power which, clearly, it is necessary to have in the Constitution. I have no hesitation whatever in saying that. I believe that it is necessary to make such a provision as this so that, in case there should be any need of passing a law to provide such special courts, it could be done.

Professor O'Sullivan: The President evidently has found the angels necessary to administer it.

The President: I do not follow the Deputy's point.

Professor O'Sullivan: The President, on one occasion, said, referring to Article 2A of the Constitution, that it would take angels to administer it.

The President: Fortunately, the angels came into office very quickly.

[1524] Professor O'Sullivan: I understood that it was the Military Tribunal, and not the Government, that administered the law in that case.

The President: Is that what the Deputy thinks?

Professor O'Sullivan: Well, I did not know. Was it the case that they were completely under the thumb of the Government?

The President: No, but the Government has tremendous powers under that Article.

Professor O'Sullivan: Yes, but I understood, from what the President said five years ago, that it would be necessary to have angels to administer it.

Mr. Morrissey: What has happened in the last five years to enable the President to change his mind? I remember that he described that piece of legislation as the greatest piece of coercion since Cromwell's time. Does the President hold the same view still?

The President: I hold that that Act gave enormous powers to the Executive—powers which, at the time, I was very definitely of the view were going to be abused; and I still think that the existence of an Article such as Article 2A could only be justified under extreme circumstances. We have tried to create the circumstances under which Acts of that kind would be unnecessary. We have tried to bring about conditions that would render such an Act unnecessary any longer. Although the power is taken here to pass such legislation, I do still hope that the need for passing legislation to implement that power will not be necessary; but I think it would be a very grave mistake also for us, in view of the situation and the conditions that we have passed through, to do anything to prevent the passing of legislation of that nature.

In order to pass that other Act— which was so clearly and obviously against the Constitution—you had to introduce a constitutional measure. In fact, you had to make it the Constitution. That was the position. The position was that the rest of the Constitution [1525] had to be read subject to Article 2A. Now we have had a motion here from Deputy Norton regarding the rights and liberties possessed by the citizens, and saying that they should be continued. Well, I suggest that the Deputy should read Article 2A of the old Constitution. The position is that you are providing here that, if it should be necessary to set up special courts, you would not be prevented from doing so by the Constitution. One does not want to provide a constitutional barrier to the setting up of such special courts. After all, we are going here to have a Constitution which will not be changed easily. Under this Constitution it will not be possible to summon your Dáil or Seanad over-night, and in a day or two get a whole Act passed through. Under this Constitution you could never pass even a very, very modified Article 2A. This, however, gives you power, if the occasion demands it, to bring in such legislation, but this itself is not enacting anything. If the conditions demand it, you will have to have an Act to implement what you want. Perhaps I should not use the word “implement,” as it is not the proper word to use; but under this Constitution you would have to have an Act brought in to set up such courts, and whatever Government would be here would have to bring it in. Accordingly I have no apology whatever to offer for that. I feel that it is a matter of ordinary common-sense and wisdom.

Mr. Morrissey: We do not ask the President to apologise for putting it into this Act, but we think he should apologise for some of the statements, in connection with this matter, that he made five years ago.

The President: The conditions justify everything that I said. Conditions now are different.

Mr. Morrissey: I agree that the conditions then were quite different from what they are to-day. I agree that there was much more justification for it then than there is to-day, but I also say that there is much more justification to-day to talk about the greatest piece of coercion since Cromwell's [1526] time than there was when the President used the phrase in 1931.

The President: I have no apologies to offer for it.

Mr. Morrissey: Of course, the President has no apologies to offer. We do not expect any from him. As usual, he claims that he is right. He claims that he is right five years after the event. The President talks about its being abused. Whatever abuse there was of that piece of the machinery of legislation, I suggest, was by the present Government. The first use made of that machinery of government by the present Government was against people who had not paid their rates.

An Leas-Cheann Comhairle: That is not relevant to the matter under discussion. The merits or demerits of that particular Article are not relevant to this discussion. That particular Act has already been decided upon.

Mr. Morrissey: I know that, Sir, and I know that very many members of this House do not wish to be reminded of what happened under that Act. The President, however, talks about rushing it through, but the sole justification for the Article in the Constitution now is that it will not be necessary to amend the Constitution in order to bring in similar legislation, or even more drastic legislation. If the President considers that the occasion demands it—and the President has given us an idea of what the Government thinks necessitates trial by the Military Tribunal—people who are unable to pay their rates are to be hauled before the Military Tribunal.

