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