The Gazette 1973

INTERNATIONAL STANDARDS NOT APPLIED TO EMERGENCY LAWS

Dr. Paul O'Higgins, lecturer in law at Cambridge University, said in Dublin last night that neither the British nor the Irish Government cared much about international standards when they framed and applied emergency legislation. However, that did not excuse the lack of effort on the part of organisations which should have opposed the legislation, said Dr. O'Higgins, addressing a meeting organised by Citizens for Civil Liberties in Trinity College. "Criticism gets you nowhere unless there are trade unions and other broad-based organisations who will take up the fight and oblige their Governments to adhere strictly to the standards," said Dr. O'Higgins. He described the Offences Against the State (Amend- ment) Act, 1972, as astonishing, extraordinary and sweeping in its derogation from normal legislation. It had the marks of having been hastily drafted, con- tained vague and dangerous concepts and, in the section covering Garda evidence, opened the door to very serious risks of abuse. No justification Senator Mary Robinson said that there was no justi- fication in the Constitution for the erosion of the general right to trial by jury, but cases which had no political overtones had been certified by the Attorney-General for trial before the Special Criminal Court because the gardai wanted to secure a conviction. "It is intolerable to see the quiet erosion of this costitutional right through the back door of the Special Criminal Court," said Senator Robinson. "It is to be hoped that either the Court itself will refuse to accept these cases or else that the constitutionality of the procedure will be challenged." Dr. O'Higgins said that the enactment of the Offences Against the State (Amendment) Act raised the general issue of the legitimate scope of emergency legislation and the safeguards which ought to be included to guard against abuse. Rights swept away Emergency legislation, of which Ireland had more experience than any other nation, caused the rights enshrined in the Constitution to be swept away, pro- ducing a great risk of abuse and undermining the faith of the community in ordinary legal rules and institutions. The Offences Against the State (Amendment) Act 1972 also raised, because of its extraordinary terms, a number of specific problems. There was, for instance, the provi- sion that any meeting should be deemed to constitute an interference with the course of justice and, therefore, to make those taking part liable to a criminal conviction, if such a meeting were "likely indirectly to influence any person or authority concerned with the institution of any proceedings, civil or criminal, as to whether the proceedings concerned should be brought or defended." Dr. O'Higgins commented : "A meeting to discuss the question whether the parents of thalidomide children should initiate legal proceedings if held in public now becomes unlseful if the State wished to use the power it has been given." He continued : "Emergency legislation now is lawful

only within the ambit permitted by the European Con- vention on Human Rights and Fundamental Freedoms, and the provisions of the new Act all too often appear to conflict with the Convention. Of course, States are permitted to derogate from the obligations of the Con- vention, if there is an emergency threatening the life of the nation, but only to such limited extent as is strictly required by the exigencies of the situation. "It is difficult to see how the present situation in Ireland could possibly justify the extraordinary width of the provision of the Act making certain, otherwise inno- cent meetings, having nothing to do with politics, into criminal offences. The fact that the provisions of the Act might never be applied to such meetings does not lessen the fact that such measures may be a violation of the European Convention. Absurd legislation "Where legislation in any country passed in an 'emer- gency situation' exceeds reasonable bounds, and does not contain adequate safeguards, experience suggests that such legislation is abused, that it lessens respect for law and legal institutions, not to mention respect for conventional politics thereby contributing to the very end sought to be avoided, and makes still easier the enactment of further extraordinary legislation." Senator Robinson said that if her colleagues in the Seanad had not voted on party lines on the Offences Against the State (Amendment) Act, they might have delayed its passage for ninety days, thus allowing time for discussion in a calmer atmosphere. This could have made a difference to the attitude of the Opposition parties in the Dail. She said that the President might also have referred the Bill to the Supreme Court under Article 26 of the Constitution. She said that the Special Criminal Court in its opera- tion posed a direct threat to the constitutional right of trial by jury. This right was guaranteed in Article 38 subject to the possibility of setting up special courts where it is established "that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order". The Government had made a declaration to this effect under Part 5 of the Offences Against the State Act, 1939, and set up the Special Criminal Courts. But there was no justification in the Constitution for the erosion of the general right to trial by jury. Charges of robbery and burglary with malicious damage to a safe had been certified to the Special Criminal Court. In one case a man was convicted of assaulting a member of the Garda, although in two previous trials in the Circuit Criminal Court and the Central Criminal Court the juries had disagreed and failed to convict him. "Obviously the gardai and the Attorney-General con- sider that it is easier to secure a conviction before the Special Criminal Court than to uphold the right to trial by jury for the citizen," Senator Robinson said. "However, it was never suggested in the declaration bringing in the Special Criminal Court that the ordinary- Courts were inadequate to deal with crimes of this nature. Continued on page 106 94