Mr. Smith: Hear, hear!

Mr. Morrissey: Deputy Smith says “Hear, hear,” but Deputy Smith was not prepared, under that Act, to have people, who had committed murder, brought before the Military Tribunal.

An Leas-Cheann Comhairle: This is not relevant to the matter we are discussing.

Mr. Donnelly: Deputy Morrissey seems to have worked himself up into a little bit of a fury in regard to this.

[1527] Mr. Morrissey: Not at all.

Mr. Donnelly: Everybody who knows the circumstances can understand it. We can understand Deputy Morrissey's outlook. We all want ammunition for the week-end speeches, and Deputy Morrissey knows that all this will go down well in Tipperary next Sunday. The speeches made here will be trotted out next Sunday at some church gate, and there is no doubt that it will be a grand thing.

Mr. Morrissey: That is how you would do it.

Mr. Donnelly: He seems to have been making a great point out of the fact that the President has changed his mind in connection with the Military Tribunal. It is extraordinary how we all change our minds on occasions. I was looking over some records recently of an occasion on which Deputy Morrissey apparently changed his mind. I remember meeting Deputy Morrissey at a meeting in the Shelbourne Hotel when he was very anxious to hurl Deputy Cosgrave out of office because, as he said in this House, Deputy Cosgrave and his colleagues were the greatest political “omadhauns” that ever cursed this country.

Mr. Morrissey: Can the Deputy give the quotation for that?

Mr. Donnelly: It is on the Official Records.

Mr. Morrissey: I should like to get it.

Mr. Donnelly: If the Deputy comes down to the library, I will put his finger upon it. I, with a number of other people, met Deputy Morrissey in the Shelbourne Hotel, and his ambition then was to collect as many T.D.s as he could to hurl Deputy Cosgrave out of office. The Deputy has evidently changed his mind since that time.

Mr. Morrissey: Might I ask the Deputy if he would tell us the reason why the President refused to come into the Dáil on that occasion? The empty formula could not be taken then.

Mr. Costello: Might I make one suggestion in connection with clause 3 of Article 38? However much the [1528] President may not be disposed to accept my statement, the suggestion I make is one that I would recommend any Government with which I was associated to adopt, having regard to my experience both before and after the change of Government in connection with the Military Tribunal. That is, to allow the courts to determine, as a question of fact, whether the circumstances existing in the country were such as to justify the establishment of special courts and secondly, to provide in this Constitution that any law that would be passed establishing special courts, must provide for an appeal from the decision of these courts to the Court of Criminal Appeal. As I say, I make that suggestion in all seriousness to the President as a matter that I would advise any Government in their own interest to incorporate in a law establishing special courts. The President is probably aware that in connection with another clause in this Article ousting the jurisdiction of the courts during a time of war or armed rebellion, the decision as to whether a state of war or armed rebellion does or does not exist rests entirely with the courts. That was determined both prior and subsequent to the Treaty. A decision of our own courts, somewhere about 1923 or 1924, was that a state of armed rebellion did not exist although the courts had decided prior to that that such a state did exist. My submission to the President is, that if the suggestion I make were adopted, it would go far towards calming the very reasonable fears that special courts would be used for subverting the liberties of the subject and also for the purpose of enabling criminal trials to be carried through without advertence to the ordinary rules of evidence. The last remark I shall make on that subject is that some people think that the rules of evidence and laws of evidence are something in which lawyers revel, something which are highly technical. The rules of evidence, as a matter of fact, have been established over a course of years and as the result of experience. They are worked out as the result of experience, brought to bear on the interests of the [1529] ordinary litigant and on his interest alone. I make this suggestion for the President's consideration.

