The Gazette 1977

GAZETTE

AUGUST/SEPTEMBER

Internment and Detention

Without Trial in Irish Law

by Brian F. Havel

PRIZE COMPETITION FOR HUMAN RIGHTS ESSAY-U.C.D.

"An unjust law is itself a species of violence. Arrestfor its

breach is more so."

Mohandas K. Gandhi (1948)

Gandhi's maxim is a valuable point of orientation for this

discussion. The operation of procedures of internment in

Ireland is set against a well-established matrix of legal and

social forces, the former referring principally to the

purported supremacy of constitutional rights and

freedoms, the latter to the urgency of defending the

stability of the State against periodic outbreaks of

politically-inspired violence which have persisted since

1922. Harmonisation of these conflicting forces is a

difficult task for constitutional government, and the Irish

experience of internment and detention without trial

crystallizes the difficulty. Whether we have been guilty of

applying "an unjust law" is a problem to be resolved by

examination of empirical evidence.

By the word "internment" is meant detention without

trial of persons believed to be a danger to the State, but

the terminology is not of great significance. Indeed,

"internment" and "detention without Trial" have been

used interchangeably in Irish law. For example, Part VI

of the Offences Against the State Act, 1939, is headed

"Powers of Internment", whereas Part II of the amended

legislation in 1940, which substantially re-enacts Part VI

with only minor verbal changes, is entitled "Powers of

Detention". Interestingly, the legislative vocabulary of all

relevant enactments since 1922, with the singh. exception

of Part VI of the 1939 Act, nowhere includes the term

"internment". Rather, "detention" is universally

preferred, although semantically both words co-incide. It

is true that "internment" may sound more offensive to

popular sensibility.

The supreme law in Ireland is the Constitution, a

remarkable charter of governmental organisation and

fundamental guarantee, including a specific right to

personal liberty (Article 40.4.1). National constitutions in

Western Europe recognise personal freedom as belonging

to « nucleic group of constitutionally-guaranteed

freedoms', also including the protection of the life of the

individual, his family circle, his freedom of religion,

thought and property, and collectively classified as civil

or liberal rights. These codified rights and freedoms are

vested with legal supremacy, and the legislator is

subjected to judicial control in regard to their observance.

The principle is to protect the freedom of the individual

against the power of the State. Absolute rights are

unknown, or virtually unknown, in democratic states,

however, and therefore the scope of fundamental rights is

delineated for purposes of law, in the Irish document by

the pithy expression "save in accordance with law". The

implications of that phraseology will be discussed later.

For the moment, it suffices to remark that internment

without trial breaches the right of personal liberty per se,

but whether it does so "in accordance with law" is more

problematical.

Constitutional government is something more than

government according to the terms of a constitution—it is

government according to rule, as opposed to arbitrary

government. It is government limited by the terms of the

Constitution, not government limited only by the desires

and capacities of those who exercise power. The most

damaging force which operates this concept of limited

government is war, whatever its form in particular

circumstances. Precisely when the exigencies of external

and internal state security begin to assert themselves,

constitutional law must grapple with a problem of

worrisome intractability. The structural framework by

which the Government was prevented from infringing

individual rights during peacetime, must be sufficiently

flexible to allow that same Government to defend those

rights in time of conflict. To properly conduct affairs of

State during national emergency, the Government will

require full freedom of action. Constitutions recognise this

almost inevitable consequence of war by incorporating

specific provisions allowing unhampered freedom to the

Executive in time of war of in defence of public safety.

The Irish Constitution, in Article 28.3.3, withdraws every

constitutional restraint from the Oireachtas "for the

purpose of securing the public safety . . . in time of war or

armed rebellion", and makes the determination of what is

"time of war or armed rebellion" entirely a matter for the

Oireachtas—or, in reality, for the Government. "Salus

populi suprema lex" represents the activating principle

behind emergency legislation, and by extension the

sacrifice of individual liberty for the common good may

be justified. The Emergency Powers Act, 1976, confers a

power of limited detention (up to 7 days without charge)

on certain officers of the police force. Mr. Lynch, then

Leader of the Opposition, attacked the Bill in the Dail as

sanctioning "a form of internment"

, and that possibility

(which I shall leave without comment) justifies reference

to the Dail debate on the Emergency Powers Bill, 1976,

and in particular to the speech of that Taoiseach, Mr.

Liam Cosgrave, which illustrated the circumstances

which would motivate an Executive decision to suspend

constitutional liberties under Article 28.3.3:

"The Government believe that the extent of violent

crime by irregular bodies and persons associated

with such bodies, the new dimension added by the

recent events (i.e. the murder of the British

Ambassador and explosions at the Special Criminal

Court) and the further threat to the institutions of

the State implied by these events, constitute a

national emergency affecting the vital interests of

the State."

At this point, that Taoiseach stressed the resolve of his

Government to proceed in accordance with law, and not

to act in any arbitrary manner. The irony of the situation

is striking. After all, it is precisely in conditions of

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