Mr. Norton: The President, of course, is now apparently anxious to justify the circumstances which necessitated the use by the Government of Article 2A, but I suggest to him that, in setting up a new Constitution, there is no case for the insertion of a provision to establish special courts in the manner provided in this Article, and that we have no evidence before us of the desirability of establishing such courts. There is no condition of affairs in the country to-day which justifies the continued use of the Military Tribunal. There is no situation in the country to-day which justifies the continued incarceration of people or, at any rate, of the overwhelming majority of the people detained, in accordance with sentences imposed by that nonlegal body. I suggest that it is anticipating trouble and anticipating a very abnormal situation to put a provision of this kind into the Constitution. If a situation developed here in which there was an abnormal set of circumstances existing, the country should have an opportunity to consider that situation without its being made so easy and convenient for an Executive Council to resort to the introduction of such special courts. I think, in a situation of this kind, we ought to aim at ensuring in the Constitution that our normal legal machinery would be adequate for the trial of any ordinary type of offence. It is not a very healthy situation when a country thinks it necessary to establish special courts for the purpose of dealing with offences. The ordinary run of civilised communities is that the ordinary courts are adequate to deal with offences known to the law of the country. That is the situation that should be aimed at in this and every other Constitution which is to govern a democratic country.

I do not want to see this Article here used for the enactment of legislation which creates an offence not known to the normal law of the country. This is intended to be a justification for perpetuating the Constitution (Amendment) Act, an Act which creates a [1530] whole category of new offences, offences not known to the ordinary law of this or any other country. I think it is regrettable to find a provision of this kind in the Constitution. The President, in other days, denounced the Constitution (Amendment) Act. I think he was right then and I think he is wrong now. I do not think any set of circumstances justifies the continuance of that Act on the Statute Book having regard to the conditions which exist in the country to-day. This Article appears to me to be incorporated for no other purpose than to justify the continuance of that Act. We may be told after the Constitution is passed, and the Constitution (Amendment) Act continued in operation, that the authority for keeping it in operation was the Constitution passed by this House and endorsed by the people. It is not possible, of course, to get a clear verdict from the people in a Constitution of this kind as to whether or not they desire the continuance of Article 2A and whether they are prepared to have that Article covered or continued in Article 38 of this Constitution.

The President: Surely the Deputy knows that this Constitution does not cover the continuance of Article 2A?

Mr. Norton: I am not so sure at all.

The President: Does it not definitely repeal the whole of the old Constitution?

Mr. Norton: This does?

The President: This Constitution, when it is passed, will repeal the whole of the old Constitution, including that famous Article 2A.

Mr. Norton: Quite.

The President: How then can it be used as a basis for continuing it?

Mr. Norton: Is the President suggesting, therefore, that automatically with the repeal of the old Constitution we are going to have no attempt made to continue the provisions of the present Constitution (Amendment) Act?

[1531] The President: That is not the question.

Mr. Norton: But that is a very important aspect of the question. Are we to understand—because it would alter my viewpoint a good deal on this Article—that when this Constitution is passed Article 2A will be dropped, and dropped definitely, and that no effort will be made to revive the Article in another form and as a basis of the abnormal legislation that is provided for here? Whether that is going to happen or not—and my fear is that it is going to happen—we ought not to embody legislation of this kind in a normal Constitution. If there is need to meet any special situation, it ought to be an obligation on the Executive Council of the day, firstly, to enact its legislation through the Legislature, and, if that legislation invades the ordinary rights of the citizens as enshrined in the Constitution, there ought to be an obligation on the Executive Council to get the authority of the people by referendum to pass that ordinary legislation.

I dislike giving any Executive the power to pass that abnormal, extraordinary legislation in the simple, easy way that would be possible if this Article passed in its present form. All that is necessary to do then is to get a majority of one in this House and special legislation of the type foreshadowed here could be passed. It will then be possible to invade the ordinary liberties of the citizen in the manner provided for in this Constitution and in precisely the same way as the Constitution (Amendment) Act was passed. If a set of circumstances of that kind arises, the Government should be put under an obligation to get its legislation through the House, and should be compelled to get a referendum from the people before it is entitled to tear up the ordinary protective provisions of the Constitution. I think, therefore, that this type of legislation which is foreshadowed here is the type of legislation for which the Government should be required to get a special mandate from the people by means of a referendum, and that it should not be slipped in in this way [1532] in order to enable the Government to utilise it when a particular set of circumstances may make it possible for the Government to use the provision in the Constitution in a manner that will enable them to make political capital out of their powers and to inflict considerable political damage on their political opponents.

Mr. MacDermot: I do not suppose that anybody is entirely satisfied with what is known as the Public Safety Act, or Article 2A as it stands, and if legislation is brought in under the power given by this new Article 38 of the present Constitution, I think it is more than likely that such legislation would differ in some important respects from the actual provisions of Article 2A of the old Constitution. As for this new Article itself, Article 38, which Deputy Norton considers to be unsuitable to a civilised or democratic country, I must say outright that I warmly support it. It is unfortunate that such an Article should be necessary, but there is no use in shutting our eyes to facts. Owing to the unfortunate circumstances of our history there is an old tradition of secret terrorism in this country, a tradition that is liable from time to time to be revived. We have not got it out of our blood yet in this country. I am sure that, as a result of the exercise of self-government, the time will come when we will have got it out of our blood, but it is not out of our blood yet, and while Deputy Norton speaks as if the state of the country were wholly satisfactory, our memories are not so very short as he seems to imagine. After all, there were three very terrible murders committed not at all so long ago, the More O'Ferral murder, the Egan murder and the Somerville murder. It is for cases like that—where the ordinary courts cannot be expected to function successfully, and have in fact been proved by experience not to function successfully —that it is necessary to provide by such an Article as is now under consideration. Therefore I warmly support the Article, and I would consider myself undemocratic if I opposed it, because nothing could be more undemocratic than to expose the humble [1533] citizens of the country to crime and intimidation and violence.

The President: As Deputy Norton continued to speak he began to get a little bit clear about what the actual position is. The position is that this Constitution, by its enactment, will repeal Article 2A. You will then have the ordinary courts, trial by jury, and so on. I am perfectly certain that there is no Deputy here in this House who will hold that trial by jury is possible if there is an organised, armed body that can intimidate and terrorise. Is it not quite evident that, under modern conditions, if you have an organised, armed body throughout the country they can prevent trial by jury? If you are to preserve trial by jury as an institution, you need protection of this sort.

Mr. MacDermot: Hear, hear!

The President: What we are doing here, then, is that when this Constitution is passed we are thrown back upon the ordinary law. I hope that that will be sufficient—that we will be able to work under that. I sincerely hope so, but we have to remember that it is only a hope. If that hope should not be realised, and if there should be circumstances such as we have passed through, in which you will have murders committed and in which you will have intimidation and terrorism, surely the community as a whole must be empowered to protect itself. Consequently, in such circumstances, you do need to have a system under which you will be able to protect the community in general by means of these courts, which will not be intimidated. That is the purpose. It would certainly be very wrong for us, in passing a Constitution of this sort, which unlike the old Constitution cannot be changed by a simple Act, if we did not make provision for a possibility which is there. All that is done here is that it will be possible, if it is necessary, to bring in a law to arrange for special courts of a character that will not be open to intimidation, and I think we would not be doing our duty at all if we [1534] did not have an Article of this sort.

Just listen to what it says: “Special courts may be established by law” —they must be set up by law; this does not set them up—“for the trial of offences in cases where it may be determined in accordance with such law”—the law will determine the cases or, rather, it will determine the general conditions—“that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order.”

If the ordinary courts are not able to secure the effective administration of justice, and the preservation of public peace and order, does Deputy Norton suggest that they should not be supplemented by courts which could do the necessary work for the community? What Deputy Norton wants is, that we should omit this provision, and we would then find, before we could take any action to supplement the ordinary courts, to make the administration of justice effective and to preserve the peace, possibly that we should have to go through the process of amending the Constitution by means of a plebiscite. I am perfectly certain that if Deputy Norton was here, and had the same responsibility for seeing that order is preserved in the community, he would take very good care that the possibility of establishing such courts would be provided for in the Constitution.

Mr. Norton: That is what Deputy Cosgrave said and you challenged him.

The President: And I challenge you now.

Mr. Norton: You challenged Deputy Cosgrave then, but you are wandering away from it now.

Professor O'Sullivan: I think Deputy Norton will be in agreement with me when I congratulate the President on the thoroughness of his conversion. He refused to give an apology to Deputy Morrissey, who, I am sorry, was not then in the House. Luckily he came in at the end to hear that thorough justification of his action. I never heard a more thorough justification than the President gave, and I [1535] congratulate him on it. Deputy Norton must not think that the President will forego this Article. When they have dealt with it he will find that the Constitution consists largely of Article 2A. A hurried glance at it gives that impression.

The President: This finishes Article 2A.

Professor O'Sullivan: It does not. The President knows it does not. I am not quarrelling with the President. I am only congratulating him on the thoroughness with which he repudiated and so succinctly everything that he condemned when he was sitting on these benches. As he said to Deputy Norton, truth is one thing over there and another thing here. When Deputy Norton gets on to these benches he will have a different conception of truth. The President had that different conception of truth. We now have it that he does not think Deputy Norton will ever get on these benches and that he does not expect to change him. I want to apologise for one slight dereliction on my part towards the present Government. I refer to a quotation I gave in which there was a reference to a government of angels. I find that the reference was made by the then Deputy Lemass and that he said: “We believe these powers are such that they should not be conferred even on a Government of archangels.”

Mr. Donnelly: A higher one.

Professor O'Sullivan: A supreme court. The conversion is thorough.

Mr. Norton: The President became heated and bothered over this Article and, as he was speaking, while I recognised the figure present as that of Deputy de Valera I found considerable difficulty in recognising the philosophy and the mentality that was Deputy de Valera's that I used to know when he was on the Opposition Benches. It was the very antithesis. While the hand was the hand of Esau the voice was the voice of Jacob. The President delivered a speech which was an absolute repentance for everything he said when on the Opposition Benches. He [1536] said that if a jury cannot be got to function in abnormal circumstances someone must be got to convict. Will the President treat himself to a little exhilarating amusement this evening by looking up a speech he delivered on a Bill to abolish the practice of having juries named in open court? When the President discourses in a rather heated way about the necessity for something of the type of a military tribunal, will he look up the speech he made on the Constitution (Amendment) Act? If he does not think that sufficiently fiery, let him look at the speeches made by those who are now sitting on the Front Benches. When finished with that process, let him then say to himself: “Well, all we said about that then I now justify as something that is necessary, even in circumstances which to-day are in no way comparable with those which existed when the Constitution (Amendment) Act was introduced.”

The President: You have a Constitution now. The people will have a Constitution about which there will be no excuse of any kind.

Mr. Norton: Deputy Cosgrave said the very same thing.

The President: No.

Mr. Norton: Deputy Cosgrave said at that time precisely what the President said now. I venture to say that if a committee of inquiry was established to compare the Second Reading speeches on the Constitution (Amendment) Act and the speech the President delivered five minutes ago, there would not be much trouble in discovering that there was no difference whatever in the mentality in both instances as to the necessity for that particular type of abnormal legislation. I prefer to believe what the President said in 1931. I think what he said then about the Constitution (Amendment) Bill and the abnormal powers in it was right. I think the President is wrong in 1937. If the President gets rather annoyed and heated because I think he was right in 1931 and wrong in 1937, that is equivalent to a declaration by the President, though not conveyed in so many [1537] words, that he believes in 1937 that he was wrong in opposing the Constitution (Amendment) Act in 1931.

Professor O'Sullivan: Oh, no!

Mr. Norton: That is the essence of the President's declaration this evening. To complete his conversion, he should make a declaration that having got on the Government Benches— which apparently justifies a great deal —it was not right to oppose this, because then there will be responsibility.

The President: No, I said you would have to make provision of this sort.

Mr. Norton: Why did the President object to the Government in 1931 making a provision of this sort?

The President: Because I would not bring in a Bill of that character.

Professor O'Sullivan: You would not bring it in; you would only operate it.

Mr. Norton: Article 2A has had a pretty good run since 1931.

Mr. Morrissey: The Deputy has not done much to stop the run of it.

Mr. Norton: I did more than you did to oppose it every time I got the opportunity. You voted for it.

Mr. MacDermot: I do not think Deputy Norton can bear out that statement.

Mr. Norton: I can. I will be glad to hear, in the course of the debate, if it is permissible in what connection the statement can be disproved.

Mr. MacDermot: You voted against a vote of censure on the Government for using Article 2A against the Blue-shirts and the farmers.

Mr. Norton: I will demolish that statement completely.

An Leas-Cheann Comhairle: Not now; the Deputy can take another opportunity.

Mr. Norton: Everyone knows that the reference of Deputy MacDermot was to a particular political proposal submitted by the Deputy when he was a member of the Fine Gael Party.

[1538] An Leas-Cheann Comhairle: Will the Deputy come back to the Constitution?

Mr. Norton: I say that there should be no necessity for putting this abnormal provision into a Constitution of this kind. If there are circumstances which necessitate abnormal measures, the Government should be forced to go to the country to get authority from the people. They should not have exceptional facilities or abnormal powers enshrined in this Constitution. I say in conclusion that if the President were still over on these benches, instead of being in the particularly delicate position he is in now, when he is standing on thin ice, the President would be saying the very same things about this provision as he said in 1931 and as I am saying now, namely, he would be advocating that a Government should not be entitled to arrogate to itself these special powers for use with any speed or facility the Government cares to exercise in the utilisation of these powers. I believe he would be saying, if he were on the Opposition Benches, that, if there is an abnormal situation, the people ought to be given an opportunity of saying whether the situation is so abnormal as to justify giving to an Executive Council the powers which the President proposes to arrogate to an Executive Council under this Constitution.

The President: That is an absurd statement about the Government arrogating to itself powers under this Constitution. It is arrogating nothing. It is equally absurd to say that this is unusual. As a matter of fact, there is hardly a Constitution of a written character in which you have not sweeping provisions to enable the Government to suspend the whole Constitution in the circumstances in which we are only taking power to set up a special court to deal with cases where the ordinary courts cannot function. So that it is nonsense to make statements of that sort about the Government arrogating power to itself. What is here is a very mild form of an Article which is found in partically every written Constitution, an Article providing [1539] for the complete suspension of constitutional guarantees in order to be able to deal with cases where the ordinary machinery of Government is not capable of coping with the situation it has to deal with. Consequently, if we did not have this here, we could have it in another form. We could have—and it might have passed without any criticism such as has been levelled at this—an Article which would be in the usual form, that in certain circumstances all constitutional guarantees are suspended.

I think we are doing very much less than suspending all the constitutional guarantees. We came in here with no desire to use anything but the ordinary courts. We suspended Article 2A the moment we came into office; we put it out of operation, so far as we were concerned. Then we had to resort to it, because it was the only thing available at our hands, to enable us to act in the public interest at the time. It was the only means available to us and, as it was available to us, we used it. But we had confidence in ourselves that we were not going to abuse these powers. If I were in opposition, I would again oppose the Government being allowed to continue with these powers. It is one thing having confidence in yourself and in the Government. There is no nonsense about it. It is a fact that every man is able to judge for himself whether he is going to abuse an instrument. If the same instrument is put into other people's hands, naturally he will be suspicious and say that they might very well abuse it. If I were on the other Benches, I would be opposing any extraordinary powers such as are in Article 2A. I would not be opposing this, because this is in a rigid Constitution and gives to the Legislature power to pass laws to meet emergencies which are provided for in other Constitutions by another method, and a much more drastic method.

I have nothing further to say in regard to this than that, in my opinion, and in the opinion of my colleagues, an Article such as this is necessary so long as it is possible [1540] to have an armed organisation in the country. There may be quite a different set of circumstances in ten years' time. It may be another type of armed organisation that you will have to deal with—a different type. As long as you have modern weapons and modern powers of organising, then the community needs to have some method at its disposal for dealing with such situations, and all that is done here is to provide that a law can be passed to deal with such a situation.

Mr. Costello: I think it should not go on the Records of this House that this particular Article is far less drastic than the ordinary provision found in written Constitutions providing for the suspension of constitutional guarantees in certain cases. In its effect this particular Article is capable of being used in every bit as drastic a manner as any of the provisions in any of the written Constitutions providing for the suspension of the constitutional guarantees. The chief guarantees in written Constitutions are: the guarantee of habeas corpus, the guarantee of the free expression of opinion, and the guarantee of public meeting. This article allows any law to be passed, in the circumstances covered by it, suspending the right of habeas corpus, suspending the right of free speech, suspending the right of free expression of opinion, and suspending the right of public meeting. It is right, irrespective of the merits or demerits of this Article, that it should not appear on the Records of this House that this Article is not as drastic or as capable of being utilised in a drastic fashion as any of the provisions of the Continental Constitutions providing for the suspension of constitutional guarantees.

The President: It might be no harm to reinforce what I have said. This is one of the Constitutions in this book which has been handed to me. I could give quite a number of them.

Mr. Costello: They are all the same.

The President: There are quite a number of them. Let us see one of [1541] them. This is Article 124 of the Constitution of the Polish Republic:—

“The rights of the individual— liberty of the person (Article 97), inviolability of the dwelling (Article 100), liberty of the Press (Article 105), secrecy of correspondence (Article 106), right of combination and association and of forming unions (Article 108)—may be temporarily suspended in the whole territory of the State, or in any parts thereof, if rendered necessary for reasons of public safety.”

All these individual rights are swept away through the whole State if rendered necessary by reasons of public safety. The Article goes on to state:—

“The Council of Ministers has the exclusive right to decree such suspension...”

—there is no question of law now—

“...with the authorisation of the President of the Republic in case of war or danger of war, of internal disorder, or of grave conspiracies of a treasonable character threatening the Constitution or the public safety.”

That is pretty drastic. As the Deputy pointed out, it is almost a common feature of these written Constitutions that there is power for a most sweeping suspension of all the guarantees to the individual, and so on, that are given in the Constitution.

Professor O'Sullivan: All I can say is that the President's conversion is complete. I am not arguing against this Article. I am only pointing that out. There is no good in his telling the House that he is repealing Article 2A, when any Government with a majority can carry it in 48 hours. Secondly, he said that he would not have brought in Article 2A. But he administered it. Why did he never amend it? Was it because he was squeamish about amending the Constitution? He brought in several amendments to the Constitution. If there was anything in that Article which was too drastic, why did he not amend it? The explanation is quite clear. The President has no confidence in any Government that is not himself. Is not that what he said? [1542] No powers are to be given to anyone except himself, and any powers proposed to be given to anybody except himself he will criticise and obstruct and refuse powers against even murder if necessary.

The President: Nothing of the kind.

Professor O'Sullivan: He will prevent any other Government getting the powers necessary to deal with these emergency cases. He pointed out that the circumstances were different in 1931. They will be quite different at the end of 1937. The circumstances are different now because he is responsible for the Government. He was not responsible in 1931, and he will not be responsible at the end of 1937. That is the difference.

Mr. Briscoe: Does Deputy O'Sullivan say that he said that also?

Professor O'Sullivan: The President said that if he were again on these benches he would oppose something of that kind, and he said he would do so because some other body would be administering it and because it would not be administered by himself.

Mr. Donnelly: Oh, now, be fair.

Professor O'Sullivan: Well, we were all listening to him. I have no objection to the Deputy allowing me to emphasise that the President's objection to this Article 2A of the Constitution was that he was not administering it himself. As long as he was administering Article 2A it was a perfect Article, but the very minute any other Government came to administer it, it became a bad Article. He told us that in such circumstances, if he were over here on the Opposition side, he would oppose it as he did in 1931.

Mr. Donnelly: The Deputy will not get Deputy Costello to agree with him in what he is saying.

Mr. Costello: Oh, yes, he will.

Professor O'Sullivan: I am just saying what the President told the whole House. There is no other explanation of his words.

Mr. Briscoe: The Deputy knows there is.

[1543] Mr. Donnelly: That is an unfair interpretation.

Mr. Norton: The President has too many assessors.

Professor O'Sullivan: We are dealing with the President's speech. If the President can give another explanation than the explanation I have given, I will listen to it; but I understood that the main cause of his objection to this Article 2A was not the Article itself but the people who were administering it.

Mr. Briscoe: We on this side did not understand that from what the President said.

Professor O'Sullivan: To be sure the Deputy did not. It is very difficult for the President himself to understand it, but for back-benchers on the Government side it is impossible. If Deputy Briscoe will explain what was in the mind of the President I will be quite satisfied, but the President said quite distinctly that he had confidence in himself to do the right thing.

The President: Yes.

Professor O'Sullivan: He admits it. He shakes his head. He is prepared to deny what I am going to say before I have said it. That shows you the whole Fianna Fáil tactics; only one person can govern this country. As long as he is governing this country let him have full powers to do what he likes, but let no one else or any other Government have any powers. That is the President's suggestion.

The President: I am sure that Deputy O'Sullivan is only fooling. He is not serious about this at all.

Professor O'Sullivan: Oh, indeed I am. That is just the President's mind.

The President: I am asked now why we did not amend Article 2A of the Constitution. If we had to deal with the situation we would have to bring in a Bill to give certain powers. Now the greater includes the lesser, and in Article 2A there were those powers which I would certainly oppose being given to any Government if I were in Opposition. I certainly would oppose the giving of such powers because I [1544] had a right to think they would be abused. I would not be surprised at all to find, if there was an Act brought in under this, that the Government and the Opposition would be taking different views about it. That would be no surprise whatever to me. We have got here an Act which gives us lots of things we would not bring in at all if we were bringing in the measure ourselves. But included in that Act are powers which we ourselves would seek. Why should we, while in office, change that Act? That Act gave us certain powers. We were not going to abuse these powers, powers that we believed could be abused. Why should we, as long as we were in office, bring in and pass another Act? When we were dealing with these matters we did not think the Seanad was going to deal with the measures we would bring in, in the same way as the Seanad dealt with the measures brought in by the Opposition when they were in office. The circumstances in which we used that Act were circumstances in which it was necessary to use it in order to protect order and public safety. We had to have some measure, and we used this and we continued to use it. Now this Draft Constitution is completely repealing the Constitution. A situation will be created, once the Constitution is enacted, in which you will have only the ordinary law on which to depend. You will have to depend on conditions at the time. Whether the Government of that time will immediately come to Parliament with a measure providing for the powers which may be necessary to maintain order is a situation that will have to be faced. That is the situation, and that is why this Article is here.

Mr. Morrissey: The President talks about the ordinary law. Perhaps it is no harm to remind him again of his own views some time ago.

The President: I would like to hear some quotations.

Mr. Morrissey: The President charged that the previous Government could not rule without coercion. The President will remember what he said about the previous Government—that they could not rule by the ordinary [1545] law. He now gives his reasons why he did not amend Article 2A of the Constitution——

The President: I would like to hear the quotations the Deputy has promised.

Mr. Morrissey: If the President will allow me he will hear them. The President tries to give reasons for not amending Article 2A of the Constitution. Will he tell us what powers were enshrined in Article 2A of the Constitution that he has not used during the last five years? That is one of the things I would like to know. Will any Deputy on the Government side who spoke so strongly on this matter five years ago, tell us what has arisen in the last five years which justifies them in changing their minds? I want to say quite clearly and candidly, that I am glad that Deputies on the opposite side including the President have come around to our point of view. The difference between the President and Deputy Norton is this: the President knows he was wrong in 1931 and he now admits it; Deputy Norton and the Labour Party know they were wrong in 1931, but they are not prepared to admit it even now. That is the difference between the Labour Party and the Government Party. The President has made that very clear in every speech he has made upon this Article.

Mr. Victory: So much has been said about 1931 and the President changing his point of view that I think it would be illuminating to refer to what was said in 1921 about the President——

Mr. MacDermot: Is it in order?

Mr. Victory: There has been a great deal of talk about 1931, and if references to 1931 are to be admitted, I think I should be permitted to speak for a few moments about something that happened in 1921.

Mr. MacDermot: Article 2A of the Constitution was not there in 1921.

Mr. Victory: What I am about to say applies very closely to the matter we have been discussing here to-day. [1546] This is an extract from the meeting of Dáil Eireann on Friday, 26th August, 1921, on the occasion of the election of President. After Deputy Seán MacEoin had spoken in Irish, he said in English:—

“The honour has fallen on me to put before the Dáil the name of Eamon de Valera as President of the Irish Republic”——

An Leas-Cheann Comhairle: Will the Deputy relate that quotation to the provisions in this Constitution giving power to set up special courts? I am not preventing the Deputy from reading this quotation if he will relate it to the matter under discussion. I am not preventing him from referring to the meeting of Dáil Eireann in 1921 if he relates it to this debate.

Mr. Victory: Yes, Sir, in this way— that the President has been charged with changing his mind, and we want to prove that other people, too, have changed their minds.

An Leas-Cheann Comhairle: The Deputy must take another occasion to do that. The Deputy will please sit down.

Mr. MacDermot: I think the President must be going out of his mind when he invites quotations from his former speeches.

The President: Not at all.

Mr. MacDermot: If the President wants a large sheaf of quotations from the speeches of himself and his colleagues, he has only to refer to the debate on the motion of censure by me in 1933——

An Leas-Cheann Comhairle: At this point perhaps the Deputy would report progress.

Mr. MacDermot: Very well. I beg to report progress.

Progress reported; the Committee to sit again at 7 o'clock.